JUDGMENT : 1. Heard counsel for the plaintiff-appellant and defendant-respondent No.1. 2. Facts as stated by the appellant are that his father Thakur Jatan Singh had one brother Daljit Singh and one sister Rajendra Kumari. Father of all three of them Thakur Berisal Singh Ji owned a Haveli called ‘Tikam Singh Ki Haveli, situated in Jaipur, Rasta Kothi Seth Mani Ramji. Thakur Berisal Singh Ji, father of the parties, used to take rent of this property and owned and possessed the same. After his death, his widow Suraj Kanwar used to take rent who died in 1969. As Thakur Berisal Singh Ji left two sons and a daughter, they jointly owned and possessed the Haveli. Daljit Singh (defendant No.1), being unmarried and younger brother of the plaintiff Jatan Singh, with the consent of the plaintiff, kept tenants in the Haveli and collected rent of this Haveli but did not pay a single penny to the plaintiff who had 1/3 share in the properly. Resultantly, plaintiff Jatan Singh prayed for partition of the property and separate possession over his /13 share in the Haveli and claimed Rs.1800/- per months as mesne-profit. 3. The defendant Daljit Singh denied the allegations of the plaint and pleaded interalia that he is in exclusive possession of the disputed Haveli since 1963 and is keeping tenants in it. The Plaintiff was neither in joint possession of the Haveli during the life time of Thakur Berisal Singh Ji nor after his death and he is not entitled to any partition. In additional pleas, the defendant pleaded that Thakur Berisal Singh Ji had agriculture Land in village ‘Khori’ which measured 226 Bigha 15 Biswa. Thakur Berisal Singh had in his life time, given the disputed Haveli to defendant Daljit Singh and the agriculture land to the plaintiff Jatan Singh who is living in a separate house since the time of his marriage and the defendant lived in ‘Kanota Bagh’ since 1959. Later on the plaintiff Jatan Singh took possession of the portion in ‘Kanota House’, where the parents of the parties resided and let it out to the tenants. 4. Later on the plaintiff Jatan Singh took possession of the portion in ‘Kanota House’, where the parents of the parties resided and let it out to the tenants. 4. Smt. Rajendra Kumari, who was later on added as defendant No. 2 in the suit, pleaded interalia that the agriculture land in village Khori is also their ancestral property which is in possession of the plaintiff and it should also be partitioned and one third share should be given to the defendants. 5. Smt. Kamla Kanwar and Sushri Shobha, daughters of Thakur Jatan Singh Ji, who were impleaded as defendants No. 4 and 5 after his death, filed their separate written statements and claimed their equal share in the disputed Haveli. 6. On the Basis of these pleadings, the trial court framed the following issues :- (i) Whether Thakur Berisal Singh had in his life time, given the disputed Haveli to the defendant and the agriculture land in village ‘Khori’ measuring 226 Bigha 15 Biswa to the plaintiff as such now there cannot be any partition. (ii) Whether the plaintiff took away the ornaments and other things mentioned in para 3 of the additional pleas and what will be its effect in the suit. (iii) Whether, the defendant in the suit Shivnath Singh Vs. Berisal Singh, on being impleased as a party, after the death of Berisal Singh, spent Rs. 8690.41 P. and what will be its effect in the suit? (iv) Whether, in case of partition, the agriculture land and the movable property, mentioned in para 3 of the written statement, is liable to be included in the partition? (v) Whether Rajendra Kanwar is a necessary party? (vi) Whether the suit is not within limitation? (vii) Whether the plaintiff has joint possession over the suit property as such a valuation court fee should not be paid on it? (viii) Whether the valuation of the suit property is one lac rupees and less court fees has been paid? (ix) Whether, in case of partition, the plaintiff is entitled to get Rs. 75/- per month as mesne profit? (x). Relief. 7. The trial court, after recording the evidence of the parties and hearing the arguments decided issue No. 1 in favour of the defendant, issues No. 2, 3, against the defendant, decided issues No. 6, 7, 8, 9 and 10 against the plaintiff and dismissed the suit of the plaintiff. 8. 75/- per month as mesne profit? (x). Relief. 7. The trial court, after recording the evidence of the parties and hearing the arguments decided issue No. 1 in favour of the defendant, issues No. 2, 3, against the defendant, decided issues No. 6, 7, 8, 9 and 10 against the plaintiff and dismissed the suit of the plaintiff. 8. On appeal, the learned additional District judge, reversed the finding of the trial court on Issue No. 8 but maintained the findings on other issues and dismissed the appeal of the appellant and, therefore, the present second appeal has been preferred. 9. This Court, while admitting the second appeal on 03/02/2006, framed following substantial question of law as under:- “Whether, the Courts below were justified in holding that the property came to the share of the defendant by way of partition when the case of the defendant was that the father had during his life bestowed the property in dispute (Haveli) to the defendant and the defendant had failed to prove the said fact by means of any documentary proof, no right, title or interest in any immovable property could be created, extinguished without the means of a registered deed in writing ?” 10. During pendency of the suit, both Thakur Jatan Singh Ji and Daljit Singh (plaintiff as well as defendant No.1) expired, the plaintiff Ranjeet Singh S/o Thakur Jatan Singh has come in this appeal. As Daljit Singh had expired during appeal, the first appellate court vider order dt.19/01/1998 allowed Rajendra Kumari, respondent no.1 (defendant no.2) to be treated as heir of Daljit Singh being his real sister and placed as defendant no.1/1. 11. Learned counsel for the appellant submits that the trial court as well as first appellate court have committed illegality in reading the evidence which has come on record. It is submitted that there was no documentary proof that father during his life time had bestowed the demised property (Haveli) to defendant no.1. Neither there was any gift deed or partition deed or any will to prove such a claim. It is further submitted that erroneous finding was given that the partition had taken place by way of oral gift or oral partition. Neither the witnesses produced by the plaintiff nor by the respondents deposed of such fact of an oral partition. Neither there was any gift deed or partition deed or any will to prove such a claim. It is further submitted that erroneous finding was given that the partition had taken place by way of oral gift or oral partition. Neither the witnesses produced by the plaintiff nor by the respondents deposed of such fact of an oral partition. No date has come on record to prove that there was an oral partition nor any place or time has been stated. Alternatively, it is stated that no document or evidence has come on record to show that any oral gift of the Haveli was made to the defendant. 12. It is thus submitted that the finding recorded by trial court and appellate court of Thakur Berisal Singh Ji, father of the plaintiff and defendants, having given Haveli to defendant no.1 and agricultural land to the plaintiff, was wholly perverse. For the said purpose, the counsel has taken this Court through the provisions of Transfer of Property Act to argue that there being no provisions for oral transferring the property, even by way of gift and even for gift, it has to be necessarily registered. It is submitted that the transfer can only be made by instrument which has not come on record and it cannot be said that there had been a partition in the life time of Thakur Berisal Singh Ji who expired on 14/07/1974. Further, it is submitted that two contradictory pleas taken relating to partition during life time or by way of gift could not be accepted by the Trial Court as well as the First Appellate Court. 13. It is further submitted that during pendency of the partition suit, it was pointed out that after death of defendant no.1-Daljeet Singh, who was unmarried and was the real brother of the appellant and defendant No.2-Rajendra Kumari, the property of Daljeet Singh would also devolve to the existing brother and sister. The first appellate court has however not taken this aspect into consideration at all. 14. It is also pointed out that Rajendra Kumari, defendant no.2 in her written statement has nowhere stated that there had been a partition during life time of Thakur Berisal Singh Ji nor it is her case that Haveli was gifted to the defendant no.1. The first appellate court has however not taken this aspect into consideration at all. 14. It is also pointed out that Rajendra Kumari, defendant no.2 in her written statement has nowhere stated that there had been a partition during life time of Thakur Berisal Singh Ji nor it is her case that Haveli was gifted to the defendant no.1. On the other hand, the only claim taken up in the written statement of defendant no.2- Rajendra Kumari was that if the partition is to take place, the agricultural land, which was in the name of the father of appellant, ought to be included for the purpose of partition. 15. Learned counsel for the respondent- Rajendra Kumari, who has been also treated by the trial court as representing defendant no.1, submits that oral partition is permissible to maintain harmony in the family. It is submitted that the entire property, which included Haveli as well as agricultural land, was ancestral property. Since all the properties had not been included, the partition suit is liable to be dismissed. It is further submitted that the case was not of oral gift but was a case of oral partition. The question of law which has been framed is on the basis that their had been an oral gift made by bestowing the property of Haveli which was not the case of the respondents and since the only question of law framed is relating to oral gift, the orders passed by the trial court and the first appellate court did not call for any interference as no question of law can be said to be made out which needs to be answered by this Court. 16. Counsel for the appellant has however stated that the question No.4 framed by the trial court as well as the first appellate Court was not answered in favour of the defendants. On the other hand, the courts below proceeded on the presumption that there had been a partition during life time of Thakur Berisal Singh Ji. 16. Counsel for the appellant has however stated that the question No.4 framed by the trial court as well as the first appellate Court was not answered in favour of the defendants. On the other hand, the courts below proceeded on the presumption that there had been a partition during life time of Thakur Berisal Singh Ji. As pointed out earlier, learned counsel asserted that the finding given by the trial court and the first appellate court about the agricultural land being originally of Jagirdar Shiv Nath Singh Ji, who had handed over the same to his younger brother Thakur Berisal Singh Ji as user of the land and name of Jatan Singh was mentioned as the farmer in the land, a wrong presumption was drawn that the land had been received by Jatan Singh through Thakur Berisal Singh Ji. It is submitted that the agricultural land was in the name of Jatan Singh on account of resumption of Jagir and as Jatan Singh was tilling the land and was having possession of it, he was independently declared as Khatedar of the land and therefore, it cannot be said to have come to him by way of any oral partition and the finding arrived at of the agricultural land having been bestowed to him by way of oral partition while Haveli having been bestowed to his brother Daljeet Singh, was wholly erroneous. 17. Having heard learned counsel for the parties and after having looked into records, this Court finds that while the original partition suit was amongst two real brothers and sister of late Thakur Berisal Singh Ji, during pendency of the partition suit, the shares of the claimants has undergone a change in view of the fact that one of their brother namely; Daljeet Singh (defendant no.1) had expired leaving behind no other heir but the other two claimants namely; Ranjit Singh and Rajendra Kumari. The first question now regarding having bestowed the property to the defendant has therefore become academic as the appellant would have a share in the Haveli to the extent of 1/2 of the share which would have gone to the defendant no.1 by half of the share of defendant. Half of the share of the defendant no.1 would go to Smt. Rajendra Kumari. Half of the share of the defendant no.1 would go to Smt. Rajendra Kumari. Thus while earlier even if the partition as it existed would have been decreed, 1/3 share each would have evolved to the two brothers and one sister as by now, it would divide amongst the children of Jatan Singh and sister Rajendra Kumari and her inheritors by half each. Therefore, so far as the property of Haveli is concerned, this Court was not required to go into the legal issue relating to the question whether late Thakur Berisal Singh Ji had bestowed the property to his one son Daljit Singh alone and whether such factum could be said to be proved. 18. In a recent judgment passed by the Apex Court in the case of Ram Natho Sao @ Ram Nath Sahu since deceased thr. L.Rs. & Ors. Vs. Goberdhan Sao since deceased thr. Lrs & ors.: 2017(4) Scale 338, the Apex Court has confined the area of scrutiny to the question of allocation of shares as regards the properties found to be joint family properties. In such partition suit, this Court also limits itself to such an allocation of shares in the Haveli only in view of the subsequent position of the respective claimants. 19. However, the question still would arise relating to the agricultural land with regard to the partition. It is seen that the agricultural land, at the time when the partition suit had been instituted, was already in the name of the plaintiff as a Khatedar and no one has claimed division of the Khatedari rights or the mutation opened in the name of late Shri Jatan Singh. Smt. Rajendra Kumari has not at any given point of time claimed rights in the agricultural land till she was impleaded as party in the partition suit which was only for the purpose of claiming partition in the Haveli. The trial court as well as the first appellate court thus have fell in error in including the agricultural land which was in the name, Khatedari rights and ownership of plaintiff Jatan Singh. 20. The trial court as well as the first appellate court thus have fell in error in including the agricultural land which was in the name, Khatedari rights and ownership of plaintiff Jatan Singh. 20. A presumption could not have been drawn of the property having given by way of partition orally or by gifting to the plaintiff from his late father Thakur Berisal SinghJi and this Court finds that name of the plaintiff has been entered in the review record as a Khatedar of the said property and on account of resumption of Jagirs, he being a person who was tilling the land and was ‘Khudkast’ tenant at the time when the Jagir lands were resumed. 21. Accordingly, the question of law framed by this Court is answered to the effect that “the factum of bestowing of property by way of gift resulting into partition as arrived by the courts below is erroneous in absence of their being any instrument drawn amongst the parties to the lis in terms of provisions of Section 122 and 123 of the Transfer of Property Act. Hence, the judgment and decree passed by both the courts below deserve to be set aside.” 22. Consequently, the second appeal is partly allowed. The judgment and decree passed by the trial court as affirmed by the first appellate court are modified by holding that the heirs of the original plaintiff Jatan Singh namely; his two sons Ranjeet Singh & Inderjeet Singh and his four daughters namely; Smt. Vijay Laxmi, Smt. Kamla Kanwar and Smt. Shobha would get half share of the Haveli in question situated in Jaipur, Rasta Kothi Seth Mani Ramji. Thakur Berisal Singh Ji while Smt. Rajendra Kumari would be entitled to half of the share of the said Haveli, stated above which would devolve to her heirs subsequently. The agricultural land would remain as property of the heirs of late Jatan Singh, the original plaintiff and would not form part of the present partition suit as it being a property in terms of self acquired property after accuring Khatedari rights in 1955 on the original plaintiff late Jatan Singh. The preliminary decree be accordingly prepared.