Whether mother can transfer her exclusive property to sons by partition deed?

 The suit property is the property which was given to Renubai. It is also not in dispute that, it was given in lieu of maintenance to her for lifetime prior to 1956. Under those circumstances, by virtue of Section 14(1) of Hindu Succession Act, 1956, she had become exclusive owner of the said property, i.e. in other words, it was her absolute property. It cannot be disputed that, after it had become her absolute property, she had every right to dispose of the said land as per her wish. The defendants No. 1 and 2 have come with a case that, Renubai had executed a partition deed on 17-05-1962 i.e. Exhibit 61 and by virtue of that document they have become owner of 1/2 portion each. Here the said document Exhibit 61 is a unregistered document. It is also executed on deficit stamp. No doubt it appears that, the defendants have deposited the deficit stamp with penalty as contemplated under the then, Section 33 of Bombay Stamp Act, 1958. Now the question is whether after payment of deficit stamp duty (impounding of document) whether that document can be said to be admissible and whether defendants No. 1 and 2 can get any kind of benefit or title from that document. The first and the foremost fact that is required to be borne in mind that when Renubai became absolute owner of the suit property by virtue of Section 14 of the Hindu Succession Act, defendants No. 1 and 2 cannot be said to be her co-sharers. Therefore, when she was transferring the title to them, it could not have been as 'Vatni Patra' or partition deed. Defendants No. 1 and 2 had no existing right in the suit property along with Renubai so that she can partition the said land. By that document she was creating right or title in favour of defendants No. 1 and 2, and therefore, that document was a compulsorily registrable document as contemplated under Section 17 of the Indian Registration Act. Admittedly the value of the suit property even at the time when Exhibit 61 was executed was more than Rs. 100/-, and therefore irrespective of the nomenclature, it was a compulsorily registrable document. Though one of the defect in respect of that document was tried to be cured by defendants No. 1 and 2 by paying the penalty as well as requisite stamp duty, yet the said document cannot be said to be admissible for 'any purpose'. Transfer of title can be made by exclusive owner either by sale-deed or gift-deed, mortgage-deed etc.. For partition, the other party should also have title or share in that property. When as aforesaid Renubai was creating right or share of defendants No. 1 and 2 in the said property, then such document becomes 'inadmissible', when it is unregistered under Section 17 of the Indian Registration Act. Section 35 of Bombay Stamp Act prohibits use of such document even for collateral purpose. It cannot be used for "collateral purposes" also under Section 49 of the Registration Act. In Avinash Kumar Chauhan Versus Vijay Krishna Mishra, reported in MANU/SC/8502/2008 : AIR 2009 SC 1489, wherein it has been observed that,

"The Parliament has, in Section 35 of the Stamp Act, advisedly used the words "for any purpose whatsoever". Thus, the purpose for which a document is sought to be admitted in evidence or the extent thereof would not be a relevant factor for not invoking the provisions."

"The unregistered deed of sale was an instrument which required payment of the stamp duty applicable to a deed of conveyance. Adequate stamp duty admittedly was not paid. The court, therefore, was empowered to pass an order in terms of Section 35 of the Act."

"The plea that the document was admissible for collateral purpose would not be tenable. Section 35 of the Act rules out applicability of provisions of Section 49 of Registration Act. As it is categorically provided therein that a document of this nature viz. unregistered sale deed shall not be admitted for any purpose whatsoever. If all purposes for which the document is sought to be brought in evidence are excluded, the document would not be admissible for collateral purpose."

No doubt in the above cited case, it was an unregistered deed of sell but here in this case as aforesaid though it was styled as 'Vatni Patra', in fact it could not have been partition deed as the defendants No. 1 and 2 were not the co-sharers with Renubai. Defendants No. 1 and 2 cannot take dual stands by contending at one place that Renubai had become exclusive owner by virtue of Section 14 of the Hindu Succession Act and then at the another breath they can say that she was entitled to execute partition deed.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 173 of 2003

Decided On: 08.04.2019

Manikrao Vs. Gangabai and Ors.

Hon'ble Judges/Coram:

Vibha Kankanwadi, J.

Citation: 2019(6) MHLJ 210

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When sons are not entitled to get partition of property standing in name of mother?

In view of the above submissions made on either side, the only question that has to be decided in this appeal is whether the suit C to E schedule properties could be considered as joint family properties to seek for partition by the plaintiffs?

19. It is the case of the plaintiffs that the suit C & D schedule properties were purchased out of the income earned by their father. Their father was earning income by doing real-estate business and also by raising flowers and casuarina saplings in the suit B schedule property. It is further case of the plaintiffs that the plaintiffs and the 1st defendant were also doing business along with their father Vadivelu and out of the income earned by their father along with them, the suit properties were purchased in the name of their mother-3rd defendant, for the benefit of the joint family. It is further submitted by the learned counsel for the appellants/plaintiffs that though it is the case of the defendants that the 3rd defendant had purchased the properties from the funds provided by her parents, she has not produced any tangible evidence before the Court to prove the same. Therefore, on the basis of the ipse dixit of the defendants, the Trial Court ought not to have dismissed the suit.

20. But, We are of the opinion that the initial burden only lies on the shoulders of the plaintiffs to establish that their father had multiple avocations and that apart from maintaining the family consisting of his wife and four children, he had surplus income and out of the said surplus income, the suit C to E schedule properties were purchased in the name of the mother-3rd defendant for the benefit of the joint family. Though it is submitted that the appellants/plaintiffs were doing business along with their father and earning income, We find that the suit C schedule property was purchased in the year 1978 through Ex. A.1 dated 29.05.1978 and the suit D schedule property was purchased under Ex. A.2, dated 21.03.1981 and the suit E schedule property was settled in favour of the 3rd defendant under Ex. B.4 dated 30.12.1992. According to P.W. 1, he was born in the year 1975. Therefore, as contended by the learned senior counsel for the respondents, he was only three years in the year 1978 and 6 years in the year 1981 and 17 years in the year 1992. Therefore, the case projected by the plaintiffs that they are helping their father in his business and earning income, is totally unbelievable and the same cannot be accepted.

21. Further, except the oral evidence of P.W. 1, No other tangible evidence was produced on the side of the plaintiffs to show that the properties were purchased out of the income earned by the plaintiffs and the 1st defendant along with their father and they are treating the properties as joint family properties. Though the plaintiffs have examined some independent witnesses as P.W. 2 to P.W. 4, their evidence are also not helpful in any way to sustain the case of the plaintiffs. In fact, P.W. 2 stated in his evidence that he was not in talking terms with the 3rd defendant. Therefore, the submission made by the learned counsel for the respondents that P.W. 2 has motive to give evidence against the 3rd defendant, is acceptable one. Further, P.W. 3 & P.W. 4 in their evidence deposed that the plaintiffs' father was doing flower business and earning income and purchased the properties. But, these evidences are not sufficient to come to the conclusion that the properties were purchased only from the income of the father Vadivelu, when admittedly all the documents are standing in the name of the 3rd defendant-mother. Therefore, We are of the opinion that the plaintiffs have miserably failed to discharge their initial burden to establish that the properties were purchased from the income of the father and sons.

22. It is well settled legal principal that initially burden lies upon the member who alleges that a particular property is a joint family property to the extent that the alleged joint family nucleus must have left sufficient surplus income and by utilising the same, the property in question could have been acquired. If the initial burden as referred to above is proved, then the burden shifts to the member of the joint family setting up claim that it is his/her personal property and the same has been acquired without any assistance from the joint family property. On the failure to prove the existence of nucleus, the inevitable presumption is that the acquisition in question is nothing but self acquisition. Mere fact of existence of a joint family does not lead to the presumption that a property held by any of its members is joint family property unless the above aspects are proved. If the property acquired is standing in the name the of the female member of a joint family, she need not prove as to how she acquired it.

IN THE HIGH COURT OF MADRAS

A.S. No. 593 of 2016 and C.M.P. No. 15815 of 2016

Decided On: 27.04.2017

Sadasivam and Ors. Vs.  Sankar and Ors.

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Whether mother and sons can constitute joint family if father is residing separately from them?

Thus, they contend that they constitute a joint Hindu
family.  In fact, law presumes that every Hindu family is a joint
family unless otherwise shown.  In the instant case, however,
the controversy seems to have arisen because the father doesnot live with the family.   Normally, a joint family consists of
father, mother and sons and their wives.   Here, admittedly,
father had long back turned the plaintiffs and defendant no.2out of the house and he is living separately.   The question is
whether   the   mother   and   two   sons   could   constitute   a   joint
family and that seems to be the question of law raised.  I see no
reason why they cannot.  If two brothers, upon death of father,
can   constitute   a   joint   family,   there   is   no   reason   why   two
brothers in this case with their mother cannot constitute a jointfamily,   when   father   deserts   them.     Even   if   one   of   the
coparceners decides to break away from the rest of the family,
the other coparceners can constitute a joint Hindu family.  Even
otherwise in the instant case father had deserted them, he has
not separated as such from the family.  I find that the two sons
with   their   mother   and   even   wives   can   constitute   the   joint
Hindu family.   In the instant case, it could be said that the

plaintiffs and defendant no.2 constituted a joint Hindu family.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.109 of 1997.
 Kausabai wd/o Rajaram Waradkar,

     V
 Gayabai wd/o Gundaji Mogre,

   CORAM:  C.L.Pangarkar, J.
   DATED :   13th April, 2010.
Citation:2010(4) MHLJ 46

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