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2004 DIGILAW 925 (JHR)

Priya Ranjan Bhagat v. Pradeep Kumar Bhagat

2004-09-09

HARI SHANKAR PRASAD

body2004
JUDGMENT Hari Shankar Prasad, J. 1. This appeal arises out of the judgment dated 3.9.1991 and decree dated 13.9.1991 passed in Title (Partition) Suit No. 86 of 1988 whereby and where under the learned Subordinate Judge, V at Ranchi decreed the suit in part in favour of the plaintiffs. 2. The case of the plaintiffs-appellants in brief is that Lachan Lal Bhagat was the common ancestor of the parties and he had sixty acres of agricultural land in different villages in Ranchi District. Out of income from agricultural and non-agricultural properties, he on 20.4.1934 acquired ten kathas of land in Old Commissioners compound mentioned in Schedule-B of the plaint in the name of Nandlal Bhagat who was his only son and the building was constructed over the said land. After the death of Lachan Lal Bhagat in 1956 and soon thereafter Nandlal Bhagat too died on 13.10.1973 and after death of Nandlal Bhagat, who left behind him three sons namely, Santosh Lal Bhagat, Mahendra Lal Bhagat and Ranjit Lal Bhagat. His one son Basant Lal Bhagat pre-deceased him in 1969 leaving behind his widow Santi Devi DW 6 and five sons namely Pradeep DW 1, Promod DW 2, Jayant DW 3, Ashok DW 4 and Alok DW 5 as shown in Schedule-A of the plaint. On 20.4.1959 one Katha seven Chatar and 27 Sqr.ft of land of plot No. 1458 (Part) Ward No. VII within the Ranchi Municipality situated at Burdwan Compound was acquired out of joint family fund and from the contribution made by the earning members of the joint family property which has been shown in Schedule-D of the plaint, It is alleged that there was partial partition of the Schedule-B property by a registered deed dated 30th July 1968 and the properties remained joint of Schedule-B has been described in Schedule-C. In 1971 another partial partition amongst the descendants of Lachan Lal Bhagat took place with regard to agricultural land except Schedule-E property. After death of Nandlal Bhagat, properties described in ScheduleC, D and E of the plaint remained joint and partition of these properties has been sought for. Plaintiffs made his father as defendants No. 9 but he did not take interest in ancestral properties and, therefore, defendant Nos. After death of Nandlal Bhagat, properties described in ScheduleC, D and E of the plaint remained joint and partition of these properties has been sought for. Plaintiffs made his father as defendants No. 9 but he did not take interest in ancestral properties and, therefore, defendant Nos. 1 to 8 taking advantage of such nature of defendant No. 9 deprived the plaintiffs from their legitimate interest in the ancestral joint family properties which was mentioned in Schedule-C, D and E of the plaint and the father of the plaintiffs who is defendant No. 9 remained in clutches of the defendant Nos. 1 to 8 and plaintiffs could not get legitimate and equitable shares in the partial partition effected in the year 1968 and 1971 respectively when they were minors. The plaintiffs share in the joint family properties could not have been separated by defendant No. 9, their father. Plaintiff No. 1 in the year 1985 was enrolled as an Advocate at Ranchi and plaintiff No. 2 who was student, came to Ranchi in 1985 and demanded partition from the defendants who did hot pay heed to his request and, therefore, cause of action arose on 10th August 1987, then suit was filed on 7.9.1987 before the Subordinate Judge, Khunti. The plaintiff claims l/8th share in Schedule C, D and E property, although during trial Schedule- F, G and H have been added but no relief have been sought with regard to these three Schedules. 3. Defendant No. 1 to 6 filed a joint written statement stating therein that there is no unity of title and possession of the parties over the suit land. They have denied that Lachan Lal Bhagat had any agricultural as well as non- agricultural properties in the village Shaheda, Baxidih and Jospur within the P.S. Ormanjhi but Nandlal Bhagat had acquired the properties worth nine acres in village Jospur, 2.62 acres of land in village Baxidih and 4.58 acres of land in village Shaheda and he had purchased the Schedule-B property and constructed a double storeyed building over the same out of his own earning and personal income. On 30.7.1968 he made a registered partition amongst himself and his four sons and all got separate possession except the properties shown in Schedule-C of the plaint which remained unpartitioned due to the nature of the property and remained for common use. On 30.7.1968 he made a registered partition amongst himself and his four sons and all got separate possession except the properties shown in Schedule-C of the plaint which remained unpartitioned due to the nature of the property and remained for common use. There was an agreement that the rent collected from the southern block of Schedule-B house which contains stairs on the ground floor and two flats on the upper floor will be used to pay the municipal taxes but branch started with the agreement after the death of Nandlal Bhagat, hence in the year 1975 an agreement was arrived at in between the defendant Nos. 6 to 9 that the lower portion of the southern block will be made two units whereas upper portion will also be made two units and each of the units will be given to each of the four brothers or their children and they will collect rent from their units and accordingly, all the four sons are in exclusive possession of their separate units of the southern block of the house. 4. Schedule-D property was purchased by defendant Nos. 7, 8 and 9 and their brother Basant Lal Bhagat from their own personal income for a sum of Rs. 14,500/- in the name of Mahendra Lal Bhagat (defendant No. 8). After the alleged purchase, defendant No. 9 who is father of the plaintiff made request for refund of his contribution and purchased his shares. Later, there was a written consent made by the defendant No. 9 and there was a registered family settlement between Nandlal Bhagat, Basant Lal Bhagat, Santosh Lai Bhagat, Mahendra Lal Bhagat, Ranjit Lal Bhagat and Pradeep Kumar Bhagat by which l/4th share in the house was given to defendant Nos. 7 and 8 each whereas the remaining 1/2 share belonging to Basant Lal Bhagat was given to Pradeep Kumar Bhagat as Ranjit Lal Bhagat disclaimed his entire interest in that land. After the said partition, the defendant No. 1, 7 and 8 came in their respective possession. Schedule-D property was alleged to have been purchased by defendant No. 7, 8 and 9 and their brother Basant Lal Bhagat from their own personal income for a sum of Rs. 14,500/- in the name of Mahendra Lal Bhagat (defendant No. 8). After the said partition, the defendant No. 1, 7 and 8 came in their respective possession. Schedule-D property was alleged to have been purchased by defendant No. 7, 8 and 9 and their brother Basant Lal Bhagat from their own personal income for a sum of Rs. 14,500/- in the name of Mahendra Lal Bhagat (defendant No. 8). After the alleged purchase, defendant No. 9 who is father of plaintiff, made a request for refund of his contribution to meet his urgent need and Basant Lal paid his contribution amount to him and purchased his share. With the written consent of defendant No. 9, there was a Registered family settlement between Nandlal Bhagat, Basant Lal Bhagat, Santosh Lal Bhagat, Ranjit Lal Bhagat and Pradeep Kumar Bhagat, Mahendra Lal Bhagat by which l/4th share in the house was given to defendant No. 7 and 8 each, whereas the remaining 1/2 share belonging to Basant Bhagat was given to Pradeep Kuamr Bhagat as Ran) it-Lal Bhagat disclaimed his entire interest in that land. After the said partition, the defendant No. 1, 7, and 8 came in their respective possession and made construction of their houses in their respective portion of land from their own income. Further case of the defendant No. 1 to 6 is that on 1.10.1971 Nandlal Bhagat (Late) and defendant No. 6 to 9 got the entire agricultural land of village Jamundag partitioned amongst different heirs of Nand Lal Bhagat and all the sharers came in exclusive possession since then. The land shown in Schedule-E was already partitioned amongst the heirs of Nandlal Bhagat. In partition dated 1.10.1971, the land allotted to Nandlal Bhagat is available for partition after the death of Nandlal Bhagat as shown in Schedule-III of the written statement. It is further stated that lands situate in village Jaspur Shaheda and Buxidih are available for partition as shown in Schedule-FV of the written statement. The defendant No. 9 preferred Title Suit No. 157/87 before Sub-Judge, Ranchi but he withdrew the same unconditionally. The plaintiffs were duly represented in 1968-69 and 1971 partition through their father and natural guardian and their interest were protected. It is further stated that Schedule-C, D and E property are also not joint. 5. Defendant No. 7 has filed separate written statement. The plaintiffs were duly represented in 1968-69 and 1971 partition through their father and natural guardian and their interest were protected. It is further stated that Schedule-C, D and E property are also not joint. 5. Defendant No. 7 has filed separate written statement. According to the written statement, defendant No. 8 pointed out that room No. 3, 4, 5 and 7 shown in Schedule C of the partition deed dated 30.7.1968 were allotted to defendant No. 7 and room No. 11, 12, 13 (1), 30 and 32 were allotted to defendant No. 8 and one share was kept by Nandlal Bhagat. Since property of Schedule-C of the plaint has already been partitioned, it cannot be re-opened now. If is further alleged that on 1.10.1971, defendant No. 6 to 9 and Late Nandlal Bhagat divided the , entire immovable property situated in village Jamundag, P.S. Sonahatu, District-Ranchi. The share allotted to Nandlal Bhagat was also divided after his death in the month of June 1975 amongst defendant No. 6 to 9. The land measuring 3.54 acres of village Jamundag previously allotted to defendant No. 7 and 8 were divided into equal parts between defendant No. 1 to 6 and 9. The defendants are coming in separate possession of the property as per registered partition deeds of the year, 1968 and 1971 and mere partition among the brothers and defendant No. 6 after the death of Nand Lal Bhagat in 1975 orally. 6. Therefore, it is contended that the properties described in Schedule C, D and E of the plaint are not still joint in between the parties and as such, there no unity of title and possession exists in between the parties. The cause of action for the suit has been denied as the plaintiff never approached for alleged partition as claimed. 7. It is further contended that defendant No. 9 has transferred 0.79 acres Shaheda land to Sahajnath Ganjhu, 0.79 acres Jaspur land to Jageshwar Mahto and 0.93 acres Shaheda land to Jageshwar Mahto, 0.50 acres Bakshidih land to Mangra Mahto and 1.12 acres Shaheda land to Smt. Basmati Devi without the consent of other sharers. It is further stated that land in village Jaspur, Shaheda and Bakshidih are still joint, parties should be divided amongst the defendant and defendant No. 7 is also entitled to Ext. l/4th share in the land of village Juspur, Shaheda and Bukshxidih. 8. It is further stated that land in village Jaspur, Shaheda and Bakshidih are still joint, parties should be divided amongst the defendant and defendant No. 7 is also entitled to Ext. l/4th share in the land of village Juspur, Shaheda and Bukshxidih. 8. The defendant specified that the defendant No. 9 has purchased a piece of land measuring thirteen Katha at Ashok Puram in Ashoknagar from the income of joint property derived form the produce of village Jaspur, Shaheda and Bukshxidih in the name of plaintiff No. 1, in the year 1984, who started practice as an advocate in the year 1985. The land was purchased in consideration of Rs. 1,30,000/- hence the property is also available for partition. 9. Defendant No. 8 filed a separate written statement stating inter alia that both parties are Hindus and are governed by Mitakshara School. It is contended that Nandlal Bhagat died on 13.10.1973 leaving behind three sons and four daughter and grand-sons and grand-daughter and sons widow Smt. Shanta Bhagat. As Nandlal Bhagat died after passing of Hindu Succession Act, 1956, the entire property of him have devolved among his legal heirs. Nandlal Bhagat on 10.12.1934 purchased Ten Katha of land on payment of Rupees two thousand from Juvraj Poddar out of the earning and constructed a double stories pucca building over it. He made a registered partition between himself and his sons on 30.7.1968. Schedule-F of the partition deed discloses that the southern entire block of the said building could not be partitioned because the entire building had to be demolished. The block consist of Verandah, courtyard, well, lawn, latrine, servants quarter, Puja ghar and garage are not dividable as the entire building and its construction and free will be reopened. It was agreed that rent collected from the southern block flats will be used to pay Municipal taxes. On the death of Nand Lal Bhagat triable with regard to collection of rent started, hence it was agreed that lower two shop flats be made unit and two upper residential flats to be made two units and all the four brothers will take rent for one unit from the tenant directly and as per above arrangement defendant No. 7 and 8 are collecting rents of the Unit each respectively. Therefore property situate at Old Commissioner compound shown in Ext. B and C of the plaint are not available for partition. Therefore property situate at Old Commissioner compound shown in Ext. B and C of the plaint are not available for partition. So far the property at Burdawn compound as shown in Schedule-D is concerned, it is contended that one Bigha 1 katha and some chatak land was purchased by all the four sons of Nandlal Bhagat from their self earnings. Defendant No. 9 took refund of the money by Basant Lal Bhagat and then Basant Lal got 2/3 share whereas Saritosh Lal and Mahendra Lal got 1/3 share each. Basant Lal gave up his share in favour of his son Pradeep Bhagat executed family settlement deed in order to avoid future complication and family dispute. Nand Lal Bhagat, Basant Lal Bhagat and Ranjit Lal Bhagat declared that they have no claim in the property of Burdwan compound. Therefore the plaintiffs who are the sons of Ranjit Lal Bhagat have no right, title and interest over the entire property, situated at Burdwan compound. It is further stated that on 1.10.1971 the defendant No. 6 to 9 and Late Nandlal Bhagat divided the entire immoveable property of Jamundag shown in Schedule-E of the plaint and executed a family settlement to avoid future complication. In the said settlement. Nandlal Bhagat got 7.08 acres for his maintenance. After his death, the defendant No. 6 to 9 in the month of June 1975 got his property divided amongst them. 3.54 acres of land of village Jamundag was allotted to defendant No. 7 and 8 who latter on partioned the same equally. The remaining 3.54 acres land was divided, into equal parts in between defendant No. 1 to 6 and 9. Therefore no claim of the plaintiff submits against the defendant as there is no unity of title and possession over these lands. It is claimed that land of village Shaheda, Bukshxidih and Jaspur are still joint acquired by Nand Lal Bhagat, hence it is available for partition as well as the thirteen kathas land at Ashokpuram, Ashok Nagar, Ranchi purchased by Ranjit Lal Bhagat from the income of joint property from the produce of Jaspur, Shaheda and Bukshxidih which were under the Management of Ranjit Lal Bhagat, the defendant No. 9 since 1973. Defendant No. 9 and other added defendants did not appear inspite of steps taken by the plaintiff, hence the suit proceeded ex parte against them. 10. Defendant No. 9 and other added defendants did not appear inspite of steps taken by the plaintiff, hence the suit proceeded ex parte against them. 10. On the pleading of the parties, learned Court below framed issues after recast for their determination in the suit. I. Is the suit maintainable as framed? II. Have the plaintiff, valid cause of action for the suit? III. Is there unity of title and possession of the parties over the suit land? IV. Is the suit barred by limitation and adverse possession? V. Can the partition of schedule properties be reopened in view of the partition which took place on 30.7.1968 with regard to Schedule B property, family settlement deed dated 19.5.69 with regard to Schedule D property partition of Schedule E property of dt. 1.10.71 and partition of property of Jamundag left by Nandlal Bhagat vide oral partition in June, 1975? VI. Is the property acquired by the plaintiff No. 1 at Ashok Puram, an item of joint property of the parties? VII Are the plaintiff entitled to share? If yes, to what extent? VIII. Are the plaintiff entitled to any relief or reliefs as claimed? 11. Issue No. 3 was decided in favour of plaintiff in part. Issue No. 5 was decided against the plaintiff. Issue No. 6 was decided in favour of the plaintiff. Issue No. 4 was also decided, in favour of the plaintiff in part. Issue No. 1 and 2 were also decided in favour of the plaintiff. Issue No. 7 and 8 were decided against the plaintiff. 12. The plaintiffs who are appellants here brought the suit for partition of properties described in Schedule C, D and E to the plaint. The plaintiffs, however, have added Schedule F, G and H at the instance of the defendants by way of precaution. The case of the plaintiffs is that the properties described in Schedule CD and E are the joint family properties of the parties in the suit as these properties are ancestral properties of the parties in the suit, still they are joint and plaintiffs seek partition of the properties. The case of the plaintiffs is that the properties described in Schedule CD and E are the joint family properties of the parties in the suit as these properties are ancestral properties of the parties in the suit, still they are joint and plaintiffs seek partition of the properties. Further case of the plaintiffs was that the Schedule B property was Hindu Undivided Family property of the parties and this Schedule B property was partitioned partially by a registered deed in the year 1968 and the property described in Schedule C was allotted to the heirs of Nandlal Bhagat, the common ancestor who died in the year 1973 and as such, Schedule C properties are still joint and still available for partition. Ext-3 is a deed of partition of the year 1968 which discloses that Schedule C property consist of Schedule F properties and these have been described in the deed of partition of the year 1968 which is Ext. 3. 13. The plaintiffs have filed this appeal on the ground that the learned Court below had rejected there claim for partition of properties described in Schedule D and they made out a case in Para-10 of the plaint that the Schedule D property was acquired from the joint family fund and is HUF properties, though acquired in the name of one of the defendants i.e. defendant No. 8. But this property, according to the plaintiffs, is still joint and is available for partition. But this property, according to the plaintiffs, is still joint and is available for partition. On the other hand, defendents 1 to 6 in Para-20 to 23, defendant No. 7 in Para-16(5) have given description of Schedule D property and have denied that Schedule D property is HUF property of the parties, though they admitted that Schedule D property was purchased by the four sons of Nandlal Bhagat out of their own contribution, but they have made out a case that defendant No. 9, who is father of the plaintiffs, was in need of money, had offered to sell his share to his brother Basant Lal Bhagat, father of the defendants 2 to 5 [a] and he paid price of his share to defendant No. 9 in Schedule D property and in token of acceptance of price, defendant No. 9 gave power of attorney in favour of Basant Lal Bhagat [Ext-B] and family arrangement was made in the year 1969 by a registered document in which Nand Lal Bhagat and Ranjit Lal Bhagat relinquished their share and Basant Lal Bhagat transferred his share and also share of defendant No. 9 which he has purchased in favour of his eldest son i.e. defendant No. land, therefore, defendants contended that father of plaintiff i.e. defendant No. 9 had already relinquished his share and family arrangement thereafter was made and the plaintiffs have no claim and right, title or interest in the Schedule D property. 14. While assailing the Judgment, learned counsel for the appellants- plaintiffs submitted that Schedule D property is an item of HUF property and this will be clear from certain documents i.e. Ext.-l/g to Ext. 1/h to 1/j and Ext.l/n and further by Ext.-2 and so far as oral evidence is concerned, DW 1 in Para-2 has stated that Schedule D property is a joint family property and DW 8 who was examined on commission, has stated in Para-15 that his father had also contributed towards purchase of property described in Schedule D of the plaint. This goes to show that Schedule D property was purchased from the family fund which was intact and this was also treated as HUF property of the parties. 15. This goes to show that Schedule D property was purchased from the family fund which was intact and this was also treated as HUF property of the parties. 15. It is also, submitted on behalf of the learned counsel for the appellants plaintiffs that there is no evidence in support of the contention of the defendants that defendant No. 9 sold his share to Basant Lal Bhagat because there is no evidence as to which time when the alleged sale was made, as to what was the consideration in the sale, although, defendant No. 7 appearing as DW 1 in Para-6 has given consideration amount as Rs. 4000- 5000, but in Ext.-2 at page-34 he has stated that the amount was not paid in his presence and he is also unable to say how many days before payment was made and how much amount was paid. Defendant No. 1 appearing as DW 7 at Para-20 of his deposition has stated that he has got no knowledge about the year and the date of the purchase and for what amount the land was purchased. He has further failed to say as to how many days before the allotment of share of Schedule D property, this purchase was made by his father because he was in America and as such, there is no evidence worth the name to substitute the name of the defendant i.e. defendant No. 9 who sold his share to Basant Lal Bhagat. Learned counsel further pointed out that case of relinquishment made by defendants-respondents have got no legs to stand because as soon as son is born or even if interest of that son in the coparcener properties accrues from the date of his birth, his interest is equal to that of his father and further that relinquishment or renunciation made by the coparcener enures for the benefit of the remaining coparcenrs and not to any particular coparcenary and, therefore; even if it be assumed that father of the plaintiffs i.e. defendant No. 9 relinquished his share in Schedule D property,- he can only relinquish his Share in favour of the remaining coparcener including his sons i.e. plaintiffs and it is also an admitted case of the parties that socalled relinquishment has been made by defendant No. 9 in Schedule D property but he denied to be the member of the joint family property which was subsequently partioned in the year 1917. It is also admitted case of the parties that common ancestor Nand Lal Bhagat also relinquished his share in the Schedule D property and relinquishment ensures for the benefit of the remaining coparcener including plaintiffs and, therefore, share of the plaintiffs will increase in the Schedule D property and even if the case of relinquishment by defendant No. 9 is accepted to be proved, still that will not adversely affect the interest of the plaintiffs because the relinquishment was their advantage as their share was increased by said relinquishment. 15(a). According to the learned counsel for the appellants-plaintiffs, Ext-A is registered deed of family arrangement, ExtB is the registered deed of power of attorney by defendant No. 9. But there are certain pre-requisits for family arrangement and dispute among family members and for family arrangement, it is necessary that the dispute exist arise out of conflicting claims in the family. But oral evidence is otherwise that there was no dispute in the family and there was no evidence of existence of condition which is pre-requisites in the family arrangement. But oral evidence is otherwise that there was no dispute in the family and there was no evidence of existence of condition which is pre-requisites in the family arrangement. On the other hand, there is evidence to the contrary that there was no such condition present to make it out necessary in family arrangement because defendant No. 2 at page-37 has stated that there was no dispute among the four brothers in partition regarding house situated in Burdwan Compound as no quarrel ever took place and if there was any quarrel, then defendant No. 9 would not have been given power of attorney. Further, if Schedule D property was self- acquired separate property to the four sons of Late Nandlal Bhagat, then share given to the defendant No. 1 in that family arrangement was not possible and in that said family arrangement, nothing was given to the father of the plaintiff. On the other hand, a case has been made out that he relinquished his share in favour of the plaintiff because the plaintiff not being represented in the said family arrangement are in position to ignore it and so far as plaintiffs- appellants are concerned, family arrangement does not exist and Schedule D property is though still joint and is available for partition. It was further pointed out that the family arrangement in true perspective of the case of the defendant that father of the plaintiff sold his share and that Basant Lal Bhagat transferred his share and share purchased from Ranjit Lal Bhagat i.e. defendant No. 9, then Ext-A becomes composite document showing two intervivor transfer i.e. sale of shares of defendant No. 9 and other gift by Basant Lal Bhagat who is father, of defendant No. 9 and, therefore, Ext-A cannot be held to be a legal or valid transaction of Schedule D property and there has not been any partition of Schedule D property. 16. On the other hand, learned counsel appearing for the respondents submitted that Schedule D property was purchased by defendants 7, 8 and 9 and Basant Lal Bhagat from their own personal income for a sum of Rs. 14,500/- in the name of Mahendra Lal Bhagat (defendant No. 8). 16. On the other hand, learned counsel appearing for the respondents submitted that Schedule D property was purchased by defendants 7, 8 and 9 and Basant Lal Bhagat from their own personal income for a sum of Rs. 14,500/- in the name of Mahendra Lal Bhagat (defendant No. 8). It is also submitted that after purchase, defendant No. 9 (father of the appellant-plaintiff) made request for refund of his contribution to meet his urgent need and Basant Lal Bhagat paid his contribution amount to him and purchased his share and later on with written consent of defendant No. 9, there was registered family arrangement between Nandlal Bhagat, Basant Lal Bhagat, Santosh Lal Bhagat, Mahendra Lal Bhagat, Ranjit Lal Bhagat and Pradeep Kumar Bhagat by which 1 /4th share in the house was given to defendants 7 and 8 each and l/2th share belonging to Basant Lal Bhagat was given to Pradeep Kuamr Bhagat. The defendant No. 9 had disclaimed his entire interest in that land and after partition, defendants 1, 7 and 8 came in their respective possession made construction of houses on their respective portion of land from their own income. So far as property described in Schedule D is concerned, the plaintiff alleged that it is a joint family property and it has been purchased from the joint fund whereas defendants have tried to make out a case that the property described in Schedule D has been purchased by the four sons of Nandlal Bhagat by their personal contribution and when defendant No. 9 required money for his urgent need, he made request for refund of his money and Basant Lal Bhagat paid him the price and purchased his property and in token of that, defendant No. 9 executed a registered power of attorney in favour of Basant Lal Bhagat and it is also stated that Nandlal Bhagat had also relinquished his share and Basant Lal Bhagat transferred his share. 17. It was pointed out that after registered family arrangement, allottees came in absolute possession and got the same mutated in their respective names and constructed their own houses and are in absolute possession, it was thus pointed out that there is no question of partition of those properties. 17. It was pointed out that after registered family arrangement, allottees came in absolute possession and got the same mutated in their respective names and constructed their own houses and are in absolute possession, it was thus pointed out that there is no question of partition of those properties. Reliance has been placed upon held Raghunath Tiwary v. Ramakant Tiwary, AIR 1991 Pat 145 , wherein it has been that when family arrangement by registered document has taken place, then as per settled principle of law, no question of fresh partition arose. It is also worth noting, as pointed out, that defendant No. 9, father of the plaintiffs did not appear nor filed any WS nor has denied the power of attorney given by him and thus, proceeding continued ex-parte against him. It was also pointed out that after two decades when deeds have been acted upon, plaintiffs as representatives of interest of defendant No. 9 have no right to challenge family arrangement. 18. In view of rival contention of the parties, the question arises for determination is, whether Schedule D property is Hindu Undivided Family property or self acquired property by four sons of Nandlal Bhagat and further that, whether Schedule D property was partitioned or not. 19. Admitted case is that Schedule D property was purchased in the year 1958 and registered family arrangement took place in 1969 and before that, partition of other properties, mentioned in other schedule, had taken palace in 1979, thus all of them were joint till 1971 and same properties is still joint. It is said that four sons of Nandlal Bhagat purchased Schedule D property in 1958 in the name of Mahendra Lal Bhagat. The dispute of the plaintiffs was that the property was purchased from joint family fund and property is joint family property, whereas defendants-respondents claim that four sons of Nandlal Bhagat purchased the property in the name of Mahendra Lal Bhagat from their personal contribution and so, the property is a self acquired property of the four sons of Nandlal Bhagat. Now the point that arose is that registered family arrangement took place in 1969, it has come that Nandlal Bhagat had also relinquished his share, but Nandlal Bhagat had not made any contribution towards purchase of Schedule D property. Now the point that arose is that registered family arrangement took place in 1969, it has come that Nandlal Bhagat had also relinquished his share, but Nandlal Bhagat had not made any contribution towards purchase of Schedule D property. So Schedule D property was self acquired property of four sons of Nandlal Bhagat and in the registered family arrangement, four sons could have been given or allotted some land or given share from their self acquired property. But Nandlal Bhagat was not in a" position to relinquish his share and he could have been in a position to relinquish his share only when he was entitled to the share in the Schedule D property on the basis of Schedule D being a joint family property and contention of defendants- respondents that even Nandlal Bhagat had also relinquished his share in Schedule D property, goes to prove that property purchased from the joint family fund is HUF property. 19. A point has been raised that from the last two decades, the allottees have been in absolute possession and have even constructed their houses. In 1969, registered family arrangements have taken place and that the partition cannot be reopened, this is not the correct position of law and in certain circumstances, partition can be reopened. In this connection, reliance may be placed upon Ratnam Chittiar and Ors. v. S.K. Kuppswami Chittiar and others, AIR 1976 SC 1 , wherein it has been held that partition effected between the members of the Hindu Undivided Family by own volition and with their consent, cannot be reopened, unless it is shown that the same is obtained by fraud, coercion, misrepresentation, undue influence. In such a case, Court should require proof of fact because an act intervivos cannot be lightly set aside, It was further held that when the partition is effected between the members of Hindu Undivided Family consist of minor coparceners, it is binding on the minors also if it is done in good faith and in bona fide manner keeping into account the interest of the minors, it was further held that where, however, a partition effected between the members of Hindu undivided family which consist of minors is proved to be unjust and unfair and is detrimental to the interest of the minors, the partition can certainly be reopened whatever length of time when the partition took place. Here in the instant case, defendant No. 9 is said to have sold his share and also relinquished his share, but such relinquishment can not be made for the benefit of one of several coparceners because that relinquishment will ensure for the benefit of all the other members. Similarly, relinquishment by Nand Lal Bhagat would have gone to benefit of the remaining coparceners and not for one of the several coparceners. In this connection, Thamma Venkata Subbamma (dead) by Lrs. v. Thamma Ratanamma and others, AIR 1987 SC 1775 , .may be referred wherein it has been held that the essence of coparcencry under the Mitakshra School of Hindu Law under community of interest and unity of possession, a member of joint Hindu Family has no definite share in the coprcenery property, but he has undivided interest in the proper- ty which is liable to be enlarged by deaths and diminished by births in the family and interest in the coparcenary property accrues to a son from the date of his birth and his interest will be equal to that of his father. On the point of relinquishment it has been held that it ensures for benefit of remaining coparceners and for one of the several coparceners. 20. From the discussions made above, it is clear that interest of plaintiffs was not properly represented by defendant No. 9 and from the documentary evidence brought on record, it also appears that defendant No. 9 under coercion and undue influence etc., sold his share and relinquished his share to the detriment of plaintiffs whose interest should have been protected by him (defendant No. 9) being father of the minor sons and, therefore, in the registered family arrangement of 1969, nothing was given either to defendant No. 9 or to the plaintiffs. When in fact, relinquishment of shares by Nandlal Bhagat and by defendant No. 9, shares of remaining coparacener including the plaintiffs should have been increased because plaintiffs also acquire coparcenary right in the joint family property and their claim for l/6th share in the property appears to be justified. 20. No argument in connection with Schedule E property was made at the time of hearing and, therefore, no finding is required to be given, so far as Schedule E property is concerned. 21. 20. No argument in connection with Schedule E property was made at the time of hearing and, therefore, no finding is required to be given, so far as Schedule E property is concerned. 21. In the result, this appeal is allowed in part in terms of the finding aforesaid, but in the circumstances without any order as to costs.