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IN THE HIGH COURT OF JUDICATURE AT PATNA
SUNIL DUTTA MISHRA, J.
First Appeal No.84 of 2016 with 326 of 1986
(20.11.2024)
Ganga Bishun Singh ... Appellant
(in both)
vs.
Suresh Prasad Singh & Ors. ... Respondents (in both)
Hindu Law – Partition – A joint Hindu family continues to be joint unless contrary is proved – Hindu family governed by Mitakshara School of Law, there is normal presumption of jointness, joint in food, worship and estate – 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 – Once a partition is made, it cannot be reopened because a share can be divided only once and 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 – Partition document – In a document of partition, specific portion of properties are allotted to each of the sharers by metes and bounds which requires registration under Section 17(b) of the Registration Act, 1908 being non-testamentary instrument which purports or operates to create or declare right, title or interest in immovable property of the value of Rs. 100/- and upward – Notwithstanding the rejection of partition deed as inadmissible, other evidence may be admissible to prove the details of partition – If the memorandum itself does not create or extinguish any right in immovable property, the said memorandum of partition does not require registration – 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 and 31)
Indian Registration Act, 1908 – Section 17(b) – Deed of partition – In the deed of partition, the joint family properties cannot be relied upon unless signed by all co-sharers – Defendants were not signatories to the Panchnama and the same has not been acted upon by them – Deed of Panchnama is not a memorandum of partition or a compromise deed and the trial Court has rightly held that being unregistered document it is hit by the provision of Section 17(b). (Para 34)
Civil Procedure Code, 1908 – Section 96 – Finding of fact – The general rule is that the Appellate Court should permit the finding of fact rendered by the Trial Court to prevail unless the Trial Court fails to consider the evidence and material on record to reach on the said finding and the same is improbable. (Para 36)
Hindu Law – Partiton – There is unity of title and possession between the parties with respect to the suit properties and accordingly, the plaintiffs are entitled to a decree for partition – Appellant/defendant failed to prove the partition by metes and bounds – The findings of the trial Court in the impugned judgment and preliminary decree confirmed-Local inspection and necessary measurement was done in presence of the parties and their lawyers – Barwada was prepared for the plaintiffs along with defendants to the extent of 1/3rd share and barwada for defendants excluding to the extent of 2/3rd share i.e. residuary share – Mere disputing the report of Survey Knowing Pleader Commissioner by filing objection cannot be sustained – No error in accepting the report of Survey Knowing Pleader Commissioner and rejecting the objection raised by the appellant – Both first appeals dismissed. (Paras 37, 38 and 48 to 51)
Sunil Dutta Mishra, J.—First Appeal No.326 of 1986 has been filed against the preliminary decree dated 08.04.1986 passed by learned Subordinate Judge-III, Vaishali at Hajipur in Partition Suit No. 26 of 1981 whereby the learned trial Court decreed the plaintiffs’ suit for partition on contest without cost against defendant nos.1 and 2 and ex-parte as against other defendants. It was held that the plaintiffs (sons and widow of deceased Ram Prasad Singh) and defendant nos. 14 to 17 (daughters of deceased Ram Prasad Singh) have got 1/3rd share in the suit properties and the two branches comprising the defendants, branches of Bihari Singh and Thakur Singh have 1/3rd share each in the suit properties. Accordingly, it was directed to draw preliminary decree.
2. First Appeal No.84 of 2016 has been preferred against the final judgment and decree dated 01.08.2016 passed by learned Subordinate Judge III, Vaishali at Hajipur in Partition Suit (F.D.) Case No.26 of 1981. The learned trial Court confirmed the Pleader Commissioner’s Report dated 29.09.2004 carving out a separate patti for the plaintiffs out of the lands mentioned in the preliminary decree dated 08.04.1986.
3. Both the aforesaid appeals have arisen from preliminary decree and final decree respectively in the same Partition Suit No. 26 of 1981, accordingly, on consent of the parties, the same have been heard together and are being disposed of by this common Judgment.
4. For the sake of convenience, the parties shall be referred to in terms of their status before the trial Court.
5. The plaintiffs filed the aforesaid suit claiming that one Nathuni Singh had three sons, namely, Bihari Singh, Thakur Singh and Ram Prasad Singh. Nathuni Singh died in jointness with his three sons long ago. Thereafter Bihari Singh became karta of the family who died in 1976 and after his death, Thakur Singh (defendant no.5) became karta of the joint family. Ram Prasad Singh died leaving behind plaintiff nos. 1 and 2 as sons and plaintiff no.3 as his widow. The defendants are the members of the branches of Bihari Singh and Thakur Singh (brothers of Ram Prasad Singh). Defendant nos.1, 2 and 3 are sons and defendant no.4 is wife of Late Bihari Singh. Thakur Singh is defendant no.5. His son Sheo Nath Singh is defendant no.6 and all the papers relating to joint family properties are in his possession. Ram Prasad Singh died about 15 to 16 years back (from the date of judgment) in jointness with others. All the family properties are joint. Some properties have been acquired in the names of individual members of the family. The suit lands are being cultivated separately according to the conveniences of the parties but there has been no partition by metes and bounds. This causes inconvenience in the cultivation of the suit lands and has frequently led to dispute between the parties. The plaintiffs, therefore, requested the defendants that they should agree to execute a registered deed of partition. The defendants, however, did not agree to the said request and hence the suit. The plaintiffs have claimed 1/3rd share in the suit properties and have prayed for demarcation of the same. On petition filed on behalf of plaintiffs, defendant nos.14 to 17 (daughter of Ram Prasad Singh) were made party (vide order dated 26.08.1985) and prayer to add purchaser of some part of suit property was rejected as not being necessary parties in a partition suit by the learned trial Court.
6. Three separate written statements on behalf of defendant nos.1 and 2, defendant no.3 and defendant nos.14 to 17 respectively have been filed in the suit. Defendant no.3 Nagina Singh who is brother of appellant/defendant no.2 in his written statement dated 31.08.1982 has supported the case of the plaintiffs that no partition with metes and bounds has been taken place between the parties and they are cultivating separately and maintaining separate mess according to their convenience. It is further stated that talks for partition had taken place bu
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 ....
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 main legal point established in the judgment is that once a party agrees to the mode and manner of partition before the Commissioner, they cannot resile from the same.
There can be partial partition between coparceners of a Hindu joint family – It is always open to members of joint Hindu family to divide some properties of family and to keep remaining undivided.
A joint family is presumed to remain joint unless a clear severance of status is proven, even without a physical division of property.
A joint Hindu family's property remains joint unless the asserting party proves separation or prior partition; the burden of proof lies with the party claiming such separation.
Family property - family settlement must be a bona fide one in order to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various member....
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