Friday, 19 May 2017

Whether one coparcener can transfer his share in property by way of gift without consent of other coparcener?


  So far the gift deed is concerned, the defendants claimed
that the gift deed was executed by Laldas in their favour in May, 1971
and then he died in June, 1971. On the contrary, plaintiff’s case is that 
Laldas died in the month of May, 1971. It may be mentioned here that
the defendants have not claimed any counter claim for declaration of
the gift deed as valid. No issue was framed on this question but the
trial court recorded a finding that gift deed is a valid, legal and
genuine document. I have already held above that there had been no
partition between the parties and there is unity of title and possession,
so, the coparcener cannot transfer by way of gift his share without the
consent of other coparcener.
 (26) The Hon’ble Supreme Court in AIR 1987 Supreme
Court 1775 has held that gift by a coparcener of undivided share is a
void transaction. Since there was unity of title and possession between
the parties and there had been no partition, the so called gift deed,
even if executed by Laldas, is a void document and no valid title,
interest and possession will pass on the defendants.
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.250 of 1976

Sabitri Devi & Ors. Sri Lakhan @ Ramjiwan Prasad & Ors.

CORAM:  MR. JUSTICE MUNGESHWAR SAHOO

Date: 06-02-2017
Citation: AIR 2017 Patna 85

 (1) The plaintiffs-appellants have filed this First Appeal
against the judgment and decree dated 02.04.1976 passed by the
learned 3rd Additional Subordinate Judge, Biharsharif, Nalanda in
Title Suit No.81 of 1971/2 of 1976 whereby the plaintiff’s suit has
been dismissed.
 (2) The original plaintiff had filed the aforesaid suit claiming
for partition of his half share in the suit property. The original
plaintiff-appellant has died during the pendency of this First Appeal
and his legal representatives have been substituted. The plaintiffs
claimed half share alleging that Punit Mahto had three sons namely 
Bandhu Mahto, Laldas Mahto and Gyan Chand Mahto who all have
died. Laldas died unmarried and plaintiff is the son of Bandhu Mahto
who died in 1969. The defendants are the branch of Gyan Chand
Mahto who died in the year 1958-59 whereas Laldas died in 1971.
Only 2.67 acres ancestral land was in possession of the joint family.
Subsequently, 3 acres 15 ¾ decimals was acquired by the joint family
out of joint family fund and therefore, the joint family was in
possession of 5 acres 82 ¾ decimals. Although, the acquired
properties are in the name of different members but the lands were
acquired out of joint family fund. Three months prior to death of
Laldas, he had lost his memories and was not in good estate of mind
to carry on his day to day routine work. The properties are joint but
the defendant refused to partition the property. The plaintiff has
acquired some property out of his own income which has been
described in Schedule IV which is not the joint family property and is
not available for partition.
 (3) The defendant Nos.1 and 2 contested the suit by filing
joint written statement. Besides taking various legal pleas, they
mainly contended that there had already been partition between the
parties and Dajbandi was prepared during the lifetime of Laldas who
died in June, 1971 and not in May, 1971, as claimed by the plaintiff.
Laldas was separate after partition on 29.06.1970 who came in 
possession of the land allotted to him by Dajbandi. The property was
divided at three places. One share to the heirs of Gyan Chand, second
share to the plaintiff and third share was to Laldas. L.T.I. and
signature of plaintiff and Laldas were on Dajbandi. Laldas executed a
deed of gift on 27.05.1971 in favour of defendant Nos.1 and 2 and put
the defendants in possession of gifted property. The plaintiff had not
acquired any land and in fact, the Schedule IV land was also joint
family property and that Schedule IV land was acquired as exchange
land and all these lands were partitioned on 29.06.1970 and Dajbandi
was prepared.
 (4) The further case of the defendant is that in fact, the
plaintiff has purchased 25 ½ decimals land from these defendants but
he is not willing for takabjul badlain.
 (5) In view of the aforesaid pleading of the parties, the
learned court below framed the following issues:
I. Is the suit as framed maintainable?
II. Have the plaintiffs got any cause of action?
III. Is the date of death of Laldas and Gyan Chand alleged by the
plaintiffs correct?
IV. Has Laldas executed registered deed of gift on 23.03.1971 in
favour of Defendant No.1 and 2?
V. Is there unity of title and possession between the parties and is the
plaintiff entitled to partition?
VI. Is Schedule IV property a self-acquired property of the plaintiff?
VII. Are the plaintiffs entitled for the reliefs as claimed for?
VIII. To what relief or reliefs, if any, the plaintiff is entitled?
 (6) After hearing the parties, the learned court below came
to the conclusion that the parties had separated and three Dajbandi
had been prepared according to the case of the defendants, therefore,
there is no unity of title and possession between the parties, while
deciding issue no. 5 vide paragraph 57 of the judgment. The court
below also came to the conclusion that Laldas had executed the gift
deed in question with full understanding and accordingly, dismissed
the plaintiff’s suit.
 (7) The learned senior counsel, Mr. J.S.Arora for the
appellants submitted that the learned court below has wrongly
recorded the finding that there was previous partition and three
Dajbandes was prepared by mis-appreciating the documents i.e.
Dajbandi. According to the learned senior counsel, these Dajbandies
are not memorandum of partition. From perusal of these Dajbandies,
it will be clear that these are partition deed. Therefore, for want of
registration, these documents are inadmissible in evidence. All the
witnesses examined by the plaintiff-respondent are on the point of
partition by these Dajbandies. This is the case of the defendants also
in the written statement. Therefore, if these Dajbandies are ignored, as
those are inadmissible in evidence, as such not required to be 
considered, then there is no evidence at all to show that there was
partition between the parties by any other means on any other date.
Further, the previous partition is to be proved by the defendant. Both
parties adduced evidences but the court below mis-appreciated the
evidences.
 (8) The learned senior counsel further submitted that the
court below also recorded wrong finding about the date of death of
Laldas and held that gift deed is executed by Laldas in favour of
defendant Nos.1 and 2. According to the learned senior counsel, since
there had been no partition between the parties and the family was
coparcenery family, the gift deed executed by one coparcener without
the consent of other coparcener will be void gift deed. According to
the learned counsel, the plaintiff has produced overwhelming
evidences to show the date of death of Laldas in the month of May,
1971. The defendants have not adduced reliable evidences and have
failed to prove the previous partition.
 (9) The learned senior counsel further submitted that to
create evidence the defendants falsely pleaded that the plaintiff had
purchased 25 ½ decimals land from the defendant but he is not willing
to exchange the receipt i.e. takabjul badlain. According to the learned
counsel, if in fact, the plaintiff had purchased the land on payment of
consideration amount it is not believable that he will not exchange the
receipt and get the sale deed. In fact, the plaintiff never purchased any
land from the defendant and the defendant only with a view to create
inter se transaction, the sale deed was executed by them and they
produced the same. This document is self-serving document and will
not bind the plaintiff. On these grounds, the learned senior counsel
submitted that the first appeal be allowed after setting aside the
judgment and decree.
 (10) As stated above, nobody appeared on behalf of the
respondents.
 (11) In view of the contention raised by the learned counsel
for the appellants, only point arises for consideration in this First
Appeal is “whether there is unity of title and unity of possession as
alleged by the plaintiff or there had been previous partition as alleged
by the defendant” and “whether the gift deed executed by Laldas is
legal and valid?”
 (12) The plaintiff filed the simple suit for partition claiming
half share in the suit property. The defendant’s case is that there had
been partition between the parties on 29.06.1970 during the lifetime
of Laldas. So far genealogy is concerned, there is no dispute.
According to Hindu law, the family will be presumed to be joint
unless it is proved that there was partition. Since the presumption is in
favour of the plaintiff, it is for the defendants to adduce reliable 
evidence in support of their case that there had been partition between
the parties by metes and bounds. Both the parties have adduced their
respective evidences in support of their cases.
 (13) From perusal of paragraph 5 & 6 of the written
statement filed by defendant Nos.1 and 2, it appears that the only
defence of the defendant is that there was partition on 29.06.1970 and
in that partition, the properties were divided at three places.
 (14) D.W.2 has stated that there had been partition between
the parties including Laldas. This witness has also stated that the
parties are in separate possession of the lands in suit. This is the
evidence of D.W.3, 6, 7, 11 and 12. The evidences of these witnesses
are regarding separate possession and previous partition. They are not
witness to the actual partition between the parties. The other witness,
D.W.8 claimed to have scribed Dajbandi. This witness has stated the
case of the defendant regarding Dajbandi and putting of L.T.Is. by the
parties on it. D.W.14 and 15 are the defendant Nos.1 and 2
respectively. From perusal of the impugned judgment and decree, it
appears that the trial court considered the evidence of these witnesses
and three Dajbandies which have been marked as Exhibit F series and
has recorded the finding regarding partition on 29.06.1970.
 (15) It may be mentioned here that the plaintiff’s case is that
the Dajbandi produced by the defendant is forged and in fact, there Patna High Court FA No.250 of 1976 dt.06-02-2017
8
was no partition on 29.06.1970. Further, except this pleading of
partition on 29.06.1970, no other case has been pleaded by the
defendant. According to the defendants themselves, by Dajbandi,
partition was effected. Therefore, when the document itself is
available, it is no so very relevant to scrutinize the oral evidences
because the contents of the document cannot be interpreted on the
basis of oral evidence i.e. the statements made by the witnesses.
 (16) The Hon’ble Supreme Court in AIR 1963 Supreme
Court 890 has given the golden principles of interpretation of a
document. For that purpose the document itself is required to be gone
into minutely giving its clear and simple meaning.
 (17) Now let us consider these documentary evidences. In the
Dajbandi, it is recited that the parties by the following Dajbandi i.e.
separate takhta came in possession and they are entitled to get their
names mutated. Therefore, this Dajbandi clearly speaks that partition
was effected by separating the lands by Dajbandi and the parties came
in possession and this document is evidencing this Dajbandi i.e.
partition. It is not the case of the defendants that there was partition
earlier and for the purpose of memory, subsequently these Dajbandies
were prepared. The documents show that on the same very date, there
was partition by Dajbandi i.e. by preparing separate Schedule. Since
not only Schedules have been prepared but recital is also to that effect 
that by this Dajbandi, the parties got their separate possession and are
entitled to mutate their names, it cannot in any way be termed as
memorandum of partition rather it is a partition deed and by this deed
i.e. Dajbandi, the partition was effected by metes and bounds. This is
the pleading of the defendants and also the evidence of the defendants
and also the document says. It is settled principle of law that a
document by which partition is effected is compulsorily registerable
and if it is not registered then it is inadmissible in evidence.
 (18) It may be mentioned here that since no other case has
been made out by the defendants regarding previous partition, it
cannot be said that for collateral purpose, this document can be
looked into. The court cannot make a third case. Plaintiff’s simple
case is that there had been no partition whereas according to the
defendants partition took place on 29.06.1970 by Dajbandi and the
document is produced. Now therefore, the court is to see whether
there was no partition as claimed by the plaintiff or there was partition
on 29.06.1970 as claimed by the defendants. Regarding partition on
29.06.1970, the mode of partition pleaded by the defendant is
Dajbandi. If this Dajbandi Ext. F series is inadmissible and cannot be
relied upon or looked into then, there is no other mode of partition
claimed by the defendant.
 (19) The Hon’ble Supreme Court in AIR 2009 SCW 979
has held that unregistered deed of sale is not admissible in evidence in
terms of Section 35 of the Stamp Act. The said document would not
also be admissible for collateral purpose.
 (20) In view of this settled proposition of law when
unregistered sale deed is inadmissible then unregistered partition deed
will also be inadmissible in evidence for the purpose of proof of the
partition.
 (21) Now, if this Dajbandi i.e. documentary evidence adduced
by the defendants goes i.e. inadmissible and, therefore, cannot be
looked into nor can be considered, there is no other evidence to prove
that there had been previous partition. Moreover, as stated above, no
other mode of partition has been pleaded by the defendant.
 (22) In this case, the defendants have pleaded that the
plaintiff has purchased land from the defendants and the sale deed
was produced to show that there is inter se transaction. It may be
mentioned here that the plaintiff is denying to have purchased the
land. Earlier, the purchaser was not required to be present before the
Registrar. In such circumstances, it was for the defendant to have
adduced reliable evidence to show why the plaintiff is not receiving
the registered sale deed. Therefore, whatever statements made by the
defendants in the sale deed is the statements made by the defendants
which is binding on them only and will not bind the plaintiff. The 
document is a self-serving document not signed by the plaintiff, as
such, cannot be read against the plaintiff.
 (23) From perusal of the impugned judgment and decree,
much emphasis has been given by the court below that the original
Dajbandi was misplaced by the plaintiff or it was manipulated or that
the defendant had the fortune that copy of Dajbandi was given to
Laldas who at the time of execution of gift deed handed over to the
defendant and that the scribe has been examined are concerned, not
relevant for consideration as Dajbandi is inadmissible in evidence
irrespective of the fact that whether it is duplicate or original or it was
misplaced or manipulated.
 (24) In view of my above discussion, I come to the
conclusion that the learned court below wrongly recorded the finding
of previous partition by Dajbandi without considering that Dajbandi
document produced by the defendant is a deed of partition and is
compulsorily registerable. Since it is not registered, it is inadmissible
and cannot be relied. Thus, I find that the defendants have failed to
prove partition as claimed by them, therefore, there is unity of title
and unity of possession between the parties.
 (25) So far the gift deed is concerned, the defendants claimed
that the gift deed was executed by Laldas in their favour in May, 1971
and then he died in June, 1971. On the contrary, plaintiff’s case is that 
Laldas died in the month of May, 1971. It may be mentioned here that
the defendants have not claimed any counter claim for declaration of
the gift deed as valid. No issue was framed on this question but the
trial court recorded a finding that gift deed is a valid, legal and
genuine document. I have already held above that there had been no
partition between the parties and there is unity of title and possession,
so, the coparcener cannot transfer by way of gift his share without the
consent of other coparcener.
 (26) The Hon’ble Supreme Court in AIR 1987 Supreme
Court 1775 has held that gift by a coparcener of undivided share is a
void transaction. Since there was unity of title and possession between
the parties and there had been no partition, the so called gift deed,
even if executed by Laldas, is a void document and no valid title,
interest and possession will pass on the defendants.
 (27) The court below has not considered these aspects of
the matter which I have discussed and merely giving much emphasis
on Dajbandi has recorded the finding. Thus, the findings recorded by
the court below on both accounts are hereby reversed.
 (28) In the result, this First Appeal is allowed. The
impugned judgment and decree is set aside. The plaintiff-appellant’s
suit for partition is decreed in its entirety as claimed by the plaintiffs
with cost of Rs.10,000/- to be paid by the defendants-respondents to
the plaintiffs-appellants in the court below within two months failing
which the plaintiffs-appellants shall be at liberty to realize the cost
through the process of the court.
Saurabh/-
(Mungeshwar Sahoo, J)

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