2024 Supreme(Pat) 956

IN THE HIGH COURT OF JUDICATURE AT PATNA
Sunil Dutta Mishra, J.
Ganga Bishun Singh son of Late Sri Bihari Singh - Appellant
Vs.
Suresh Prasad Singh son of Late Ram Prasad Singh - Respondent
First Appeal No.84 of 2016 with First Appeal No. 326 of 1986
Decided On : 20-11-2024

The court affirmed the plaintiffs' right to partition of joint family property, ruling that the defendants failed to prove prior partition, and emphasized the necessity of registration for partition deeds.

Headnote:

Hindu Law – Partition – It is well settled principle of law that a joint Hindu family continues to be joint unless contrary is proved – It is well settled that in a Hindu family governed by Mitakshara School of Law, there is normal presumption of jointness, joint in food, worship and food – The presumption of jointness is stronger in a case of brothers than in case of cousins and further one goes from founder of family, the presumption becomes weaker due to the remoteness of relationship with the common ancestor due to lapse of time – Partition is only adjustment of shares between or among persons who are entitled to share in the property – A share, which was undefined and indistinct, becomes definite when partition takes place – as a general rule, once a partition is made, it cannot be reopened because a share can be divided only once – The separation can be proved by the conduct of the family and attending circumstances – The separate dealings with property, separate messing and residence may not by themselves prove partition but their cumulative effect may show that there was partition between the parties. (Para 19)

Hindu Law – Memorandum of Partition – Non-registration – Effect of – In a document of partition, specific partition of properties are allotted to each of the shares by metes and bounds which requires registration under Section 17(b) of the Registration Act, 1908 being non-testamentary instrument which purports or operate to create or declare right, title or interest in immovable poverty of the value of Rs. 100/- and upward – The effect of non-registration of such a document is enacted in Section 49 of the Registration Act – Section 49(c) of the Registration Act excludes the unregistered documents to be taken as evidence – The law is well settled that notwithstanding the rejection of partition deed as inadmissible, other evidence may be admissible to prove the partition – It the memorandum itself does not create or extinguish any right in immovable property, the said memorandum of partition does not require registration – The law is well settled that if the member of the family descending from a common ancestor or near relation seeks to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring complete harmony and goodwill in the family and document is prepared by way of memorandum after family arrangement has already been made for the purpose of record and future use, the said document does not require registration. (Paras 30 & 31)

Hindu Law – Partition – Deed of Partition – In the deed of partition, the joint family properties cannot be relied upon unless signed by all co-sharers – In the instant case, admittedly, defendant nos. 14 to 17 who are daughters late Ram Prasad Singh (one of the sons of the common ancestor), were not signatories to the panchnama and the same has not been acted upon by them – The said document (deed of panchnama) is not a memorandum of partition or a compromise deed and the learned trial court has rightly held that being unregistered document it is hit by the provision of Section 17(b) of the Indian Registration Act. (Para 34)

Code of Civil Procedure, 1908 – Order 26 – Pleader Commissioner's Report – The Survey Knowing Pleader Commissioner was appointed and there has been no allegation against him regarding his integrity or carefulness – He was one from the approved list maintained by the learned District Judge and the Survey Knowing Pleader Commissioner in presence of the parties made the local investigation and has submitted the detailed report along with barbada and partition maps – Mere disputing the report of Survey Knowing Pleader Commissioner by filing objection cannot be sustained – The learned trial court committed no error in accepting the report of the Survey Knowing Pleader Commissioner and rejecting the objection raised by the appellant – No infirmity in the impugned judgment – appeals dismissed. (Paras 48, 50 & 51)

Kale Vs. Deputy Director of Consolidation, (1976) 3 SCC 119; Ravinder Kaur Grewal Vs. Manjit Kaur, 2020 (4) BLJ 611 (SC) : (2020) 9 SCC 706; K. Arumuga Velaiah Vs. P.R. Ramasamy, 2022 (5) BLJ 321 (SC) : (2022) 3 SCC 757; Deoki Mallah Vs. Surji Mallahain, 1999 (1) PLJR 199; Madhusudan Das Vs. Narayanibai (deceased) through LRs., (1983) 1 SCC 35; Chandan Mull Indra Kumar Vs. Chimanlal Girdhardas, AIR 1940 PC 3; Judicial Committee, 13 M.I.A. 607; Jugeshwar Singh Vs. Rijhan Singh, AIR 1938 Patna 104; Ambika Bhawani Devi Vs. Gouri Kumari Devi, AIR (34) 1947 Patna 271 – Relied upon.