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2020 DIGILAW 686 (MP)

Bhola Singh v. Preetam Singh (since Dead)

2020-06-19

J.P.GUPTA

body2020
JUDGMENT J.P.Gupta, J. - This second appeal under Section 100 of C.P.C. has been preferred against the judgment dated 31.1.2005 passed by 5th Additional District Judge, Fast Track Court, Chhatarpur in Civil Appeal No.70-A/2004 confirming the judgment and decree dated 22.7.2004 passed by I Civil Judge, Class II, Chattarpur in Civil Suit No. 57-A/03. 2. In this case the admitted facts are that the appellant/plaintiff and the original respondent/defendant no. 1 Preetan Singh (now he is dead) are sons of late Durag Singh and the respondents/defendant nos. 2 and 3 are sons of original respondent/defendant no. 1 Preetam Singh and the respondent/defendant Dinesh is son of the plaintiff/appellant. 3. Facts giving rise to this appeal are that the appellant/plaintiff filed a civil suit before the trial Court stating that the plaintiff/appellant and his brother, original defendant/respondent no. 1 Preetam Singh and their father Durag Singh were coparceners and have several lands and on 9.5.1978 amongst them partition had taken place in which land bearing survey no. 2461 area 2.096 hectares, survey no. 2664/3 area 1.173 hectares, survey no. 2664/4 area 1.475 hectares and survey no. 770 area 0.263 hectares situated in village Bagota, Tehsil and District Chhatarpur came in his share. After the partition, he became the sole owner of the lands but his father Durag Singh and his brother Preetam Singh got the aforesaid land further partitioned by the order of the Revenue Court and on the basis of the aforesaid partition order dated 30.1.1991 his father Durag Singh sold out half share of the land bearing Survey No. 2461 in favour of respondents/defendant nos. 2 and 3 and remaining half share in favour of the respondent/defendant no. 4. While the appellant/plaintiff is the sole owner of the aforesaid land survey 2461, on the basis of earlier partition dated 9.5.1978, therefore, he be declared to be owner of the aforesaid land and the order of Revenue Court with regard to partition and the sale deed executed vide sale deed dated 25.6.1992 in favour of respondent nos. 2 to 4 be declared null and void. 4. The suit was contested by respondent nos. 1 to 3 and their stand was that on 9.5.1978, neither oral nor written partition had taken place. 2 to 4 be declared null and void. 4. The suit was contested by respondent nos. 1 to 3 and their stand was that on 9.5.1978, neither oral nor written partition had taken place. The Revenue Court is competent court to pass the order of partition with regard to agricultural land and order has been passed in accordance with law and as per the partition order of the Revenue Court, land bearing Survey No. 2461, area 2.096 hectares would come in share of Durag Singh, therefore, Durag Singh had right to sell out the land. Accordingly, the suit of the appellant is baseless and deserves to be dismissed. 5. Learned trial Court after recording the evidence and hearing the parties arrived at the conclusion that the appellant/plaintiff has failed to prove the factum of first partition on 9.5.1978. As the partition was done by written document Exh. P-1 and the same is unregistered document while the registration under Section 17 (1) (b) of the Registration Act was must, in absence of the registration under Section 49 of the Registration Act, the document cannot be considered to prove the factum of partition and in view of Section 91 of the evidence Act, the factum of partition cannot be proved by oral evidence on account of the existence of unregistered partition deed, Exh. P-1, therefore, the appellant/plaintiff is not the sole owner of the aforesaid disputed land. Consequently, the partition order passed by Revenue Court as well as the sale deed dated 25.6.1992 in favour of the respondent/defendant nos. 2 to 4 are valid. 6. In the light of the aforesaid conclusion, the suit was dismissed. The I Appellate Court was also of the view that the document Exh. P-1 is a partition deed and in absence of the registration, the document cannot be considered as a proof of the partition and, in such circumstances, no oral evidence can be considered, hence the factum of partition has not been proved and on the basis of aforesaid finding, dismissed the appeal and confirmed the judgment and decree passed by the trial Court, hence this appeal. 7. 7. On behalf of the plaintiff/appellant, this appeal has been preferred on the ground that both the courts below have committed gross error in holding that the document dated 9.5.1978 is a partition deed, while it is simply a list of properties allotted to the respective parties and it is being an acknowledgment, therefore, does not require registration under the Indian Registration Act. Learned both the courts below have also committed error in ignoring the oral evidence with regard to the partition as the factum of partition can also be proved by oral evidence and both the courts below have not considered the case in proper perspective and jumped on a wrong conclusion that the partition had taken place earlier on 9.5.1978, therefore, no further partition could take place, therefore, the order passed by the Revenue Authority in the year 1991 with regard to partition of land is an illegal order and further submitted that both the courts below have also committed error in holding that the late Durag Singh could sell the property being the father of the parties but failed to appreciate that father/manager has the right to alienate the property only for legal necessity and in the present case, there was no such legal necessity, therefore, the sale deed executed by father was illegal, hence, the impugned judgments and decrees be set aside and the suit be decreed. 8. This court by order dated 26.8.2014, admitted this appeal on the following substantial questions of law :- "1. Whether the document dated 9.5.1978, Annexure P-1 has not been misread and misinterpreted by the Courts below ? 2. Whether the document showing only the list of property without having any recital of partition requires compulsory registration ? 3. Whether in a case where there was disruption of Joint Hindu Family and the partition has taken place, can there be subsequent partition ? 4. Whether a father can sell ancestral property without having legal necessity ? 5. Whether the courts below have grossly erred in law in dismissing the suit filed by the appellant in spite of holding that he was joint co-owner along with his father respondent no. 1 ? 6. Whether in the facts and circumstances of the case the conclusion recorded by the courts below is justified ?" 9. Learned counsel appearing on behalf of the respondents/defendant nos. 1 ? 6. Whether in the facts and circumstances of the case the conclusion recorded by the courts below is justified ?" 9. Learned counsel appearing on behalf of the respondents/defendant nos. 1 to 3 submitted that findings of learned both the courts below are not in accordance with law. The document dated 9.5.1978 Ex. P-1 is not a memorandum of partition. It is a partition deed, therefore, its registration is must and in the present case when on 9.5.1978 no partition had taken place, therefore, the question of subsequent partition does not arise and the objection with regard to sale of the ancestral property by the father without legal necessity is irrelevant here, as this was not the case of any party before the learned both the courts below and substantial question no. 5 is also not required to be answered being insignificant and irrelevant as joint co-ownership of the appellant with respondent no. 1 along with their father was not disputed and no such declaration was sought. In view of the facts of the case, no such declaration would serve any purpose, therefore, this appeal deserves to be set aside. 10. Having considered the contentions of learned counsel for the parties and perusal of record, the finding of this court on aforesaid subsequent question of law are as under:- Substantial questions of law No.1 and 2 :- 11. This is the concurrent finding of both the courts below that document Exh. P-1 is a partition deed. Plaintiff Bhola Singh P.W. 1 has never stated in his statement that the Exh. P-1 was written after the partition just like acknowledgment of the fact of the partition. Bhola Singh P.W.1 in his statement has categorically stated that on the day partition took place, this document was written as a document of partition, on the Exh. P-1 on front side, there is a description of the properties and the name of the persons who got their share and its back side under the head of Note, separate five terms with regard to further liability of the parties under the partition have been written. Therefore, apparently learned both the courts below have not misread or misinterpret the document dated 9.5.1978, Exh. P-1. 12. The document Exh. P-1 is not merely lists of the property. The document in substance is a partition deed and require compulsory registration. Therefore, apparently learned both the courts below have not misread or misinterpret the document dated 9.5.1978, Exh. P-1. 12. The document Exh. P-1 is not merely lists of the property. The document in substance is a partition deed and require compulsory registration. Hon'ble the Apex Court in case of Siromani v. Hemkumar and ors., (1968) AIR SC 1299 relying on the judgment of the Apex Court in case of Nani Bai v. Gita Bai Kom Rama Gunge, (1958) AIR SC 706 has held that the document, effecting partition of joint Hindu property and value of Rs. 100/- by metes and bounds require registration under Section 17 (1) (b) of the Registration Act, in absence of such registration, it is inadmissible to prove title of any of the coparceners to any of the property. Further in case of Roshan Singh and ors. v. Zile Singh and ors., (1988) AIR SC 881 has also laid down the same thing, the relevant para is 9 as under :- "9. It is well-settled that while an instrument of partition which operates or is intended to operate as a declared volition constituting or severing ownership and causes a change of legal relation to the property divided amongst the parties to it, requires registration under S. 17 (1) (b) of the Act, a writing which merely recites that there has in time past been a partition, is not a declaration of will, but a mere statement of fact, and it does not require registration. The essence of the matter is whether the deed is a part of the partition transaction or contains merely an incidental recital of a previously completed transaction. The use of the past tense does not necessarily indicate that it is merely a recital of a past transaction. It is equally well settled that a mere list of properties allotted at a partition is not an instrument of partition and does not require registration. Section 17 (1) (b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some right in immovable property. Therefore, a mere recital of what has already taken place cannot be held to declare any right and there would be no necessity of registering such a document. Therefore, a mere recital of what has already taken place cannot be held to declare any right and there would be no necessity of registering such a document. Two propositions must therefore flow : (1) A partition may be effected orally; but if it is subsequently reduced into a form of a document and that document purports by itself to effect a division and embodies all the terms of bargain, it will be necessary to register it. If it be not registered, S. 49 of the Act will prevent its being admitted in evidence. Secondly evidence of the factum of partition will not be admissible by reason of S. 91 of the Evidence Act, 1872. (2) Partition lists which are mere records of a previously completed partition between the parties, will be admitted in evidence even though they are unregistered, to prove the fact of partition." 13. The aforesaid case of Roshan Singh and ors. v. Zile Singh and ors. (Supra) has been further followed by the Apex Court in recent judgment of Shyam Narayan Prasad v. Krishna Prasad and ors., (2019) 2 MPLJ 307 , in view of the aforesaid law, it is clear that the partition of Joint Hindu Family property can be done orally, but at the time of process of partition, simultaneously, the document of partition for the purpose of creating evidence is recorded, the registration is must, if the value of property is more than Rs. 100/- and in absence of the registration, the document cannot be considered as an evidence to prove the fact of the partition and in such situation the oral evidence cannot be considered as the same is barred under Section 91 of the Evidence Act. 14. In view of the observations, it is held that the document dated 9.5.1978 Exh.P-1 has not been misread and misinterpreted by the courts below as the document is not only showing the list of the property, but also having recital of the partition which requires registration compulsory, thus question nos. 1 and 2 are answered accordingly. Substantial questions of law No.3, 4 and 5:- 15. The aforesaid substantial question nos. 3 and 4 are not substantial questions in this appeal as there is no dispute in this regard that once partition has been taken place, no subsequent partition can be done, except some exceptions given under the Hindu Law. 1 and 2 are answered accordingly. Substantial questions of law No.3, 4 and 5:- 15. The aforesaid substantial question nos. 3 and 4 are not substantial questions in this appeal as there is no dispute in this regard that once partition has been taken place, no subsequent partition can be done, except some exceptions given under the Hindu Law. In the present case, the appellant/plaintiff has failed to establish the fact that any partition of the joint Hindu Family property was taken place earlier i.e. 9.5.1978, therefore, in this case, there is no question of subsequent partition. The partition made by the Revenue Court is a first partition. 16. Similarly, the aforesaid substantial legal question no. 4 is not relevant to the present case as no body has taken plea that sale deed executed by late Durag Singh was illegal due to lake of legal necessity and no issue has been framed by the trial Court and there was not any whisper in argument before the trial Court or the Ist Appellate Court. Now in second appeal, this objection is totally foreign and it cannot be considered here in absence of relevant pleadings and finding of both the courts below. 17. So far, substantial question no. 5 is concerned, it is also insignificant and cannot be considered as a substantial question of law. In this case there is no dispute that the appellant was not the joint co-owner along with his late father and respondent no. 1 and looking to the fact and dispute of the case, there is hardly any need of such declaration, therefore, in view of this court, the aforesaid substantial question nos. 3 to 5 are not substantial questions of law for the purpose of disposal of this appeal, therefore, they are left unanswered. Substantial question of law No.6 18. So far, the substantial question no. 6 is concerned, in view of the answer of substantial question nos. 3 to 5 are not substantial questions of law for the purpose of disposal of this appeal, therefore, they are left unanswered. Substantial question of law No.6 18. So far, the substantial question no. 6 is concerned, in view of the answer of substantial question nos. 1 and 2, conclusions recorded by both the courts below is justified as the appellant/plaintiff has failed to establish the factum of the partition and his whole suit is based on the factum of alleged first partition when the factum of partition has not been proved, the partition made by the Revenue Court cannot be held illegal on the ground that no subsequent partition can be made, similarly, sale deed executed by late Durag Singh cannot be set aside as the same has been executed after getting title of the land in consequence of partition made by the Revenue Court, therefore, it cannot be said that one coparcener cannot sale the land without the consent of other coparcener as the sale deed was executed after the severance of the coparcenery by the order of partition of the land by the Revenue Court. Hence, the conclusion recorded by the court below cannot be interfered being a justified. 19. In view of the discussions, the appeal has no merit, hence it is dismissed and the plaintiffs will pay the cost of the litigation of this appeal along with litigation of both the courts below to the respondent nos. 1 to 3. 20. No order as to cost.