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PARTITION

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whether the decree passed by the court of first instance on the basis of compromise had become enforceable or it had the status of a preliminary decree requiring completion of a final decree proceeding to make it executable and; whether the execution proceeding was untenable being hit by the law of limitation. = Compromise was acted upon as if it is a final decree – no separate final decree necessary and is a executable decree – as execution of it after 12 years barred by limitation = Bimal Kumar & Another … Appellants Versus Shakuntala Debi & Others = Published in http://judis.nic.in/supremecourt/helddis.aspx

DECREE: Final decree and Preliminary decree – Distinction between -Discussed. Preliminary decree – Compromise application – Tenor of application showed that the parties to the compromise settled the entire controversy and they were in separate and exclusive possession of the properties allotted to their respective shares – The compromise application did not contain any clause … Continue reading

Registration Act, 1908: SS. 17(1)(b) & 49: Partition- Document containing list of properties allotted to parties- Recital of past events-Registration whether necessary- Whether admissible in evidence to prove factum of partition. % = The parties are decendants of a common ancestor, who had two sons. These two branches of the family had joint properties, both agricultural and residential. The agricultural land was partitioned in 1955 and the names of the respective parties were duly mutated in the revenue records. This was followed by a partition of their residential properties including the house, ghers, ghetwars etc. The factum of partition was embodied in the memorandum of partition Exh. B-12 dated August 3, 1955 and bears the thumb impressions and signatures of the heads of the families, and later confirmed in the settlement dated January 31, 1971, Exh. P-1 written in the presence of a number of villagers. A dispute arose between the parties in February, 1971 when the respondents were sought to be prevented by the appellants from raising a boundary wall to a plot of land that had fallen to their share. In proceedings under s. 145 Cr. P.C., 1898, the Sub-Divisional Magistrate held that the father of the appellants was in actual possession of the disputed piece of land. In revision the Sessions Judge agreed with the conclusion arrived at by the Magistrate. On further revision the High Court affirmed the findings reached by the courts below. In a suit for declaration brought by respondents a Single Judge of the High Court came to the conclusion that the disputed plot belonged to them and it had fallen to their share in the partition of 1955 and later confirmed in the settlement dated 31st January, 1971. He construed the document Exh. p-12 to be a memorandum of family arrangement and not an instrument of partition requiring registration and therefore admissible in evidence under the proviso to s. 49 of the Act for a collateral purpose of showing nature of possession. In a Letters Patent appeal a Division Bench of the High Court affirmed the reasoning and 1107 conclusion arrived at by the Single Judge. In the appeal by special leave, it was contended for the appellants that the document Exh. P-12 does not contain any recital of a prior, completed partition but on its terms embodies a decision which is to be the sole repository of the right and title of the parties i.e. according to which partition by metes and bounds had to be effected. It, therefore, required registration under s. 17 of the Registration Act. Dismissing the appeal, ^ HELD: 1. Partition, unlike the sale or transfer which consists in its essence of a single act, is a continuing state of facts. It does not require any formality, and therefore if parties actually divide their estate and agree to hold in severalty, there is an end of the matter. [1115B- C] 2. If the arrangement of compromise is one under which a person having an absolute title to the property transfers his title in some of the items thereof to the others, the formalities prescribed by law have to be complied with, since the transferees derive their respective title through the transferor. If, on the other hand, the parties set up competing titles and the differences are resolved by the compromise, there is no question of one deriving title from the other, and therefore the arrangement does not fall within the mischief of s. 17 read with s. 49 of the Registration Act as no interest in property is created or declared by the document for the first time. it is assumed that the title had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary. [1116C-E] Sahu Madho Das & Ors. v. Pandit Mukand Ram & Anr., [1955] 2 SCR 22; Khunni Lal v. Gobind Krishna Narain & Anr., LR (1911) 38 IA 87 and Lalla Oudh Behari Lall v. Mewa Koonwar, [1868] 3 Agra HC 82 at p. 84 refereed to. In the instant case, admittedly there was a partition by metes and bounds of the agricultural lands effected in the year 1955 and the shares allotted to the two branches were separately mutated in the revenue records. There was thus a disruption of joint status. All that remained was the partition of the ancestral residential house called rihaishi, the smaller house called baithak and ghers/ghetwars. The document Exh. P-12 does not effect a partition but merely records the nature of the arrangement arrived at as regards the division of the remaining property. The parties set out competing claims to the properties and there 1108 was an adjustment of the rights of the parties. The compromise was on the footing that there was an antecedent title of the parties to the properties and the settlement acknowledged and defined title of each of the parties. The opening words of the document are: ‘Today after discussion it has been mutually agreed and decided that …’ what follows is a list of properties allotted to the respective parties. From these words it is quite obvious that the document contains the recital of the past events and does not itself embody the expression of will necessary to effect the change in the legal relation contemplated. It cannot, therefore, be construed to be an instrument of partition. [1116F-G; 1114C-D] Section 17(1)(b) of the Registration Act lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some rights in immovable property. Therefore, a mere recital of what has already taken place could not be held to declare any right and there would be no necessity of registering such a document. [1113H; 1114A] Rajangam Ayyar v. Rajangam Ayyar, LR (1923) 69 IA 123 and Nani Bai v. Gita Bai, AIR (1958) SC 706 referred to. 3. A document though unregistered can, however, be looked into under the proviso to s. 49 of the Act which allows documents which would otherwise be excluded, to be used as evidence of any collateral transaction not required to be effected by a registered instrument, for the limited purpose of establishing a severance in status, though that severance would ultimately affect the nature of the possession held by the members of the separated family as co-tenants. The document Exh. P-12 can be used for the limited and collateral purpose of showing that the subsequent division of the properties allotted was in pursuance of the original intention to divide. [1116G-H; 1117A] Varada Pillai v. Jeevarathnammal, LR (1919) 46 IA 285 referred to. 4. In any view, the document Exh. P-12 is a mere list of properties allotted to the shares of the parties. It merely contains the recital of past events. It is, therefore, admissible in evidence. [1117B] Narayan Sakharam Patil v. Cooperative Central Bank, Malkapur & Ors., ILR (1938) Nag. 604; Bageshwari Charan Singh v. Jagarnath Kuari, LR (1932) 59 IA 130; Subramanian v. Lutchman, LR (1923) 15 IA 77; Ganpat Gangaji Patil v. Namdeo Bhagwanji Patil & Ors., ILR 1109 (1942) Nag. 73 and Mulla’s Registration Act, 8th Edn. pp. 54-57 referred to. =1988 AIR 881, 1988( 2 )SCR1106, , 1988( 1 )SCALE391 ,

PETITIONER: ROSHAN SINGH & ORS. Vs. RESPONDENT: ZILE SINGH & ORS. DATE OF JUDGMENT24/02/1988 BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) RAY, B.C. (J) CITATION: 1988 AIR 881 1988 SCR (2)1106 1988 SCALE (1)391 ACT: Registration Act, 1908: SS. 17(1)(b) & 49: Partition- Document containing list of properties allotted to parties- Recital of past … Continue reading

Hindu Succession Act, 1956: s.6, Explanation 1-Devolution of interest in coparcenary property-Father and his adopted son constituting Mitakshara coparcenary-Father having two daughters also-On the death of father, daughters claiming 2/3 share in property-Held, in view of s.6 and Explanation 1 thereto, notional partition of the suit properties between father and his adopted son has to be assumed immediately before the death of the father and that being so his undivided interest in suit property, which was half, devolved on his death upon his three children, i.e. the adopted son and the two daughters in equal proportion-Adopted son would get half of the entire property which right he acquired on the date of adoption and one third of the remaining half which devolved upon him by succession-Thus, each of the two daughters was entitled to one-sixth share in the property and the remaining properties would go to the adopted son-Hindu Law-Mitakshara coparcenary-Devolution of interest-Interpretation of statutes-Statutory fiction-Interpretation of. State of Bombay v. Pandurang Vinayak Chaphalkar & Ors., [1953] 4 SCR 773 and Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum, AIR (1978) SC 1239, relied on. East End Dwelling Co. Ltd. v. Finsbury Borough Council, (1952) Appeal Cases 109, referred to. Mulla, Principles on Hindu Law, referred to. =Sushil Kumar Jain, Puneet Jain, Sarad Singhania, Rani Masheshwari and Pratibha Jain for the Appellants. Aruneshwar Gupta, Gen. Naveen Kumar Singh, Mukul Sood, Kumar Kartikay, Shiva Pujan Singh, Ved Pal Shastri and Siddharth Singh for the Respondents.

CASE NO.: Appeal (civil) 4171 of 2006 PETITIONER: Anar Devi and Ors RESPONDENT: Parmeshwari Devi and Ors DATE OF JUDGMENT: 18/09/2006 BENCH: B.N. AGRAWAL & P.P. NAOLEKAR JUDGMENT: JUDGMENT O R D E R (ARISING OUT OF S.L.P. (C) NO. 15677 OF 2004) WITH CIVIL APPEAL NO. 4172 OF 2006 (ARISING OUT OF S.L.P. (C) … Continue reading

Code of Civil Procedure, 1908: ss.2(20) and 54, O. 20 r.18, O. 26 r.13 – Partition suit – Preliminary decree passed – Application for final decree – Resisted on the ground of limitation – DECREE – Preliminary decree and final decree – Concept of, in the context of partition suits and mortgage suits – SUIT: Suit for partition – Partition – Concept of – LEGISLATION: Suit – Filing of suit and securing relief to litigant – Proceedings in between – Need for legislation to avoid multiplicity of proceedings – =HELD: Where an application does not invoke the jurisdiction of court to grant any fresh relief based on a new cause of action, but merely reminds or requests the court to do its duty by completing the remaining part of the pending suit, there is no question of any limitation – Such an application is not one to which Limitation Act would apply – As declaration of rights or shares is only the first stage in a suit for partition, a preliminary decree does not have the effect of disposing of the suit – Suit continues to be pending until partition, that is, division by metes and bounds, takes place by passing a final decree – An application requesting the court to take necessary steps to draw up a final decree effecting a division in terms of the preliminary decree is neither an application for execution (falling under Article 136 of Limitation Act) nor an application seeking a fresh relief (falling under Article 137 of Limitation Act) – Code does not contemplate filing of an application for final decree – Therefore, when a preliminary decree is passed in a partition suit, the proceedings should be continued by fixing dates for further proceedings till a final decree is passed -It is the duty and function of the court which in the normal course has to be performed by the court itself as a continuation of the preliminary decree – Performance of such function does not require a reminder or nudge from the litigant – The mindset should be to expedite the process of dispute resolution – The application filed by plaintiff for drawing up of a final decree was rightly held to be not subject to any period of limitation – Court concerned would expedite the final decree proceedings – Limitation. Lalta Prasad v. Brahma Din AIR 1929 Oudh 456; Ramabai Govind v. Anant Daji AIR 1945 Bom. 338; Abdul Kareem Sab v. Gowlivada S. Silar Saheb AIR 1957 AP 40; A. Manjundappa v. Sonnappa & Ors. AIR 1965 Kar. 73; Sudarsan Panda & Ors. v. Laxmidhar Panda & Ors. AIR 1983 Orissa 121; Laxmi v. A.Sankappa Alwa AIR 1989 Ker. 289; Phoolchand vs. Gopal Lal AIR 1967 SC 1470; Hasham Abbas Sayyad v. Usman Abbas Sayyad & Ors. 2007 (2) SCC 355; and Bikoba Deora Gaikwad v. Hirabai Marutirao Ghorgare 2008 (8) SCC 198, relied on HELD: There is a fundamental difference between mortgage suits and partition suits – In a preliminary decree in a mortgage suit (whether a decree for foreclosure under r.2 or a decree for sale under r.4 of O 34 CPC), the amount due is determined and declared and the time within which the amount has to be paid is also fixed and the consequence of non- payment within the time stipulated is also specified – A preliminary decree in a mortgage suit decides all the issues and what is left out is only the action to be taken in the event of non-payment of the amount – When the amount is not paid, plaintiff gets a right to seek a final decree for foreclosure or for sale – On the other hand, in a partition suit the preliminary decree only decides a part of the suit and, therefore, an application for passing a final decree is only an application in a pending suit, seeking further progress – In partition suits, there can be a preliminary decree followed by a final decree, or there can be a decree which is a combination of preliminary decree and final decree or there can be merely a single decree with certain further steps to be taken by the court – In fact several applications for final decree are permissible in a partition suit – The application for final decree as and when made is considered to be an application in a pending suit for granting the relief of division by metes and bounds – Therefore, the concept of final decree in a partition suit is different from the concept of final decree in a mortgage suit – Consequently, an application for a final decree in a mortgage suit is different from an application for final decree in a partition suit. HELD: `Partition’ is a re-distribution or adjustment of pre-existing rights, among co-owners/coparceners, resulting in a division of lands or other properties jointly held by them, into different lots or portions and delivery thereof to the respective allottees – The effect of such division is that the joint ownership is terminated and the respective shares vest in them in severalty – A partition of a property can be only among those having a share or interest in it – A person who does not have a share in such property cannot obviously be a party to partition – `Separation of share’ is a species of `partition’ – When all co-owners get separated, it is a partition – Separation of share/s refers to a division where only one or only a few among several co-owners/coparceners get separated, and others continue to be joint or continue to hold the remaining property jointly without division by metes and bounds – In a suit for partition or separation of a share, the prayer is not only for declaration of plaintiff’s share in the suit properties, but also division of his share by metes and bounds – This involves three issues (i) whether the person seeking division has a share or interest in the suit property/properties; (ii) whether he is entitled to the relief of division and separate possession; and (iii) how and in what manner the property/properties should be divided by metes and bounds. HELD: Cases have been found where a suit is decreed or a preliminary decree is granted within a year or two and the final decree proceeding and execution takes decades for completion – This is an area which contributes to considerable delay and consequential loss of credibility of the civil justice system – Courts and lawyers should give as much importance to final decree proceedings and executions, as they give to the main suits – A conceptual change regarding civil litigation, is required so that the emphasis is not only on disposal of suits, but also on securing relief to the litigant – It is hoped that the Law Commission and Parliament will bestow their attention on this issue and make appropriate recommendations/amendments so that the suit will be a continuous process from the stage of its initiation to the stage of securing actual relief – The present system involving a proceeding for declaration of the right, a separate proceeding for quantification or ascertainment of relief, and another separate proceeding for enforcement of the decree to secure the relief, is outmoded and unsuited for present requirements – The Code of Civil Procedure should provide for a continuous and seamless process from the stage of filing of suit to the stage of getting relief – In so far final decree proceedings are concerned, there is no reason for even legislative intervention – As the provisions of the Code stand as on date, initiation of final decree proceedings does not depend upon an application for final decree for initiation (unless the local amendments require the same) – Practice and Procedure. Case Law Reference: AIR 1929 Oudh 456 relied on para 8 AIR 1945 Bom. 338 relied on para 8 AIR 1957 AP 40 relied on para 8 AIR 1965 Kar. 73 relied on para 8 AIR 1983 Orissa 121 relied on para 8 AIR 1989 Ker. 289 relied on para 8 AIR 1967 SC 1470 relied on para 8 2007 (2) SCC 355 relied on para 8 2008 (8) SCC 198 relied on para 8 CIVIL APPELLATE JURISDICTION : SLP (Civil) No. 17932/2009. From the Judgment and Order dated 15.1.2009 of the High Court of Judicature at Patna in C.R. No. 2216/2008. S.B. Sanyal and Subhro Sanyal for the Petitioner.

Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION [C] NO.17932 OF 2009 Shub Karan Bubna @ Shub Karan Prasad Bubna … Petitioner Vs. Sita Saran Bubna & Ors. … Respondents ORDER R. V. RAVEENDRAN, J. The first respondent and his mother filed a suit for partition against petitioner and two … Continue reading

Partition of ancestral property and business-One of the parties a minor at the time of partition-Partition-If could be re-opened when minor became a major.

PETITIONER: SUKHRANI (DEAD) BY L.RS. & ORS. Vs. RESPONDENT: HARI SHANKER & OTHERS DATE OF JUDGMENT12/04/1979 BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) SHINGAL, P.N. CITATION: 1979 AIR 1436 1979 SCR (3) 671 1979 SCC (4) 463 CITATOR INFO : D 1988 SC1531 (185) ACT: Partition of ancestral property and business-One of … Continue reading

Meeralava Rawther and his family members, being Mohammedans, they are entitled to succeed to the estate of the deceased in specific shares as tenants in common. Since Meeralava Rawther had three sons and three daughters, the sons were entitled to a 2/9th share in the estate of the deceased, while the daughters were each entitled to a 1/9th share thereof. A family arrangement would necessarily mean a decision arrived at jointly by the members of a family and not between two individuals belonging to the family. The five deeds of relinquishment executed by the five sons and daughters of Meeralava Rawther constitute individual agreements entered into between Meeralava Rawther and the expectant heirs. However, notwithstanding the above, as we have held hereinbefore, the doctrine of estoppel is attracted so as to prevent a person from receiving an advantage for giving up of his/her rights and yet claiming the same right subsequently. In our view, being opposed to public policy, the heir expectant would be estopped under the general law from claiming a share in the property of the deceased, as was held in Gulam Abbas’s case (supra).

1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (C) NOS.7421-7422 OF 2008 SHEHAMMAL … PETITIONER Vs. HASAN KHANI RAWTHER & ORS. … RESPONDENTS WITH SLP(C)NOS.14303-14304 OF 2008 J U D G M E N T ALTAMAS KABIR, J. 1. Special Leave Petition (Civil) Nos.7421-7422 of 2008 filed by one … Continue reading

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