Madhya Pradesh High Court
Smt. Krishna Bai And Ors. vs Shivnath Singh And Ors. on 8 September, 1992
Equivalent citations: AIR1993MP65, AIR 1993 MADHYA PRADESH 65
Author: D.M. Dharmadhikari
Bench: D.M. Dharmadhikari
JUDGMENT D.M. Dharmadhikari, J.
1. The suit filed by the appellants/plaintiffs was dismissed by both the Courts below. The plaintiffs as members of the joint Hindu family claimed a declaration in the suit that the registered gift deed dated 14-4-1969 (Ex.P.1), executed by defendant No. 1 Bir Bahadur Singh in favour of defendant No. 2 Vishram Singh (who was sister's son of the donor), was invalid in law as the suit land which is the subject matter of the gift was an item of joint Hindu family property and could not be transferred without the consent of the other members of the family as per the Benaras School of Mitakshara Hindu Law, applicable to the Vindhya Pradesh region. The defendants set up a case of partition between the members of the family which was accepted by the lower appellate Court and it was held that Bir Bahadur Singh could validly make a gift of the suit land which was his separate property obtained by him in partition. Apart from the documents in the shape of revenue records and oral evidence of partition, the partition was sought to be proved on the basis of the partition list Ex.D.2 said to have been prepared by the parties as evidenced by receipt Ex.D. 1 regarding entrustment of such partition list to the parties to the partition. The receipt mentions the date as Ashadh Badi 14 Samwat 2009, which the parties agree would be a date some times in July 1952 as per the English Calendar.
2. The learned counsel for the appellants in this appeal raised two questions of law based on the partition list Ex.D.2 and the gift deed Ex.P.1. The question framed for decision in this appeal are as under:--
(1) Whether the lower appellate Court committed an error in treating Ex.D.2 as the list of memorandum of partition instead of a deed of partition requiring compulsory registration?
(2) Whether the gift deed Ex.P.1 is void in respect of the disputed lands in village Gondari?
3. The learned counsel appearing for the appellants placed reliance on the decision of the Supreme Court in the case of Siromani v. Hemkumar, AIR 1968 SC 1299 : 1968 MPLJ 792 and in the case of Raj Kumar Rajindra Singh v. State of Himachal Pradesh, AIR 1990 SC 1833; Deo Chand v. Shiv Ram, 1970 MPLJ 371, in support of his contention that since the document Ex.D.2 is not a memorandum of any previous partition, but a document of partition effected in metes and bounds between the parties it is inadmissible in evidence under Section 17 of the Registration Act for want of its registration. On the basis of the above contention, the learned counsel for the appellants argued that the suit lands held by the members of the family will have to be treated as held jointly as members of coparcenary or a joint Hindu family and the defendant Bir Bahadur Singh as per the Hindu Law applicable to the coparcenary in Vindhya Pradesh region, was incompetent to make a gift of his undivided share in the property without consent of the other coparceners.
4. The learned counsel appearing on behalf of the defendants submits that even if the document Ex.D.2 containing list of items of suit property divided between the members of the family is held to be inadmissible in evidence for want of registration, the said document can be used for a collateral purpose of proving that the coparcenary had disrupted because of the intention expressed by the members to divide the property.
5. The second argument is that even if unregistered document Ex.D.2 is ignored, there is overwhelming evidence in the shape of revenue record and the oral evidence led by the parties to show that the members of the family, on the basis of the unregistered document of partition Ex.D.2 had actually taken separate possession of the lands allotted to them and had thereafter been cultivating the same separately and paying land revenue also separately of those lands. It is urged that such evidence of partition is not shut out or barred by the provision of Sections 91 and 92 of the Evidence Act, only because the list of partition Ex.D.2 is unregistered. Reliance is placed on the following decisions :--
(i) Mt. Kusmi v. Sadasi Mahto, AIR 1942 Patna 432; (ii) Nandlal Mahton v. Dhanukdhari Mahton, AIR 1924 Patna 244.
Reliance has also been placed by both the parties on the decision in the case of Shripatidas v. Raj Kumar Das, L.P.A. 18 of 1959, decided on 24-1-1961, 1962 MPLJ (SN) 63.
6. I have duly considered and weighed the rival contentions addressed by the learned counsel for the parties on the legal questions before me and have also perused the relevant decisions cited on either side. Before I decide the legal questions framed for decision in this second appeal, it may be stated that the learned counsel for the parties did not dispute that the Hindu Law of Benaras School is applicable to Vindhya Pradesh region and if the suit property formed part of a coparcenary property, one member of the coparcenary was incompetent to make a transfer of his undivided interest in the property without the consent of the other coparceners. My attention was invited to the decision of Judicial Commissioner of Vindhya Pradesh in the case of Lt. Col. W.S. Nene v. Mahadeo Vishnu, AIR 1952 VP 20. In this decision the Benaras School of Law as applicable to Uttar Pradesh has been applied to Rewa State in Vindhya Pradesh region. It has, therefore, to be held that defendant Bir Bahadur Singh was competent to make a gift of the suit land only if there was a disruption of the coparcenary and the property gifted was his separate property received by him in partition. The Division Bench decision of this Court in the case of Shripatidas (supra) and in the case of Siromani (supra), fully support the contention of the learned counsel for the defendants that although a document may be inadmissible in evidence for want of its compulsory registration, but such a document can be used for a collateral purpose to prove the intention of the coparceners to become divided in status and that they had ceased to be joint from the date of the instrument. The two documents, therefore, on record i.e. the unregistered partition deed Ex.D.2 and the receipt executed by the parties Ex.D.1 exchanging list of partition, is a sure proof of disruption of the coparcenary. The transfer by Bir Bahadur Singh under the gift deed, therefore, could not be held invalid as per the Hindu Law applicable to Vindhya Pradesh region and there was no necessity to seek consent of the other persons for the said transfer.
7. The second question that needs decision is whether the evidence other than Ex.D.2 being the unregistered partition list could be looked into to hold that there was a division by metes and bounds of the property held by the members of the joint Hindu family of the parties. The two decisions of Patna High Court relied upon by the learned counsel for the defendants fully support his argument that although the partition list being an unregistered document is inadmissible in evidence, the oral evidence to prove separation in status of the parties and an agreement between them to enjoy the joint family property in separation can be proved and is not hit by any bar contained in Section 91 of the Evidence Act.
8. In the case before me the revenue records i.e. Kist bandi Khatoni Ex.P.2 and Ex.P.3 and Khasra Panchasala, show that the members of the family were recorded as holding the lands as having been divided to the extent of their 1 / 3rd, 1 /4th or 1 / 6th share, as the case may be. The record also shows that the members so separated were paying the land revenue separately to the extent of their share in the lands. This piece of evidence coupled with oral evidence of the witnesses examined by the defendants unmistakably show that consequent to their separation of status in the year 1952, the parties had come into possession of the lands allotted to them in partition separately and were cultivating the same separately as also paying the land revenue separately. On the date of execution of the gift deed, Ex.P.1, the defendant Bir Bahadur Singh was thus holding the suit land as his separate property received by him in a family partition of the year 1952 and was, therefore, competent to make a valid gift of the same in favour of his sister's son.
9. The argument advanced by the learned counsel for appellants does not appear to be correct that since the document of partition is rejected as inadmissible in evidence, the oral evidence was also inadmissible to prove the partition. The learned counsel for the respondents appears to be right in submitting that if the partition was acted upon between the parties and has actually been carried out, the effect of such conduct on the part of the parties can be proved by oral evidence although the document evidencing the partition is inadmissible for want of registration. The decision of Patna High Court in the case of Nandlal Mahton (supra), relied upon by the learned counsel for the respondents fully supports their case. A similar question had arisen there and was answered in the following words (at page 244 of AIR Patna) :.---
"It was pointed out in that case that when men agree to preserve by writing the remembrance of past events of which they wish to create a memorial either with a view to lay down a rule for their own guidance, or in order to have in the instrument a lasting proof of the truth what is written, the truth of the written acts must be established by the acts themselves, that is, by the inspection of the original. It was also pointed out that if the document was inadmissible in evidence oral evidence was wholly inadmissible. So far as the first point which has been urged before us by Mr. Jaiswal is concerned, it must succeed.
But the decision on this point by no means concludes the case. The learned Judge in the Court below has come to the conclusion that the partition was acted upon between the parties and that the agreement to partition the properties has been carried into effect. It is well established that a partition may be found upon the actings of the parties though it may be that the act itself was not clothed in the formalities required by law."
In the aforesaid case of Patna High Court, similar evidence regarding an unregistered partition having been given effect to by the parties and evidenced by Choukidari register was relied upon to hold that the partition was duly proves, although the document of partition was unregistered. I rely on the following passage in the case of Patna High Court of Nandlal Mahton (supra):--
"All the different documents completely support the case of the defendant that the agreement between the parties was carried into effect. In my opinion, we are entitled to give the defendant relief upon the equities that arise out of the actings of the parties though it is quite impossible to give him any relief upon the document itself."
10. In view of the discussion aforesaid this second appeal fails and the dismissal of the suit by the two Courts below is hereby confirmed. In the circumstances, however the parties shall bear own costs of this appeal.