Saturday 15 June 2013

Once shares are defined, whether by an agreement between parties or otherwise, partition is complete

It has been clearly laid down that  once the shares
are defined by way of partition,  the partition becomes
complete.     The   parties   may   divide   the   property   by
metes and bounds or they may continue to live together
and  enjoy  the  property in  common  as  before.   Such
conduct   affects only  the mode of enjoyment   but not
the tenure of the property.  The property ceases  to be
the joint family property upon the shares being defined
and   the   parties   hold   the   property   as   the
tenants­in­ common.  The Courts below have, therefore,
committed   an   error   in   holding   that   the   property
continued to be the joint family property in spite of the
registered Partition Deed dated 6­4­1955.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Second Appeal No.393 of 1995.
1] Smt. Venubai wd/o Natthu @ Devidas
        
          ….VERSUS ....
1] Smt. Vimlabai w/o Keshaorao Thakare,


Coram : R. K. Deshpande, J
Date    :  February 06, 2013.
Citation; 2013 (3) MH L J 895

1. Heard finally by consent of the learned Advocates
appearing for the parties.
2. In Special Civil Suit No.38 of 1979 the learned Civil
Judge, Senior Division, Amravati passed a decree  for
partition and separate possession on 9­9­1986 with all
other consequential orders.  The plaintiff Vimalabai was
held   entitled   to   1/8th  share   in   the   whole   properties
described in Part­I ­ Schedule­B attached to the plaint,
except  the  portion   of   field   Survey  Nos.51/1   and  53/1
situated   at   village   Sonora   Kakade   Pragane   Mangrul

Dastgir,   Tq.   Chandur   Rly,   District   Amravati   sold   by
Motiram.     Regular   Civil   Appeal   Nos.496   of   1986   and
498   of   1986   preferred   by   both   the   parties   were
dismissed on 21­2­1995 with some modification to the
extent of holding  the plaintiff  entitled to 1/24th  share in
the   properties   shown   in   Schedule­B   (Part   I   and   II),
agricultural   lands   and   house   property   except   the
property sold by Motiram during his life time.   Hence,
this second appeal by the original defendant Nos. 8 & 9
claiming through the defendant No.1.
3. Undisputed  factual position is that the ancestral
property   in   the   hands   of   one   Motiram   Mankar   was
partitioned  by  executing    a  registered  Partition  Deed
dated   6­4­1955   to   which     Natthuji   @   Devidas   the
defendant No.1  who was the son of  Tulsabai  the first

wife of Motiram was a party.  The property  which had
fallen   to   the   share   of   Motiram   in   this   partition   was
further partitioned on 27­10­1969 between Motiram and
his  third wife  Satyabhama the defendant No.2.  There
were other  transactions also in  the  form of Gift Deed
and  Exchange  Deed  and it is  not  necessary  to  refer
them here.  Vimalabai the original plaintiff who claimed
to be the daughter of  Narmadabai the second wife of
Motiramji  filed a suit in question i.e Special Civil Suit
No.38 of 1979 for partition and separate possession of
1/8th share in the entire property excluding the property
sold by Motiramji in the year 1977. 
4. Both   the   Courts   below     have   disbelieved     the
registered Partition Deed dated 6­4­1955 for the reason
that the burden of proof to prove that the Partition Deed

was   real,   genuine   and   not   nominal   was   upon   the
defendants which was not discharged  and  that  there
was evidence brought on  record  to establish  that  the
parties   continued   to   live   together   and   enjoy   the
property in common as before.  It is not in dispute that
if such Partition Deed is accepted  to be  true, correct
and   binding   upon   the   parties,   the   plaintiff   will   be
entitled to 1/24th share in the property which had fallen
to   the   share   of   Motiramji   Mankar   alone   of   course
excluding  the property which was sold by Motiram and
excluded by the Courts below.  In such  eventuality, the
plaintiff would not be entitled either 1/8th share  or 1/24th
share in  the entire property as has been held by  the
Courts below.

5. While admitting this second appeal the Court had
framed the following substantial questions of law :­
“1] Whether both the Courts below were
justified in holding that the partition deed dated
6.4.1995   was   nominal,   not   real   and   genuine,
since not acted upon by the parties ?”
“2] Whether  the burden of proving  the
existence   of   joint   family   was   on   the   original
plaintiff,   especifically   on   the   face   of   the
registered partition deed dated 6.4.1955? If yes.
whether the Courts below were right in casting
the negative burden on the appellants?”
“3] Whether Section 23 of    the   Hindu
Succession   Act   imposes   a   restriction   on   a
female   heir   to   demand   partition   of   a   house
property? If  yes, whether  the original plaintiff
can enforce a partition in respect of the house
property shown in Schedule­B of the plaint?”

6. So far as  the substantial question of law  at serial
No.3 is concerned, it is conceded by Sh. Sohoni,  the
learned Advocate appearing for the appellants  that the
plaintiff  would be entitled to 1/24th share in the property
which   had   fallen   to   the   share   of   Motiramji   in   the
Partition   Deed   dated   6­4­1955.   Hence,   the   said
substantial   question   of   law   does   not   deserve   any
consideration. 
7. Sh. Sohoni,  the learned  Advocate  appearing  for
the   appellant­defendants   has   urged   that   it   is   the
plaintiff who is coming before  the Court with a   case
that the registered Partition Deed dated 6­4­1955   was
not real, genuine but was  nominal and not  to be acted
upon.  He,  therefore  submits  that    once   the   Partition
Deed is proved it is for the plaintiff to establish the case

with which he has  come before the Court.  If the facts
are not proved then it is the plaintiff who shall  fail in
the   matter.     He,   therefore,   submits   that   the   Courts
below   have   committed   an   error     in   holding   that   the
burden of proof in respect of such facts was upon the
appellant­defendants.  Relying upon para 322 of Mulla’s
Principles of Hindu Law, he has urged  that once  the
shares   are   defined,   the   parties  may   continue   to   live
together and enjoy the property in common as before.
He   submits   that   the   property   ceases   to   be   the   joint
family   property.     Sh.   Badhe,   the   learned   Advocate
appearing for the  plaintiff­respondents has supported
the findings recorded by the Courts below.
8. The Partition Deed dated 6­4­1955 is a registered
document and it is proved and marked as Exhibit­116.  It

is  the plaintiff who is coming before  the Court with a
case that  this Partition Deed was not the real, genuine
but was merely  a nominal and the parties  had decided
not to act upon it.  In view of this, the burden of proof in
respect   of   such   facts   clearly   lay   upon   the
plaintiff­respondents.   The   Courts   below   have
committed  an error of  law in holding that  it was the
burden  upon the appellant­defendants to establish that
the said Partition Deed was real, genuine and binding
upon  the parties.
9. The provisions contained in para 322 of   Mulla’s
Principles of Hindu Law relied upon by Sh. Sohoni is
reproduced below :­  
“322.      What is Partition.­­According  to  the
true   notion   of   an   undivided   Mitakshara
family, no individual member of  that  family,
whilst it remains undivided, can predicate of

the   joint   property,   that   he—that   particular
member­­has   a   certain   definite   share,
one­third or one­fourth.  Partition, according
to  that law, consists in a numerical division
of the property; in other words,  it consists in
defining the shares of the coparceners in the
joint     property;   an   actual   division   of   the
property   by   metes   and   bounds   is   not
necessary ( c). Once the shares are defined,
whether by an agreement between the parties
or otherwise, the partition is complete.  After
the shares are so defined,  the   parties may
divide the property by metes and bounds, or
they may continue to live together and enjoy
the   property   in   common   as   before.     But
whether   they   do   the   one   or   the   other,   it
affects only the mode of enjoyment, but not
the   tenure   of   the   property.     The   property
ceases to be joint immediately the shares are
defined, and thenceforth the parties hold the
property as tenants­in­common (d).
Where at a partition between a Hindu,
his  two  sons,  and his    two wives  one­fifth
was   allotted   to   each   of   the   sons   and
three­fifths to the father and his wives, it was
held  that  the  father   and  his  wives  became
tenants­in­common, but though they had not
divided  their   shares   by metes  and   bounds
inter se  there could be no reunion between
them, and the father therefore had no right to
sell the properties of the wives and any  such

alienation by him was not binding on  them
(e).”
It has been clearly laid down that  once the shares
are defined by way of partition,  the partition becomes
complete.     The   parties   may   divide   the   property   by
metes and bounds or they may continue to live together
and  enjoy  the  property in  common  as  before.   Such
conduct   affects only  the mode of enjoyment   but not
the tenure of the property.  The property ceases  to be
the joint family property upon the shares being defined
and   the   parties   hold   the   property   as   the
tenants­in­ common.  The Courts below have, therefore,
committed   an   error   in   holding   that   the   property
continued to be the joint family property in spite of the
registered Partition Deed dated 6­4­1955.

10. In the result, the second appeal is allowed.   The
Judgment   and   decree   dated   9­9­1986   passed   in
Regular Civil Suit No.38 of 1979 by  the  trial Court as
modified by the appellate Court in Regular Civil Appeal
Nos.496   of   1986   and   498   of   1986   by   its   common
Judgment and order dated 21­2­1995 is hereby quashed
and  set  aside  to  the  extent of granting  1/8th  or  1/24th
share  to  the plaintiff in  the entire suit property.   It is
held that the plaintiff is entitled to 1/24th  share   in the
properties   which   had   fallen   only   to   the   share   of
Motiramji at the time of his death, of course excluding
the property which was sold  i.e 51/1 and 53/1  situated
at   Sonora   Kakde   Pragane   Mangrul   Dastgir,   Taluka
Chandur   Rly.,   District   Amravati     which   was   sold   by
Motiramji.  Rest of the decree passed by the trial Court
is   maintained   in   respect   of   share   of   the   plaintiff   as

decreed by this Court.  No order as to costs. 
JUDGE
Deshmukh

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