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2004 DIGILAW 923 (JHR)

Shushila Devi Khandelwal v. Santulal Khandelwal

2004-09-09

VIKRAMADITYA PRASAD

body2004
JUDGMENT Vikramaditya Prasad, J. 1. This first appeal has been preferred against the judgment and decree passed in Title Partition Suit No. 103/1985 by the Subordinate Judge. Ill, Jamshedpur, whereby and whereunder a preliminary decree for partition of 1/2 share in the suit properties was directed to be prepared with a further direction that the plaintiff would be entitled to appoint a Pleader Commissioner for demarcating 1/3rd share. 2. The plaintiff-respondent, Santulal Khandetwal. has filed the Title Partition Suit No. 103/1985 against his two brothers, namely, Bhanwar Lal Khandelwal and Ramanand Khandelwal. The father is admittedly dead. It was a suit for partition of his 1/3rd share in the joint family properties by metes and bounds. The suit land consists of a double storeyed building standing over a piece of land measuring 6-1/2 Kathas approximately, appertaining to R.S. Plot No. 1628, R.S. Khan No. 19, Recent Survey Plot No. 146, Municipal Holding No. 127, Station Road, Kashidih, and valued at Rs. 2,50,000/-. Another suit land is a pucca building standing on holding. No. 178B, Baghbera Area, Kashidih in Sakchi, Jamshedpur. According to the plaintiff originally there was a Hindu Undivided Family and in that very stands, Ganpat Khandelwal who was the brother of Surajmal Khandelwal-father of the plaintiff and defendants, had purchased a piece of land with some kutcha structure at Kasidih and with the joint fund of H.U.F, a pucca building was eonstructed and the plaintiff and defendants and their father had half share in the land and house at Kasidih and Ganpat Khandelwal had half share in it. Then 20 years back the land at Kasidih was partitioned between Ganpat Khandelwal and Surajmal Khandelwal and since the said partition, Ganpat Khandelwal remained in his possession of share and Surajmal Khandelwal came to his separate possession as Kacta of H.U.F. consisting of himself and his sons (who are the plaintiffs and defendants) and that H.U.F. is the owner of the properties in suit. After the death of Surajmal Khandelwal. the defendants and plaintiff continued to possess the suit properties described in Schedule A and B. As the father was apprehensive of dispute between the sons, so on 19.2.1977, a deliberation was made as to how the joint family properties should be divided amongst the brother. After the death of Surajmal Khandelwal. the defendants and plaintiff continued to possess the suit properties described in Schedule A and B. As the father was apprehensive of dispute between the sons, so on 19.2.1977, a deliberation was made as to how the joint family properties should be divided amongst the brother. There was no dispute that the Sackhi House and the business carried thereon, which was being looked after by defendant No. 1, Bhanwarlal, shall be separately allotted. In the Schedule A house, in which substantial improvements had been made after taking loan from Bank of India, the Bank had been inducted as tenant on a monthly rental of Rs. 3268/-. The whole of the ground floor minus the common passage and the staircase and two shops and godown situated on the north western extremity of the holding was let out to the bank and had been in possession and control of the bank. It was specifically decided in that meeting that the portion let out to the bank shall be divided half and half between the plaintiff and defendant No. 2, Ramanand, and they would be entitled to share equally the rental income from the bank. It was further decided that out of the two shops and one godown situated on the north eastern corner of the building, the eastern shop and godown attached therewith shall be allotted to defendant No. 2, while the western shop shall go to the share of the plaintiff. The passage and the stair case would remain common between the parties. The aforesaid deliberation was reduced into the writing. which was scribed by the defendant No. 2 himself and the document was duly signed by all concerned namely father, Surajmal Khandelwal, the plaintiff and the defendants. The document aforesaid further provide for division of the first floor amongst the plaintiff and the defendant No. 2 in the manner indicated therein. It was pleaded by the plaintiff that the bank loan was fully paid by the end of the year of the year 1981 and in 1982 and after the death of the father, the defendant No. 2 started creating trouble in order to appropriate himself the entire monthly income from the bank and deprive plaintiff of his due share in the schedule B property. The defendant No. 2 started appropriating the entire income from the bank though the income from the Jugsalai property was added to the income of the firm M/s. Bhanwarlal Ramanand by seriously augmenting its tax liabilities; so using under influence on defendant No. 1 so that he would shoulder" the income-tax liability arisiag out of the income from the Jugsalai house only if the entire portion in which the bank was a tenant was allotted to his share. The defendant No. 1, in order to reduce the burden of income-tax liability of his firm, was also siding with the defendant No. 2 and both of them prevailed upon the plaintiff and persuaded him much against his will to sign the impugned deed of family arrangement dated 1.4.1982 even though its terms contained therein were unconsciousable in nature and contrary to all principle of law and equity. In the aforesaid circumstances, the document dated 1.4.1982 came into existence under machanization of defendant No. 2 and the plaintiffs signature was taken under coercion and duress and the plaintiff could not withstand to fit. Thus, that document is a nullity and void. The further case of the plaintiff is that that document was not acted upon because the portion marked as *C* in the map accompanying the document was to remain joint in the hands of the plaintiff and the defendant No. 2, but the entire area has been let out to the bank and bank is exercising its control over the same and the portion marked as M in the sketch map was to be allotted to the share of the plaintiff but the said area is being used by the bank on which the bank has also installed a generator set and the western half portion of the roof and the first floor was to be allotted to the plaintiff where he could make constructions according to this needs but in the month of June, 1983 the plaintiff col- lected building materials and cement for making construction on the western portion but he was prevented by the defendant No. 2 from doing so. Though in paragraph No. 11 of the plaint, it was stated that the plaintiff and defendants remained in joint possession of the schedule properties, but the aforesaid fact was also alleged by the amendments. Though in paragraph No. 11 of the plaint, it was stated that the plaintiff and defendants remained in joint possession of the schedule properties, but the aforesaid fact was also alleged by the amendments. Then the further case of the plaintiff in paragraph No. 12 is that there was no family partition by metes and bounds, a deed purported to be a memorandum of partition was brought into existence by the defendants by coercion, the defendants got the alleged memorandum of partition executed by the plaintiff, though there was no partition on 31.3.1982 as mentioned in the said memorandum of partition. The said memorandum of partition, according to the plaintiff, is a fraudulent one designed only to deprive the plaintiff of his 1/3rd share in the suit land. The plaintiff was in possession of the northern portion of the first floor of the building described in schedule A, which he was using as his residence and the ground floor was occupied by the bank as tenant, the rent of which was fully realized by the defendant No. 2 and the shops in the ground floor were also in possession of the defendant No. 2, The passage in the north eastern side of the ground floor, which is purported to have allotted to the share of the plaintiff, is also occupied by the bank where they have fitted their generator. To sum up-the real case of the plaintiff then is that there has been no partition by metes and bounds and in the alleged memo of partition dated 31.3.1982 is a family arrangement prepared under coercion, fraud not having been acted upon, by which the plaintiff has been allotted much less share than that to which he is entitled to and to deprive the plaintiff of his legitimate share in the properties described schedule A and B 3. The defendant No. 1 and 2 filed separate written statements. According to defendant No. 1. Bhanwarlal fKhandelwal, the continuance of the joint family status was denied. It was pleaded that it was wrong on the part of the plaintiff to say that he had been deprived of his legitimate share in the partition. The defendant No. 1 and 2 filed separate written statements. According to defendant No. 1. Bhanwarlal fKhandelwal, the continuance of the joint family status was denied. It was pleaded that it was wrong on the part of the plaintiff to say that he had been deprived of his legitimate share in the partition. In paragraph 15, it was said that the quantum of national share of the plaintiff is 1/3rd and that the plaintiff having demanded partition was also denied, According to this defendant, in the year 1977 Surajmal Khandelwal attempted at a partition of the joint family assets and by mutual understanding, the plaintiff and defendants continued in possession of the specific portions of the suit properties and were in enjoyment of the usufracts thereof and his mutual arrangement went till the death of Surajmal Khandelwal in the year 1982. Thereafter differences cropped-up between the brothers, then a partition was made of the entire suit properties by metes and bounds and subsequently on 1st April, 1982, a memorandum was drawn and in the terms of the memorandum dated 1.4.1982, the properties had been partitioned and a prayer was made to dismiss the suit.. In the lifetime of the father, there was no partition. The date of actual partition had not been given in the entire written statement of the defendant No. 1, a particular phase "subsequently on 1st April 1982, a memorandum was drawn up" has been specifically used in paragraph 23 of the written statement. 4. According to the defendant No. 2, there was no joint family business carried on at Jamshedpur by the parties and their father and the father had no concern with any business.With regard to schedule A land, it has been averred by the defendant No. 2 that it was acquired out of his own fund and thereafter building were constructed over the said land this defendant constructed this building on that after taking loan from the Bank of India. A this defendant No. 2 was young at the acquisition of the land at the desire of the father the land was acquired in his name. A this defendant No. 2 was young at the acquisition of the land at the desire of the father the land was acquired in his name. Kashidih land, Schedule B, according to this defendant, was acquired by Ganpatlal Khandelwal and the joint family consisting of the parties and the father had no con- cern with the acquisition of the land; subsequently -pucca building was constructed over the said land with the joint family fund and by amicable partition, the kutcha structures over the said land were given to Ganpatlal Khandelwal. This defendant pleaded that half of share of schedule B property to the suit was allotted to the parties to the suit and not to their father as karta of the joint family and the said property belonged to the parties of the suit, and never belonged to the alleged H.U.F. and during the lifetime of the father, there was separation and disruption of joint family and the partition never took place during the life time of their father. There was complete partition of the suit property on 31.3.1982 and therefore no partition had taken place. On 1.4.1982, it was duly executed by all the brothers, t.e. parties to the suit. The allegation that this memorandum was executed by the plaintiff under duress and coercion had been denied. It was further averred that there were several properties In the name of defendant No. 1 and his wife and son, but this defendant No. 2, in order to purchase peace, agreed to the partition of the suit properties. This defendant would have been benefited if all those properties would have been taken into account. The Bank is exclusively the tenant of the defendant No. 2 and the rent is being realized by him alone and the south-western corner of the verandah was also in occupation of the bank as tenant and is being used as cycle stand for the employees of the bank and the said small room is used as generator room by the bank since long before the aforesaid partition. It was further pleaded that these are shown in the map in the name of the plaintiff. It is actually due to inadvertence. It was allotted to the defendant No. 2. It was further pleaded that these are shown in the map in the name of the plaintiff. It is actually due to inadvertence. It was allotted to the defendant No. 2. It was further stated that the plaintiff is in possession of the southern portion of the 1st floor of the building and not in the northern portion and the entire northern portion of the first floor of the building have been allotted to the defendant No. 2 and he is in possession of the same. The claim of the plaintiff that he did not obtain adequate share in the suit is absolutely false. Ultimately, it has been submitted that the suit properties are not the joint properties and not liable to be partitioned and the plaintiff has no share in the same. Accordingly, he has prayed for dismissal of the suit. 5. The learned trial Court framed the following issues: - (i) Is the suit framed maintainable? (ii) Has the plaintiff cause of action and right to sue? (iii) Is the suit barred by limitation, waiver, estoppel and acquiescence? (iv) Is there unity of title and possession in respect of the suit properties? (v) Is the plaintiff entitled for one third share in the suit properties? (vi) Whether there was any previous partition between the parties in respect of the suit properties In the year 1977? (vii) Whether the alleged subsequent deed of partition dated 1.4.1982 relied by the defendants is obtained under threats and force? 6. The points for determination in this appeal are (i) as the suit has been filed after three years of the document dated 1.4.1982, whether the suit was barred by limitation, (ii) whether the partition as evidenced by the memorandum. Ext. C, is by metes and bounds and whether this memorandum is a deed of partition or whether merely records of partition/ family arrangement, (iii) whether in view of the admission before the ITO, Jamshedpur, for the income statement for the year 1982-83 that the patition had taken place, the plaintiff is estopped from claiming the partition in view of Ext. A/5 and A/2, (iv) whether, without throwing into hotch pot the properties acquired by him the plaintiff, can claim, partition of the joint family properties if he claims that no partition was there on 31.3.1982 and (v) whether without a prayer for declaring the document, Ext. A/5 and A/2, (iv) whether, without throwing into hotch pot the properties acquired by him the plaintiff, can claim, partition of the joint family properties if he claims that no partition was there on 31.3.1982 and (v) whether without a prayer for declaring the document, Ext. C, a nullity and without paying an ad-volerem Court fees therefore, the plaintiff can claim a partition by metes and bounds? 7. I take the point Nos. (ii) and (iii) together on account of their being inter- connected. Before answering these points. it will be .worthwhile to recapitulate the cases of the respective parties. According to the plaintiff, lands of Schedule A and B were joint properties and consequently, he is entitled to 1/3rd share in all the properties whereas, according to the defendant No. 2, the Kasidih property and business running in the name and style of Bhanwarlal Ramanand is his own and only the property of Jugsalai is the Joint property. The Ext. C, which was and is under the scan, of the lower Court as well as of this Court shows that both the business M/s. Bhanwarlal Ramanand and house properties of Kasidih went under this memorandum to the first party of the memorandum, i.e. Bhanwarlal Khandelwal and the land of Jugsalai went to the plaintiff and the defendant No. 1, who are two brothers. Thus, apparently, this memorandum is exactly in terms of the claim of the contesting defendant No. 2 as pleaded in the written statement. Another case is that in the year 1977. there was deliberation and allotment of different properties by the father to the different sons, which according to the defendant No. 1, was an attempted partition, whereas, according to the defendant No. 2, was a simple disruption of the joint status of the family. The plaintiff has pleaded that the document had been prepared in the year 1977 and a question arose that if there was a partition already in 1977, why there was a necessity of another partition in 1981-82. According to the plaintiff, in the year 1977, the family arrangement papers were ascribed by the defendant No. 2 but in his evidence, the plaintiff, PW.8. in paragraph 60, himself said that the partition that had taken place on 19.2.1977 was not acted upon, nor he did know whether any income-tax returns was Tiled in the context of that partition. According to the plaintiff, in the year 1977, the family arrangement papers were ascribed by the defendant No. 2 but in his evidence, the plaintiff, PW.8. in paragraph 60, himself said that the partition that had taken place on 19.2.1977 was not acted upon, nor he did know whether any income-tax returns was Tiled in the context of that partition. When the plaintiff himself admits that earlier partition was not given effect to despite the preparation of the papers, then whether or not this was ascribed by and bears the signature of the defendant No. 2 becomes immaterial, Moreover as defendant Nos. 1 and 2 both are claiming partition in 1982. so by implication they admit that there was as no partition in 1977. This answer the necessity of partition on some later date, which has been claimed to have been make by the defendant No. 2 in the year 1982. 8. The question is whether this Ext. C. is a deed of partition or family arrangement and whether it was in fact acted upon? According to the pleading in the plaint, this document was obtained by persuasion, fraud and coercion upon the plaintiff, the plaintiff being the youngest brother and the other two brothers, defendant No. 2 and defendant No. 1, being elder. Though in the plaint, fraud, coercion and persuasion was alleged, but the particulars of the fraud and coercion, which is required by law to be specific, was not pleaded. Therefore, naturally, the defendant No. 2 had difficulty in meeting that allegation of fraud and coercion. In the case of undue influence, the law is slightly different. If the persons pleading undue influence proves influence and the relationship between the parties are such that one can dominate upon the other, then in that circumstances, the onus of proving that undue influence shifts to the other party but it is not so in the case of fraud and coercion, During his evidence, the plaintiff, Instead of stating fraud or coercion, alleged undue influence stating that the rent that was .received from the Bank frequently was shown in the account of the firm, consequently, there was increase in the tax liability; therefore, defendant No. 1 "persuaded" the plaintiff that in order to lessen the burden of liability of tax, let there be a family partition. Then on 1.4.1982, both these brother came to him and asked him to sign on this paper. Exl. C, and when he did not care, then he was put under mental and social pressure, then the document was signed by him. It is evident that there was no evidence on record on behalf of the plaintiff in order to prove those social pressure or mental pressure put by the defendants. The learned trial Court, while analyzing the evidence, held that since the defendant No, 1 and 2 were elder brothers of the plaintiff and they had failed to discharge the onus of not using undue influence, so Ext. C cannot be said to have been executed out of free will. I have given anxious scrutiny whether undue influence was exercised. This word has not been used in the plaint, but the word, "persuasion has been used. Not taking it technically, it amounts to influence. The plaintiff is 46 year old man and he has his separate factory (paragraph 92 of cross-examination). He is running that as Lalit Gularu Factory, right from the year 1961 and he submits his income tax returns in respect of that, besides this plaintiff has got a number of land in the name of his wife. It is the case that the plaintiff was an immature man or a minor and consequently, he could be influenced unduly by his brothers. It is also not pleaded in the pleadings that after the death of the father in the year 1982, sometimes before the execution of Ext. C, brothers had become karta. Even as a karta one brother is not in a position to dominate the other brothers. Thus, the relation between the brothers were that of equal and merely because one was younger, it cannot be said that the elder was in a position to dominate and influence unduly the younger brother, particularly when it is found on evidence. Therefore, I find myself in disagreement with the learned Courts finding that undue influence was practised upon the plaintiff by defendant No. 2 and consequent thereto, the plaintiff signed on the document, Ext. C. I again examine this matter from another angle. Assuming that the plaintiff was under influence or fraud having been played upon him at the time when Ext. C. I again examine this matter from another angle. Assuming that the plaintiff was under influence or fraud having been played upon him at the time when Ext. C was prepared, but that influence or the fraud, which was known to the plaintiff from the time of execution of Ext. C by him, was allowed to continue by him and he at any time subsequent thereto did not try to get rid of the document by taking recourse of law, rather evidence is that thereafter is that thereafter the plaintiff on a notice, Ext. D, of the Income Tax Department appeared before the Assessor by filling vakalatnama and even at that time, he did not disclose anything contrary to Ext. C that it was obtained either under undue influence or by fraud. He has not even filed any petition in any Court of law for setting aside that Ext. C on the ground of fraud or even he has not informed any authority in that regard and the suit was filed in 1985, three years after that alleged fraud, undue influence, coercion. When he was confronted with the signature on the document, Ext. C, which is admitted, vide para 15; he was confronted with Ext. B, which has already been filed by the plaintiff before the Income Tax Officer. He admits his signature but says that it was taken under pressure. He was confronted with the vakalalnama, Ext. B/1, which he filed before the Income Tax Officer on 25.2.1983, he admitted his signature but with the same reply that it was taken under pressure, he was again confronted with the reply that was submitted with the income-tax, he accepted his signature but with the same answer that it was taken under pressure. Even during the years after execution of Ext. C, the plaintiff went on taking steps in conformity of the Ext. C in the Income-tax Department. The question arose whether during all this long period, the plaintiff was under the pale of influence or victim of fraud and coercion. In absence of any steps having been taken by him to get rid of all these, the answer in my view is No. On consideration of above, I am of the considered view that the signature on Ext. In absence of any steps having been taken by him to get rid of all these, the answer in my view is No. On consideration of above, I am of the considered view that the signature on Ext. C and on subsequent petition (supra) is neither the product of undue influence having been asserted by the defendants, nor of fraud or of coercion. Learned trial Court considered the fact that the Ext. C, at the intervention of the family friends and well-wishers, was prepared but no family friend or well-wisher was examined by the defendants and this became a cause of interference of the learned trial Court that this was a genuine one. If the plaintiff says that. a particular document is not genuine and has been obtained in the manner as pleaded by him, then the onuslies on him and not on the defendants to him genuinity of the document. It was the duty of the plaintiff to bring witnesses of that deed or even after it was executed even some persons to show that it was under pressure or fraud or coercion but on the record no witness has been examined on this point by the plaintiff. In my opinion, the learned trial Court shifted the onus of proving the genuinity of Ext. C on defendants wrongly. 9. The question now is what is the nature Ext. C- whether It is a deed of partition or simply a family arrangement prepared for memorizing the partition that has already taken place or postulating the things that were going to take place. Learned trial Courl has that it is not a deed of partition. The trial Court gave two reasons : (i) it has been prepared within few hours of the alleged past partition and (ii) it is not possible during few hours these stipulations made in the document, were given effect to and the parties changed their position. On evidence, I also find that there is very small time gap between the alleged partition and the preparation of this document, and therefore, I agree with the view expressed by the learned trial Court and consequently hold that the document was not, in fact, a deed of partition, which has already been taken place and more so, not being registered It cannot be admitted as deed of partition. Therefore, this document hardly becomes a family arrangement not requiring registration and could be considered only for collateral purposes. When a family arrangement is made, it is not necessary that it should be implemented forthwith. Share is defined and in giving effect to such share, it may take sometime, of course reasonable time. Collateral does not mean a price accruing, extinguishing or declaring the rights of the parties, but other than those things have been held to be collateral purposes. In the circumstances of the case, two things will indicate collateral purposes (i) steps taken by the parties before the Income-tax and (ii) in terms of this arrangement, possession of shared property taking place leading to a conclusion that this family arrangement was given effect to. With regard to first collateral purpose, the discussion has been made above, second aspect is now considered. Learned trial Court found that it was not possible that within a few hours of the alleged previous partition and consequent preparation of the memorandum, the parties changed the physical possessions in terms of the Ext. C. It also came to find that this was not given effect to as the parties were not possessing the land as per Ext. C even at the time of their evidence. Learned trial Court also considered the map, which was annexed to the Ext. C and it found that the share given to the plaintiff was much less apparently and consequently held that this document was not given effect to. The significant aspect in this case is that no independent witness of the locality had been examined at least to prove the respective possession either prior to the date of execution of Ext. C or thereafter. They would have corroborated the case or negatived the claims of the parties. Admittedly, only three witnesses-plaintiff, defendant No. 1 and defendant No. 2 were examined on substance rest are formal witnesses?. Obviously they are highly interested to prove their own cases. Therefore, It is difficult to accept the version of any one, Thus the plaintiff, PW.8 in paragraph 7 says that the portion marked M in the map attached to Ext. C, which was shown in the memorandum to be in his possession has never been to him, rather in that portion there is a generator of the Bank. Therefore, It is difficult to accept the version of any one, Thus the plaintiff, PW.8 in paragraph 7 says that the portion marked M in the map attached to Ext. C, which was shown in the memorandum to be in his possession has never been to him, rather in that portion there is a generator of the Bank. Again the plaintiff says in the same paragraph that the portion marked C in the map is common which is shown in favour of the plaintiff as also defendant No. 2, But the defendant No. 2 has let it out to the bank. Then in the same paragraph he also says that this partition was not acted upon. Again in paragraph 8 he says that he was given some share in the first floor but in the year 1985, when he had gone to make some construction, he was not allowed to do so by the defendant No. 2. Thus, he retreated that this was not acted upon. In cross- examination, he says that in the second floor of the house he lives and he enjoys it. In paragraph 21, he says that in the year 1977, he or Ramanand was not given any property in Jagsalai, i.e. Schedule A to the Ext. Cland. He also says that in that very paragraph that in Schedule A land he lives on the second floor and uses it, but in that schedule A land, Ramanand has got larger share than him and in his possession, there is altogether 11 rooms whereas in possession of Ramanand there are 16 rooms and the open space roof is in joint possession of Ramanand and plaintiff. Though he has not denied the possession but said that according to 1982 partition, possession was not given of their respective shares. It will be relevant to note that the plaintiff has used ,the term Schedule A, whether he means that Schedule A as given in trial or the Schedule A in Ext. C is not clear. I will examine it after examination of the evidence of the witnesses. 10. Now DW 1 Bhanwar Lal says that as per the arrangement made on 27.1.1982, he got share in Kushidih. As per schedule B of the memorandum of partition, Schedule B was land given to Ramanand and the plaintiff. Now this DW 1 is against that memorandum apparently. I will examine it after examination of the evidence of the witnesses. 10. Now DW 1 Bhanwar Lal says that as per the arrangement made on 27.1.1982, he got share in Kushidih. As per schedule B of the memorandum of partition, Schedule B was land given to Ramanand and the plaintiff. Now this DW 1 is against that memorandum apparently. He says in para 5 that in the income-tax, he had made protest but he has not any paper in support of that. He again says that on 1.4.1982 there was a deed prepared on the same day but why this paper was made is not known to him. In para 7, he says that ground floor of Jugsalai house is in possession of Ramanand and the back portion of the first floor in plaintiff. He has admitted that in 1982 the land of Jugsalai, which was given in his share. He says that in 1982 the plaintiff did not get 1/3rd share (para-9). 11. Now I take-up the evidence of defendant No. 2, who is the contesting defendant. He claims Schedule A land of the plaint as his own acquisition and claims to have built building thereon after taking loan from Jugsalai branch of the Bank. But he admits that Kasidih is a joint family land. He also says that the deed of partition, Ext. C, was prepared on the same day, i.e. on 1.8.1982 and after this partition, he is in possession of his land and he could say us to the possession of other brother. But on insistence and leading question, he says that all of them are in their respective possession of the parties. This defendant also claimed that after the partition in 1982 he got his land mutated in his name in holding and is paying rent thereof, but no document has been produced in support thereof. He says in para 23 with regard to valuation of Kasidih property that no valuation was made. But Bhanwar Lai was also given 1/3rd share in the land. He says in para 23 with regard to valuation of Kasidih property that no valuation was made. But Bhanwar Lai was also given 1/3rd share in the land. To a Court question, be admitted that he has extended the lease of the Bank situated on Jugsalai land for 15 years and some portion of the bank is also show to be in possession of the plaintiff and in that he has also included the share of the plaintiff measuring 4" x 20 of land and admits that in 4" x 20" portion; there is a bank Generator room. There is no case by the plaintiff that he has also extended the lease of his portion to the Bank. From this question, it is clear that this defendant No. 2 is still exercising the control over the land allegedly allotted to the plaintiff on record as per Ext. C and thus, the claim of the plaintiff that despite that, that has not been acted upon gets support. Again in para 26, he claims the entire staircase in his possession. In paragraph 26, again he admits that on the ground floor this defendant has got an area of 28 x 23, whereas in the back portion of the ground floor, the plaintiff is given 4" x 20" and he admits finally that in Jugsalai land, Ext. C, the plaintiff has got 1/4th share. Again in paragraph 27, he says that in Jugsalai land which is in front of road and the land which is in the backside of the house, both have got some valuation, Yet this defendant says that valuation of Kasidih property is Rs. 10 lacs and the highest valuation of the "land was given to Bhanwar Lai and the least valued property was given to him. From this, it is clear that the properties that were shared under Ext. C were not proportionate to the respective share, that is 1/3rd share. It is also found after even after the said arrangement, the defendant No. 2 has exercised his control over the land allotted to the plaintiff and as per his own admission, the plaintiff has plaintiff has got 1/4th share in Jagsalai and that too,, in the back portion. In a business place, valuation of land on the front portion is higher valuation for this can reasonably be expected than that of the back portion. In a business place, valuation of land on the front portion is higher valuation for this can reasonably be expected than that of the back portion. There is nothing in the Ext. C to show that for the disproportionate share, the party who got the lesser share (/4th to plaintiff) was compensated by money or the land allotted to him was of higher value than that allotted to others. The learned trial Court had, therefore, rightly held that the share was not as per the rights and the plaintiff was given small portion. 12. Defendant No. 2 claimed that Jugusalai land was purchased by him; he constructed house thereon by taking bank loan and in this connection, certain sale deeds were produced. But it was admitted in the evidence that the land was purchased in the name of the father, Kerayanam of the Bank and the loan therefor taken also stood in the name of the father and the defendant No. 2 was given the power of attorney. In the evidence of defendant No. 2, it is not proved that at the relevant time, when the alleged Jugsalai land was purchased in the name of the father, the defendant No. 2 had got his independent source of income and he purchased the land though it stands in the name of the father, rather the evidence is that the price, of the land was paid by the grandmother of the defendant. Therefore, the claim of the defendant No. 2 that jugsalai land was his exclusive property as pleaded in the pleadings as also in examinatibn-in- chief is not substantiated and this entire land appears to be a joint family property. Consequently, it is held that on consideration of all these, so far the collateral purpose is concerned, for lessening the income-tax liabilities, all the three brothers connived and made a joint countenance before the income- tax authorities making out a case of total partition and Income Tax authority Under Section 171 of the Income-tax Act (Annexure-1 to the I.A.No. 1607/04 filed by the appellant) acted upon it. 13. Section 171(2) provides that the Assessing Officer has to give notice and thereafter conduct an enquiry. Section 171(3) provides that after completion of the enquiry, he shall record whether there has been a total or partial partition of the joint family property. 13. Section 171(2) provides that the Assessing Officer has to give notice and thereafter conduct an enquiry. Section 171(3) provides that after completion of the enquiry, he shall record whether there has been a total or partial partition of the joint family property. A finding was arrived at that there nothing against the H.U.F, which goes to show that genuine total partition has not taken place in the old H.U.F and the partition is accepted from the last date of accounting year i.e. 31.3.82. For the purpose of Section 171 of the incometax Act, something more is required than what is required for a partition under the pure Hindu Law and a clear finding has to be given that there is partial or total physical partition. The aforesaid section does not provide the mode of the enquiry but it definitely provides that this enquiry has to be conducted after noticing all family membe.rs. Here it appears that only the statement of the members were made before the Assessing Officers; on perusal of this Ext. C, the aforesaid order was passed. Enquiry for the purpose requires some thing more than the above, particularly when objective finding of physical partition is the mandate of law. I will not comment on the order because it is beyond the jurisdiction of this Court, but I am of the view that in this enquiry, this finding is based on the statement that was made by the three interested brothers and the documents that were produced. In order to get rid of some tax liabilities, the parties do design their own methods conscionable or unconscionable. Here in my limited issue it appears that so far the collateral purpose of partition under Hindu Law is concerned, it has not been fulfilled for the simple reason that even after many years of the partition as evidenced, the properties had remained under dominating possession and control of defendant No. 2 and even in the Jugsalai lands. Schedule B property, the plaintiff was given only 1/4th and than too in the back portion. No separate holding was erentcd. Therefore, I have no hesitation in holding that this family arrangement was not given effect to even after many years of the postulated partition. As it is not the deed of partition, this is family arrangement. Schedule B property, the plaintiff was given only 1/4th and than too in the back portion. No separate holding was erentcd. Therefore, I have no hesitation in holding that this family arrangement was not given effect to even after many years of the postulated partition. As it is not the deed of partition, this is family arrangement. Thus, in my considered opinion, this family arrangement was a sham deal only to avoid income-tax liabilities in which the plaintiff had also hands in gloves. The interesting aspect of the matter is that when the plaintiff in his attempt himself became the prey of his own oblique design and his share was not equal. Even if the plaintiff is unclean, his right to property under the Hindu Law cannot be defeated. Consequently, it can be held that the partition within the meaning of Hindu Law has not taken place. As the actual issue of partition was not decided on merit by the Income-Tax Officer and the issue was not decided on evidence and on due inquiry the request was collusive, Ex. C being sham, the plainr tiff who did not make such statement before the Court competent to decide partition as per Hindu Law, is not estopped frdm claiming his substantial right, All these issues are decided accordingly and against the appellant. 14. Point No. (iv)-As in fact there was no partition by Ext. C the question of throwinghis other properties by the plaintiff does not arise. When the reopening of partition is demanded, but then such throwing is required when there is no partition, the question of its reopening does not arise. This point is determined against the appellant. 15. Point No (1) and (v).-Ext. C is not a deed of partition. This being a family arrangement, it does not create or extinguish the right in favour or against the parties; therefore, consequently the question of a declaration that it is not a valid document does not arise, more so because in respect of 1977 document inter se between the parties no such plea has been taken by the appellant. For the same reason the question of limitation does not arise. 16. Both the points are answered accordingly and against the appellant. In the result, this first appeal is hereby dismissed on contest with cost.