5. '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 severally.
6. 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 a partition. 'Separation of share' is a species of 'partition'. When all co-owners get separated, it is a partition. Separation of shares/ 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. For example, where four brothers owning a property divide it among themselves by metes and bounds, it is a partition. But if only one brother wants to get his share separated and other three brothers continue to remain joint, there is only a separation of the share of one brother.
7. 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?
In a suit for partition or separation of a share, the Court at the first stage decides whether the plaintiff has a share in the suit property and whether he is entitled to division and separate possession. The decision on these two issues is exercise of a judicial function and results in first stage decision termed as 'decree' under Order 20 Rule 18(1) and termed as 'preliminary decree' under Order 20 Rule 18(2) of the Code. The consequential division by metes and bounds, considered to be a ministerial or administrative act requiring the physical inspection, measurements, calculations and considering various permutations/ combinations/alternatives of division is referred to the Collector under Rule 18(1) and is the subject matter of the final decree under Rule 18(2).
34. In the background of the aforesaid legal eventualities, the Court has onerous obligation to see at the first stage whether there was disruption of joint family of which Kripal Singh was the common ancestor. As stated above, plaintiff/respondent have pleaded that the family consisting of Kripal Singh, common ancestor remained joint while according to version of defendant/appellants, their happens to be disruption in the joint family whereunder Kripal Singh, Siddhi Singh and Tanu Singh remained joint while Jamuna Singh had his separate independent identity. It has also been pleaded that acquisition was made by Tanu Singh from his savings and on account thereof, it happens to be his exclusive property.
35. Because of the fact that presumption of jointness of Hindu Family is to be construed and further the person who controverts, has an obligation to satisfy to that extent, that means to say, the presumption is found rebuttable and that being so, first of all evidence on this score has to be seen.
36. In Kesharbai @ Pushpabai Eknathrao Nalawade (D) by L.Rs & Anr. v. Tarabai Prabhakarrao Nalawade & Ors as reported in AIR 2014 SC 1830, it has been held:-
.........It is a settled principle of law that once a partition in the sense of division of right, title or status is proved or admitted, the presumption is that all joint property was partitioned or divided. Undoubtedly the joint and undivided family being the normal condition of a Hindu family, it is usually presumed, until the contrary is proved, that every Hindu family is joint and undivided and all its property is joint. This presumption, however, cannot be made once a partition (of status or property), whether general or partial, is shown to have taken place in a family. This proposition of law has been applied by this court in a number of cases. We may notice here the judgment of this Court in Bhagwati Prasad Sah & Ors. v. Dulhin Rameshwari Kuer & Anr [1951] SCR 603 wherein it was inter alia observed as under:-
"8. Before we discuss the evidence on the record, we desire to point out that on the admitted facts of this case neither party has any presumption on his side either as regard jointness or separation of the family. The general principle undoubtedly is that a Hindu family is presumed to be joint unless the contrary is proved, but where it is admitted that one of the ceparceners did separate himself from the other members of the joint family and had his share in the joint property partitioned off for him, there is no presumption that the rest of the coparceners continued to be joint. There is no presumption on the other side too that because one member of the family separated himself, there has been separation with regard to all. It would be a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation amongst the other co-parceners or that they remained united. The burden would undoubtedly lie on the party who asserts the existence of a particular state of things on the basis of which he claims relief."
IN THE HIGH COURT OF JUDICATURE AT PATNA
HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
First Appeal No.126 of 1980
Date: 16-09-2015
Kapildeo Singh
Versus
1. Jamuna Singh
