2009 Supreme(Raj) 2224
RAJASTHAN HIGH COURT AT JAIPUR BENCH
S.P.Pathak, J.
Sohan Lal and another - Appellant
Versus
Ramjilal and others - Respondent
S.B. Civil First Appeal No. 225 of 1995 and 77 of 1996.
Decided On : 27-08-2009
Advocates:
For the Appellants in Civil First Appeal No. 225 of 1995:B.L. Mandhana, Advocate.
For the Respondents in Civil First Appeal No. 77 of 1996:B.L Mandhana, Advocate.
For the Respondents in Civil First Appeal No. 225 of 1995:J.P. Goyal, Advocate.
For the Appellants in Civil First Appeal No. 77 of 1996:J.P. Goyal, Advocate.
For the Respondents in Civil First Appeal No. 77 of 1996:T.P. Sharma, Advocate.
A gift deed must be registered and attested by at least two witnesses to be valid and admissible as evidence of ownership.
Headnote:
PARTITION SUIT - PROPERTY DESCRIPTION - ACT-SECTION REFERRED: SECTION 122, 123 OF THE TRANSFER OF PROPERTY ACT, SECTION 68 OF THE INDIAN EVIDENCE ACT - SUMMARY: The court examined the validity of a partition suit involving two houses. The first house, described in para 2(a) of the plaint, was disputed by defendant no.7, Hotilal, who claimed it as his self-earned property. The second house, described in para 2(b) of the plaint, was claimed by the plaintiff as his property through a gift deed (Ex.P-9). The court analyzed evidence, including witness statements and registered sale deeds, to determine the ownership of the properties. It concluded that the house in para 2(b) was indeed Hotilal's self-earned property and not subject to partition. However, the court upheld the plaintiff's claim to the house in para 2(a) and the house mentioned in the gift deed, Ex.P-9, as belonging solely to the plaintiff. The court's decision was based on the legal principles governing gifts and the requirement for attestation of gift deeds under the Transfer of Property Act and the Indian Evidence Act.
Fact of the Case:
The plaintiff, Ramjilal, filed a partition suit against defendants Sohan Lal, Ratan, and Hotilal, claiming equal shares in two houses situated in Ward No.6, Kumher, Bharatpur. The plaintiff asserted that the properties were ancestral and subject to partition among the brothers. Defendant Sohan Lal admitted the equal share in one house but disputed the plaintiff's claim to the other, stating it was purchased by his son Hotilal from his self-earned money. Hotilal was added as a defendant and filed a written statement supporting his father's claim.
Finding of the Court:
The court found that the house described in para 2(b) of the plaint was indeed Hotilal's self-earned property, as evidenced by the registered sale deed and witness statements. The court also upheld the plaintiff's claim to the house in para 2(a) and the house mentioned in the gift deed, Ex.P-9, as belonging solely to the plaintiff.
Issues: 1. Whether the house described in para 2(b) of the plaint was Hotilal's self-earned property or subject to partition. 2. Whether the house mentioned in the gift deed, Ex.P-9, was subject to partition.
Ratio Decidendi: The court applied the legal principles governing gifts and the requirement for attestation of gift deeds under the Transfer of Property Act and the Indian Evidence Act. It held that the gift deed, Ex.P-9, was valid and established the plaintiff's ownership of the house mentioned therein. The court also relied on the registered sale deed and witness statements to determine the ownership of the house described in para 2(b) of the plaint.
Final Decision: The court partly allowed the plaintiff's appeal and modified the preliminary decree passed by the trial court. The house described in para 2(b) of the plaint was declared as Hotilal's self-earned property and not subject to partition. The house described in para 2(a) and the house mentioned in the gift deed, Ex.P-9, were declared as belonging solely to the plaintiff.
JUDGMENT
1. - These two appeals under section 96 CPC have been filed against the judgment and decree dated 24th Augfust, 1995 passed by the Additional District Judge, No. 2, Bharatpur in Civil Suit No.67/;1995 whereby preliminary decree of equal ⅓rd share of plaintiff Ramjilal defendant no.1, Sohan Lal and defendant no.2 Ratan has been passed in the partition suit. One such appeal being S.B. Civil First Appeal No.225/1995 has been filed by defendant-appellants Sohan Lal and Hotilal and another appeal being S.B. Civil First Appeal No.77/1996 has been filed by Ramjilal.
2. Since, both these two appeals arise out of the same judgment and preliminary decree dated 24.8.1995 in relation to the property, description of which has been made in para 2(a) and 2(b) of the plaint and para 12 of the written statement, they are being decided together by this common judgment.
3. Briefly stated the facts are that plaintiff Ramjilal filed a suit for partition in relation to the property described in para 2(a) and 2(b) of the plaint against Sohan Lal defendant no.1, Ratan- defendant no.2, Kalawati- defendant no.3, Kinno- defendant no.4, Bhabhari- defendant no.5, Dhakeli- defendant no.6 (defendant nos. 3 to 6 are sisters and they have relinquished their share) and Hoti Lal- defendant no.7 (subsequently added) before the District Judge, Bharatpur which ultimately came for trial before the Additional District Judge No.2, Bharatpur. It was, inter-alia, averred in the plaint that the property in dispute (two houses) situated in Ward No.6 at Kumher are the ancestral properties, therefore, after the death of the father of the plaintiff, the same was required to be partitioned equally between the plaintiff and defendant nos. 1 and 2 as plaintiff and defendant nos. 1 and 2 were having equal one third share in the property. Since defendant Sohan Lal was never intending to part with the property to the extent of share of the plaintiff and was interested to dispose of the property by sale, therefore, it became essential to file the suit for a decree of partition amongst the brothers. A prayer was made to decree the suit in relation to the property description of which has been made in para 2 of the plaint. Defendant Sohan Lal in his written statement admitted equal share of plaintiff and defendant nos. 1 and 2 in relation to the house description of which has been made in para 2(a) of the plaint but as regards house description of which has been made in para 2(b) of the plaint disputed the fact in relation to the property being HUF and it was, inter-alia, stated that the house description of which was made in para 2(b) of the plaint was purchased by his son Hotilal from his self earned money for a sum of Rs. 6,000/- on 24.1.1986 under registered sale-deed from Deshraj, therefore, the same was not liable for partition. It was also averred that there was one more ancestral house description of which has not been made in the plaint situated in Ward No.6, Kumher, Bharatpur. The same was also liable to be partitioned between the plaintiff and defendant nos. 1 and 2 considering equal share of plaintiff and defendant nos. 1 and 2. It was also averred that the plaintiff did not disclose the true and correct facts about the HUF properties, therefore, the suit was liable to be dismissed.
4. It appears that during the course of trial after filing written statement Hotilal who is son of defendant no.1 Sohan Lal moved an application under Order 1 Rule 10 CPC on 18.1.1988 for impleading him defendant in the suit. The learned trial court vide its order dated 14.12.1988 allowed the application and Hotilal was made as defendant no.7 in the suit and he thereafter filed his written statement wherein he admitted the entire contents of the written statement filed by his father defendant no.1 Sohan Lal and also stated that the house which has been described in para 2(b) of the plaint was not of ownership of his father or anybody else but the same was purchased by him under register
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