Patna High Court
Kali Sao And Ors. vs Smt. Shanti Devi And Ors. on 7 February, 2001
Equivalent citations: 2001(1)BLJR705
Author: S.K. Katriar
Bench: S.K. Katriar
ORDER S.K. Katriar, J.
1. Heard learned Counsel for the appellants and the respondents.
2. The defendants are the appellants against a judgment of reversal. This appeal is directed against the judgment dated 14.7.99, passed by the learned 1st Additional District Judge, Nalanda at Biharsharif, in Title Appeal No. 40 of 1987 Smt. Shanti Devi and Ors. v. Sri Kali Sao and Ors. A brief admitted genealogy of the parties is set out hereinbelow:
Muni Sao (Plaintiff No. 3) | | Kali Sao Ram Chandra Sao (Deft. 6) Mahendra Sao (Deft. 7) Deft. No. 1-App. No. 1 wife is deft No. 2 Shanti Devi (wife) Manki Devi (Pl. No. 9) (Pl. 1) (wife) Pappu (minor son Deft. 11) Dharmendra Dihrendra Devendra Deft. 3 Deft. 4 Deft. 5 Dharmvira Gautam Navin Deft. 8 Deft. 9 Deft. 10
3. The plaintiffs instituted Title Suit No. 83/1984 in the Court of 1st Subordinate Judge, Nalanda at Biharsharif for declaration that the order dated 10.5.1984, passed by Executive Officer, Biharsharif Municipality in Mutation Case No. 511/1983-84 is not binding on the plaintiffs. The plaintiffs' case was that the suit property was self-acquired property of Munni Sao (plaintiff No. 3), and he had right, title and interest with respect to the same. He had executed a registered deed of absolute sale dated 9.7.83 (Ext. 2) with respect to the suit property, in favour of plaintiffs No. 1 and 2, who are daughters-in-laws. Defendant No. 1 (Kali Sao), who is the eldest son of Munni Sao had, without any right, title and interest, got 1/3rd of the suit property mutated in the name of his wife (defendant No. 2) in the revenue records.
4. On the other hand, the case of defendant Nos. 1 to 5 is that a partition had taken place between the parties on 16.12.78 (Ext. 6 equivalent to Ext. E), in which Munni Sao had given 1/3rd share each to the three sons and he had not retained anything for himself except maintenance. Pursuant to the aforesaid deed of partition, defendant No. 1, Kali Sao, had got the name of his wife mutated in accordance with the document of partition.
5. The suit on contest was dismissed. The trial Court held that the document of partition (Ext. 6 equivalent to Ext. E) is a valid and enforceable document and, therefore, defendant No. 1, Kali Sao (Appellant No. 1 herein) is entitled to his share in accordance with the document of partition.
6. The plaintiffs' appeal has been allowed on the ground that the aforesaid document of partition required compulsory registration within the meaning of Section 17(1)(b) of the Registration Act, 1908. In that view of the matter, the document of partition cannot be said to be admissible in evidence, and that being the only evidence in favour of defendant No. 1 as the claim for 1/3rd share in the suit property, the same has no legs to stand. The appeal was accordingly allowed.
7. The present appeal at the instance of defendant Nos. 1 to 5 has been preferred against the judgment of reversal passed by the Court of appeal below while assailing the correctness of the impugned order, learned Counsel for the appellants submits that it is against a judgment of reversal. He next submits that the learned Court of appeal below has erred in construing the document of partition. Interpretation of a document raises mixed questions of law and facts and is fit to be entertained in the second appellate jurisdiction. He lastly submits that the document of partition in the facts and circumstances of the case does not require compulsory registration.
8. Learned Counsel for the respondents has submitted that the issues are concluded by findings of facts. He has placed before me the document of partition in an effort to satisfy the Court that it is clear from the recital therein that the same does not need compulsory registration. He has relied on the judgments of Supreme Court reported in AIR 1988 SC 881 and a division bench judgment of this Court Ramnagina Sah v. Hahhar Sah.
9. Having considered the rival submissions, I am of the view that the issues are concluded by findings of facts. Learned Counsel for the respondents is right in his submission that it is manifest from a plain reading of the document of partition that it was a document of partition in contra distinction to a memorandum of partition. On a perusal of the document of partition, I am convinced that the act of partition and the document were contemporaneous acts and, therefore, requires compulsory registration. In other words, the partition had taken place by the document itself. It was not a case that the partition had orally taken place earlier and the document was only for recapitulation of the terms of partition. Learned Counsel for the respondents has rightly relied on the aforesaid judgments of the Supreme Court and this Court. The following portion from paragraph No. 11 of the judgment in Ramnagina's case (supra) is set out hereinbelow:
A partition of immovable properties between coparceners or co-owners can be made orally and is not required to be in writing; but, if there is an instrument effecting a partition of immovable properties, it comes under Section 17(1)(b) of the Registration Act and is compulsorily registrable under that clause. But partition lists merely recording what had already happened are not registrable.
I, therefore, agree with the findings of fact recorded by the learned lower appellate Court that the document in question requires compulsory registration in terms of Section 17(1)(b) of the Registration Act. In that view of the matter, the document of partition becomes inadmissible in evidence. There is no other evidence in favour of the appellants herein in proof of partition, and their claim as set up in the written statement fails.
10. Another aspect of the matter which deserves consideration is with regard to the position which emerges after it is held that the document of partition dated 16.12.78 (Ext. 6C is equivalent to Ext. E) is inadmissible in evidence. The property in question is self-acquired property of Munni Sao (Plaintiff No. 3). In that view of the matter, he was free to alienate the same in favour of any body which he has done by registered deed of absolute sale dated 9.7.83 (Ext. 2), whereby he has sold the suit property in favour of plaintiff Nos. 1 and 2, who are, in fact, his daughters-in-law. This document has not been assailed in the suit and therefore, for this reason also, it has become final and binding on all. Title of the suit property has, therefore, passed on plaintiff Nos. 1 and 2, who, in their turn, were free to alienate the same as per their own volition, which they have done by registered deed dated 6.7.91 in favour of respondent No. 3 herein during the pendency of the proceedings before the trial Court.
11. In the result, the appeal is dismissed.