Smt. Vandana W vs Occupation : Errand Boy
2013 Latest Caselaw 372 Bom

     sa42.13.odt                                                                                                1/22 



                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                                    
                            NAGPUR BENCH, NAGPUR




                                                                       
                                 SECOND APPEAL No.42 OF 2013


     1.   Smt. Vandana wd/o. Ramanna Marchettiwar,




                                                                      
           Aged about 50 years,
           Occupation : Household.     

     2.   Yogesh Ramanna Marchettiwar,




                                                    
           Aged about 37 years,
           Occupation : Tailour.      
                           
     3.   Nitin Ramanna Marchettiwar,
           Aged about 28 years,
                          
           Occupation : Tailour.      

     4.   Smt. Pinky w/o. Arun Gandhewar,
           Aged 33 years,
      


           Occupation : Tailour.      
   



           All the appellants 1 to 4 are resident of 
           House No.283-1, Ward No.71, 
           Abedkar Nagar, Dharampeth, 
           Nagpur-10.





     5.   Smt. Vijeta w/o. Shekhar Manthapurwar,
           Aged 31 years,
           Occupation : Household,





           R/o. Darjee Mohall Chhaoni, 
           Nagpur.                          :      APPELLANTS
                                                   (Ori. Defendants) 
                          ...VERSUS...

     Pradip s/o. Ramanna Marchettiwar,
     Aged about 39 years,




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     Occupation : Errand Boy,




                                                                                                    
     C/o. Laxmi Ladies Tailours,
     Sahare Building, Bazar Road,




                                                                       
     Gokulpeth, Nagpur-10.                                                     :       RESPONDENT
                                                                                     (Original Plaintiff) 

     =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=




                                                                      
     Mr. N.S. Badhe, Advocate for the Appellants.
     Mr. R.J. Verma, Advocate for the Respondent.
     =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=



                                          CORAM :   S.B. SHUKRE, J.                                                   

                            ig            DATE    :  18 th
                                                           DECEMBER, 2013.
                                                                          
                          
     ORAL JUDGMENT   :

1. By this appeal, the appellants have challenged the

judgment and decree passed by the 9th District Judge, Nagpur

in Regular Civil Appeal No.86 of 2011 on 17.7.2012 modifying

the judgment and decree passed by the 8th Joint Civil Judge,

Junior Division, Nagpur in Regular Civil Suit No.729 of 2008

on 20th December, 2010. The respondent is the original

plaintiff and the appellants are the original defendants against

whom the respondent had filed civil suit for partition and

separate possession. For the sake of convenience parties to the

appeal are hereinafter referred to as the plaintiff and the

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defendants.

2. The defendant No.1-Smt Vandana is the step-mother

of the plaintiff. Defendant No.2-Yogesh and defendant No.4-

Smt. Pinky are respectively the real brother and real sister of

the plaintiff, while defendant No.3-Nitin and defendant No.5-

Smt. Vijeta are respectively the step-brother and step-sister of

the plaintiff. The plaintiff is the son of late Ramanna

Marchettiwar, who died on 13.3.1990 leaving behind the

plaintiff, defendants and one Sandeep. Late Ramanna

Marchettiwar owned a house with plot bearing Corporation

House No.283, New House No.283-A and city survey No.495

admeasuring 450 sq.ft. (hereinafter referred to as "suit

property"). He died intestate and the plaintiff and the

defendants being class-I heirs of late Ramanna succeeded to

the suit property, having equal shares therein. The plaintiff

submitted that Sandeep had separated himself by obtaining a

sum of Rs.78,000/- on 3.1.2007 and executed a

relinquishment-deed giving up his right in the suit property.

The plaintiff submitted that Sandeep had relinquished his share

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in favour of rest of the successors to the property and,

therefore, each of the legal heirs had equal 1/6th share in the

suit property. He further submitted that since the defendant

No.1 and defendant No.3 used to quarrel with him, he decided

to separate himself from the family and demanded his separate

1/6th share in the suit property. Meanwhile, the plaintiff

further submitted, the defendant demolished the old house and

caused loss to him which came to Rs.25,000/-, commensurate

with his 1/6th share in the suit property. Since the defendants

denied separate share and compensation to the plaintiff, he

filed a suit for partition and separate possession and also

compensation of Rs.25,000/- with interest at 12% per annum

against the defendants.

3. The defendants resisted the suit insofar as it related

to claim put up by the plaintiff about his 1/6th separate share in

the suit property. The defendants admitted the relationship

and also entitlement of the plaintiff to his share in the suit

property. But, they submitted that when Sandeep separated

himself from the family and he had released his right and

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interest in the suit property exclusively in favour of defendant

No.1-Vandana by accepting an amount of Rs.78,000/- from

her, which amount was entirely borne by her, the defendant

No.1 became entitled not only to her own 1/7th share, but also

1/7th share of Sandeep in the suit property. Thus, they

submitted, defendant No.1 was entitled to 2/7th share in the

suit property and plaintiff could only claim 1/7th share in the

suit property and not the 1/6th share. They submitted that the

plaintiff had been residing separately since about one and half

year prior to filing of the suit and he had not contributed in

any way in the household affairs of the joint family. They also

submitted that since the suit house was old, it was demolished

by them and they constructed a new house. They submitted

that the plaintiff did not make any contribution towards

construction of a new house. They also offered to pay Rs.

64,285/- as value of 1/7th share to the plaintiff towards full and

final settlement of the dispute between them.

4. The trial Court framed the issues and recorded the

evidence and after considering the argument of both sides

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decreed the suit with costs. It declared that the plaintiff was

entitled for partition and separate share out of the suit property

to the extent of 1/7th equal share and also granted

compensation of Rs.15,000/- in lieu of demolition of previous

construction by it's judgment and decree passed on 20th

September, 2010. In the first appeal filed against it by the

plaintiff, the learned District Judge modified the judgment and

decree of the trial Court and instead of 1/7th share, it gave

1/6th share to the plaintiff and defendants. It also directed

appointment of Court Commissioner for making necessary

inquiry for distribution of share of the plaintiff and separate

possession by metes and bounds. Not satisfied with the

judgment and decree of the first appellate Court passed on

17.7.2012, the defendants are before this Court in the present

second appeal.

5. The appeal was admitted by this Court on 4.12.2013.

The substantial questions of law that arise for my consideration

are :

"1. Whether the first appellate Court was

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justified in granting 1/6th share to the

respondents in the suit property ?

2. Whether the suit property was capable of being subjected to equal divisions by metes and bounds without any application of principle of owelty or equality in value of shares ?"

6. In this case, rival parties placed their reliance upon

one document vide Exhibit-45 which they called

relinquishment-deed, in order to justify their respective stands.

The defendants submitted that this document at Exhibit-45

showed that Sandeep had relinquished his share and since

there was an admission given by the plaintiff that he had not

contributed anything towards payment of the amount of Rs.

78,000/- to Sandeep for release of his share in the suit

property, it would mean that release was only in favour of

defendant No.1 and not in favour of all co-sharers. They then

claimed that such release of share would only make share of

plaintiff as 1/7th and not 1/6th as claimed by him. On the basis

of the same document or relinquishment-deed the plaintiff

submitted that it sufficiently established the fact, which was

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clear from its recitals, that Sandeep had relinquished his share

in favour of all the co-sharers and not any single co-sharer, and

this would give him 1/6th share in the suit property.

7. These rival contentions were rejected by the trial

Court on a legal ground. The trial Court reasoned that even

though the document at Exhibit-45 was admitted by both the

parties, it was a document whereby right, title and interest in

immovable property having value of more than Rs.100/- had

been relinquished or released in favour of other co-sharers and,

therefore, it required execution on a proper stamp as well as

compulsory registration under Section 17 of the Registration

Act, 1908. As this document was not a registered one, though

compulsorily registrable, the trial Court did not take it into

consideration and proceeded to hold that each of the co-

sharers would have equal shares. Accordingly, the trial Court

declared that the plaintiff was entitled for his share out of the

suit property to the extent of 1/7th portion.

8. The first appellate Court while reversing the finding

of the trial Court held that the plaintiff and the defendants, six

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in number, were entitled to have equal shares in the suit

property and gave each of them 1/6th share. The first appellate

Court took into into account said relinquishment-deed, styled

as partition-deed (Exhibit-45), and it particularly referred to

the recitals of this document which stated that Sandeep the

party No.1, had relinquished his share in favour of party Nos.2

to 7 i.e. plaintiff and the defendants. The first appellate Court

found that since Sandeep had already relinquished his share, it

was not necessary to carve out his share and, therefore, the

first appellate Court gave 1/6th share to each of the six parties

to the present dispute i.e. plaintiff and the defendants. The

first appellate Court did not consider the requirement of

compulsory registration of the document under Section 17 of

the Registration Act, 1908. It appears that it read in evidence

this document on the premise that when a co-parcener or

co-sharer in a joint property can surrender his share orally at

the time of partition and when partition-deed has not been

disputed by any of the rival parties, the partition or the

relinquishment-deed vide Exhibit-45, can also be read in

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evidence.

9. Learned counsel for the plaintiff submits that since

this document was admitted by the defendants, there was no

need for the first appellate Court to reject it on the ground of it

being an unregistered document. He further submitted that

this document, witnesses only a transaction of family

settlement in which there was neither any transfer of interest

nor creation of interest and, therefore this document would not

require any registration. In support, he has placed reliance

upon the decision of the Uttrakhand High Court in the case of

Mani Ram vs. Padam Datta (D) by LRs. and another,

reported in AIR 2007 Uttarakhand 74.

10. I think, the reasoning given by the first appellate

Court and also the contentions canvassed on behalf of the

plaintiff do not have any legal basis. The document Exhibit-45

though styled as a partition actually witnesses transfer of

interest in immovable property for a consideration. True

construction of such a document can be made only by

gathering from it's terms as a whole, recitals and attending

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circumstances, the intention of the parties. In this regard, a

useful reference may be made to law laid down by Hon'ble

Supreme Court in the case of B.K. Muniraju vs. State of

Karnataka and others, reported in (2008) 4 SCC 451,

Hon'ble Supreme Court in para 18 it observed as under :

"...........In order to know the real nature of the

document, one has to look into the recitals of the document, and not the title of the

document. The intention is to be gathered from the recitals in the deed, the conduct of the parties and the evidence on record. It is

settled law that the question of construction of a document is to be decided by finding out the intention of executant, firstly, from a comprehensive reading of the terms of the

document itself, and then, by looking into--- to

the extent permissible---the prevailing circumstances which persuaded the author of the document to execute it. With a view to ascertain the nature of a transaction, the

document has to be read as a whole. A sentence or term used may not be determinative of the real nature of transaction........."

11. Speaking about the present case, if it is seen that the

intention of the parties is only to add or alter or enlarge the

existing shares and not to operate it as transfer or conveyance,

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as gathered by applying the above-stated principles, it may

assume the form of family settlement, not requiring

registration. Here by said document Sandeep has accepted an

amount of Rs.78,000/- and in lieu thereof, has released his

share in favour of other co-sharers. Though the word 'release'

has been used, the intention of the parties, as disclosed by it's

terms, recitals and other attending circumstances, is to effect

transfer of right, interest or title over the suit property, to the

extent of 1/7th share therein, to remaining parties for a

consideration of Rs.78,000/-. It also shows intention to

extinguish forever the right, title or interest of Sandeep in the

suit property. Such a document cannot be construed as a mere

family settlement or something which does not transfer right,

title or interest and which only enlarges present shares of other

co-owners. Apart from transfer of property, it also discloses

intention of parties to permanently extinguish right, title or

interest of one of the co-owners in suit property. Such a

document, therefore, would be covered by the provision of

Section 17(1) of the Registration Act, 1908, requiring

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compulsory registration. This document (Exhibit-45) being not

registered, cannot, therefore, be read in evidence. Besides,

undisputedly it is insufficiently stamped and there being no

compliance with proviso to Section 34 of the Bombay Stamps

Act, 1958, it is inadmissible in evidence. Therefore, the trial

Court rightly rejected it and the first appellate Court should not

have placed any reliance upon it.

12. Even in the said case of Mani Ram (supra), the High

Court found that since by the document dated 27.3.1961 in

question there, there was division of 1/3rd share of each of the

sons by executant Jeet Ram Bahuguna, who left no share for

himself, the act amounted to relinquishment of his interest in

the property and, therefore, that document was found to be

covered by clause (b) of Section 17 of the Registration Act,

1908. In other words, Uttarakhand High Court held that

whenever a person by a document relinquishes interest in the

immovable property covered by clause (b) of Section 17 of the

Registration Act, 1908, it would require registration. So this

case, on facts and law does not support the plaintiff.

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13. Mr.Verma, learned counsel for the plaintiff has

argued that the document vide Exhibit-45 is required to be

read as a whole and then it would be found that this document

cannot be considered to be creating or transferring or

extinguishing right, title or interest and, therefore, would not

require any compulsory registration. He places reliance upon

the case of Garuda Satyanarayana vs. G. Venkatachalapathi,

reported in AIR 1969 Andhra Pradesh 131. In this case, it

has been observed by the learned Single Judge of Andhra

Pradesh High Court that while constructing a document which

purports to extinguish or create title or interest in the property,

intention of the parties should be taken into account and the

document be read as a whole. It is also held that there is a

distinction between mere recital of a fact and something which

in itself creates or extinguishes a right or interest. There can

be no dispute about the proposition of law and in fact it has

been applied by me while construing the document at

Exhibit-45, as can be seen from the discussion made earlier.

14. For these reasons, I find no substance in the

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argument advanced by learned counsel for the plaintiff that

there was nothing wrong on the part of the first appellate

Court in taking into consideration the partition or

relinquishment-deed vide Exhibit-45. The first appellate Court

has ignored the legal principles in construing the document

and wrongly placed reliance upon it in recording its findings.

Such findings are perverse and cannot be sustained in law. It

would then follow that all the seven co-owners would have

equal rights and the suit property would have to divided into

seven equal parts with 1/7th share each being allotted to the

plaintiff and the defendants. This is what the trial Court has

done and rightly so. The decree of the trial Court in this

regard, therefore, is required to be restored. The first

substantial question of law is answered accordingly.

15. As regards practicability of the suit property being

subjected to equal divisions by metes and bounds, one has to

take into consideration the total area of the suit property. The

suit property is a plot with a house constructed thereon. It's

total area is admittedly 450 sq.ft. and it is obvious that in such

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a small area, if seven shares are carved out, and separately

allotted, it would be well nigh impossible for the plaintiff and

each of the other co-sharers to enjoy the suit property fully and

satisfactorily. If such a plot is divided in seven equal parts,

what would come to the share of the plaintiff would be a

minuscule piece of land having area of not more than 64.29

sq.ft. In such a small area, I do not think any workable

construction can be made and even permission for construction

under the present Municipal Laws would be difficult to come

by. This problem, in my opinion, can be solved by applying the

principle of owelty.

16. In the case of Badri Narain Prasad Choudhary and

others vs. Nil Ratan Sarkar, reported in (1978) 3 SCC 30

referred to me by the learned counsel for the defendants, the

Hon'ble Supreme Court has explained the principle of owelty.

It is held that when the suit property is incapable of division in

specie, or in other words when it is not possible to carve out

specific shares from the suit property and allot them separately

to the co-sharers or co-parceners for their effective enjoyment,

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the rights and interests in the property should be separated,

only by allowing one of them to retain the whole of the

property on payment of just compensation to the other. In

paragraph 19, page 35, the Hon'ble Supreme Court in this case

has observed thus :

"The suit property, being incapable of division

in specie, there is no alternative but to resort to the process called owelty, according to which,

the rights and interest of the parties in the property will be separated, only by allowing one of them to retain the whole of the suit

property on payment of just compensation to the other. As rightly pointed out by K. Subba Rao, C.J. (speaking for a Division Bench of Andhra High Court in R. Ramaprasada Rao vs.

R. Subbaramaiah), in cases not covered by

Sections 2 and 3 of the Partition Act, the power of the court to partition property by any equitable method is not affected by the said Act."

17. In the earlier case of T.S. Swaminatha Odayar vs.

Official Receiver of West Tanjore, reported in AIR 1957 SC

577 also, the Hon'ble Apex Court has elaborated the principle

of owelty. It means when it is not possible to divide the

property by metes and bounds, there being necessity of

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allocation of properties of unequal values amongst the

members of the joint family creating a situation of inequality,

there would have to be adjustment of the values by prodding

for the payment, by a member getting property of larger value,

to the member receiving lesser property. Such equalizing of

shares has been recognized in law and a provision for such

payment is termed "a provision for owelty or equality of

partition". The observations of the Hon'ble Apex Court

appearing in paragraph 16 are useful in this regard and they

are re-produced thus :

"This position has been summarized

in Freeman's Cotenancy and Partition (1886 Edition) page 676, para 507 under the caption of "Owelty":

"Owelty" :- When an equal partition cannot be

otherwise made, Courts of equity may order that a certain sum be paid by the party to whom the most valuable property has been assigned.

The sum thus directed to be paid to make the partition equal is called 'Owelty'. It is a lien on

the property on account of which it was granted. "The law cannot contemplate the injustice of taking property from one person and giving it to another without an equivalent, or a sufficient security for it." The lien on owelty has precedence over prior mortgages and other liens existing against the cotenant

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against whom the owelty was awarded."

18. Learned counsel for the defendants has in fact

strongly advocated for application of the said principle of

owelty or equalizing of the value of the shares while

distributing them to the co-sharers in this case. Learned

counsel for the plaintiff, however, does not agree. He submits

that the first appellate Court had considered the application of

this principle and had found that it could not be straight way

applied as it was not possible to give any positive finding as to

whether or not the suit property was incapable of division by

metes and bounds. But, the learned counsel for the plaintiff

could not provide any satisfactory answer to the question as to

how separate and independent construction is possible on a

small area of about 64 sq.ft. As a matter of fact, it requires no

evidence to say that separate and independent construction is

not possible on such a small area as it is, res ipsa loquitur the

thing speaks for itself. It, by its very nature, announces to the

whole world that a separate and independent construction of

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livable room under the present set up of Municipal Laws is not

possible. Besides, there is also balance of convenience tilting in

favour of the defendants. They are already occupying the suit

property and plaintiff is admittedly staying separately from

them. Then, this case is also not covered by Sections 2 and 3

of the Partition Act, 1893. Therefore, in my opinion this is a fit

case, wherein the principle of owelty, as evolved in afore-stated

cases, must be applied. Second substantial question of law is

answered accordingly.

19. In the circumstances, I find that the parties already

in possession of the suit property should retain the same and

party not in possession thereof should get compensation equal

in value of his share in the suit property, on the basis of

principle of owelty. The appeal deserves to be allowed in these

terms.

20. Thus, the appeal is allowed and the judgment and

decree of the first appellate Court dated 17.7.2012 are hereby

quashed and set aside.

21. The judgment and decree of the trial Court dated

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20th December, 2013 are modified and substituted by following

directions :

A) The plaintiff and the defendants shall have

1/7th share each in the suit property as described in para 3 of

the plaint.

B) The defendants shall be entitled to retain

with themselves the whole suit property together with a house

thereon and plaintiff shall be entitled to receive compensation

in money, in lieu of his 1/7th share, in the suit property.

C) Compensation payable to the plaintiff shall

be determined and assessed at market rate.

D) The Court Commissioner be appointed for

making necessary inquiry in accordance with law for payment

of compensation to the plaintiff equal to the value of his 1/7th

share in the suit property at market rate.

E) The defendants shall pay to the plaintiff an

amount of Rs.15,000/- towards costs and compensation for the

demolition of the previous construction together with interest

at the rate of 6% p.a. within 3 months from the date of this

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order. If any amount is deposited in lower Court by defendants

in execution proceedings, it shall be adjusted in payment of

principal amount of Rs.15,000/- towards costs and

compensation, under this head.

                         F)                Costs shall follow the result.

                         G)                Decree be drawn up accordingly.




                                                     
                              
                                                                                JUDGE
                             
DWW