IMPORTANT POINT
If a plea which was relevant for purpose of maintaining a suit had not been specifically traversed, Court would draw an inference that same had been admitted.

Headnote:HINDU LAW — Suit for partition — Defence plea that parties had arrived at a family settlement and part of it had been acted upon and plaintiff/respondents were estopped from filing the suit — Said family settlement had not been acted upon in so far appellant did not pay a sum of Rs. 15,000/- to respondents — Suit was dismissed — High Court reversed the decree — Appeal — Before the Court rejected a claim of partition of joint family property, it must be established that there had been a partition by metes and bounds — Defendant appellant in written statement had not specifically denied that earlier family settlement was to have its effect only on payment of said amount of Rs. 15,000/- — Plea not specifically traversed was to be taken to have been admitted — High Court committed no error in arriving at finding that by said purported family settlement, co-owners had not partitioned property by metes and bounds — No interference was warranted in plaintiff’s suits being decreed.
       Held : For the purpose of this case, we will proceed on the assumption that the said deed of family settlement was not required to be compulsorily registered, in terms of Section 17 of the Registration Act as by reason thereof, the relinquishment of the property was to take effect in future. But there cannot be any doubt whatsoever that before the Court rejects a claim of partition of joint family property, at the instance of all the co-owners, it must be established that there had been a partition by metes and bounds. By reason of the family settlement, a complete partition of the joint family property by metes and bounds purported to have taken place. One of the co-sharer, however, did not join in the said purported family settlement. (Para 10)
       The contract between the parties, moreover was a contingent contract. It was to have its effect only on payment of the said sum of Rs. 15,000/- by the plaintiff and other respondents by the defendant Nos. 1 to 3. It has been noticed hereinbefore by us that as of fact, it was found that no such payment had been made. Even there had been no denial of the assertions made by the appellant in their written statement in that behalf. The said averments would, therefore, be deemed to be admitted. (Para 11)
       Thus, if a plea which was relevant for the purpose of maintaining a suit had not been specifically traversed, the Court was entitled to draw an inference that the same had been admitted. A fact admitted in terms of Section 58 of the Evidence Act need not be proved. (Para 12)
       Even otherwise, the Court had framed an issue and arrived at a positive finding that the appellant herein did not pay the said sum of Rs. 15,000/- in favour of the plaintiff Nos. 1 to 3. The High Court has also affirmed the said finding. (Para 13)
       The High Court, therefore, cannot be said to have committed any error whatsoever in arriving at the finding that by reason of the said purported deed of family settlement, the co-owners had not partitioned the joint family property by meets and bounds. The plaintiffs/respondents were thus, yet to relinquish their rights in the joint family properties by receiving the said amount of Rs. 15,000/-. Deed of family settlement had not been given its full effect to. We agree with the High Court that even on that count, the plaintiff’s suit should have been decreed. (Para 14 & 15)

JUDGMENT

S.B. Sinha, J. — Defendant No. 1 in the suit is the appellant herein. The parties hereto were admittedly co-owners of the suit property. The relationship between the parties shall appear from the following genealogical table:-

M. Ramakrishna Hebbar

= Smt. Sundari Amma (D-9)

| | | |

M. Venkatram- M. Rajgopala M. Mohana M. Anantha

And Hebbar Hebbar Hebbar Hebbar

(D-1) (P-1) (D-5) (D-6)

| | ______________

| | |

| | | | |

| Srirama Srikrishna Srivittala | | (P-2) (P-3) (P-4) |

| |

| | |

| Prasanna Prashantha | (D-7) (D-8)

| | |

M. Gopal M. Harisha M. Janardhana

Krishna Hebbar

Hebbar (D-3)

(D-2)

2. A suit for partition was filed by the plaintiffs claiming one-fourth share in the suit property. It is not in dispute that on or about 30.3.1973, a purported family settlement was arrived at by the parties. One of the defendants, however, was not a signatory thereto. In the said purported family settlement, it was stated:-

”We each of us are entitled to < share in the family property. As that property is a small areca garden and as there are no sites near by to construct a separate houses, that property cannot be divided. Hence as owelty No. 1 of us is liable to pay to No. 2 and 4 of us Rs. 15,000/- each. That amount is to be paid in 15 yearly instalments of Rs. 1000/- each. On payment of last instalment 2 and 4 of us release their rights in favour of No. 1 of us at his costs. We No. 1, 2 and 4 of us have agreed for this. The Ist instalment is to begin with the end of March 1973 and end with the period of 15 years at the end of March 1987.

The marriage of Nos. 2 and 4 of us is to be performed by No. 1 of us in the family House. If the instalments cannot be paid due to the marriage in that year the amount is to be paid in that year ½ and the balance is to be paid in the subsequent year. Accordingly if the entire amount is not paid as stipulated the same is to be paid by the end of March 1990 by number 1 of us and get a release deed executed from No. 2 and 4 of us at the costs of No. 1 of us.

No. 2 and 4 of us have to construct separate houses by the end of May 1976 and reside there.

As there are no sufficient movable and gold jewels in the family house No. 2 and 4 have no separate share in it. No. 1 of us is liable to pay the family dues if any and bear the expenses of the viniyogas of Gods and devils.

Towards the maintenance of our mother each of us is liable to pay 2 muras of rice and Rs. 25/- every year and obtain receipts and her obsequies is to be performed by No. 1, 2, 3 and 4 of us in equal shares. No. 2 and 4 are not liable for the family debts. The share of No. 3 of us is retained by No. 1 of us he is liable to deliver the same when he demands, we Nos. 1, 2 and 4 of us agreed for the terms in the presence of the grahastas with our full consent and executed this agreement we are liable to abide by all the conditions of this agreement. If any of us incurs loss etc. by non performing as per the agreement, the person who had not performed his part is liable to pay the loss etc. and that person is entitled to recover the amounts. Accordingly we have entered into this agreement.”

3. Allegedly, the said family settlement had not been acted upon in so far as the appellant herein did not pay a sum of Rs. 15,000/- to the respondents herein. In their complaint, the appellant stated:-

“VI. The plaintiffs further submit that the alleged agreement dt. 30.03.1973 has never come into force and it has never been acted upon. The 1st plaintiff has never been paid any amount under the said agreement, the averments made in the notice dated 05.05.1988 and the reply dated 12.05.1988 in this regard are palpably false, defendants 1 to 4 cannot take shelter under the said agreement and deny the plaintiffs their lawful share in the plaint properties. Further, the said document is also not valid since the 6th and the 9th defendants are not par

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2007 Supreme(SC) 465

IMPORTANT POINTIf a plea which was relevant for purpose of maintaining a suit had not been specifically traversed, Court would draw an inference that same had been admitted.

IMPORTANT POINT
If a plea which was relevant for purpose of maintaining a suit had not been specifically traversed, Court would draw an inference that same had been admitted.