Thursday, 13 August 2020

Supreme Court: Precaution to be taken by the court if, in the suit for partition of joint family property filed by a daughter, defence of prior partition is taken

Earlier, an oral partition was permissible, and at the same time,
the burden of proof remained on the person who asserted that there was a partition. It is also settled law that Cesser of Commonality is not conclusive proof of partition, merely by the reason that the members are separated in food and residence for the convenience, and separate residence at different places  due to service or otherwise does not show separation. Several acts, though not conclusive proof of partition, may lead to that conclusion in conjunction with various other facts. Such as separate occupation of portions, division of the income of the joint property, definement of shares in the joint property in the revenue of land registration records, mutual transactions, as observed in Bhagwani v. Mohan Singh, AIR 1925 PC 132, and Digambar Patil v. Devram, AIR 1995 SC 1728.

125. The severance of status may take place from the date of filing of
a suit; however, a decree is necessary for working out the results of
the same, and there may be a change of rights during the pendency of
the suit for allotting definite shares till final decree is passed. There
are cases in which partition can be reopened on the ground of fraud or
mistake, etc. or on certain other permissible grounds. In appropriate
cases, it can be reopened at the instance of minor also.
126. The protection of rights of daughters as coparcener is envisaged
in the substituted Section 6 of the Act of 1956 recognises the partition
brought about by a decree of a court or effected by a registered
instrument. The partition so effected before 20.12.2004 is saved.

127. A special definition of partition has been carved out in the
explanation. The intendment of the provisions is not to jeopardise the
interest of the daughter and to take care of sham or frivolous
transaction set up in defence unjustly to deprive the daughter of her
right as coparcener and prevent nullifying the benefit flowing from the
provisions as substituted. The statutory provisions made in section
6(5) change the entire complexion as to partition. However, under the
law that prevailed earlier, an oral partition was recognised. In view of
change of provisions of section 6, the intendment of legislature is clear
and such a plea of oral partition is not to be readily accepted. The
provisions of section 6(5) are required to be interpreted to cast a heavy
burden of proof upon proponent of oral partition before it is accepted
such as separate occupation of portions, appropriation of the income,
and consequent entry in the revenue records and invariably to be
supported by other contemporaneous public documents admissible in
evidence, may be accepted most reluctantly while exercising all
safeguards. The intendment of Section 6 of the Act is only to accept
the genuine partitions that might have taken place under the
prevailing law, and are not set up as a false defence and only oral ipse
dixit is to be rejected outrightly. The object of preventing, setting up of
false or frivolous defence to set at naught the benefit emanating from
amended provisions, has to be given full effect. Otherwise, it would

become very easy to deprive the daughter of her rights as a

coparcener. When such a defence is taken, the Court has to be very
extremely careful in accepting the same, and only if very cogent,
impeccable, and contemporaneous documentary evidence in shape of
public documents in support are available, such a plea may be
entertained, not otherwise. We reiterate that the plea of an oral
partition or memorandum of partition, unregistered one can be
manufactured at any point in time, without any contemporaneous public document needs rejection at all costs. We say so for exceptionally good cases where partition is proved conclusively and we caution the courts that the finding is not to be based on the preponderance of probabilities in view of provisions of gender justice and the rigor of very heavy burden of proof which meet intendment of Explanation to Section 6(5). It has to be remembered that courts cannot defeat the object of the beneficial provisions made by the Amendment Act. The exception is carved out by us as earlier execution of a registered document for partition was not necessary, and the Court was rarely approached for the sake of family prestige. It was approached as a last resort when parties were not able to settle their family dispute amicably. We take note of the fact that even before 1956, partition in other modes than envisaged under Section 6(5) had taken place.

128. The expression used in Explanation to Section 6(5) ‘partition
effected by a decree of a court’ would mean giving of final effect to
actual partition by passing the final decree, only then it can be said
that a decree of a court effects partition. A preliminary decree
declares share but does not effect the actual partition, that is effected
by passing of a final decree; thus, statutory provisions are to be given
full effect, whether partition is actually carried out as per the
intendment of the Act is to be found out by Court. Even if partition is
supported by a registered document it is necessary to prove it had
been given effect to and acted upon and is not otherwise sham or
invalid or carried out by a final decree of a court. In case partition, in
fact, had been worked out finally in toto as if it would have been
carried out in the same manner as if affected by a decree of a court, it
can be recognized, not otherwise. A partition made by execution of
deed duly registered under the Registration Act, 1908, also refers to
completed event of partition not merely intendment to separate, is to
be borne in mind while dealing with the special provisions of Section
6(5) conferring rights on a daughter. There is a clear legislative
departure with respect to proof of partition which prevailed earlier;
thus, the Court may recognise the other mode of partition in
exceptional cases based upon continuous evidence for a long time in
the shape of public document not mere stray entries then only it

would not be in consonance with the spirit of the provisions of Section
6(5) and its Explanation.


ARUN MISHRA, J,S. Abdul Nazeer J,M.R. Shah J.
Dated:August 11, 2020.
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