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SUPREME COURT OF INDIA
M.M. SUNDRESH, S.V.N. BHATTI, JJ.
Mohan Hirachand Shah - Appellant
Versus
Geeta Kumarchand Shah & Ors. - Respondents
Civil Appeal No(S). 773-775 of 2023
Decided On : 19-03-2024
Partition - Hindu Undivided Family - C.S. No. 103 of 1996 - [Section 54 of the Code of Civil Procedure, 1908] - [Exhibit 160, 162, 197, 198] - [Vineeta Sharma v. Rakesh Sharma and Ors., (2020) 9 SCC 1] - [Ram Sarup Gupta (Dead) by LRs v. Bishun Narain Inter College and Ors., (1987) 2 SCC 555] - [Bachhaj Nahar v. Nilima Mandal and Anr., (2008) 17 SCC 491] - [Anathula Sudhakar v. P. Buchi Reddy (Dead) by LRs. and Ors., (2008) 4 SCC 594] - [Taherakhatoon (D) by LRS v. Salambin Mohammad, (1999) 2 SCC 635] - [Chandra Singh and Ors. v. State of Rajasthan and Anr., (2003) 6 SCC 545] - [Municipal Board, Pratabgarh and Anr. v. Mahendra Singh Chawla and Ors., (1982) 3 SCC 331]
Fact of the Case:
Late Hirachand Umarshi Shah's legal representatives and/or successors in interest are in a partition dispute over the ancestral properties of a Hindu undivided family (HUF). The properties were subject to a legal notice for partition and separate possession, leading to a series of written statements and appeals.
Finding of the Court:
The High Court decreed the partition of certain properties, holding that they were not ancestral properties and were subject to oral partition and settlement. The properties at Sl. Nos. 19-21 were declared ancestral and were to be partitioned among the parties. The Court also addressed substantial questions of law related to the interpretation and admissibility of various documents and deeds.
Issues: The Court analyzed the interpretation and admissibility of various documents, including oral partition, release deeds, and affidavits, and addressed the legal effect and evidentiary value of these documents. The Court also considered the absence of pleadings and the scope of its jurisdiction under Article 136 of the Constitution of India.
Ratio Decidendi: The Court held that evidence adduced without proper pleadings cannot be considered, and that a question which did not arise from the pleadings and was not the subject matter of an issue cannot be decided by the Court. The Court also exercised its discretionary jurisdiction under Article 136 of the Constitution of India, and declined to interfere with the impugned judgment despite finding it erroneous, as justice on the main issues had been done by the judgment of a court.
Final Decision: The High Court's judgment was sustained, and the Civil Appeals failed. No order as to costs was made.
Key Points: - The High Court declared properties at Serial Nos. 19 to 21 as ancestral properties of the late Hirachand Shah and ordered their partition by metes and bounds among the parties. (!) (!) - The Court held that unregistered affidavits and power of attorney (Exhibits 162 and 196) were inadmissible as evidence to prove a relinquishment of rights because they violated Section 17(1)(b) of the Registration Act, 1908. (!) (!) (!) - The Court ruled that documents executed during the pendency of the suit (pendente lite) without subsequent additional pleadings cannot be relied upon to establish an exclusive claim to property. (!) - The Supreme Court sustained the High Court's judgment, declining to interfere despite finding some errors, as justice on the main issues had been done and the appeals failed. (!) (!) - The Court established that evidence adduced without proper pleadings cannot be considered, and questions not arising from pleadings cannot be decided by the Court. (!) (!) - The Court found that the plea of oral partition for properties at Serial Nos. 8 to 17 was accepted by the High Court based on public documents, but this finding was not challenged in the current appeals. (!) (!) - The Court noted that the oral partition of properties at Serial Nos. 8 to 17 in 1973 was supported by public documents, making it acceptable under exceptional circumstances despite the general rule against oral evidence. (!) (!) - The Court held that the affidavit and power of attorney do not operate as estoppels to permanently deprive heirs of their co-ownership in the properties covered by those documents. (!) (!)
JUDGMENT :
S.V.N. Bhatti, J.
1. Late Hirachand Umarshi Shah is the propositus. The legal representatives (LRs) and/or their successors in interest are in lis for partition and separate possession of the plaint schedule properties. At the outset, reference to the genealogy and the array of the parties in the present litigation would make the narrative of the respective pleadings precise and brief.
I. GENEALOGY
I. FACTUAL MATRIX
2. The Civil Appeals are at the instance of Mohan Hirachand Shah/Defendant No. 1 in Regular Civil Suit No. 103 of 1996 on the file of IInd Jt. Civil Judge, J.D., Alibag. The appeals arise from the common judgement dt. 21.03.2017 in S.A. No. 708 of 2008, S.A. No. 38 of 2009 and S.A. No. 386 of 2009 in the High Court of Bombay. The parties are referred to as per their respective standing in the Trial Court.
3. Damodar Hirachand Shah/Plaintiff filed RCS No. 103 of 1996 for partition of the Plaintiff’s 1/11th share in the suit schedule property by metes and bounds and allot the said share to the Plaintiff. Originally, the plaint was presented with 15 items for partition. By amendments and additions to the suit schedule, as it stands in the plaint dealt with the following 21 items :
| Sr. No. | Situated at | Survey No. | Hissa No. | Gat No. | Area H.R. | Assmt. Rs. Ps |
| 1. | Mandve-Zirad | 2 | 1C3 | -- | 0-23-3 0-03-3 | 7-02 |
| 2. | -”- | 9 | 1A1B2 | -- | 0-12-9 0-02-6 | 3-68 |
| 3. | -”- | 9 | 1A1A4 | -- | 0-23-7 0-05-1 | 7-11 |
| 4. | -”- | 9 | 1A1A3 | -- | 01/09/09 0-01-8 | 2-89 |
| 5. | -”- | 5 | 2 | -- | 2-26-9 0-68-1 | 2-99 |
| 6. | -”- | 4A | 1 | -- | 0-22-0 0-06-0 | 0-47 |
| 7. | -”- | 4A | 3B | -- | 0-99-0 0-32-0 | 2-10 |
| 8. | Dhokwade | -- | -- | 437 | 0-17-7 0-02-3 | 4-09 |
| 9. | -”- | -- | -- | 491 | 0-62-0 | 1-12 |
| 10. | -”- | -- | -- | 540 | 0-32-0 | 0-56 |
| 11. | -”- | -- | -- | 318 | 0-00-8 | 0-12 |
| 12. | -”- | -- | -- | 261 | 0-46-6 0-00-2 | 14-18 |
| 13. | -”- | -- | -- | 520 | 01-10-0 0-04-0 | 2-01 |
| 14. | -”- | -- | -- | 266 | 0-07-1 0-03-0 | 2-06 |
| 15. | -”- | -- | -- | 434 | 0-18-0 0-09-4 | 4-94 |
| 16. | Dhokwade | -- | -- | 313 | 0-25-0 | 37-50 |
| 17. | Mhatroli Gaon | -- | -- | 236 | 0-45-0 | 0-47 |
| 18. | Dhokwade | -- | -- | 351 | 0-23-9 0-01-0 | 4-14 |
| 19. | Dhokwade | -- | -- | 214A | 2-70-48 | 3-66 |
| 20. | Dhokwade | -- | -- | 262 | 3-06-0 0-08-0 | 5-62 |
| 21. | Dhokwade | -- | -- | 214(B) | 0-03-18 | 4-80 |
4. The Plaintiff avers that the parties to RCS No. 103 of 1996 constitute a Hindu undivided family (HUF). The HUF owns and possesses the plaint schedule properties. The propositus/Hirachand Umarshi Shah was at the helm of the family till he died on 21.08.1970, leaving behind three sons, namely, Late Kumarchand (represented by LRs, Defendant Nos. 3-7), Mohan (Defendant No. 1) and Purshottam (Defendant No. 2), and one daughter, Sulochana (mother of Defendant Nos. 8, 9 and 16), through his first wife, late Motiben. The propositus was also survived by his second wife, Devkibai (Defendant No. 10) and their two sons, Damodar (Plaintiff) and Shivlal (Defendant No. 11), and four daughters, Kesar (Defendant No. 12), Leela (Defen
AI
Rule 73 of Rules reads as duties of Registering Officer.
The court ruled that an oral partition was established and the plaintiff cannot claim partial partition without including all relevant properties, adhering to heirs' rights under Hindu law.
The court reaffirmed that for a valid partition among joint family properties, proper registration and absence of fraud are crucial, emphasizing joint possession and familial rights.
The court determined that an oral partition can establish ownership of joint family property without formal documentation, being legitimate under Hindu law. Plaintiffs are entitled to seek recovery b....
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