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Indian Registration Act (16 of 1908),s. 17 (1) (b)-Partition of Property in specific shares-Deed not registered- Admissibility. Pleadings-Plea of acquiescence-Not raised in pleadings- Cannot be allowed to be set up subsequently. Hindu Law–Agharia caste-Custom of Jethansi allowing larger share of family property to eldest son–Outmoded custom loses legal force. Indian Evidence Act (1 of 1872), s. 91-Bar on oral evidence. =D died in 1940 leaving certain agricultural land as well as house property. He had two children by his first wife the elder of whom was respondent no.. 1. By his second wife, appellant no. 2, he had a son, appellant no’. 1. The family belonged to the Agharia caste and was governed by the Benares School of Hindu Law. In 1956 Appellants 1 and 2 filed a suit in the Court of the Civil Judge Raigarh (now in Madhya Pradesh) claiming that they were entitled to 1/4 th share each in D’s estate and that there should be a partition by metes and bounds of joint family property. According to their pleadings Ex.D-4 dated December 27, 1943 by which appellant no. 2 accepted a lesser share of the properties than was due to her and her son was executed as a result of coercion by respondent no. 1. The latter along with other respondents contested the suit, relying on Ex.D- 4. The trial court, the first appellate court, as well as the High Court decided against the appellants who by special leave came to this Court. The questions that fell for consideration were : (i) whether Ex.D-4 was admissible in evidence without having been registered; (ii) whether Appellant No. 2 was precluded from demanding her share because her signing of Ex. D-4 showed acquiescence on her part; (iii) whether a higher share for respondent no. 1 was justified because of the custom of Jethansi in the Agharia caste according to which the eldest son was entitled to a larger -share than others; (iv) whether it was open to the respondents to give oral evidence of actual partition subse- quent to the execution of Ex.D-4. HELD: (i) The recitals in Ex.D-4 showed that there was allotment of specific properties to individual co-parceners and the document therefore fell within the mischief of s. 17(1) (b) of the Registration Act. It followed that Ex.D-4 was not admissible in evidence to prove the title of any of the coparceners to any particular property or to prove that any particular property had ceased to be joint -property. The document was only admissible to prove an intention on the part of the co-parceners to become divided in status. [643 F-H] Nanni Bai v. Gita Bai, [1959] S.C.R. 479, relied on. (ii) There was no pleading on behalf of the respondents and no issue framed to the effect that by signing Ex.D-4 appellant no. 2 had acquiesced in the division of properties among her sons without claiming the share to which she was entitled under the Mitakshara Law of the Benares 640 School. The respondents therefore could not be allowed to set up the plea of acquiescence by appellant no. 2 [L644 E] (iii) The doctrine of “Jethansi” or “Jeshtbhagam” is now obsolete and unenforceable. The principle of Hindu Law is equality of division and the exceptions to that rule, have almost, if not altogether disappeared. As between brothers or other relations absolute equality is now the invariable rule in all the States, unless, perhaps, where some special family Custom to the contrary is made out. The respondents had failed to prove that such a custom was prevalent in the caste of Agharias to which the parties belonged. [644 F-G; 645 F-G; 646 A-F] M. Y. A. A. Nachiappa Chettiar v. M. Y. A. A. Muthu Karuppan Chettiar, A.I.R. 1946 Mad. 398 and Hur- Purshad v. Sheo Dyal, 3 I.A. 259 at p. 285, referred to. (iv) The evidence showed that document Ex.D-4 was intended by the parties to be the sole evidence of partition and since it had been held that Ex.D.4 was not admissible in evidence on account of non-registration to establish when the property was so partitioned, it was manifest that no oral evidence was admissible to prove any subsequent partition having regard to the provisions of s. 91 of the Evidence Act. [L 646 G-647 A] =1968 AIR 1299, 1968( 3 )SCR 639, , ,

PETITIONER:

English: Jahangir Mahal, Orchha, Madhya Prades...

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SHIROMANI & ORS.

Vs.

RESPONDENT:
HEM KUMAR & ORS.

DATE OF JUDGMENT:
04/04/1968

BENCH:
RAMASWAMI, V.
BENCH:
RAMASWAMI, V.
SHAH, J.C.

CITATION:
1968 AIR 1299 1968 SCR (3) 639
CITATOR INFO :
RF 1981 SC 178 (106)
ACT:
Indian Registration Act (16 of 1908),s. 17 (1) (b)-Partition
of Property in specific shares-Deed not registered-
Admissibility.
Pleadings-Plea of acquiescence-Not raised in pleadings-
Cannot be allowed to be set up subsequently.
Hindu Law–Agharia caste-Custom of Jethansi allowing larger
share of family property to eldest son–Outmoded custom
loses legal force.
Indian Evidence Act (1 of 1872), s. 91-Bar on oral evidence.

HEADNOTE:
D died in 1940 leaving certain agricultural land as well as
house property. He had two children by his first wife the
elder of whom was respondent no.. 1. By his second wife,
appellant no. 2, he had a son, appellant no’. 1. The family
belonged to the Agharia caste and was governed by the
Benares School of Hindu Law. In 1956 Appellants 1 and 2
filed a suit in the Court of the Civil Judge Raigarh (now in
Madhya Pradesh) claiming that they were entitled to 1/4 th
share each in D’s estate and that there should be a
partition by metes and bounds of joint family property.
According to their pleadings Ex.D-4 dated December 27, 1943
by which appellant no. 2 accepted a lesser share of the
properties than was due to her and her son was executed as a
result of coercion by respondent no. 1. The latter along
with other respondents contested the suit, relying on Ex.D-
4. The trial court, the first appellate court, as well as
the High Court decided against the appellants who by special
leave came to this Court. The questions that fell for
consideration were : (i) whether Ex.D-4 was admissible in
evidence without having been registered; (ii) whether
Appellant No. 2 was precluded from demanding her share
because her signing of Ex. D-4 showed acquiescence on her
part; (iii) whether a higher share for respondent no. 1 was
justified because of the custom of Jethansi in the Agharia
caste according to which the eldest son was entitled to a
larger -share than others; (iv) whether it was open to the
respondents to give oral evidence of actual partition subse-
quent to the execution of Ex.D-4.
HELD: (i) The recitals in Ex.D-4 showed that there was
allotment of specific properties to individual co-parceners
and the document therefore fell within the mischief of s.
17(1) (b) of the Registration Act. It followed that Ex.D-4
was not admissible in evidence to prove the title of any of
the coparceners to any particular property or to prove that
any particular property had ceased to be joint -property.
The document was only admissible to prove an intention on
the part of the co-parceners to become divided in status.
[643 F-H]
Nanni Bai v. Gita Bai, [1959] S.C.R. 479, relied on.
(ii) There was no pleading on behalf of the respondents and
no issue framed to the effect that by signing Ex.D-4
appellant no. 2 had acquiesced in the division of properties
among her sons without claiming the share to which she was
entitled under the Mitakshara Law of the Benares
640
School. The respondents therefore could not be allowed to
set up the plea of acquiescence by appellant no. 2 [L644 E]
(iii) The doctrine of “Jethansi” or “Jeshtbhagam” is now
obsolete and unenforceable. The principle of Hindu Law is
equality of division and the exceptions to that rule, have
almost, if not altogether disappeared. As between brothers
or other relations absolute equality is now the invariable
rule in all the States, unless, perhaps, where some special
family Custom to the contrary is made out. The respondents
had failed to prove that such a custom was prevalent in the
caste of Agharias to which the parties belonged. [644 F-G;
645 F-G; 646 A-F]
M. Y. A. A. Nachiappa Chettiar v. M. Y. A. A. Muthu
Karuppan Chettiar, A.I.R. 1946 Mad. 398 and Hur- Purshad v.
Sheo Dyal, 3 I.A. 259 at p. 285, referred to.
(iv) The evidence showed that document Ex.D-4 was intended
by the parties to be the sole evidence of partition and
since it had been held that Ex.D.4 was not admissible in
evidence on account of non-registration to establish when
the property was so partitioned, it was manifest that no
oral evidence was admissible to prove any subsequent
partition having regard to the provisions of s. 91 of the
Evidence Act. [L 646 G-647 A]

JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 749 and
750 of 1965.
Appeals by special leave from the judgment and decree dated
November 8, 1963 of the Madhya Pradesh High Court in second
appeals Nos. 569 and 568 of 1960 respectively.
S. V. Gupte and G. L. Sanghi, for the appellants (in both
the appeals).
Sarjoo Prasad and D. N. Mukherjee, for the respondents (in
both the appeals).
The Judgment of the Court was delivered by
Civil Appeal No. 749 of 1965:
Ramaswami, J. This appeal is brought, by special leave, from
the judgment of the High Court of Madhya Pradesh, Jabalpur
dated November 8, 1963 in Second Appeal No. 569 of 1960.
Respondents nos. 1 and 3, Hemkumar and Dinomani and
appellant no. 1 Shiromani are the sons of late Dharam Singh
Agharia. Appellant no. 2 Mst. Subhagwati is the second
wife of Dharam Singh and the mother of appellant no. 1. Mst.
Jampalhin, the mother of respondents 1 and 3 died before
Dharam
641
Singh married appellant no. 2. The relationship of the
parties will appear from the following pedigree
Dharam Singh
:
————————————————————-
: :
First wife: Mst. Jampalhin Second wife: Mst. Subhagwati
(Plff. No. 2)
:
:
(Plff. No. 1)
—————————————————————-
: :
Hem Kumar Dinmani
(Dfdt. No. 1) (Dfdt. No. 3)
: :
Etwar Singh Chandra Bhusan Singh
(Dfdt. No. 2) (Dfdt. No. 4)
It is not disputed that the parties are governed by the
Benares, School of Hindu Law. It appears that Dharam Singh
was murdered in 1940 and his son Hemkumar was involved as an
accused but he, was acquitted in that case. Mst.
Subhagwati, appellant no. 2 appeared as a prosecution
witness in the murder case and deposed against Hemkumar. At
the tingle of his death, Dharam Singh had left 102.28 acres
of ryoti land in village Tilgi and 16.56 acres of ryoti land
at village Supaka and also some house properties.
Appellants 1 and 2 instituted C.S. no. 43-A of 1956 in the
court of the Civil Judge, First Class, Raigrah claiming that
they were entitled to 1/4 th share each of Dharam Singh’s
estate and there should be partition by metes and bounds of
the joint family proper-ties. They challenged the validity
of Ex. D-4 dated December 27, 1943. It was alleged that
Mst. Subhagwati was compelled by Hemkumar under threat of
violence to execute the deed, Ex. D-4. It was said that
the deed Ex. D-4 was prejudicial to Shiromani who was a
minor at that time because he was given less than the share
to which he was entitled and his mother Mst. Subhagwati was
also not given her due share of ‘joint family properties.
The appellants accordingly prayed that there should be a
fresh partition by metes and bounds of the joint family pro-
perties and they should be given 1/4 th share each therein.
The suit was resisted by the respondents on the ground that
the parties were bound by the deed of partition, Ex. D-4
and there was no ground for reopening the partition which
had already taken place. The trial judge found that the
partition deed. Ex. D-4 dated December 27, 1943 was not
executed by Mst. Subhagwati under undue influence and that
document was acted upon. If was further held by the trial
judge that though the partition
642
deed did not reserve any share to Mst. Subhagwati, the
appellants were not entitled to reopen the partition because
Mst. Subhagwati was not entitled to a share and Hemkumar
was entitled to an increased share on account of the custom
of “Jethansi”. The appellants took the matter in appeal to
the District Judge of Raigarh but the appeal was dismissed.
The appellants preferred a Second Appeal to the High Court
of Madhya Pradesh which dismissed the Second Appeal. The
High Court took the view that the deed, Ex. D-4 was neither
an award nor was it a document effecting partition of
immovable properties of the value of more than Rs. 100. It
was held that Ex. D-4 was admissible in evidence in order
to show that there was separation of status between the
coparceners. The High Court also rejected the plea of the
appellants that the partition should be reopened because it
did not give a share to Mst. Subhagwati. According to the
Benares School of Hindu Law, Mst. Subhagwati was entitled
to a share in the joint family properties equal to that of a
son but the High Court found that there was a clear
acquiescence on the part of Mst. Subhagwati when she
executed the deed, Ex. D-4 and it must be taken that -she
relinquished her share in favour of the other coparceners.
On the question of “Jethansi” ,claimed by Hemkumar, the High
Court found that the evidence ,established the custom of
“Jethansi” whereby the elder son was, given a greater share
in the property of his father. On the basis ,of these
findings the High Court dismissed the Second Appeal.
The first question to be considered in this appeal is
whether the deed, Ex. D-4 dated December 27, 1943 is
admissible in :evidence. On behalf of the appellants Mr.
Gupte put forward the argument that the document is
inadmissible in evidence as it effected the partition of the
properties of the value of more than Rs. 100 and it was not
registered. It was argued that there was allotment of
specific properties to individual coparceners in this
document and its registration was therefore compulsory under
s. 17 (1 ) (b) of the Registration Act. In our opinion, the
argument put forward on behalf of the appellants is well-
founded and must be accepted as correct. It was contended
on behalf of the respondents that the document was not
necessary to be registered because there was only severance
of joint status of the members of the coparcenary and there
was no partition of the properties
by metes and bounds. It is not possible to accept this
argument -as correct. The relevant portion of Ex. D-4 is
to the following effect :
“For the partition of our joint land in Mauza
Tilgi and Supa and house and utensils etc. and
Dhan, movable and immovable property, amongst
us three brothers, the Panchas have been
appointed. The partition and distribution
effected by the under-mentioned
643
Panchas will be acceptable to us and also the
undermentioned conditions will also have to be
accepted by us.
1. Out of lease land in Mauza Tilgi and
Mauza Supa totalling 123 acres, Hem Kumar’s
share including Jethosi will be 51 acres that
is 51 shares and Dinmani’s 39 acres that is 39
shares and minor Shiromani’s whose guardian is
Smt. Subhagwati 33 acres that is 33 shares.
The three of them will be in possession of the
same. Out of 123 acres of land, the land near
Munga Tikra Gara Para will be given to Dinmani
and minor Shiromani through guardian Smt.
Subhagwati for building a house instead of the
old house. For building of the house in Munga
Tikra the three brothers will give Rs. 60.
Out of the ‘Mitti Khatu’ and Gobar khatu,
there is in the house, after deducting
Hemkumar’s tenth share will be divided into
three equal shares amongst the three brothers
and they will take it so. They will also
divide the buried Khatu into their shares.
5 . That out of the old house the house on
the side of the village the length of which is
30 haath and the stone used in it and the
house on the side of ‘Patav’ the length of
which is 30 haath, is given to Hem Kumar in
his share and as Jethosi and the Bamboo, wood
etc. used in the other house is given to the
two brothers Dinmani and Shiromani. Besides
the house and Kotha there is old and new wood
and 3 new doors. All this is given to Dinmani
and Shiromani.”
With regard to ryoti lands, para I definitely states that
Hemkumar is allotted 51 acres, Dinmani 39 and Shiromani 33
acres. With regard to the joint family house there is
partition between the three brothers by metes and bounds and
specific shares are given to each. In view of the recitals
in Ex. D-4 we are of opinion that there is allotment of
specific properties to individual coparceners and the
document therefore falls within the mischief of s. 17 (1)
(b) of the Registration Act. It follows that Ex. D-4 is
not admissible in evidence to prove the title of any of the
coparceners to any particular property or to prove that any
particular property has ceased to be joint property. Of
course, the document is admissible to prove an intention on
the part of the coparceners to become divided in status; in
other words, to prove that the parties ceased to be joint
from the date of the instrument dated December 27, 1943 (See
the decision of this Court in Nanni Bai v. Gita Bail).
(1) [1959] S. C. R. 479.
644
We proceed to consider the next question arising in this a
peal, namely, whether Mst. Subhagwati was entitled to a
share, p in the joint family properties equal to that of a
son and whether the alleged partition effected by Ex. D-4
was invalid because no such share was allotted to her. It
is not disputed on behalf of the respondents that according
to the Mitakshara Law of the Benares School a wife is
entitled, on partition between her sons, to a share equal to
that of a son. But the contention put forward on behalf of
the respondents is that by signing the document, Ex. D-4
Mst. Subhagwati acquiesced in the division of the
properties between her sons without claiming any share for
herself and it must consequently be taken that Mst.
Subhagwati relinquished her share. It was pointed out that
Ex. D-4 was executed on December 27, 1943 and for a period
of 1 1 years Mst. Subhagwati did not take any action to
impeach that document. We are unable to accept the argument
put forward on behalf of the respondents as correct. There
is no issue in the trial court regarding the alleged
acquiescence of Mst. Subhagwati, nor was it pleaded on
behalf of the respondents that there was an agreement by
which Mst. Subhagwati gave up her share in favour of the
other coparceners. On the contrary, it is alleged in para 9
of the Written Statement that Subhagwati was not entitled to
any.share and therefore the partition alleged to be effected
by Ex. D-4 was not prejudicial to the interests of
plaintiff no. 1. To, put it differently, there is no
pleading on the part of respondents of acquiescence by Mst.
Subhagwati and there is no issue on the question of
acquiescence. We are accordingly unable to accept the
argument of the respondents that there was acquiescence on
the part of Mst. Subhagwati or that she relinquished her
share in favour of the other coparceners and the finding of
the High Court on this point is erroneous.
We pass on to consider the next question arising in this
appeal, namely, whether Hemkumar was entitled to a greater
share of joint family properties for the reason that he was
the eldest brother on the principle of “Jethansi”. But the
doctrine of “Jethansi” or “Jeshtbhagam” is now obsolete and
unenforceable. The principle of Hindu Law is equality of
division and the exceptions to that rule have almost, if not
altogether, disappeared. One of the exceptions was in
favour of the eldest son, who was originally entitled to a
special share on partition, either a tenth or a twentieth in
excess of the others, or some special chattel, or an extra
portion of the flocks (Apastamba, 11, 6, 14, 10-13; Baudh.,
11, 2, 2-5; Gaut., XXVIII, 11, 12; Vas., XVII, 42-45; Manu,
TX. 112, 114, 156). But unequal partition of ancestral or
joint property was from early times condemned. The
Smritichandrika, the Vyavahara Mayukha and’ the
Viramitrodaya declare that unequal partition is forbidden in
the Kali age (Smritichandrika, TIT, 16; V. May., IV, iv, 11;
Viramit.,
645
III, 16 (Setlur’s ed., 319). The Commentary of Mitakshara
on Yajnavalkya. 11. 117 is briefly as follows :
“Unequal division though found in ‘the sastras
(e.g. Manu IX. 105, 112, 116, 117, Yaj. II.
114) should not be practised because it has
come to be condemned (or has become hateful
to) by the people, since there is the
prohibition (in Yaj. 1. 156) that an action,
though prescribed in the sastras, should not
be performed when it has come to be condemned
by the people, since such an action does not
lead to the attainment of Heaven. For
example, though Yaj. 1. 109 prescribes the
offering of a big ox or a coat to a learned
brahmana guest, it is not now practised
because E people have come to hate it:; or
just as, although there is a Vedic text laying
down the sacrificing of a cow 6 one should
sacrifice a barren cow called anubandhya for
Mitra and Varuna’, still it is not done
because people condemn it. And it has been
said ‘just as the practice of niyoga or the
killing of the anubandhya cow is not now in
vogue, so also division after giving a F special
share (to the eldest son) does not now exist”.
As between brothers or other relations, absolute equality is
now the invariable rule in all the States, unless, perhaps,
where some special family custom to the contrary is made out
(For example, see the decision of the Madras High Court in
M.Y.A.A. Nachi appa Chettiar v. M.Y.A.A. Muthu Karuppan
Chettiar(1).
On behalf of the respondents, however, reliance was placed
upon the special custom of “Jethansi” said to be prevalent
in the caste of Agharias to which the parties belong.
Reference was made to the evidence of D.W. 4, Baratram, D.W.
5, Sitaram, D.W. 6, Yalobra and D.W. 7, Khewlal to show that
there was such a custom in the caste whereby the eldest son
was given a greater share in the property of the father.
Mr. Sarjoo Prasad took us through the evidence of these
witnesses but ‘we are not
(1) A. I. R. 946 Mad. 398.
646
satisfied on their evidence that the custom pleaded for has
been established. It is well-established that a custom must
be Proved to be ancient, certain and reasonable if it is to
be recognised and acted upon by Courts of law; and being in
derogation of the general rules of law the custom must be
construed strictly (See Hur Purshad v. Sheo Dyal) (1). In
the, present case, the evidence adduced on behalf of the
respondents to prove the alleged custom is unsatisfactory
and conflicting. D.W. 4, Baratram stated that the custom of
“Jethansi” was prevalent in Agharias community but he
admitted when cross-examined, that he was not present at any
partition. He further said that there was “no fixed custom
about Jethansi and the eldest brother could be given more or
less”. D.W: 5, Sitaram said that “I got 16 acres of
Jethansi land in a partition between my own brother.” The
total area of land was 100 acres. He admitted that there
was no written document about the custom. D.W. 6, Yalobra
said that his brother Sita Ram got Jethansi land of 16 acres
out of a total area of 100 acres. When cross-examined, he
said that no more than Dashanshi was given “and the people
who divided did not tell any account of it”. The evidence
of Khewlal, D.S. 7 is that there was partition among his
brothers and the eldest brother Din Dayal was given 5-6
acres of land as Jethansi. The total area of the land to be
divided was 100 acres. No documentary evidence of partition
has been adduced on behalf of the respondents and the oral
evidence is vague and uncertain. We are accordingly of the
opinion that ‘the custom of Jethansi alleged on behalf of
the respondents has not been established by proper evidence
and the finding of the High Court is vitiated because it is
not supported by proper evidence. We accordingly reject the
argument of the respondents that Hemkumar was entitled to a
larger share of the joint family properties on the basis of
the alleged custom of Jethansi in his caste.
On behalf of the respondents reference was made to the
evidence of D.W. 1 Dinamani and D.W. 2 Dindayal that there
was an actual partition of joint family properties not on
December 27, 1943 when Ex. D-4 was executed but about two
months later and specific allotments were made to each of
the coparceners. There is, however, no pleading in the
Written Statement on behalf of the respondents that apart
from the document, Ex. D-4 there was a partition of the
joint family properties. We are satisfied in this case,
upon examination of the evidence, that the intention of the
parties was that document Ex. D-4 should be the sole
evidence of partition and since we have held that Ex. D-4
is not admissible in evidence on account of non-registration
to establish when the property was so partitioned, it is
manifest that no oral evidence is admissible to prove any
subsequent parti-
(1) 3 T. A. 259, at p. 285.
647
tion having regard to the provisions of s. 91 of the
Evidence Act. It is clear therefore that the appellants are
entitled to a preliminary decree for partition of joint
family properties.
For the reasons expressed we hold that this appeal should be
allowed and the suit brought by the two appellants should be
decreed’. The appellants, Subhagwati and Shiromani are each
entitled to 1/4 th share in the joint family properties and
there should be a preliminary decree drawn up for the
partition of 1/4 th share of the joint family properties for
each of the appellants, Mst. Subhagwati and Shiromani. The
question as to what are the joint family properties which
are to be the subject-matter of partition would be
determined by the trial court in proceedings for the final
decree. We accordingly allow this appeal with costs.
Civil Appeal No. 750 of 1965
For the reasons given by us in Civil Appeal No. 749 of 1965
we set aside the judgment of the High Court in Second Appeal
No. 568 of 1960 and C.S. No. 36-A of 1956 filed by Dinmani
is dismissed. We accordingly allow this appeal with costs.
There will be one hearing fee for both this appeal and Civil
Appeal No. 749 of 1965.
G.C. Appeal
allowed
648

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