1990 Supreme(Pat) 97

PATNA HIGH COURT
S.B.Sinha, J.
Pata Sahu
Versus
Hiru Sahu
Appeal from Original Decree No. 40 of 1983 ;
Decided On : MARCH 9, 1990

A partition amongst the coparceners takes place when they in unequivocal terms declare their intention to separate.

Headnote:

PARTITION - JOINT FAMILY - PRESUMPTION - BURDEN OF PROOF - SEPARATE POSSESSION - SEPARATE CULTIVATION - SEPARATE TRANSACTIONS - UNREGISTERED DEED OF PARTITION - ADMISSIBILITY - INTENTION TO SEPARATE - EVIDENCE - JOINT NUCLEUS - SUFFICIENCY - ACQUISITION OF PROPERTIES - PRESUMPTION - SELF-ACQUIRED PROPERTIES - DECLARATION OF TITLE - RECOVERY OF POSSESSION - DECREE FOR PARTITION - COSTS.

Fact of the Case:

The plaintiffs and the pro forma defendant No. 3 are brothers being sons of Kandra Sahu and are co-sharers of the defendant Nos. 1 and 2. The plaintiffs alleged that the lands appertaining to Revisional Survey Khata. Nos. 241, 242 were self acquired properties of their father Kandra Sao. It has further been alleged that the lands described in Schedule A of the plaint were acquired by the joint family in the names of defendants Nos. 1 and 2 Pata Sahu and Konda Sahu and the said lands has all along been treated as a joint family properties. The plaintiffs have further alleged that in the year 1968, a dispute arose with regard to the properties described in Schedules and B of the plaint resulting in initiation of a proceeding under Sec. 145 of the Code of Criminal Procedure, which was registered as case No. 335 of 1968 and by an order dated 18-8-1975, the learned Executive Magistrate in the aforementioned case declared possession of the defendant No. 1 in relation to the aforementioned properties. The lands appertaining to Khata No. 242 was also the subject matter of the aforementioned proceeding under Sec. 145 of the Code of Criminal Procedure, and, in this view of the matter, the plaintiffs sought for a declaration of title and recovery of possession in respect of the said property in suit. However, the lands appertaining to Khata No. 241 are not the subject matter of the aforementioned suit. According to the plaintiffs, the lands under the aforementioned Khatas were self acquired properties of their father Kandra Sahu and therein the defendant-appellants have no interest.

Finding of the Court:

The court held that there had been a partition by metes and bounds amongst the parties and all the acquisitions standing in the names of the defendant or the plaintiffs are their self-acquired properties. The court further held that the plaintiffs are only entitled to get a declaration of their title in respect of properties appertaining to Khata No. 242 of village Omra P.S. Palkot, and, further they are entitled to obtain a decree for recovery of possession in respect of the said properties alone. However, the prayer of the plaintiffs for a decree for partition must be rejected.

Issues: 1. Whether there had been a partition amongst the joint family properties? 2. Whether the plaintiffs are entitled to a declaration of their title in respect of properties appertaining to Khata No. 242 of village Omra P.S. Palkot? 3. Whether the plaintiffs are entitled to obtain a decree for recovery of possession in respect of the said properties? 4. Whether the plaintiffs are entitled to a decree for partition?

Ratio Decidendi: 1. The presumption of a joint family continuing to be joint is the greatest in the case of father and sons and the strength of the presumption necessarily varies in every case. 2. A partition amongst the coparceners takes place when they in unequivocal terms declare their intention to separate. 3. Separate mess, separate residence, separate cultivation and separate transactions of the properties by themselves may not be conclusive proof of partition but taking into consideration the cumulative effect thereof, the same may lead to an inference of partition. 4. An unregistered deed of partition is admissible in evidence for the purpose of showing that the parties intended to separate amongst themselves. 5. The burden of proof is upon the plaintiff to show that the properties standing in the name of the defendants were the joint family properties. 6. The mere existence of some nucleus is not the sole criterion to impress subsequent acquisitions a family character and what is to be shown is that the family had as a result of nucleus, sufficient income from which the subsequent acquisition could be made.

Final Decision: The appeal is allowed in part and the judgment and decree passed by the learned trial court is set aside and it is declared that the plaintiffs are only entitled to get a declaration of their title in respect of properties appertaining to Khata No. 242 of village Omra P.S. Palkot, and, further they are entitled to obtain a decree for recovery of possession in respect of the said properties alone. However, the prayer of the plaintiffs for a decree for partition must be rejected. The plaintiffs suit, therefore, stands decreed to the aforementioned extent only. In the facts and circumstances of the case, the parties shall bear their own costs throughout.