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.

R E P O R T A B L E

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. DIARY NO.32601 OF 2018

VINEETA SHARMA Vs  RAKESH SHARMA 

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Whether unregistered partition deed is admissible in Evidence?

 In Roshan Singh & Ors. v. Zile Singh & Ors. 1988 (2) SCR 1106, this
Court was considering the admissibility of an unregistered partition deed. It was
held thus:
“……Section 17(i)(b) lays down that a document for
which registration is compulsory should, by its own
force, operate or purport to operate to create or declare
some right in immovable property……Two propositions
must therefore flow:12
(1) A partition may be affected orally; but if it is
subsequently reduced into a form of a document and that
document purports by itself to effect a division and
embodies all the terms of bargain, it will be necessary
to register it. If it be not registered, S.49 of the Act
will prevent its being admitted in evidence. Secondary
evidence of the factum of partition will not be admissible
by reason of S.91 of the Evidence Act, 1872.”
(emphasis supplied)
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5415 OF 2011

SHYAM NARAYAN PRASAD Vs KRISHNA PRASAD AND ORS.

S.ABDUL NAZEER, J.
Dated:July 02, 2018.
Citation: (2018) 7 SCC 646

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Whether registered partition deed is required for effecting mutation entries?

 Learned Counsel Shri Deshpande further states that the joint family property received by the coparcener in the partition is not a transfer and for this purpose, the learned Counsel is relying on the judgment of the Apex Court in The Commissioner of Income Tax, Gujarat v. Keshavlal Lallubhai Patel,. Similarly, it is further contended that since it is not the transfer, it is not necessary to register the deed of transfer. In support of this contention, reliance is placed by the learned Counsel on the judgment of the Apex Court in Digambar Adhar Patil v. Devram Girdhar Patil (died) and Anr.,

4. In view of above referred decisions of the Apex Court, it is clear that the property received by the coparcener in the partition of joint Hindu family property is not a transfer and, therefore, registration of transfer deed is not necessary. We direct the respondents to dispose of the application of the petitioner for mutation according to law, without insisting for registration of the document. With these observations, the petition is disposed of."

8. Based on the conclusions of this Court in the case of Arvind Deshpande (supra), the competent authority issued a circular dated 10/05/2006 clearly indicating that when undivided Hindu family members desire to partition the land and seek mutation entries on the basis of such partition deed, the Revenue Authorities shall not insist on the partition deed being registered as a pre-condition for considering it as a foundation for effecting mutation entries. By the said circular, clauses 1 and 3 of the earlier circular dated 26/05/1995 were set aside.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 703 of 2014

Decided On: 15.06.2017

Manikchand Hiralal Nahar and Ors. Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

R.V. Ghuge, J.

Citation: 2018(1) MHLJ 379

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Whether daughter can be denied right in ancestral property if preliminary decree is passed?

...A partition of the joint Hindu family can be effected by various modes, viz., by a family settlement, by a registered instrument of partition, by oral arrangement by the parties, or by a decree of the court. When a suit for partition is filed in a court, a preliminary decree is passed determining shares of the members of the family. The final decree follows, thereafter, allotting specific properties and directing the partition of the immovable properties by metes and bounds. Unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete. The preliminary decree which determines shares does not bring about the final partition. For, pending the final decree the shares themselves are liable to be varied on account of the intervening events. In the instant case, there is no dispute that only a preliminary decree had been passed and before the final decree could be passed the amending Act came into force as a result of which Clause (ii) of Section 29A of the Act became applicable. This intervening event which gave shares to Respondents 2 to 5 had the effect of varying shares of the parties like any supervening development. Since the legislation is beneficial and placed on the statute book with the avowed object of benefitting women which is a vulnerable section of the society in all its stratas, it is necessary to give a liberal effect to it. For this reason also, we cannot equate the concept of partition that the legislature has in mind in the present case with a mere severance of the status of the joint family which can be effected by an expression of a mere desire by a family member to do so. The partition that the legislature has in mind in the present case is undoubtedly a partition completed in all respects and which has brought about an irreversible situation. A preliminary decree which merely declares shares which are themselves liable to change does not bring about any irreversible situation. Hence, we are of the view that unless a partition of the property is effected by metes and bounds, the daughters cannot be deprived of the benefits conferred by the Act. Any other view is likely to deprive a vast section of the fair sex of the benefits conferred by the amendment. Spurious family settlements, instruments of partitions not to speak of oral partitions will spring up and nullify the beneficial effect of the legislation depriving a vast section of women of its benefits.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 8538 of 2011 (Arising out of SLP (Civil) No. 9586 of 2010)

Decided On: 12.10.2011

Ganduri Koteshwaramma and Anr. Vs. Chakiri Yanadi and Anr.

Hon'ble Judges/Coram:
R.M. Lodha and J.S. Khehar, JJ.

Citation: (2011) 9 SCC 788 19

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When unregistered partition deed can be used for collateral purpose i. e,severance of joint status?

Much can be said in favour of the view which was taken by Thakore J. The point, however, which we have got to consider is what is a collateral transaction within the meaning, of the proviso toSection 49, Registration Act. The expression "collateral" transaction is used not in the sense of an ancillary transaction to a principal transaction or a subsidiary transaction to a main transaction. The root meaning of the word "collateral" is running together or running on parallel lines. The transaction as recorded would be a particular or specific transaction. But it would be possible to read in that transaction what may be called the purpose of the transaction and what may be called a collateral purpose, the fulfilment of that collateral purpose would bring into existence collateral transaction, a transaction which may be said to be a part and parcel of the transaction but nonetheless a transaction which runs together with or on parallel lines with the same.

An obvious illustration of this is the transaction which is recorded in the memo of partition before us. The transaction therein recorded was a transaction of partition of the moveable and immoveable properties belonging to the joint family. These properties were allotted to the shares of the respective members of the family. A partition was in fact effected by this document and that transaction took place under the terms of the document itself. The memo of partition thus required registration, and not being registered could not be admitted in evidence under the terms of Section 49, Registration Act. There wag, however, involved in this transaction itself a collateral transaction, viz., that of the severance of the joint status which transaction by itself did not require to be registered by any law for the time being in force. A severance of joint status could be effected under Hindu law in various modes, one of the modes being an unequivocal expression of an intention to separate. A partition could be effected orally as well as by a written document, and it would be open to a party to prove that there wag a partition or severance of joint status effected between the parties without its being effected by a registered instrument. A partition, i.e., severance of joint status, thus would be a collateral transaction, and would certainly tell within the proviso to Section 49, Registration Act.

The partition of immoveable property belonging to the joint family which requires to be effected by a registered instrument would be inadmissible in evidence under the main provisions ofSection 49, Registration Act, but the partition, i. e., the severance of joint status, which is not required to be effected by a registered instrument, would be a collateral transaction, evidence of which would certainly be admissible under the proviso to the section, and the memo of partition which was inadmissible for want of registration would certainly be admissible to prove the fact of such partition. With respect, therefore, we are not inclined to accept the opinion of Thakore J., and would prefer to follow the view expressed in Narmadabai v. Rupsing, which as already observed before, has been approved of and is in accordance with the decision of the Privy Council in Rajangam Ayyar v. Rajangam Ayyar.

Bombay High Court

Ramlaxmi Ranchhodlal vs The Bank Of Baroda Ltd. on 1 February, 1952

Equivalent citations: AIR 1953 Bom 50, (1952) 54 BOMLR 667, ILR 1953 Bom 339

Bench: Bhagwati, Dixit

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Whether insufficiently stamped partition deed is admissible in evidence?

Civil - Admissibility of documents - Learned Civil Judge permitted Defendants to mark document as an exhibit on premise that said document was only a partition list and not a partition deed and, therefore it did not required any stamp duty or registration - Hence, this Petition - Held, document was both insufficiently stamped and unregistered - Defendants sought to produce and rely on disputed document not for any collateral purpose but for main purpose of proving their alleged title to suit property and thereby non-suit Plaintiffs - Therefore, document was inadmissible in evidence both in view of bar contained under Section 35 of Indian Stamp Act as being insufficiently stamped, and also in view of Section 49 of Registration Act -Thus, admission of document into evidence was held unsustainable and same was accordingly set aside - Petition allowed.

ALLAHABAD HIGH COURT
THE HON'BLE SRI JUSTICE G.V.SEETHAPATHY          
Civil Revision Petition No.5375 of 2009

DATED:08-02-2010 

Pariti Suryakanthamma and another  V Saripalli Srinivasa Rao and another
Citation: 2010(2)ALD847, 2010(2)ALT648

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