The main legal point established in the judgment is that evidence, especially supporting evidence or public documents, is essential to establish oral partition in a property dispute case, as per the exception enunciated by the Hon'ble Supreme Court in Vineeta Sharma vs. Rakesh Sharma.

JUDGMENT

Siddharth Mridul, J. (Open Court)

CM APPL. 45396/2022 (Exemption)

Exemption allowed, subject to all just exceptions.

The application is disposed of accordingly.

FAO(OS) 109/2022

1. The present appeal under Section 10 of the Delhi High Court Act, 1966, has been instituted on behalf of Smt. Phoolwati deceased through LRs & Ors. (hereinafter referred to as "appellants"), assailing the order dated 27.07.2022 in CS(OS) No. 657/2017, passed by the learned Single Judge of this Court, in the appellants' application being IA No. 8118/2020, under Chapter IX Rule 6 of the Delhi High Court (Original Side) Rules, 2018, seeking pronouncement of judgment, in terms thereof.

2. The appellants' case is substantially predicated on the decision rendered by the Hon'ble Supreme Court of India in the case of `Vineeta Sharma vs. Rakesh Sharma', reported as (2020) 9 SCC 1 and in particular paragraphs 135 and 137.5 thereof, which read as follows:

"135. A special definition of partition has been carved out in the Explanation. The intendment of the provisions is not to jeopardise the interest of the daughter and to take care of sham or frivolous transaction set up in defence unjustly to deprive the daughter of her right as coparcener and prevent nullifying the benefit flowing from the provisions as substituted. The statutory provisions made in Section 6(5) change the entire complexion as to partition. However, under the law that prevailed earlier, an oral partition was recognised. In view of change of provisions of Section 6, the intendment of the legislature is clear and such a plea of oral partition is not to be readily accepted. The provisions of Section 6(5) are required to be interpreted to cast a heavy burden of proof upon proponent of oral partition before it is accepted such as separate occupation of portions, appropriation of the income, and consequent entry in the revenue records and invariably to be supported by other contemporaneous public documents admissible in evidence, may be accepted most reluctantly while exercising all safeguards. The intendment of Section 6 of the Act is only to accept the genuine partitions that might have taken place under the prevailing law, and are not set up as a false defence and only oral ipse dixit is to be rejected outrightly. The object of preventing, setting up of false or frivolous defence to set at naught the benefit emanating from amended provisions, has to be given full effect. Otherwise, it would become very easy to deprive the daughter of her rights as a coparcener. When such a defence is taken, the court has to be very extremely careful in accepting the same, and only if very cogent, impeccable, and contemporaneous documentary evidence in shape of public documents in support are available, such a plea may be entertained, not otherwise. We reiterate that the plea of an oral partition or memorandum of partition, unregistered one can be manufactured at any point in time, without any contemporaneous public document needs rejection at all costs. We say so for exceptionally good cases where partition is proved conclusively and we caution the courts that the finding is not to be based on the preponderance of probabilities in view of provisions of gender justice and the rigour of very heavy burden of proof which meets the intendment of Explanation to Section 6(5). It has to be remembered that the courts cannot defeat the object of the beneficial provisions made by the Amendment Act. The exception is carved out by us as earlier execution of a registered document for partition was not necessary, and the court was rarely approached for the sake of family prestige. It was approached as a last resort when parties were not able to settle their family dispute amicably. We take note of the fact that even before 1956, partition in other modes than envisaged under Section 6(5) had taken place.

"137.5. In view of the rigour of provisions of the Explanation to Section 6(5) of the 1956 Act, a plea of oral partition c