IMPORTANT POINT
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.

JUDGMENT

Heard the parties.

2. This Appeal is preferred against the judgment and decree of reversal passed by learned 1st Additional District Judge, Hazaribag in Title Appeal No. 33 of 88 dated 17th September, 1990 whereby and where under, learned Lower Appellate Court has allowed the appeal and set aside the judgment and decree passed by learned trial court in Partition Suit No. 83 of 1984 / 40 / 1988 dt. 12.04.1988 passed by learned Sub Judge, V, Hazaribag and dismissed the suit of the plaintiffs. At the time of the admission of this appeal vide order dated 17.02.1994, the following substantial questions of law were framed:

(a) Whether the finding of the learned court below that it was for the appellant to prove that there was no partition, can be sustained in law?

(b) Whether there can be a partial partition between the parties and whether from partial partition, it can be inferred that there was a complete partition?

3. The case of the plaintiffs in brief is that the plaintiffs and the defendants are the descendants of the common ancestor of Ghutku Teli and Ghutku Teli had two sons, Dhani Teli and Dharam Teli. The plaintiff is the grand-son of Dharam Teli while the defendant nos. 1 and 2 are the sons of Dhani Teli. It is further the case of the plaintiff that the lands bearing Khata no. 24 of village Ujjaina, P.S. Barhi, Dist.- Hazaribag were recorded in cadastral survey in the name of Dhani Teli and Dharam Teli in equal shares. After the death of Dharam Teli, there was separation in two branches of the plaintiff and the defendants and save and except the land of Khata No. 24 of village Ujjaina, all other lands were partitioned between them. The plaintiff demanded partition of the land of Khata no. 24 of village Ujjaina which was refused, hence, the plaintiff filed the suit for partition.

4. The case of the defendants, on the other hand, is that it is the admitted case of the plaintiffs that after the death of Dharam Teli, there was separation in two branches of the plaintiff and defendants. The presumption under the law is that there was separation and complete partition of all the joint family properties including the suit property in two branches of plaintiff and defendants. It was contended by the defendants that since there has been complete partition by metes and bounds, the suit for partition is not maintainable.

5. The learned trial court held that once it is proved that the lands once upon a time, were the joint family property, the necessary corollary would be that lands are liable to be partitioned according to their respective shares and one co- sharer cannot refuse to make partition on one pretext or other and held that there is unity in title and possession and allowed the suit for partition.

6. Being aggrieved by the judgment and decree of the trial Court, respondent-defendants filed the Title Appeal No. 33/ 1988 in the Court of learned District Judge, Hazaribag, which upon being transferred, heard and disposed of by learned 1st Additional District Judge, Hazaribag by the impugned judgment.

7. Learned Lower Appellate Court relied upon the judgment of Hon’ble Patna High Court in the case of Sita Ram Prasad vs. Mahadeo Rai, AIR 1980 Pat 254, wherein the Hon’ble Patna High Court has inter alia reiterated the settled principle of law as under :

“It is also well established that under the Hindu Law, there can be an oral partition and once a partition is alleged, then the law will presume, unless something is proved to the contrary; that there was a complete partition between the members of the family.”

and held that since it is admitted case of the plaintiff that other joint family lands had already been partitioned between the parties, after the death of Dhram Teli, the presumption is in favour of the defendants of there being a complete partition and further went on to add that in the facts of the case, the plaintiff was to prove that the suit lands of Khata no. 24 of village Ujjaina, were not partitioned