Back
2003 Supreme(Pat) 90
PATNA HIGH COURT
Nagendra Rai, J.
Aryendra Prasad
Versus
Dharmendra Prasad
C.R. No. 1640 of 2002 ;
Decided On : JANUARY 22, 2003
The central legal point established in the judgment is the determination of the nature of a document as a deed of partition or a memorandum of partition, based on its content and effect.
Headnote:
deed of partition - nature of document - The court held that the document in question was a deed of partition and not a memorandum of partition, and directed the lower court to proceed accordingly.
Fact of the Case:
The court considered whether a document was a deed of partition or a memorandum of partition, as it was claimed to be a deed of partition by one party and a memorandum of partition by the other.
Finding of the Court:
The court found that the document in question was a deed of partition and not a memorandum of partition, and set aside the lower court's order, directing the lower court to proceed by treating the document as a deed of partition.
Issues: Nature of the document - Whether it is a deed of partition or a memorandum of partition
Ratio Decidendi: The court analyzed the content of the document and concluded that it was a partition deed, as it granted power to divide properties between the claimants, and was not a memorandum of partition evidencing that the partition had already taken effect.
Final Decision: The revision application was allowed, and the lower court was directed to expedite the disposal of the suit by treating the document as a deed of partition.
1. Heard learned counsel for the parties.
2. The only question for consideration is whether the document is a deed of partition or a memorandum of partition, as according to the petitioner it is a deed of partition whereas according to the opposite party the same is memorandum of partition.
3. Earlier, the opposite party had come to this Court in C.R. No. 620 of 2000 and this Court observed that it is for the court to first decide the nature of the document and if the document is a partition deed then definitely impounding might be done and if it is family arrangement, question of impounding does not arise.
4. By the impugned order, the court below held that the deed in question is a memorandum of partition (Yaddast) and not deed of partition. The said document has been annexed as Annexure-1 to this revision application. From perusal of the same, it appears that it is a partition deed as by the same deed power has been given to divide the properties between the claimants. It is not a memorandum of partition evidencing that the partition had already taken effect and the document has been executed by way of memorandum. The court below has committed material illegality in exercise of jurisdiction in holding that the document is a memorandum of partition. Accordingly, the impugned order is set aside and the court below is directed to proceed in the matter by treating the document as deed of partition. It is a suit of 1987. The court below is directed to expedite its disposal.
5. In the result, this revision application is allowed.
