JUDGMENT : Vivek Rusia, J. Heard on the question of admission with records of courts below. 1. The appellant/plaintiff (Since deceased now represented by their legal heirs and hereinafter referred as "plaintiff") has filed the present appeal being aggrieved by the judgment and decree dated 29.11.2014 passed by 21st Civil Judge, Class-I Indore and judgment dated 06.08.2019 passed by 25th Additional District Judge, Indore whereby the suit and first appeal have been partly allowed. 2. Facts of the case in short as under: As per averment, in the plaint, the plaintiff is a son of late Sidhnath from his first wife late Parwati Bai. After the death of Parwati Bai, Sidhnath kept Ghisibai as a wife who gave birth to the defendants namely Mansharam, Mishrilal and Permanand. The Sidhnath died in the year 1999 and left 37.05 bigha land. The details of the survey numbers total in 14 located in Gram Buranikhedi, Tehsil and District Indore are mentioned in Schedule-A of the plaint. In the year 1960 the plaintiff at the age of 20 years got an employment in the Forest Department and from his saving and some Streedhan of his wife, he purchased 5 bigha of land of Gram Buranikhedi from one Ramu Maharaj in the name of his father. Thereafter he purchased 7 Bigha of land from Ramu Maharaj. During his life time, his father also purchased 5 bigha of land from Ramu Maharaj. After the death of father 3-4 years in presence of relative and villagers, he gave a consent to give certain land left by late Sidhnath to the defendant No. 2 and 3 despite they had no right and title in it. On the basis of said consent, his father had partitioned the property in 3 part and by which a Talaiwala Khet approximately 6 bigha came into his share, 5 bigha of land purchased from Ramu Maharaj was given to Mansharam and 5 bigha of land was given to is in dispute. Accordingly, the plaintiff, defendants Mansharam and Ramnath received 1/3-1/3 share in the family property. According, to the plaintiff, Mishrilal was lunatic since birth therefore, he was not given any share and during pendency of suit, later on, he died. Accordingly, the plaintiff, defendants Mansharam and Ramnath received 1/3-1/3 share in the family property. According, to the plaintiff, Mishrilal was lunatic since birth therefore, he was not given any share and during pendency of suit, later on, he died. The plaintiff has further pleaded that his mother Parwati Bai was also entitled to get half share in the property of late Sidhnath and accordingly, he is entitled for his 1/4th share as well as 1/8th share of his mother but defendants have filed an application for partition before the Tehsildar, hence, cause of action accrued for filing the present suit seeking partition by metes and bounds. The defendant No. 1 to 4 and 6 to 9 filed the written statement denying the averments made in the plaint by submitting that the mother of the plaintiff died 50-55 years ago and at that time, the plaintiff was minor and he was brought up by the defendant No. 1. After the death of the first wife, the Sidhnath performed the second marriage. The Mishri lal was not lunatic but he was suffering from paralysis hence entitled to get a share with other family members. The Sidhnath purchased the land from is own income from Ramu Maharaj in which the defendant No. 1 to 4 have share. The defendant No. 2 Mansharam purchased the land from his income from Ramu Maharaj in the name of his wife in which neither the plaintiff nor other defendant has any share and the said land be kept out of this suit property. During his lifetime, the Sidhnath had partitioned his property on 11.01.1973 between plaintiff and defendant No. 1 to 4 in which the plaintiff and defendants gave consent. During his lifetime, the Sidhnath had partitioned his property on 11.01.1973 between plaintiff and defendant No. 1 to 4 in which the plaintiff and defendants gave consent. On the basis of the pleadings, the trial court framed eight issues for adjudication, which are as under: Øaekd Okn iz'u fu"d"kZ 1- D;k okn xzLr Hkwfe tks okn i= ds lkFk layXu ifjf'k"V ^^v** ds #i esa mYysf[kr gS og la;qDr vfoHkDr ifjokj dh gS\ va'kr% izekf.krA 2- D;k oknh us xzke cqjkuk[ksM+h rglhy o ftyk bankSj dh 5 ,dM+ Hkwfe jkew egkjkt ls vius firk fl}ukFk ds uke ls Ø; dh ,oa 5&6 lky ds okn 6 ch?kk Hkwfe jkew egkjkt ls [kjhnh\ izekf.kr ughaA 3- D;k feJhyky tUe ls ikxy gS\ ;fn gk¡ rks D;k feJhyky dks oknxzLr Hkwfe es dksà LoRo izkIr ugha gS\ izekf.kr ughaA 4- D;k oknh us fl}ukFk dh e`R;q d iwoZ caVokjk ds i'pkr okn pj.k 3 esa mYysf[kr Hkwfe;ksa dks izkIr fd;k o mDr Hkwfe;ksa dk Lora= #i ls d`f"k dk;Z djrk pyk vk jgk gS\ va'kr% izekf.krA 5- D;k oknh Loå fl}ukFk }kjk NksM+h xà laifRr esa 1@4 o 1@4@2 Hkkx dk LoRo izkIr djus dk vf/kdkjh gS\ izekf.kr ughaA 6- D;k oknh dk xzke cqjkuk[ksM+h esa bankSj lsekfy;k ekxZ ij fLFkr 8 Mslhey okyk ckM+k ftlesa 30 ck; 50 {ks=Qy esa lajpuk cuh gqà bl edku esa 1@4 rFkk 1@4@2 dk LoRo gS\ izekf.kr ughaA 7- D;k losZ uacj 15@1@1 isdh jdck 1-262 dh Hkwfe izfroknh ea'kkjke] feJhyky o ijekuan us vius Lo&d"VkftZr laifRr ls Ø; dh gS o muds LoRo dh gS\ izekf.kr ughaA 8- lgk;rk ,oa O;; Okkn va'kr% Lohdkj fd;k tkdj fu.kZ; dh dafMdk 45 vuqlkj t;if=r fd;k x;kA The plaintiff and defendant examined their witnesses and got exhibited the documents. The trial court has held firstly that the suit property is joint Hindu Family undivided property. Secondly, Misrilal was not lunatic and entitled to get the share in the property of Sidhnath. Thirdly, the plaintiff did not purchase 6 Bigha of land from Ramu Maharaj from his income in the name of his father lat Sidhnath. The land survey No. 15/1/1 area 1.262 hectare is not self-earned property of defendant Mansharam, Misrilal and Permanand. Vide judgment and decree dated 29.11.2014, the learned civil judge has partly decreed the suit by holding that the plaintiff is having 1/5th share in the Hindu Family undivided property. The land survey No. 15/1/1 area 1.262 hectare is not self-earned property of defendant Mansharam, Misrilal and Permanand. Vide judgment and decree dated 29.11.2014, the learned civil judge has partly decreed the suit by holding that the plaintiff is having 1/5th share in the Hindu Family undivided property. The operative para of the decree is reproduced below: 45- oknh okn iz'u Øaekd 01 yxk;r 7 ds fu"d"kksZa ds ifj.kkeLo#i viuk okn va'kr% izekf.kr dj ikus esa lQy jgk gS] blfy, ;g okn va'kr% Lohdkj fd;k tkdj fuEukuqlkj t;if=r fd;k tkrk gS fd %& 1- oknh xzke cqjkuk [ksM+h fLFkr jkewegktu okyk [ksr uke ls fo[;kr Hkwfe dk lk<+s 5 ch?kk ftlds iwoZ es jkLrk] igys ea'kkjke dks nh x;h Hkwfe] if'pe es dkadM+] mRrj esa lnkf'ko iVsy dh Hkwfe] nf{k.k esa paikyky ikl okyh iMs+yh uke ls fo[;kr Hkwfe losZ uacj 51@2 jdck 0-39 ,dM+] ftldh prq% lhek iwoZ esa eksgu dh Hkwfe] if'pe esa iVokjh th dh Hkwfe] mRrj esa jkLrk] igys fof'k"B lkgc ¼dysDVj lkgc½ dh Hkwfe] nf{k.k esa iwuepan tks'kh dh Hkwfe okyh Hkwfe;ksa dks fgLls esa izkIr djus ds vk/kkj ij Lokeh gSA 2- izfroknhx.k oknh dks fgLls esa izkIr mDr Hkwfe esa Hkfo"; esa u rks Lo;a vkSj u fdlh vU; ds ek/;e ls gLr{ksi djsaxsA 3- izdj.k dh ifjfLFkfr;ksa esa oknh rFkk izfroknhx.k viuk&viuk okn O;; Lo;a ogu djsaxsA 4- vf/koDrk 'kqDy lwph vuqlkj vFkok izekf.kr gksus ij] nksuksa esa ls tks Hkh de gks] tksM+k tkosA rn~uqlkj t;i= dh jpuk dh tkosA Being aggrieved by the aforesaid judgment, the legal heirs of the plaintiff filed first appeal. Vide judgment dated 06.08.2019, the learned Additional District Judge has modified the judgment and decree and held that the plaintiff is not entitled to 1/4th and 1/8th share in the property of Sidhnath and but he is entitled to get 1/5th share in the property excluding the land survey 15/1/1. Vide judgment dated 06.08.2019, the learned Additional District Judge has modified the judgment and decree and held that the plaintiff is not entitled to 1/4th and 1/8th share in the property of Sidhnath and but he is entitled to get 1/5th share in the property excluding the land survey 15/1/1. The operative part of the judgment is reproduced below: 52- vr% mijksDr foospuk ds izHkko ls ;g vihy Lohdkj dh tkdj vkisf{kr fu.kZ; ,oa t;i= fnukad 29-11-2014 dks vikLr fd;k tkrk gS ,oa fuEukuqlkj vkns'k ikfjr fd;k tkrk gS %& 1- vihykFkhZx.k@oknhx.k ¼e`r c{khjke ds okflu½ fl}ukFk 'kkg dh laifRr ds 1@4 ,oa 1@4@2 Hkkx ikus ds vf/kdkjh ugha gSA 2- vihykFkhZx.k@oknhx.k ¼e`r c{khjke ds okflu½ dh fookfnr Hkwfe;ksa xzke cqjkuk[ksM+h esa fLFkr gS] ftldk [kljk ua- 4@2] 8@2] 9@2] 15@1@2] 15@2] 51@2] 62@2@1] 81@1] 137@1@1] 156@1] 238@1] 15@1] 15@1 d ,oa 122@2 dqy losZ uacj 14 dqy jdck 9-455 gsDVs;j esa 1@5 Hkkx ikus ds vf/kdkjh gSA 3- vihykFkhZx.k@oknhx.k dk dksà fgLlk Hkwfe losZ Øa- 15@1@1 esa ugha gksxkA 4- mDrkuqlkj mHk;i{k jktLo U;k;ky; esa fl}ukFk 'kkg okyh Hkwfe dk caVokjk dk ikus ds vf/kdkjh gSA mDr caVokjs esa i{kdkjx.k ds iwoZ esa dCts dks /;ku esa j[kk tk;sxkA Being aggrieved by the aforesaid judgment legal heirs of the plaintiff have filed the present appeal before this Court. 3. Shri Jain learned Senior counsel submits that the learned courts below have erred in law as well as on facts in decreeing the suit fully in favour of the plaintiff. He is entitled to get 1/4th of his own share in the property of late Sidhnath and 1/8th share of his mother Parwati Bai. The Mishrilal was lunatic, therefore he is not entitled to get any share. The defendants have failed to prove that he was suffering from paralysis. The plaintiff from is own income and Streedhan of his wife purchased 5 bigha of land from Sidnath in the name of his father but the learned courts below have wrongly treated it as part of as joint family property left by the late Sidhnath. The exhibit D-6 was not properly exhibited as per law and courts below have committed error in relying upon the same. The exhibit D-6 was not properly exhibited as per law and courts below have committed error in relying upon the same. It is further submitted that no cross appeal was filed in respect of finding recorded by the trial court for the land survey No. 15/1/1 (Issue No. 7) and despite that the first appellate court has excluded the said land from the total property of the Sidhnath for the purpose of partition. The appellants have filed an application under order 6 Rule 17 of C.P.C. and an application under order 14 Rule 5 of C.P.C. for framing Additional issues but without deciding these applications the appeal did not decide. 4. I have heard learned senior counsel at length and perused the records of both the courts below. 5. The appellants have filed an application under order 6 Rule 17 of C.P.C. and an application under order 14 Rule 5 of C.P.C. for framing Additional issues but without deciding these applications the appeal did not decide. 4. I have heard learned senior counsel at length and perused the records of both the courts below. 5. The appellants have proposed the following substantial questions of law in this appeal, which are reproduced below: ¼,½ D;k fo}ku fopkj.k U;k;ky; }kjk vihykFkhZ@oknhx.k dk vkosnu /kkjk 151 lh-ih-lh- fn- 14-11-2008 dk fujlr djus esa rFkk vihy U;k;ky; }kjk bl laca/k esa rdZ izLrqr djus ds ckotwn Hkh dksà fu"d"kZ ugha fudkyus esa xaHkhj fof/kd =qfV dh gS\ ¼ch½ D;k izn'kZ Mh@6 dk nLrkost ¼nLrjh½ fof/k vuqlkj izdj.k esa iznf'kZr ugha gS] mlds ckn Hkh mldks izekf.kr@iznf'kZr ekudj fopkj.k U;k;ky; }kjk fu"d"kZ fudkyus esa vkSj izFke vihy U;k;ky; }kjk mls lEikf'oZd iz;kstu ls ns[krs gq, vihykFkhZ@oknh ds dFkuksa dks vfo'oluh; ekudj fu.kZ; o t;i= ikfjr djus esa xaHkhj fof/kd =qfV dh x;h gS\ ¼lh½ D;k fo}ku fopkj.k U;k;ky; }kjk vius fu.kZ; ds pj.k 41 rFkk izFke vihy U;k;ky; }kjk vius fu.kZ; ds pj.k 46 ls ysdj 51 rd esa fudkys x;s fu"d"kZ fof/k foifjr gksdj u;k;ksfpr ugha gS\ ¼Mh½ D;k jsLikaMsUV }kjk izFke vihy U;k;ky; ls dksà Økl vkCtsD'ku izLrqr ugha djrs Hkh losZ Øa- 15@1@1 dh Hkwfe dks ikoZrhckà dh LovftZr ekudj fu"d"kZ fudkyus esa fof/kd Hkwy dh gS\ ¼Ã½ D;k fo}ku izFke vihy U;k;ky; }kjk vihykFkhZ dk vkosnu vkns'k 6 fu;e 17 lgifBr /kkjk 151 lh-ih-lh- fnukafdr 10-08-2018 ij dksà fu"d"kZ ugha fudkyus fu.kZ; o t;i= ikfjr djus esa =qfV dh gS\ ¼,Q½ D;k fo}ku izFke vihy U;k;ky; }kjk vihykFkhZ@oknh ds vkosnu vkns'k 14 fu;e 5 lh-ih-lh- fnukafdr 12-07-2019 dk fujLr djrs izdj.k esa okn fcUnq fu/kkZfjr fd;s tkuk vkSj ml ij lk{; vkfn dk volj ugha nsrs izdj.k esa fudkys x;s fu"d"kZ fLFkj j[ks tkus ;ksX; gS\ ¼th½ D;k oknh dk okn t;if=r fd;s tkus ;ksX; Fkk] ftls fof/k foifjr rjhds ls fuf.kZr@t;if=r djus esa fopkj.k U;k;ky;@izFke vihy U;k;ky; }kjk xaHkhj fof/kd =qfV dh x;h gS\ 6. The plaintiff has filed suit claiming 1/4th share in the Joint family property on the ground that he will get 1/4th share, Permanand and Mansharam will get 1/4-1/4 share and Parwati Bai and Ghisibai jointly will get 1/4 share. Mishrilal is not entitled any share because he was lunatic. The plaintiff has filed suit claiming 1/4th share in the Joint family property on the ground that he will get 1/4th share, Permanand and Mansharam will get 1/4-1/4 share and Parwati Bai and Ghisibai jointly will get 1/4 share. Mishrilal is not entitled any share because he was lunatic. After death Parwati Bai he will get 1/8th in the suit property and for which he is ready for partition. But the defendants are insisting for giving one share to the plaintiff i.e. 1/5th. The Parwati Bai died 50-55 years back and thereafter Sidhnath performed the marriage with Gheesibai. The Sidhnath had partitioned his movable and immovable on 11.01.1973 between the plaintiff and Mishrilal, Mansharam, Permanand and Ghisibai, since then they all in their possession and cultivating the land. The name of the aforesaid the sons i.e. plaintiff and defendants are jointly recorded in the revenue record and under the MPLR Code they are entitled to get it to partition from the revenue court but after the death, the Parwati Bai had no share after her death, therefore, the claim of the appellant for 1/8th is baseless. He has rightly been held entitled to get 1/5 share because has failed to prove that the Mishrilal was lunatic and the property is liable to partition between, the plaintiff, Ghisibai, Mansharam, Mishrilal and Permanand. 7. In a suit for partition, all parties are entitled to claim their share irrespective of the fact they are plaintiff or defendants, therefore, in the suit as well as first appeal without there being any claim or counterclaim the court has rightly passed the order ascertaining the share of parties in the joint family property. Therefore, first appellate court after examining the registered sale deed of Mansharam, Mishrilal and Permanand has held that the land survey No. 15/1/1 area 1.262 is not the property left by Sidhnath, therefore, same cannot be included in the suit property for partition. 8. The main contention of the plaintiff is that Ex. D-6 is neither stamped nor registered document, therefore, it cannot be admitted in evidence under the provision of Section 17 of the Registration Act but in view law laid down by the Apex Court in case of Yellapu Uma Maheswari & Anr. Vs. Buddha Jagadheeswara Rao & Ors., (2015) 16 SCC 787 and Kale and others Vs. D-6 is neither stamped nor registered document, therefore, it cannot be admitted in evidence under the provision of Section 17 of the Registration Act but in view law laid down by the Apex Court in case of Yellapu Uma Maheswari & Anr. Vs. Buddha Jagadheeswara Rao & Ors., (2015) 16 SCC 787 and Kale and others Vs. Deputy Director of Consolidation and others, (1976) 3 SCC 199, the unregistered document can be looked into the collateral purpose that to in respect of possession of the parties, however, the court has disbelieved the deed for the partition between plaintiff and defendants and held that the joint family property of Sidhnath was not partitioned and therefore, the learned courts have ascertained the share of the plaintiff and defendants independently. 9. So far land survey No. 15/1/1 is concerned, that was not included in the partition deed Ex. D-6, therefore, same has rightly been excluded from the property of Sidhnath. So far land 15/1/K area 1.262 is concerned, the same was mentioned in Ex-D-6. Hence, the first appellate court has rightly held that the defendants have proved that the land Survey No. 15/1/1 is self-earned property. The daughters of late Sidhnath have already relinquished their right in the HUF property. Since the Sidhnath died to instate, therefore, the first appellate court has rightly ascertained the share of parties as 1/5, 1/5 and 1/5. Since the Mishrilal died without issue therefore, his property is liable to be distributed between his brother by way of succession Act. 10. The scope of interference by the High court in Second Appeal is very limited as held by Apex court in case of Bellachi v. Pakeeran, (2009) 12 SCC 95 , is as under: 12. A concurrent finding of fact has also been arrived at that the appellant was not a person wholly incapable of understanding things. It was furthermore held that the plaintiff had sufficient funds for her own treatment as also for the treatment of her husband and thus the story that she was made to believe that she would be rendered financial assistance by some banks so as to enable her to meet the expenses for her husband's treatment, is not correct. It was, furthermore, noticed that her husband as also her daughter (PW 2) were government employees. 13. It was, furthermore, noticed that her husband as also her daughter (PW 2) were government employees. 13. The said concurrent findings of the fact ordinarily are binding on the High Court while exercising its jurisdiction under Section 100 of the Code of Civil Procedure. 14. This Court in Afsar Sheikh v. Soleman Bibi [ AIR 1976 SC 163 ] held as under: (SCC pp. 144-45, para 4) "4. In his written statement, Afsar defendant denied the allegations of fraud and misrepresentation. He averred that his grandmother was the sister of the plaintiff's mother. The defendant's father died when he was an infant. The plaintiff brought him up as a son. Since his very infancy, the defendant has been living with the plaintiff, managing his affairs and treating him as his father. The defendant further stated that the plaintiff had transferred 10 to 12 bighas of land to his natural son and an equal area to his second wife. Out of love and affection, the plaintiff conferred a similar benefit on the defendant and voluntarily executed the hiba-bil-e-waz after receiving from the donee a dhoti as a symbolic consideration therefor. He denied that the plaintiff at the time of the gift was too old and infirm. According to him, the plaintiff was not more than 75 years of age. He further averred that he was in possession of the suit lands ever since the execution of the hiba." (emphasis in original) It was observed: (Afsar Sheikh case vs. Soleman Bibi [ AIR 1976 SC 163 ]) "20. It is well settled that a question whether a person was in a position to dominate the will of another and procured a certain deed by undue influence, is a question of fact, and a finding thereon is a finding of fact, and if arrived at fairly, in accordance with the procedure prescribed, is not liable to be reopened in second appeal (Satgur Prasad v. Mahant Har Narain Das [(1931-2) 59 IA 147]; Ladli Parshad Jaiswal v. Karnal Distillery Co. Ltd. [ AIR 1963 SC 1279 ])." 15. It is not the case of the appellant that the finding of the first appellate court on the question of fraud, undue influence, etc. is vitiated by any illegality, omission or error or defect as envisaged under Section 100 of the Code of Civil Procedure. 11. Ltd. [ AIR 1963 SC 1279 ])." 15. It is not the case of the appellant that the finding of the first appellate court on the question of fraud, undue influence, etc. is vitiated by any illegality, omission or error or defect as envisaged under Section 100 of the Code of Civil Procedure. 11. In view of the above discussion both the learned courts have rightly decided the 1/5th share of the plaintiff in the joint family property. I do not find any substantial question of law involved in this second appeal. Accordingly, this appeal fails and is hereby dismissed.