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1990 Supreme(Bom) 184
IN THE HIGH COURT OF BOMBAY
S.M. Daud, J.
Nilkanth Krishnarao Apte (Dr.) .... Plaintiff.
Versus
Ramchandra Krishnarao Apte (Dr.) and another.... Respondents.
AND
Viraj Ramchandra Apte .... Plaintiff.
Versus
Nilkanth Krishnarao Apte and others ... Respondents.
Suit No. 155 of 1976 with Suit No. 594 of 1979, decided on 25-4-1990.
Advocates appeared :
K.D. Shah with Mrs. Shah, for the plaintiff.
N.A. Shah i/by Divekar Co., for defts. 1, 2 and 5 to 7.
N.M. Gunjalkar, for defendants 3 and 4.
Headnote:REGISTRATION ACT, 1908
Section 17-Family arrangement-Whether exempt from registration Held-A family arrangement is not press exempt from registration-Caption given to a document by parties is not decisive of what it amounts to-Its contents to be read as a whole B determine true nature of transaction It Incorporates.
Partition-De facto seperation-Not Necessary-Only Intention to seperate sufficient - When such intention proved, burden of proof of non-seperation, lies on person who alleges such.
Partition is the severance of joint status and that can be done by communication of an intent to seperate by a member of the Hindu undivided family. This is not to be confused with a de facto division of property and allotment of shares if the former be established, the joint family stands disrupted though no seperation of the estate by metes and bounds may have taken place. Continuance of the joint family bas then to be proved by be who alleges the same. But a partition between coparceners may be partial in respect of property. In such a case the members of the HUF make a division and severance of status in respect of a part of the joint estate, while retaining their status as a joint family and bolding the rest of the properties as a joint and undivided family. In the event of a partial seperation being admitted or proved, it is for the party pleading continuance of joitness in respect of the remaining property to so establish.
HINDU SUCCESSION ACT, 1956.
Section 6-Suit for partition-Ancestral property-A son can file suit for partition of ancestral property even during life time of his father without his consent.
Relied on-AIR 1986 Born 122.
2. N.K. Apte and R.K. Apte being full brothers are the sons of the late Krishnarao and Krishnabai respectively. Krishnarao was practising and residing at Baroda. He died leaving behind his widow and two sons who succeeded to his estate comprising two houses, shares and cash. The houses were disposed off by the trio. N.K. Apte had come to Bombay and after completing his M.B.B.S. and M.S., started practising here. After the passing away of Krishnarao in 1951, Krishnabai and R.K. Apte also migrated to Bombay. With the assets inherited from Krishnarao, a plot of land was purchased at Chembur. The first storey comprising six rooms was constructed and the cost of this structure plus the plot came to about Rs. 49,000/-. There was a vertical expansion in later years with additions on the 1st and 2nd floors-- the latter comprising a terrace room. In relation to these additions and a garage, Krishnabai and R.K. Apte passed a document in favour of N.K. Apte. This document dt. 20.6.1968 was in triplicate and a photo copy thereof is at Ex. P. 1. It recites an acknowledgement by Krishnabai and R.K. Apte that the additions are of N.K. Apte's ownership, that he had orally gifted the same to his wife Mrs. Saroj Apte and that they would not have any objection to the done letting it out to any person of her choice. In return Mrs. Apte was to pay the taxes and as soon as there was a letting out her husband would make over one room on the ground floor to R.K. Apte and also discontinue paying Rs. 50/- per month to Krishnabai. This document was acted upon. In 1974 or thereabouts, relations between N.K. Apte and R.K. Apte took a turn for the worse. On 12-12-1974 the former's Solicitors addressed Ex. P-9 to R.K. Apte giving him three options. The notice not having had any effect, N.K. Apte instituted Suit No. 155 of 1976. To this suit the persons impleaded were R.K. Apte and Mrs. Saroj Apte. An attempt was made by the former's children to get themselves impleaded to the suit. N.K. Apte resisted the move and the chamber summons for joinder came to be dismissed. Down, but not out, one of the children viz., son Viraj, filed the 1979 suit. The two brothers, their spouses and children are all impleaded to this suit.
3. N.K. Apte claims a partition of the plot, the ground floor married thereto, such F.S.I. as remains and the movable listed in Ex. D (common to the both suits). As to the upper floors, these were constructed by him with his money and R.K. Apte and Krishnabai had acknowledged the non-existence of any right or interest therein. For that reason the said floors could not be included in the divisible hotchpot. For items II to IV of Ex. D., R.K. Apte has disposed of quite a few. This entitles N.K. Apte to half the sale proceeds i.e. Rs. 15,222/-. As to the division of the house,it is incapable of a metes and bounds partition. The only alternative is to sell the same and distribute the sale proceeds between him, R.K. Apte and Saroj Apte. The reliefs claimed are a declaration that R.K. Apte and he have equal shares in land and ground floor, Item V of Ex. D, sale of house with the proceeds divisible between him, his wife and brother and a division of the entire property in proportion of their shares. This stand is supported by his wife and children.
4. Viraj contends that the properties listed in Ex. D which include the house and movables is ancestral property and he has an interest therein by birth. Writing dt. 20-6-1968 (Ex. P-1) is the result of undue influence and pressure brought upon R.K. Apte by Krishnabai at the instance of N.K. Apte. Therefore, and even otherwise the same does not effect his interest in the estate. He pays for separation of his share in the property. In making this claim, Viraj is supported by his parents and si
