Bombay High Court
Smt. Madankuwar Wd/O Rekhchandji ... vs Smt. Sushila W/O Gyanchand ... on 4 April, 2016
Bench: A.B. Chaudhari
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Second Appeal No. 109 of 2015
1. Smt. Madankuwar widow of
Rekhchandji Parakh,
aged about 96 years,
occupation - Household,
resident of Dhanraj Plaza,
Main Road, Chandrapur.
2. Smt. Shardkuwar widow of
Pannalalji Talera,
aged about 78 years,
occupation - Household,
resident of Pawan Building,
Ekori Ward, Chandrapur.
3. Smt. Shantakuwar widow of
Gulabchandji Shishodiya,
aged about 74 years,
occupation - Household,
resident of Bogulkanta,
Hyderabad [Telangana] A.P. ..... Appellants
[Org. Defts.]
Versus
::: Uploaded on - 07/04/2016 ::: Downloaded on - 08/04/2016 23:59:56 :::
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2
1. Smt. Sushila wife of Gyanchand
Katariya,
aged about 67 years,
occupation Household,
resident of near Bank of
India, Main Road, Chandrapur.
.....Org. Plaintiff.
2.
Shri Deepakkumar son of Rekhchandji
Parakh,
aged about 49 years,
occupation - business,
resident of Dhanraj Plaza,
Main Road, Chandrapur. ..... Respondents.
.....Org. Deft. No.4.
*****
Mr. K.H. Deshpande, Sr. Adv., with Mr. A.M. Sudame, Adv., for the
Appellants.
Mr. S.C. and Mr. A.S. Mehadia, Advs., for the respondent no.1.
Mr. V.R. Chaudhary, Adv., for respondent no.2.
*****
CORAM : A.B. CHAUDHARI, J.
Date : 04th April, 2016
ORAL JUDGMENT:
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Facts
01. The respondent, plaintiff, Smt. Sushila wife of Gyanchand
Kataria, filed Special Civil Suit No. 129 of 1987 in the Court of Civil
Judge [Senior Division], Chandrapur, for a declaration, partition and
separate possession. In the suit, she stated that Jethmalji, who died in
Rekchandji.
November, 1956, left behind his widow Smt. Heerabai, her step-son,
Smt. Heerabai died on 30th June, 1983, and was a
member of Hindu Joint Family with Rekchand, possessing undivided
immovable and movable properties. For the purpose of partition,
Schedules-A and B were the properties, immovable and movable
attached with the plaint. Rekchand died on 20th January, 1980,
leaving behind his widow, Smt. Madankunwar and three daughters,
namely Smt. Sharadkunwar, Smt. Shantakunwar and Smt. Sushila, the
plaintiff. Rekchand had no son and, therefore, the defendant no.4
Deepakkumar was adopted as a son, for which plaintiff, Sushila, had a
reservation.
Further, according to the plaintiff, Smt. Heerabai executed
her last Will, duly attested on 18th October, 1981, and bequeathed her
half share in all the joint family properties to her as shown in
Schedules-A and B. Defendant no.1, Smt. Madankunwar, being her
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natural mother, she was allowed to receive rents etc., in respect of the
properties bequeathed to her due to love and affection. However,
taking advantage of her goodness, defendant no.1 started alienating
the properties, though orally requested by the plaintiff not to do so
and, in fact, sold some properties to defendant no.5, which caused loss
to her. Defendant no.3 sold a plot admeauring 2954 sq.ft., to
defendant no.5 with a building thereon at Mouza Saoli. It was under
those circumstances, she wanted to claim partition in the joint family
properties with separate possession. The plaintiff then contended that
her prayers for partition should, therefore, be accepted by the Court.
With these pleadings, the suit was instituted on 13th November, 1987.
The defendant nos. 1 to 4 filed their Written Statement to
the suit, and denied all the allegations, including the execution of the
Will dated 18th October, 1981 by Smt. Heerabai, so also that she had a
half share in the joint family properties. In the Special Pleadings in the
Written Statement, it was stated that Rekchandji died on 20th January,
1980. The Will of Heerabai was fabricated. The alleged Lease-Deed
dated 30th July, 1982, executed by Smt. Heerabai in favour of plaintiff,
was also false. As to the execution of Will dated 18th October, 1981,
Smt. Jatanbai, the other widow of Dhanraj Parakh was alive, who died
on 3rd November, 1982, which falsified the making of Will dated 18th
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October, 1981. On 20th November, 1982, a Family Settlement Deed
was executed between plaintiff and defendants and late Heerabai.
Thereafter, on 21st April, 1983, defendant no.4, Deepak, was adopted
as a son of late Rekchandji by registered Adoption-Deed as per consent
of all the family members, relatives and friends. Before execution of
Adoption Deed, there was a partition of joint properties between
defendant nos. 1 to 3 and late Heerabai on 9th January, 1982.
plaintiff had filed Regular Civil Suit No. 238 of 1984, which was
The
pending. In that suit, no mention about the Will dated 18th October,
1981 was at all made and the Will was being brought to light by the
plaintiff for the first time on 13th November, 1987. The Family
Settlement dated 20th November, 1982 as well as Memorandum of
Partition dated 9th January, 1983 do not even remotely make a
mention of the alleged earlier Will dated 18th October, 1981, though
late Heerabai was a party to both the instruments and had put her
thumb impressions. The properties shown in Schedules A and B were
recorded in the names of the defendants to the full knowledge of the
plaintiff and still she kept silent till 13th November, 1987. She was
given property worth Rs. 50 lakhs in the Family Settlement dated 20th
November, 1982, and had nothing to claim from the joint Hindu Family
properties which belonged to Rekchandji, Jatanbai and late Heerabai
with which the plaintiff was not at all concerned. In fact, the Family
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Settlement was acted upon and plaintiff herself is in exclusive
possession of the property from 20th November, 1982 onwards. The
plaintiff, however, suppressed all the material facts about the family
arrangement deliberately. The Will was, therefore, factually false and
baseless and was liable to be rejected.
02.
The defendants having filed their Written Statement and
having disclosed about the family settlement, Memorandum of Family
Arrangement etc., the plaintiff filed an application for amendment to
the plaint, and amended the plaint by inserting paragraphs 4-A to 5-C,
which were duly replied by amending the respective paragraphs in the
Written Statement by amendment. In these amended paragraphs, the
plaintiff having been confronted with the pleadings in the Written
Statement about the family arrangement etc., denied that there was
any partition on 9th January, 1983 or that the same could be
admissible for want of registration. In the amended paragraphs, it was
contended that Heerabai inherited half share in the property left by
Jethmal with Rekchandji. It was only from one-half share of
Rekchandji, the share of plaintiff was separated by family settlement;
but one-half share of property of Heerabai remained intact. Therefore,
the plaintiff was entitled to claim share from Heerabai's estate apart
from Rekchandji's share. Heerabai had 3/5th share in the total
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property. Her share could not be diverted in the partition during her
lifetime and her 3/5th share was intact and undivided at the time of
her death and, therefore, the stand taken by the defendants that she
had no share at all was false and baseless. It was then stated that a
Lease-Deed dated 30th July, 1982 about the properties of her share in
the joint family properties was registered by Heerabai in favour of
Sushila and, therefore, the plaintiff was entitled to enjoy the fruits of
the share of the properties of Heerabai against the Lease-Deed. The
plaintiff then stated that due to the Will executed on 18th October,
1981 in her favour by Smt. Heerabai, she was entitled to half share in
the joint family properties. The plaintiff then averred that Heerabai
was not pulling on well with Rekchandji and his wife Smt.
Madankunwar, and had demanded partition from him; but due to the
death of Rekchandji, the partition was not effected. As to the Will that
was brought forth by the defendant nos. 1 to 4 in their favour, the
plaintiff contended that the Will was never executed in their favour and
was, thus, challenged as a fabricated document. As to the partition
arrangement dated 9th January, 1983, it was stated by the plaintiff
that the same was due to misrepresentation of facts to Heerabai and
force brought on her. In fact, she had never intended any partition and
that she had even no right in law to partition the estate. Her thumb
impression was obtained by misrepresentation and she was not willing
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to execute the document. She had, therefore, sent notices to
defendants and others and also given a copy thereof to Police Station,
Chandrapur and husband of the plaintiff, i.e., Gyanchand, was
consulted by Heerabai in the matter. The amended pleadings were
duly replied by the defendants by denying adverse allegations. The
parties filed many documents. The suit thereafter went for trial. The
Trial Judge recorded the evidence and finally found that Heerabai had
undivided half share in the suit properties, plaintiff as well as
defendants both failed to prove their respective Will dated 18th
October, 1981 and 26th May, 1983 and, thus, rejected both the Will.
The Trial Court further found that the plaintiff could not inherit any
share in the properties of Heerabai. The suit was not barred by
limitation. The defendant no.4, Deepak, was a duly adopted son of late
Rekchand by defendant no.1, Madankunwar as per consent of the
relatives. The plaintiff was not entitled to any share in the property
and consequently, the Trial Court dismissed the suit.
03. The plaintiff filed an appeal before the District Judge,
Chandrapur, which was registered as Regular Civil Appeal No. 60 of
2012. The Lower Appellate Court allowed the appeal and decreed the
suit by setting aside the Judgment of the Trial Court. It, however,
rejected the Will dated 18th October, 1981, pressed into service by the
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plaintiff, and further held that she was entitled to partition and
separate possession of 1/4th share in the suit properties described in
Schedules-A, B and C, while defendants were entitled to partition and
separate possession of 1/4th share in those properties. It this
Judgment, which is under challenge in this Second Appeal. The
respondent no.1 has also filed a Cross-Objection No. 11 of 2016 to
assail the findings.
Arguments:
04. In support of the appeal, Mr. K.H. Deshpande, learned Senior
Adv., with learned counsel Mr. A.M. Sudame for the appellant made
the following submissions:-
[a] Deceased Rekchand was the stepson of
Heerabai and he predeceased Smt. Heerabai,
his step-mother. During the lifetime of
Rekchand, there was no partition, family
arrangement or distribution of any estate.
Rekchand had three daughters but no son.
After his death, all close relatives and friends,
including Heerabai decided to have a son in the
family and, therefore, defendant no.4 was to be
adopted as a son. But then, all the family
members, including Heerabai and relatives
were of the opinion that there should be
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clearcut distribution/disposition of estate. It
started with plaintiff, Smt. Sushila, because her
husband, Gyanchand, an Advocate by
profession and also Asstt. Govt. Pleader
practising at Chandrapur, was pestering for a
separation of share for his wife, Smt. Sushila.
Neither Heerabai nor defendant no.1, Smt.
Madankunwar or other daughters wanted to
have partition. But since plaintiff, Smt. Sushila,
was, due to her husband, pressurizing to give
her share, the first family settlement was
reduced to writing on 20th November, 1982
[Exh.244], under which plaintiff, Smt. Sushila,
was given to what she was entitled to, as her
share from the joint family properties, and even
from the estate of Heerabai, in order to exclude
her complete share from the properties of
Rekchand and Heerabai for all times to come
and which is as crystal as it could be. Mr. K.H.
Deshpande then contended that since
Gyanchand Kataria was behind plaintiff, Smt.
Sushila, and having obtained her entire share
under Exh.244, he caused Regular Civil Suit No.
238 of 1984 instituted in the Court for a
mandatory and permanent injunction.
According to Mr. Deshpande, in the meanwhile,
i.e., before filing of the said suit, there was an
oral partition amongst the remaining family
members, and in particular, Heerabai and other
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defendants, which was thereafter reduced to
writing on 9th January, 1983, and Heerabai
though put her thumb impression in presence of
several persons, on the ill-advice of Gyanchand,
appeared to have given notices to all those
persons about the said Memorandum of
Partition, which was obviously manipulated by
PW 1, Gyanchand only. However, the pleadings
in the Regular Civil Suit No. 238 of 1984
clear terms bring out the truth of the matter
in
that plaintiff, Smt. Sushila, had accepted that
she received her entire share from the estate of
Rekchand as well as Heerabai and had left
nothing to claim. But then PW 1 Gyanchand
having an evil eye on the other remaining
properties of the family and particularly having
found that the properties would also go to the
adopted son, Deepak, manured on behalf of
Heerabai without her authority and on his own
set up a new case that the plaintiff had not
received any share in the properties of the
share of Heerabai in the joint family.
[b] Mr. Deshpande then contended that plaint in
Regular Civil Suit No. 238 of 1984, if read
carefully, will show the above position apart
from a close reading of the documents [Exhs.
243 and 244] also.
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[c] Mr. Deshpande then contended that having
received her entire share in the joint properties
of Heerabai and Rekchand and having acted
upon the said arrangement and accepted the
entire Memorandum of Partition [Exh.243]
without any murmur and without assailing
Exh.243 within a reasonable time or even when
the first suit was filed, she was, in law, clearly
estopped from claiming partition over and again
having received her share and acted upon the
Family Settlement [Exh.244] with full
satisfaction and entirety, at least till the time
she filed the suit for partition in question. Mr.
Deshpande elaborated on the principle of
estoppel.
[d] Learned Sr. Adv., for the appellant then
contended that both the courts below have held
that Exhs. 243 and 244 were not admissible in
evidence for want of registration. He also
submitted that there is a further erroneous
finding recorded by both the courts below that
relinquishment of her share by Heerabai in Exh.
243 without taking any immovable property in
her name was not admissible for want of
registration of Relinquishment. He contended
that the courts below have erred in holding that
registration for Relinquishment was necessary
on the part of Heerabai even in the cases of
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family settlements which is contrary to the law
repeatedly laid down by the Apex Court in
relation to the family settlement and
arrangement in the Hindu Joint Families. Mr.
Deshapnde cited several decisions on this
aspect and contended that both the courts
below have erred in law in treating Exhs. 243
and 244 as inadmissible documents, which is
wholly wrong and illegal.
[e] The learned Sr. Adv., for the appellant then
contended that there is nothing wrong in Smt.
Heerabai not choosing to have any share in the
immovable properties looking to her old age
and her satisfaction that plaintiff, Sushila, had
received the entire share from the joint family
properties, to which she was entitled from the
estate of Rekchand as well as Heerabai and
family settlement that a son should be adopted
in the family and before doing so, the estate
should be properly divided in order to avoid any
conflict or conundrum and complications. There
was nothing wrong on her part to relinquish her
share in favour of the remaining members of
the family, except the plaintiff. Heerabai was
pretty old and had lost interest in the
properties, particularly when she herself had
given some estate from her undivided share to
the plaintiff Sushilabai and wanted that the
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remaining family should live happily with the
estate properly demarcated and given to them
before the entry of adopted son in the family.
[f] The learned Sr. Adv. further continued his
arguments and contended that at least at the
behest of the respondent-plaintiff, the Court
could not examine the admissibility of the
documents, though Exhs. 243 and 244 are both
admissible in law and could not have been
rejected for want of registration. At any rate,
for collateral purpose, the documents could be
read.
[g] The learned Sr. counsel for the appellant then
contended that the Will as well as Lease-Deed
dated 30th July, 1982 relied upon by the
plaintiff were rightly rejected and there is a
concurrent finding of fact in relation to the Will
and Lease projected by the appellant as well as
the respondent, plaintiff. The findings of facts
are legal, correct and proper about the Will filed
by the respondent, plaintiff.
Learned Sr. Adv. Mr. K.H. Deshapnde citied the following
decisions:-
[1] Kale & others Vs. Deputy Director of Consolidation
& others [ (1976) 3 SCC 119],
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[2] Narendra Kante Vs. Anuradha Kante & others
[ (2010) 2 SCC 77],
[3] Hari Shankar Singhania & others Vs. Gaur Hari
Singhania & others [ (2006) 4 SCC 658],
[4] Roshan Singh & others Vs. Zile Singh & others [ AIR
1988 SC 881],
[5] Smt. P.N. Wankudre Vs. C.S. Wankudre & others
[ AIR 2002 Bombay 129],
[6]
Addanki Narayanappa & another Vs. Bhaskara
Krishnappa (dead) & thereafter his heirs & others
[AIR 1966 SC 1300 (V 53 C 252], and
[7] Surjit Lal Chhabda Vs. The Commissioner of
Income Tax, Bombay [ (1976) 3 SCC 142].
05. Per contra, Mr. S.C. Mehadia, learned counsel for the
respondent no.1, plaintiff, vehemently opposed the appeal and also
invited my attention to the Cross-Objection filed by the respondent
no.1, i.e., Cross-Objection No. 11 of 2016. He made the following
submissions:-
[a] Referring to the Cross-Objection filed by the
respondent no.1, plaintiff, Mr. Mehadia
contended that the Will [Exh.202] dated 18th
October, 1981, executed by Smt. Heerabai in
favour of the plaintiff, has illegally been
rejected by both the courts below on surmises
and conjectures and contrary to the settled
legal position, the Will having been proved in
accordance with law. Similarly, the Lease-
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Deed dated 30th July, 1982 [Exh.214] should
not have been ignored by the courts below and
accepting both these documents, the plaintiff,
Smt. Sushila, was entitled to entire undivided
share of Heerabai in the joint properties, since
Heerabai had become an absolute owner of her
half share in the undivided properties between
her stepson, Rekchand after the death of her
husband, Jethmal,l and also a share in the
property left by Rekchand, her stepson, after
his death. Mr. Mehadia took me through the
findings recorded by the courts below on the
Will [Exh.202], so also the evidence, and
contended that the reasons recorded by both
the courts below on the Will [Exh.202] are
flimsy and will have to be held to be perverse.
Similar is the case with the registered Lease-
Deed dated 30th July, 1982 [Exh.214] under
which half share of Heerabai was leased out to
Sushila, the plaintiff and the same ought to
have been enforced by the courts below.
[b] Further, referring to the Cross-Objection, Mr.
Mehadia contended that the respondent no.1,
plaintiff, being a legal heir of Heerabai, was
entitled to 1/4th share from the one-half share
of Heerabai in the joint family properties.
[c] The learned counsel for the respondent no.1,
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plaintiff, in opposition to the Second Appeal
filed by the appellants, took me through both
the documents - Exhs. 243 and 244. Referring
to Exh.244 [Family Settlement], Mr. Mehadia
contended that the respondent no.1 does rely
on the said family settlement under which the
respondent no.1 received share and acted
upon. But then, according to Mr. Mehadia,
under that Family Settlement [Exh.244], what
plaintiff, Smt. Sushila, was given, was her share
from the properties of Rekchand only and she
was not given anything from the share of
Heerabai which she absolutely had in the
undivided joint family properties. Inviting my
attention to the relevant clause in Exh.244, he
contended that the fact that 1/8th share is
being mentioned as being given to plaintiff,
Sushila, supports the said submission that it
was only from the estate of Rekchand, her
share was carved out, but she was not given
any share in the estate of Heerabai, obviously
because Heerabai's share was never taken out
or partitioned or determined. He then
contended that even if plaintiff is accepting the
Family Settlement [Exh.244], still when it
comes to looking to the admissibility of the
document in law, the same would not be
admissible because it was not registered. The
courts below, therefore, were not entitled to
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treat Exh.244 as a legally admissible document
for that purpose. He then contended that
estoppel never operates against law is the trite
legal position and non-admissibility of Exh.244
in evidence cannot be made admissible with the
aid of the doctrine of estoppel.
[d] The learned counsel for the respondent no.1,
plaintiff, then contended with reference to
Exh.243 dated 9th January, 1983, that the
plaintiff never admitted the legality or binding
effect of Exh.243, nor she accepted the said
Memorandum of Family Partition [Exh.243] ever
while making averments in her Regular Civil
Suit No. 238 of 1984. In that suit, she had only
admitted the fact of the Family Settlement
dated 9th January, 1983 having taken place and
nothing more. Inviting my attention to the
cross-examination of defendant no.1,
Madankunwar, he contended that she admitted
in cross-examination that in December, 1982,
no partition was effected by metes and bounds
and, therefore, there is a reason to hold that by
document [Exh.243] dated 9th January, 1983
itself, the partition came to be recorded and in
that event, the documents required registration.
He then contended that Regular Civil Suit No.
238 of 1984 was limited only for removal of
encroachment and nothing more and, therefore,
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the plaint in the said suit should not be read
adverse to the interest of the plaintiff.
[e] The learned counsel for the respondent no.1,
plaintiff, then contended that under the
document [Exh.243] dated 9th January, 1983,
Heerabai is said to have relinquished her entire
share in the immovable properties, which is per
se false, baseless, apart from being invalid and
illegal in law. Heerabai had undivided absolute
interest in the first place after the death of her
husband along with her stepson, Rekchand.
After the death of Rekchand, she had again a
share in the half share of Rekchand, though
undivided. Her half share in the estate with
Rekchand, after the death of Jethmal, could
never be relinquished by any document like
Exh.244 or Exh.243 and the only way if she had
to make relinquishment was by a registered
instrument. According to him, that is what is
ordained by law. Both the documents [Exhs.
243 and 244] were admittedly not registered
and there cannot be any relinquishment in the
estate by Heerabai without relinquishment
being registered, since the question of blending
a share in the property of a female Hindu does
not arise. Mr. Mehadia invited my attention to
the finding recorded by the Lower Appellate
Court in that behalf, based on the few
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judgments, including the one by Patna High
Court, on the question of blending, and
submitted that Heerabai's share remained
intact and she could not have relinquished her
share without due registration and at least the
law will never recognize such relinquishment.
[f] The learned counsel then continued his
submissions, and contended that Section 14 of
the Hindu Succession Act in clear terms
provides for Heerabai's absolute right in the half
estate and thereafter such a share could not be
separated or merged or relinquished without a
registered document of relinquishment. He
then contended that at any rate the document
dated 9th January, 1983 [Exh.243] was out and
out fraud, misrepresentation on Heerabai,
inasmuch as on the very next day she sent
notices to all the persons concerned, who had,
according to her, obtained her thumb
impression by misleading her on Exh. 243, and
had also lodged a complaint/report with the
Police Station, which was duly received by the
Inspector Mr. Pathank, that she was cheated. It
was, therefore, difficult to accept Exh.243, since
Heerabai had on the very next day denied to
have made any settlement [Exh.243], which
was an outcome of fraud and
misrepresentation. The document [Exh.243],
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therefore, should be rejected. , apart from the
fact that the same is not admissible in evidence
for want of registration, as partition itself was
effected by Exh.243 and there was no earlier
oral partition reduced to writing as claimed by
the appellants.
[g] He then contended that it would be a misnomer
to use the word "relinquished" or "released" in
the present case, because the releasee must
have some interest in the property and,
therefore, in absence thereof, it becomes a gift
which compulsorily requires registration.
In support of his arguments, Mr. Mehadia then relied on the
following decisions and finally urged this Court to dismiss the appeal
with costs:-
[a] Smt. Pushpa Devi Vs. The Commissioner of Income
Tax, New Delhi [ AIR 1977 SC 2230],
[b] Rajasthan State TPT Corpn. & another Vs. Bajrang
Lal [ 2014 AIR SCW 2058 (From : Rajasthan)],
[c] Yatin Gordhandas Dossa Vs. Supriya Shailesh Patel
[2015 (5) Mh.L.J. 587],
[d] Wilma Levert Canuao & others Vs. Allan Sebastian
D'souza & another [2014 (3) Mh.L.J. 1],
[e] M.B. Ramesh (D) By Lrs vs. K.M. Veeraje Urs (D) by
Lrs. & others [ 2013 AIR SCW 2732],
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[f] Mahesh Kumar (Dead) BY L.Rs vs. Vinod Kumar &
others [ 2012 AIR SCW 2347],
[g] Nathia Bai & ors. vs. Gangaram Horal Singh &
others [ AIR 2010 (NOC) 353 (M.P.) (Gwalior Bench)],
[h] Hirday Narain Tandon Vs. Kashi Prasad Tandon &
another [ AIR 1983 Allahabad 187],
[i] Vasant Dattatraya Bopardikar Vs. Sakharam
Dattraya Bopardikar & others [ AIR 1983 Bombay
495],
[j] Pasagadugula Narayana Rao, S/o Rama Murty Vs.
Pasagadugula Rama Murty, s/o Rama Murty [ Coram
M. Satyanarayan Murthy, J., Andhra High Court, A.S. No.
1685/94, decided on 21st August, 2015],
[k] Kuppuswami Chettiar Vs. A.S.P.A. Arumugam
Chettiar [ 1966 CJ (SC) 151],
[l] Madhuri Pukharaj Baldota Vs. Omkarlal Daulatram
Banwat & others [2015 (4) Mh.L.J. 327],
[m] Leela Rajagopal & others Vs. Kamala Menon
Cocharan & others [ 2014 AIR SCW 5233 (From :
Madras)],
[n] Domnic D'souza Nelson D'souza Vs. Julie D'Mello
[ 2013 (6) Mh.L.J. 732],
[o] Subhash Hiraji Jadhav (since deceased) Mrs.
Kumud Subhash Jadhav & another Vs. Padmakar
Hiroo Jadhav & others [ 2009 (4) Mh.L.J.266],
[p] Madhukar D. Shende Vs. Tarabai Aba Shedage [ AIR
2002 SC 637],
[q] Mani Ram Vs. Padma Datta (D) by LRs. & another
[ AIR 2007 Uttarakhand 74],
[r] Mallesappa Bandeppa Desai & another Vs. Desai
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Mallappa alias Malesappa & another [ AIR 1961 SC
1268], and
[s] Mt. Murti Goalin Vs. Ram Briksha Gope & others
[ AIR 1959 Patna 466 (vol.46, C. 127)].
CONSIDERATION :
06.
This appeal was taken up for final hearing in view of the
early hearing application filed by the appellants, namely Civil
Application No. 860 of 2015, and all the counsel appearing for the
parties had given consent for final hearing of the appeal, because the
appellant no.1 is said to be a Senior Citizen of the age of 94 years and,
therefore, all the parties wanted a decision from this Court, one way or
the other. This Court accordingly acceded to the request of the
counsel for both the parties and fixed it for final hearing.
07. Heard learned counsel for the rival parties at length.
Perused the entire record, pleadings, oral as well as documentary
evidence, so also the reasons recorded by both the courts below.
08. This Court on 3rd March, 2015 framed the following two
Substantial Questions of Law:-
"1. Whether the first appellate Court was justified in
sa109.15
reversing the decree passed by the trial Court?
2. Whether the first appellate Court erred in
discarding the family arrangement at Exh. 244 on
the ground that same was not registered?"
Thereafter, on 13th October, 2015, the following two
Substantial Questions of Law were framed:-
"1. Whether the respondent No.1/plaintiff being the
legal heir of Hirabai is entitled for 1/4th share
from the ½ share of Hirabai in the joint family
properties of Parakh family?
2. Whether the lower Appellate Court is justified in
rejecting the family settlement dated 20-11-1982
in absence of proper pleadings and evidence?"
09. After hearing the learned counsel for the rival parties, I
recast and re-frame the Substantial Questions of Law, which arise for
consideration as under:-
1. Whether the findings of facts recorded
by both the courts below for rejecting
the Will [Exh.202] dated 18th October,
1981 and not accepting the
Lease-Deed [Exh.214] dated
31st July, 1982, both projected by
the plaintiff, and the Will [Exh.232]
dated 26th May, 1982 projected
by the defendants, are
perverse? .... No.
2. Whether the plaintiff having
accepted, admitted and acted
upon the Family Settlement
dated 20th January, 1982 [Exh.244]
would be estopped by conduct in
setting up a challenge to the same
Family Settlement [Exh.244] as
not receivable in evidence for
sa109.15
want of registration? .... Yes.
3. Whether the plaintiff did not
receive any share from the
share of Heerabai under the
Family Settlement dated 20th
January, 1982 [Exh.244] and
consequently whether she was
entitled to claim partition in
the undivided estate of
Heerabai? ..... Plaintiff received her
share from the
ig share of Heerabai
and hence was not
entitled to claim
partition.
4. Whether the Family Settlement
dated 20th January, 1982 [Exh.244]
and oral partition reduced to
Memorandum Fard dated 9th
January, 1983 [Exh.243]
require compulsory registration
under Section 17 of the
Registration Act? ..... No.
5. What order? .... Second Appeal is
allowed.
Cross-objection is
dismissed.
10. As to Question No.1 :- Both the courts below rejected
both the Will [Exhs.202 and 232] projected by both plaintiff as well as
defendants. Both the courts did not consider the Lease-Deed dated
31st July, 1982 [Exh.214] in the suit for partition. At the outset, in so
far as Lease-Deed [Exh.214] is concerned, the courts below were right
in rejecting or ignoring the same in a suit for partition and separate
sa109.15
possession, as the Lease-Deed had no semblance of any right while
adjudicating the suit for partition. There is one more important reason
for ignoring the Lease-Deed [Exh.214], inasmuch as in para 9 of the
Family Settlement [Exh.244], signed by the plaintiff, Smt. Sushila,
following is the recital:-
"9. The Party No.1 having received the estates as
per the present Family Settlement, the registered
Lease-Deed dated 30th July, 1982 and
thereunder given by Party No.3 shall stand
cancelled automatically."
the rights
completely
I, therefore, hold that the courts below did not make any error in
ignoring the Lease-Deed [Exh.214].
11. Mr. S.C. Mehadia, the learned counsel for respondent no.1,
plaintiff, invited my attention to the grounds of Cross-Objection and I
have gone through the same. As to the Will [Exh.202], Mr. Mehadia on
facts raised several points also having taken me through the evidence
of the witnesses. He also took me through the reasons recorded by
the courts below. Similarly, as to the Will [Exh.232], projected by the
defendants, I have gone through the reasons recorded by both the
Courts to find out whether there is any perversity, comparing with the
evidence on record. In the first place, it would be appropriate to quote
relevant portions of paras 13, 17 and entire para 22 in the Judgment of
Trial Court, which contain the reasons recorded by the Trial Judge for
sa109.15
rejecting both the documents. The same read as follows:-
"13. As to Issues Nos. 3 & 9 :-
........................................................................................
.................The copy of the said will is filed by him on
record at Exh.202. He was cross-examined by the
defendants. He, in his cross-examination has admitted
that Hirabai was uneducated and could not read or
write. The R.C.S. No. 238/84 was filed by the plaintiff
against the defendant nos. 1 and 4 on 13-8-84 for
mandatory and permanent injunction on the basis of
family settlement deed Exh.244 dated 20-11-82.
Admittedly, will dated 18-10-81 is prior to it. P.W. 1
Shri G.C. Katariya, in his cross-examination has
admitted that there is no mention of will in R.C.S. No.
238/84. Even no reliance is placed by the plaintiff on
the said document in R.C.S. No. 238/84. The counsel
for the plaintiff Shri R.M. Bhagwat, Adv., has argued
that the said R.C.S. No. 238/84 was for mandatory and
permanent injunction and no relief was sought on the
basis of the said document. Hence, the will was not
referred in the said suit. The explanation furnished by
the plaintiff is not satisfactory, as admittedly the said
suit was filed for removal of encroachment on the basis
of title. Admittedly, the will if proved is the document
of title. Hence, the will if was in existence on the date
of filing of the suit was required to be disclosed at the
time of filing the said suit. It is one of the suspicious
circumstances, which the plaintiff has failed to prove.
Similarly, the lease deed Exh.214 executed on 31-7-82
in favour of the plaintiff by deceased Hirabai makes no
mention of will dated 18.10.81. PW 1 himself has
admitted this fact in his cross-examination. There was
no reason for Hirabai to execute the lease deed
Exh.214 in favour of plaintiff and collect leased amount
from the plaintiff if she had already executed the will in
favour of the plaintiff. Even family settlement deed
[Exh.244] dated 20.11.82 and partition deed Exh.243
dated 9.1.83, wherein, Hirabai is also one of the party
and signatory, makes no mention of executing family
settlement deed and partition deed, if the property is
already bequeathed by Hirabai in favour of the plaintiff.
PW 1, in his cross-examination, has admitted that there
is no mention of execution if will Exh.202 in any other
sa109.15
document except in the plaint. Besides this, the
plaintiff has alleged that there is another will Exh.404
executed by Hirabai in favour of the plaintiff Sushilabai.
Interestingly, the said will is undated. Interestingly, if
the said will Exh.404 executed by Hirabai in favour of
the plaintiff Sushilabai. Interestingly, the said will is
undated. Interestingly, if the said will Exh.404 was
already in existence in favour of the plaintiff, then,
there was no question of executing another will
Exh.202 in favour of the plaintiff again by Hirabai.
Similarly, if the will Exh.202 was already in existence,
then, there was no question of executing a will Exh.404
in favour of the same person again. This is also one of
the suspicious circumstance, which the plaintiff has
failed to explain."
17. ..............................................................................
...........PW 2 has deposed contrary to the human
nature. It cannot be expected from any man or woman
to call the person with whom he or she has even no
formal acquaintance. Hence, it is presumed that PW 2
for executing a will. Even if it is presumed that PW 2
was called by Hirabai for executing a will, then, it is
expected from PW 2 to know and identify Hirabai, as he
is alleged to have met Hirabai initially at the time of
issuing notice, then at the time of taking the
instructions for preparing the will and then for
execution and attestation of the will. Even thereafter,
he is said to have gone to Shri G.C. Katariya from time
to time, even then, the PW 2 has failed to identify the
photographs of Hirabai when shown to him in his cross-
examination. There were two photographs Article - A
and E of Hirabai amongst the photographs of other
women shown to the PW 2. He failed to identify either
of the photographs Article A & E. This creates
suspicion about his being attesting witness. The
counsel for the plaintiff Shri R.M. Bhagwat, Adv., has
argued that Hirabai was maintain Parda system, Hence,
PW 2 cannot be expected to identify the photographs of
Hirabai. The aforesaid argument of Shri R.M. Bhagwat,
Adv., cannot be accepted, as the PW 2 has nowhere
deposed that they would not identify Hirabai, as she
was maintaining Parda system. The plaintiff has failed
remove this suspicious circumstance. The entire
sa109.15
property of Hirabai is alleged to have been bequeathed
by Hirabai in favour of Sushilabai the plaintiff, though,
there are other legal heirs also with whom, Hirabai had
not any strained relations. ....."
"22. The will in the instant case constitutes the
plaintiff as a sole legate with no right whatever to the
other heirs. It casts a serious doubt about the
genuineness of the will. The will was executed on
18.10.1981 and was disclosed for the first time in the
year 1987 at the time of filing the present suit. Thus,
the will has not been produced by the plaintiff for many
years before the Court or public authorities even
though, there were occasions to produce it for
ascertaining the plaintiff's title to the property. The
plaintiff was required to remove this suspicious
circumstance by placing satisfactory material on
record. He has failed to discharge her duties. Hence,
the will was not genuine and proper."
As to the Will [Exh.312] dated 26th May, 1983 propounded by
DW 1 Smt. Madankunwar, the Trial Court recorded the reasons in para
23 of its judgment, the relevant initial portion of which is quoted
below:-
"23. Interestingly, DW 1 Sau. Madankunwar has also
deposed about this execution of will Exh.312 dated
26.5.83 in her favour. She has deposed that on 26-5-
83, Dhanpatlal Baid wrote the will in Hindi on the say of
Hirabai in her presence and in presence of
Ravindrakumar Baid and Pannalal. It was explained to
Hirabai in Marwadi. Thereafter, Hirabai put her thumb
impression on the will and Pannalal and Ravindrakumar
Baid signed on it. She was cross-examined by the
plaintiff. She, in her cross-examination, has admitted
that the portion marked-A dated 31.12.1982 in Exh.312
is scored and 9.1.1983 is written. No reason is
assigned why it is scored and different date is
mentioned. DW 1 in her cross-examination has
admitted that she was knowing the property of Hirabai.
sa109.15
Hence, she asked Dhanpatlal not to write the property
bequeathed. Interestingly, the will was to be executed
as per the instructions of Hirabai. But the instruction is
said to be given by the defendant no.1 Madankunwar.
Even both the attesting witnesses are interested
witnesses. D.W. 1 herself has admitted that immovable
property is not given to her and defendant no.4 by
Hirabai vide Exh.312. DW 2 Dhanpatlal is the attesting
witness. He has deposed that Hirabai told the contents
of the will in Marwadi, which he wrote in Hindi and
explained the same in Marwadi to Hirabai. Pannalal
and Ravindrakumar Baid signed it as witnesses. He, in
his cross-examination, has deposed that Hirabai did not
allot any immovable property to the defendant no.1 by
will Exh.312. No description of ornaments was given
by Hirabai. He has further admitted that the defendant
no.1 has influenced over him, as she is her sister.
Hence, the possibility of his acting as per the whims of
defendant no.1 cannot be ruled out. DW 3
Ravindrakumar is second attesting witness of the will
Exh.312. He has deposed about the mode and manner
in which the will Exh.312 was executed. He has
deposed that the date 31-12-82 was corrected to 9-1-
83 on the say of Hirabai. He, in his cross-examination
has deposed that Exh.312 is word to word translation of
the script told by Hirabai in Marwadi. If it was so, then
there was no question of writing 31-12-82 instead of 9-
1-83 by DW 2 Dhanpatlal. He has deposed that Hirabai
did not tell Dhanpatlal to mention about the partition.
Interestingly, there is a mention of partition in the will
Exh.312. This itself shows that the will was not
prepared as per the instructions of Hirabai. DW 3 has
further deposed that Dhanpatlal did not note anything
in writing, which was told by Hirabai and he will
Exh.312 was written by memory. The deposition of DW
1, DW 2 and DW 3 in respect of the property
bequeathed is contrary to the will Exh.312, which
shows the bequeathing of movable and immovable
properties. But, DW 2 and 3 have admitted that no
immovable property was bequeathed to the defendant
no.1 vide will Exh.312. Hence, it is highly unsafe to
rely upon the will Exh.312 as a last will of deceased
Hirabai. ....."
sa109.15
The learned Lower Appellate Court also rejected both the
Will while answering Point Nos. 1 and 2. It recorded the reasons in
paras 9, 12 & 13 of the Judgment for doing so. The relevant portion of
Para 9, and paras 12 and 13 are quoted below:-
"9. ..............................................................................
...........The evidence of PW 1 Gyanchand shows that he
is practicing advocate. He was also Additional Govt.
Pleader. So all these facts show that PW 1 Gyanchand
is well aware about the law.
Shaineshchandra was also practicing advocate and he
PW 2 Shriram
was also District Govt. Pleader during the period when
PW 1 Gyanchand was Additional Govt. Pleader. The
record shows that PW 1 Gyanchand claimed that he
and plaintiff were present when deceased Hirabai
executed Will [Exh. 202] in their favour. But
surprisingly Will [Exh.202] did not bear any
endorsement that either PW 1 Gyanchand or plaintiff
was present at the time of execution of the said Will."
"12. The defendants have come with the case that
deceased Hirabai had executed last Will in their favour
vide Exh. No. 312. According to the evidence of DW 2
Dhanpatlal Baid, he had scribed the Will [Exh. No. 312]
on the say of deceased Hirbai. He had read over and
explained the said Will to Hirabai in Marwari language
and thereafter she put her thumb impression on the
said Will. D.W. 3 Ravindrakumar Baid is attesting
witness on the Will [Exh. No. 312]. He testified that in
his presence the contents of Will were read over and
explained to Hirabai. Thereafter, Hirabai put her thumb
impression on the Will. He signed the Will [Exh. No.
312] as attesting witness.
13. There is another Will vide Exh. No. 404. This Will
is undated. This Will is type written and made in favour
of the plaintiff. It shows that D.W. 2 Dhanpatlal Baid
had signed the said Will [Exh. No. 404] as attesting
witness. Even during the course of evidence, D.W. 2
Dhanpatlal Baid admitted his signature on the Will
sa109.15
[Exh. No. 404], but surprisingly none of the party
tendered any explanation as to why Exh. No. 404 was
executed and when it was executed and how D.W. 2
Dhanpatlal Baid signed the same as attesting witness."
Thus, the courts below rejected both the Will propounded by both the
parties.
12.
In order to consider the submissions made by Mr. Mehadia
on these findings about Will, I have carefully seen the entire evidence
to find out whether the view taken by both the courts is perverse. I
have perused the Will [Exh.202] carefully. The Will runs into full three
pages typed by the typist and Smt. Heerabai is said to have put her
thumb impression at the end of the Will. Thereafter, the attesting
witnesses have signed. The entire document [Exh.202] is written in
Marathi of a superior quality. Shriram [PW 2], the attesting witness on
Exh.202 in para 3 of his evidence, stated that the drafted Will was read
over to Heerabai and she was asked whether she understood the
contents as they were in Marathi language. She replied in the
affirmative, and stated that she understood the Marathi language. He
further stated that Heerabai was also intermittently talking in Marathi.
It is an admitted fact that Heerabai was an illiterate lady. She
understood only Marwari language. She was required to be explained
the contents of a document in Hindi into Marwari language. I have
sa109.15
underscored the observations about deposition of DW 2 Dhanpatlal and
DW 3 Ravindrakumar made by the Trial Court in para 23 [see earlier
para 11], which shows that except Marwadi language, Hirabai hardly
understood any other language, much less Marathi. Though DWs 2
and 3 are the witnesses of the Defendant No.1, fact remains that this
part of evidence on this aspect has gone unchallenged. It is, therefore,
highly improbable that upon reading the Will [Exh.202] running into
three long pages with a superior Marathi language not commonly
talked in Chandrapur, that Heerabai would have understood without
Marathi being translated either into Hindi or Marwari language. This, in
my opinion, is the additional reason, inter alia the reasons recorded by
the courts below, why they were right in not accepting the Will. The
Question No.1 is, therefore, answered in negative.
13. As to Question Nos.2 & 3 :- It would be necessary to
have a careful look at the document [Exh.244] in the first place. The
English translation of the relevant portion of that document reads
thus:-
"Family Arrangement - Document
Party No.1 : Sau. Sushilkunwar [Plaintiff].
Party No.2 : Smt. Madankunwar [defendant no.1].
Party No.3 : Smt. Heerabai [dead].
Party No.4 : Sau. Shardakunwar| [Defendant Nos. 2 & 3]
Party No.5 : Sau. Shantakunwar|
sa109.15
The stepson, Shri Rekhchandji Jethmalji Parakh, died two
years before, leaving behind widow, Smt. Madankunwar, and
three daughters. Smt. Jatanbai, the aunt of Rekhchand, was
issueless and died fifteen days before. When Rekhchand died,
he was a member of Joint Hindu Family and the Parakh Family
has joint immovable properties. There is no partition made.
Party No.2, Smt. Madankunwar [defendant no.2], widow of
Rekhchand, and all others have a desire to adopt a son for
continuation of family; but in the absence of any partition in the
family, before taking adoption, all the disputes and
misunderstandings for the benefit of all the parties and as per
the advice of the relatives and for the benefit of Party No.2, with
their desire, the following Family Arrangement is being made in
respect of the joint estate, on the terms and conditions stated
below:-
[1] Party No.1 Sau. Sushilakunwar wife of Gyanchand Kataria
has 1/8th share in the joint family estate. Out of the entire
share, she is allotted the following estate to her share, of which
she would become full owner and would be able to enjoy her
estate:-
.....[Details of estate].....
[2] .....
[3] .....
[4] In the share of estate allotted to Party No.1 by this
arrangement, in some portion of the house property, Shri
Kamalsingh Kachchwa, M/s. Balaji Ramkunwar, Dehli Cloth
Bhandar and M/s. Devidas Stores are the tenants. Henceforth,
from January, 1983, Party No.1, Smt. Sushila [plaintiff], as the
landlord, would be entitled to recover the rent from them and
accordingly tenancy should be attorned.
[5] Party No.1 should mutate her name in the relevant Nazul
or other revenue records in respect of the share allotted to her
as under for which Party Nos. 2 to 5 will give their signatures,
and all shall be done by her at her cost.
[6] Party No.3, Heerabai, has given her express consent to
Party No.2 [defendant no.1] to adopt a son for continuation of
Parakh Family and has also given some share out of her half
share to Party No.1. In lieu of the same, Party Nos.2,4 and 5
have decided to give Rs. 100-00 each, i.e., Rs. 300-00 for
maintenance of Party No.3 and accordingly Party Nos. 2,4 and 5
shall pay Rs. 500/- per month to Party No.3, Heerabai.
sa109.15
[7] .....
[8] In lieu of immovable properties received by Party No.1,
Smt. Sushilakunwar, as per this Family Arrangement, Party No.1
today is giving up/losing all her rights in other remaining
properties than the one given to Party No.1 under this Family
Arrangement. "
14. Having extracted important and relevant portions from
Exh.244, now it is necessary to go to the document [Exh.243], which is
titled as "Memorandum of Division", the relevant portions whereof,
which are translated into English, read thus:-
[1] .....
[2] Rekhchandji Jethmalji Parakh died two years before
leaving behind Party No.1, Madankunwar [defendant no.1],
Party No.2 - stepmother, Smt. Heerabai, and Party Nos. 3 and 4,
the daughters. Thereafter, Smt. Jatanbai, the aunt of
Rekhchandji, died one-and-half-month before. When
Rekhchandji died, he was a member of Hindu Joint Family with
joint family estate of Parakh Family. After the death of
Rekhchandji, Party Nos. 1 to 4 and Smt. Sushila Gyanchand
Kataria were the only legal heirs to the estate, which has not
been partitioned. However, on 20th November, 1982, a Family
Arrangement [Exh. 244] was arrived at, under which Sushila
Gyanchand Kataria, the daughter of Party No.1, was given the
immovable property estates known as "Parakh Niwas",
"Sarang" etc.
[2] On 31st December, 1982, except the above estate
described [that is given to Sushila], the remaining immovable
and movable properties were orally partitioned amongst Party
Nos. 1 to 4 in the presence of the following four Panchas after
having made measurements and putting demarcation so also
the maps were prepared. After the oral partition was made as
above, Party Nos.1 to 4 were given possession of their
respective properties falling to their shares which they took,
and having done that, they became owners of the properties
falling to their respective shares. In order to remember and
have some note of the oral partition as made above and the
allotment of share to each heir, the present Memorandum of
Division - Fard is being written by way of Note.
[Note : Allotment of shares to Party Nos. 1 to 4 are narrated.
sa109.15
Party No.2, Heerabai, has also been allotted the movable
property in this partition.
Party No.2, Heerabai, Shri Rekhchand Parakh did not have any
son or brother and in order to have a son in the Parakh family,
adoption was required to be made. But then, before taking a
child in adoption, it was necessary to have the estate divided by
partition and misrepresentation removed. As per the relatives
and well wishers' advices, Sau. Sushila Gyanchand Kataria was
given share from the entire joint estate, including the share
from the property falling to the share of Party No.2, Heerabai. In
lieu of Party No.2 giving the share to Sushilabai from her share,
an amount of Rs. 300/- per month was agreed to be paid by
other parties. It is for all these reasons, Party No.2, who is aged
about eighty years, has agreed for peaceful adoption to be
made in the family with a view to have continuation of the
Parakh Family and Party No.2 having, thus, been satisfied,
agreed to the oral partition. Party No.2 has not been given any
immovable property to her, but has been given the following
movable properties, and has become owner thereof:-
.....[Description of properties]....
As per the above oral partition, Party Nos. 1 to 4 shall
mutate their names in the respective Govt. records and
Municipality.
Panchas 1 & 2
Heerabai, Party No.2, has put her thumb impression on
this document at Sr. No.2 in the presence of witnesses and
Panchas."
15. It is equally important now in the light of the above
sa109.15
documents to have a look at the averments in the plaint. [Exh.203] is
the plaint filed by plaintiff Smt. Sushila in Regular Civil Suit No. 238 of
2004 for mandatory and permanent injunction. The paragraphs
required to be quoted read as under:-
"2. After the death of Rekhchandji, the defendant
no.2 desires to take a body in adoption. In order to
facilitate the adoption, the heirs of Shri Rekhchandji
with the meditation of well wishers agreed that the
plaintiff will be given some property as her legal share
of her legal claim. Accordingly on or about 20.11.1982
the following properties was given exclusively to the
plaintiff.`
"All those buildings known as "Parakh Niwas situated
on Plot Nos. 15/1, 16/2, 17, 18....... 27 and 109 in Block
No. 29 , Sheet No. 8 of Nazul Mohalla Bhanapeth Ward
(Except the building on the Northern side known as
"Sarang", and open land in front of "Sarang" together
about 4000 sq. ft.) having boundaries as under:-
To the East ..... Mahatma Gandhi Road.
To the West ..... House of Dr. Mude.
To the North ..... Open space and "Sarang"
Building and Dr. Mude's
building beyond.
To the South ..... Public land, Liberty Shop
and other private shops.
There are tenants in some parts of the building
given the rent to the plaintiff as the plaintiff has been
residing the Northern portion. It was agreed by the
plaintiff to allow the defendant no.1 to occupy and use
exclusively one bathroom and the room adjacent to it
known as "Chhatrawas" having dimensions of
approximately 25 ft. x 25 ft., for her life time. It is
submitted that at the time of this arrangement, no
measurements were made.
"4. That as agreed the plaintiff became the
sa109.15
exclusive owner of the property described in para 2
above and the tenants have attorned to her and she is
recovering the rents from January, 1983, as agreed.
The other shares of the joint properties also have
effected a partition between themselves of the
remaining joint properties on or about 9.1.1983. ....."
"5. ..............................................................................
............It is also submitted that this construction will
completely block the air and light to the Verandah and
the room on the southern side of the verandah.
Noticing this illegal and unauthorised act the plaintiff
by telegraphic notice requested the defendants to
desist from their illegal acts and remove the centering
extended to Southern side beyond the open space in
front of "Sarang", allotted by the agreement dtd.
20.11.1982."
"12. That Shri Gyanchand Katariya the husband of the
plaintiff is well conversant and having first hand
knowledge of all the facts and circumstances described
in the above paras."
"Dtd: 16-8-1984" "Plaintiff"
"Chandrapur"
"Counsel for the Plaintiff."
"Verification
I, G.C. Katariya, husband of the plaintiff, do
hereby declare that the contents are true to my
personal knowledge and hence verified and signed at
Chandrapur on 13.8.1984.
Plaintiff."
In response to the plaint [Exh.204], Written Statement was
filed by the defendants. Reply to Para 2 is as under:-
"Reply to Para 2 of the plaint
sa109.15
2. The statement of facts in para 2 of the plaint are
admitted for the purposes of this suit except the last
statement that no measurements were made at the
time of the arrangement mentioned in this para. It is
submitted that approximate measurement of the area
were taken into consideration at the time of arriving of
this arrangement."
This plaint was filed in the Court on 16th August, 1984 and
as seen from the averments above, the respondent no.1, plaintiff,
herself described that she became the owner of the properties allotted
to her by virtue of the Family Arrangement [Exh.244]. It is very
important to note the statement in para 4 above which is underscored.
Thus, Gyanchand Kataria verified this plaint for his wife, Sushilabai and
Sushilabai did not have even a wild imagination that Sushila did not get
a share in and from the estate left by Heerabai in the joint properties.
On the contrary, the plaint, if read carefully, shows that there is a
crystal clear indication that the Family Arrangement [Exh.244] as well
as the next document of Oral Partition reduced to writing [Exh.243]
was fully accepted by Sushilabai and acted upon and she fully
understood that except for the properties given to her under Exh.244,
the remaining properties in the joint family of Parakh, including
Hirabai's, were duly distributed by partition under the Memorandum of
Fard [Exh.243]. Had the plaintiff Sushila any grievance of she not
getting any share in the remaining estate, at least from the share of
Heerabai, in the joint family properties of Parakh, her husband
sa109.15
Gyanchand Katariya, who verified the plaint and who is an Advocate,
would not have failed to make a murmur about it in the entire plaint,
instead of simply making a reference about the Memorandum of Oral
Partition [Exh. 243]. In other words, the plaintiff had fully accepted the
position of she receiving whatever was due in the joint estate of the
family and including Heerabai and no estate remained to be received
been
by her as a share, including the properties that would have undividedly
held by Heerabai. It is important to note that till the suit, in
question, was filed in the year 1987, no such grievance was made even
by amending the plaint [Exh.203] or by making any grievance
anywhere. The submission that mention about plaintiff's any 1/8th
share in the entire estate cannot turnaround the position upon reading
of Exh. 244 in full and in totality does not have any legal foundation.
16. It is then important to note that after execution of Exh.243
dated 9th January, 1983, the plaintiff claimed that Heerabai, who had
put her thumb impression on Exh.243, had given notices in
consultation with Shri Gyanchand Kataria to the Panchas, alleging
misrepresentation, fraud etc., with a copy thereof to the Police Station.
In that behalf, it is important to state that it is an admitted fact that all
those notices given on 10th January, 1983 to various persons were
actually given by Shri Gyanchand Kataria. He also got her affidavit
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[Exh.221] sworn before the Executive Magistrate. This is clear from his
evidence in paragraph 13 of his Examination-in-Chief, the relevant
portion of which reads thus:-
"13. ..............................................................................
...........I have produced on record xerox copy of the
affidavit of Hirabai dated 10th January, 1983. I have
brought along with me the original affidavit. I am now
shown the original affidavit, it bears the thumb
impression of Hirabai. It is at Exh.221. I have filed on
record the copy of letter dtd. 10.1.1983 issued by
Hirabai to nine persons. Copy of this letter was also
given to the police station. I am filing on record the
original letter dtd. 10.1.83, it bears thumb impression
of Hirabai. I can identify the same. It also bears my
own signature as scribe as a person who obtained the
thumb impression of Hirabai. Original letter is at
Exh.222. It bears the endorsement of one Shri Pathak.
At the relevant time Shri Pathak was P.S.O., of City
Police Station, Chandrapur. ....."
The evidence about getting Heerabai's affidavit [Exh.221] sworn
before the Executive Magistrate contains in paras 18 and 19 of the
cross-examination of PW 1 Gyanchand. The relevant portion of Para 18
and entire para 19 read thus:-
"18. ..............................................................................
...........I have produced Exh.222 after 12 years of filing
the suit as the copy was already filed. I am now shown
the document at Exh.222. I do not know whether
copies were sent to all the persons mentioned in
Exh.222. I had personally gone to P.S. to give the copy.
At that time I was not holding power of attorney for
Hirabai. Hirabai had not come along with me to Police
Station. Plaintiff Sushilabai had also not come along
with me. I know all the persons mentioned in Exh.222.
Except Tarachandji, all the persons mentioned in Exh.
222 are alive. I had not myself gone for sending the
notices by registered post. I cannot tell as to who had
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gone for registration. It is not true to say that Hirabai
was residing along with me and plaintiff at the time of
issuing notice Exh.222. I do not know whether at that
time Adv. Shanaishchandra was advocate of Hirabai.
Now says, he was the Advocate of Hirabai. I do not
know whether during her time Hirabai has not taken
any action against deft. no.1 to 3, as stated in Ex.222.
Tarachand Khajanchi had given reply to the notice
Exh.222. Volunteers, I am stating, this from the papers
available. I am now shown one reply dtd. 14/15th
January, 1983. I cannot tell whether this is the reply
which is at Exh.241. It is true that the relations plft.
Sushilabai with all the persons mentioned in Exh.222
are good. It is true that plft. Sushilabai was also having
good relations with Tarachand Khajanchi. Plft.
Sushilabai cannot tell whether the reply was sent by
Tarachandji Khajanchi. I and plft. did not try to trace
out the reply given by Tarachand Khajanchi."
"19. I am now shown the document at Exh.222 as
well as Article-C. It is not possible that both these
documents were typed on one day. It is true that the
original of Article-C is not produced on record. I do not
know whether thumb impression Exh.222 and Article-C
were taken on the same day. I say that Exh.222 is the
original and copies of the same were not sent to the
addressee mentioned in Exh.222. At this, stage
document at Article-C is marked at Exh.242. It is not
true to say that the thumb impression of Exh.242 has
been taken by me. It also does not bear my name as
having obtained the same. I had received the typed
copy of Exh.222. I cannot tell as to who had typed the
same. I cannot tell as to who had written the contents.
Nanayya, servant had brought the same to me. It is
not true to say that Hirabai had not asked me to submit
the application to police station. Volunteers, after
receiving the letter, I enquired from Hirabai, obtained
thumb impression and then handed over the same to
police station. It is true that I have not sent the copies
of Exh.222 by Regd. Post. I have no knowledge as to
who had sent the same. I have no knowledge whether
Sushilabai plaintiff had sent the same. I am not shown
the document at Exh.203. It is a suit filed by present
plft., against deft. no. 1 and 4. I do not remember who
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was the Advocate for plaintiff as the document Exh.203
does not bears his signature. It is true that I have
myself verified the contents personally at Exh.203, in
the original plaint. I again says, that I have verified
Exh.203 to my personal knowledge. I am now shown
copy of partition deed along with Exh.203. I do not
remember whether I have produced the copy of the
partition deed. I am now shown the copy of plaint at
Exh.203, para-II. I have mentioned the documents in
the plaint, but I do not remember whether it was filed
or not. I cannot tell whether there is possibility of my
having filed the same. It is true that I have not made a
false statement as mentioned in paragraph-II. I am
now shown para 4 of Exh.203, contents there in are
correct and true. It is true that there is mentioned of
partition deed dtd. 9.1.83 in Exh.222. It is true that
there is also mentioned in Exh.242 of partition deed. It
is true that there is no mentioned regarding the
contents pertaining to partition deed 9.1.83 in Exh.203,
as the that suit was concerned with only plaintiffs
property and not that of others property. I have seen
the partition deed dtd. 9.1.83. I was aware that Hirabai
had taken objection at the time when plaintiff filed the
suit to the partition deed dtd. 9.1.83. I am now shown
the document dtd. 9.1.83. It is the same memorandum
of partition. It is at Exh.243. I cannot tell whether the
document at Exh.243 is the copy of the partition deed
filed in Reg. C.S. No. 238/84. It is true to say that in
R.C.S. No. 238/84 Hirabai had not taken any objection
about the partition deed dtd. 9.1.83. It is not true to
say that no objection was taken as document at
Exh.222 was prepared subsequently, after 10.1.83.
Hirabai was not alive when the suit bearing R.C.S. No.
238/84 has been filed. It is true that in R.C.S. No.
238/84 no mentioned is made regarding the Will
executed by Hirabai. I cannot tell as to who had
obtained the thumb impression of Hirabai on Exh.242."
17. A careful reading of the entire evidence of PW 1 Gyanchand
shows that he is highly interested person being the husband of the
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plaintiff, who was instrumental in first obtaining the Family Settlement
[Exh.244], getting the entire share of his wife and then when he found
that there was an encroachment according to him, he filed the suit. An
attempt was made to show that Exh. 243 [Partition Fard] was
fraudulently obtained from Heerabai and, therefore, on 10th January,
1983 itself, the notices were sent. But then it clearly appears from his
evidence that Heerabai did not appear to have done all that and the
entire exercise, as is clear from the above evidence, was done by PW 1
Gyanchand himself to show that Exh.243 was not obtained from
Heerabai fraudulently. There is another angle for looking at his
evidence. First Will dated 18th October, 1981 [Exh.202] was brought
into existence. Thereafter, registered Lease-Deed dated 30th July,
1982 [Exh.214] was brought into existence and not having been
satisfied therewith, one more Will [Exh.404] was again brought into
existence. This entire exercise has been found by the courts below to
be a highly suspicious circumstance in order to somehow get the
property having realized that the adopted son would be the king of
those remaining properties. When plaintiff was given all that she was
entitled to, it did not behove of well for her to ignite spark of avoidable
litigation.
For these reasons, therefore, it is not possible to accept the
contention raised by Mr. Mehadia that the plaintiff did not receive any
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share from the share of Heerabai under Family Settlement [Exh.244],
or that she received only her share from the share of her father. It is
not possible to agree with Mr. Mehadia that plaintiff would not be
estopped from claiming her share in the share of Heerabai. There can
be no dispute that estoppel cannot operate against law. But then, as
discussed above, the plaintiff, Sushila, received her share in the estate
Heerabai.
of Rekhchand and also her share from the estate of her grand-mother,
Not only that, because Heerabai had given Sushila, the
plaintiff, from her share in the joint family properties, all other parties
agreed to give Rs.300/- per month for maintenance of Heerabai, as
narrated in Exh.244. It is important to note that Exh.244, which is an
admitted document of Family Settlement, must be put on a very high
pedestal as a document having a very high probative value. The
recitals in this document are as significant as they could be. After the
death of Rekchand, there was no male member in the family and
Heerabai had along with other relatives full desire that Parakh Family
must continue, which was not possible in the absence of adoption of a
male child. Since it was the desire of Heerabai and others and rightly
so and she being of the age of eighty years with no greed in the
immovable properties, was obviously interested only in having an
adopted son in the family of Parakh. After all, Sushila, the plaintiff, was
also a grand-daughter, so also other daughters and there was no other
sa109.15
go, except to adopt a male child. Recitals further show that it was
necessary to have equitable division of the property before making
adoption, as, otherwise, there could be riddles in the way of process of
adoption and the adopted son. Therefore, even if in this connection
the Memorandum Fard [Exh.243] is not given importance, the
document - Family Settlement [Exh. 244] with the above recitals and
the events and happenings depict a clear picture about the plaintiff
because of her husband, Gyanchand, Adv., wanting her entire share
before the entry of an adopted son into the family and Heerabai was
fully interested in continuing the Parakh Family by having an adopted
son in the family.
18. Section 115 of the Evidence Act speaks of estoppel. The
doctrine embodied in this Section is not a rule of equity, but is a rule of
evidence formulated and applied in the courts of law. It precludes a
person from denying the truth of some statement previously made by
himself. When a person has, by his declaration, act or omission,
intentionally caused or permitted another person to believe a thing to
be true and to act upon such belief, neither he nor his representative
shall be allowed, in any suit or proceeding between himself and such
person or his representative to deny the truth of that thing. This is
estoppel by conduct. The above discussion, to my mind, must lead to
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the only inference that the plaintiff, Sushila, by her conduct must be
held to be fully estopped from putting to challenge the Family
Arrangements by both Exhs. 244 and 243. She had in clear terms
under Exh.244 taken the undivided share from Heerabai's estate, and
had categorically given up any right in the remaining estate of
Rekhchand and Heerabai, to which all other legal heirs, except the
plaintiff, Sushila, were entitled to succeed and that remaining estate
was thereafter divided by Exh.243. To sum up, Question No.2 will have
to be answered in the affirmative and Question No.3 will have to be
answered by saying that plaintiff received her share from the
undivided estate of Heerabai under Exh.244, and was not entitled to
claim any partition in the estate of Heerabai.
19. As to Question No.4 :- Having held that the plaintiff was
estopped from putting to challenge Exh.244 on the ground of non-
registration, still this question needs to be decided. In the case of
Kale & others Vs. Deputy Director of Consolidation & others
[ (1976) 3 SCC 119], the Apex Court [Three-Judge Bench] held thus:-
"9. Before dealing with the respective contentions
put forward by the parties, we would like to discuss in
general the effect and value of family arrangements
entered into between the parties with a view to
resolving disputes once for all. By virtue of a family
settlement or arrangement members of a family
descending from a common ancestor or a near relation
seek to sink their differences and disputes, settle and
sa109.15
resolve their conflicting claims or disputed titles once
for all in order to buy peace of mind and bring about
complete harmony and goodwill in the family. The
family arrangements are governed by a special equity
peculiar to themselves and would be enforced if
honestly made. In this connection, Kerr in his valuable
treatise Kerr on Fraud at p. 364 makes the following
pertinent observations regarding the nature of the
family arrangement which may be extracted thus;
The principles which apply to the case
of ordinary compromise between strangers,
do not equally apply to the case of
compromises in the nature of family
arrangements. Family arrangements are
governed by a special equity peculiar to
themselves, and will be enforced if honesty
made, although they have not been meant as
a compromise, but have proceeded from an
error of all parties, originating in mistake or
ignorance of fact as to what their rights
actually are, or of the points on which their
rights actually depend.
The object of the arrangement is to protect the
family from long-drawn litigation or perpetual
strifes which mar the unity and solidarity of the
family and create hatred and bad blood between
the various members of the family. Today when we
are striving to build up an egalitarian society and
are trying for a complete reconstruction of the
society, to maintain and uphold the unity and
homogeneity of the family which ultimately results
in the unification of the society and, therefore, of
the entire country, is the prime need of the hour. A
family arrangement by which the property is
equitably divided between the various contenders
so as to achieve an equal distribution of wealth
instead of concentrating the same in the hands of a
few is undoubtedly a milestone in the
administrating of social justice. That is why the
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term "family" has to be understood in a wider
sense so as to include within its fold not only close
relations or legal heirs but even those persons who
may have some sort of antecedent title, a
semblance of a claim or even if they have a spes
successionis so that future disputes are sealed for
ever and the family instead of fighting claims inter
se and wasting time, money and energy on such
fruitless or futile litigation is able to devote its
attention to more constructive work in the larger
interest of the country. The Courts have, therefore,
leaned in favour of upholding a family arrangement
instead of disturbing the same on technical or
trivial grounds. Where the Courts find that the
family arrangement suffers from a legal lacuna or a
formal defect the rule of estoppel is pressed into
service and is applied to shut out plea of the person
who being a party to family arrangement seeks to
unsettle a settled dispute and claims to revoke the
family arrangement under which he has himself
enjoyed some material benefits. The law in England
on this point is almost the same. In Halsbury's Laws
of England, Vol. 17, Third Edition, at pp. 215-216,
the following apt observations regarding the
essentials of the family settlement and the
principles governing the existence of the same are
made:
A family arrangement is an agreement
between members of the same family,
intended to be generally and reasonably for
the benefit of the family either by
compromising doubtful or disputed rights or
by preserving the family property or the
peace and security of the family by avoiding
litigation or by saving-its honour.
The agreement may be implied from a long
course of dealing, but it is more usual to
embody or to effectuate the agreement in a
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deed to which the term "family
arrangement" is applied.
Family arrangements are governed by
principles which are not applicable to
dealings between strangers. The court, when
deciding the rights of parties under family
arrangements or claims to upset such
arrangements, considers what in the
broadest view of the matter is most for the
interest of families, and has regard to
considerations which in dealing with
transactions between persons not members
of the same family, would not be taken into
account. Matters which would be fatal to the
validity of similar transactions between
strangers are not objections- to the binding
effect of family arrangements".
In other words to put the binding effect and
"10.
the essentials of a family settlement in a
concretised form, the matter may be reduced into
the form of the following propositions:
(1) The family settlement must be a bona
fide one so as to resolve family disputes and
rival claims by a fair and equitable division or
allotment of properties between the various
members of the family;
(2) The said settlement must be voluntary
and should not be induced by fraud, coercion or
undue influence:
(3) The family arrangement may be even
oral in which case no registration is necessary;
(4) It is well-settled that registration would
be necessary only if the terms of the family
arrangement are reduced into writing. Here
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also, a distinction should be made between a
document containing the terms and recitals of a
family arrangement made under the
document and a mere memorandum prepared
after the family arrangement had already been
made either for the purpose of the record or for
information of the court for making necessary
mutation. In such a case the memorandum
itself does not create or extinguish any rights in
immovable properties and therefore does not
fall within the mischief of Section 17 (2) of the
Registration Act and is, therefore, not
compulsorily registrable;
(5) The members who may be parties to the
family arrangement must have some
antecedent title, claim or interest even a
possible claim in the property which is
acknowledged by the parties to the settlement.
Even if one of the parties to the settlement has
no title but under the arrangement the other
party relinquishes all its claims or titles in
favour of such a person and acknowledges him
to be the sole owner, then the antecedent title
must be assumed and the family arrangement
will be upheld and the Courts will find no
difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or
possible, which may not involve legal claims are
settled by a bona fide family arrangement
which is fair and equitable the family
arrangement is final and binding on the parties
to the settlement."
"24. This Court has also clearly laid down that a
family arrangement being binding on the parties to
the arrangement clearly operates as an estoppel so
as to preclude any of the parties who have taken
advantage under the agreement from revoking or
sa109.15
challenging the same. We shall deal with this point
a little later when we consider the arguments of the
respondents on the question of the estoppel. In the
light of the decisions indicated above, we shall now
try to apply the principles laid down by this Court
and the other Courts to the facts of the present
case."
"44. In view of our finding that the family
settlement did not contravene any provision of the
law but was a legally valid and binding settlement
in accordance with the law, the view of Respondent
No. 1 that it was against the provisions of the law
was clearly wrong on a point of law and could not
be sustained. Similarly, the view of the High Court
that the compromise required registration was also
wrong in view of the clear fact that the mutation
petition filed before the Assistant Commissioner did
not embody the terms of the family arrangement
but was merely in the nature of a memorandum
meant for the information of the Court. The High
Court further erred in law in not giving effect to the
doctrine of estoppel which is always applied
whenever any party to the valid family settlement
tries to assail it. The High Court further erred in not
considering the fact that even if the family
arrangement was not registered it could be used for
a collateral purpose, namely, for the purpose of
showing the nature and character of possession of
the parties in pursuance of the family settlement
and also for the purpose of applying the rule of
estoppel which followed from the conduct of the
parties who having taken benefit under the
settlement keep their mouths shut for full seven
years and later try to resile from the settlement.
....."
"46.
SARKARIA J. (concurring) - I am at one with
my learned Brother that this appeal should be
allowed with no order as to costs and that the order
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quashed, the order dated November 28, 1964 of
the Settlement Officer restored, and the revenue
authorities directed to attest the mutation in
accordance with the antecedent family
arrangement which had been orally arrived at
between the parties and acted upon for several
years. I further agree that the family settlement
arrived at by the parties was oral, and the petition
filed by them on August 7, 1956 before the
Assistant Commissioner, was merely an information
of an already completed oral transaction. In other
words, the petition was only an intimation to the
revenue court or authority that the matters in
dispute between the parties had been settled
amicably between the members of the family, and
no longer required determination and that the
mutation be effected in accordance with that
antecedent family settlement. Since the petition did
not itself create or declare any rights in immovable
property of the value of Rs. 100 or upwards, it was
not hit by Section 17 (1) (b) of the Registration Act,
and, as such was not compulsorily registrable. ....."
In Hari Shankar Singhania & others Vs. Gaur Hari
Singhania & others [(2006) 4 SCC 658], in paras 42, 43, 44 and 53
of its Judgment, the Apex Court stated thus:-
"42. Another fact that assumes importance at
this stage is that, a family settlement is treated
differently from any other formal commercial
settlement as such settlement in the eyes of law
ensures peace and goodwill among the family
members. Such family settlements generally meet
with approval of the courts. Such settlements are
governed by a special equity principle where the
terms are fair and bona fide, taking into account
sa109.15
the well-being of a family.
43. The concept of "family arrangement or
settlement" and the present one in hand, in our
opinion, should be treated differently. Technicalities
of limitation etc should not be put at risk of the
implementation of a settlement drawn by a family,
which is essential for maintaining peace and
harmony in a family. Also it can be seen from
decided cases of this Court that, any such
arrangement would be upheld if family settlements
were entered into to allay disputes existing or
apprehended and even any dispute or difference
apart, if it was entered into bona fide to maintain
peace or to bring about harmony in the family .
Even a semblance of a claim or some other ground,
as say affection, may suffice as observed by this
Court in the case of Ram Charan v. Girija Nandini
Devi.
44. In Lala Khunni Lal v Kunwar Gobind Krishna
Nairain, the Privy Council examined that it is the
duty of the courts to uphold and give full effect to a
family arrangement."
"53. Therefore, in our opinion, technical
considerations should give way to peace and
harmony in enforcement of family arrangements or
settlements."
20. In the case of Roshan Singh & others Vs. Zile Singh &
others [AIR 1988 SC 881], the Apex Court in Para 16 of its judgment
stated thus:-
"16. In the present case, admittedly, there was a
partition by metes and bounds of the agricultural
lands effected in the year 1955 and the shares
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allotted to the two branches were separately
mutated in the revenue records. There was thus a
disruption of joint status. All that remained was the
partition of the ancestral residential house called
rihaishi, the smaller house called baithak and
ghers/ghetwars. The document Exh. P-12 does not
effect a partition but merely records the nature of
the arrangement arrived at as regards the division
of the remaining property. A mere agreement to
divide does not require registration. But if the
writing itself effects a division, it must be
registered. See: Rajangam Ayyar v. Rajangam
Ayyar, (1923) 69 Ind Cas 123 : (AIR 1922 PC 266)
and Nani Bai v. Gita Bai, AIR 1958 SC 706. It is well-
settled that the document though unregistered can
however be looked into for the limited purpose of
establishing a severance in status, though that
severance would ultimately affect the nature of the
possession held by the members of the separated
family as co-tenants. The document Exh. P-12 can
be used for the limited and collateral purpose of
showing that the subsequent division of the
properties allotted was in pursuance of the original
intention to divide. In any view, the document Exh.
P-12 was a mere list of properties allotted to the
shares of the parties."
The view propounded in the above judgments by the Apex Court is to
the effect that Courts should be loath in disturbing the family
arrangements, agreements arrived at between the parties in a Hindu
Family, which arrangement stands acted upon and such family
arrangement must be enforced rather than disturbed by the courts of
law. No technical considerations should give way to peace and
harmony in the family. It is the duty of the Court to uphold and give
sa109.15
full effect to the family arrangements, as it is the desire, wish and will
of the family members with which the Court should not have business
to interfere or interdict and disturb the peace in the family.
The submission made by Mr. Mehadia that DW1
Madankunwar in her cross-examination admitted that there was no
oral partition on 30th December, 1982, as stated in the Partition Fard
[Exh.243], does not appeal to me. After all, the Partition Fard in
Exh.243 in clear terms records the fact of partition having been made
orally on 31st December, 1982, in the presence of Panchas who were
also examined before the Court. In fact, measurements were also
taken and possessions to the respective shareholders were given on
the same day when the oral partition was made and it is thereafter for
remembering, for mutation purpose, oral partition was reduced to
writing on 9th January, 1983, i.e., after about nine days. These are the
recitals in the document [Exh.243], which have been fully corroborated
by the witnesses as well and when the documentary evidence is
produced before the Court, there is no reason why a stray admission
from Defendant No.1, Madankunwar, should be utilized contrary to
what is written in the document [Exh.243]. The fact that oral partition
had taken place earlier in December, 1982 with measurements in the
presence of Panchas and possessions were also given to respective
parties, and it is thereafter only nine days, Partition Fard was prepared,
sa109.15
in order to remember what was allotted in the oral partition and for
mutation purpose. This case squarely falls within the ratio laid down
by the Apex Court in the case of Roshan Singh & others [cited supra]
requiring no registration under Section 17 of the Registration Act. The
decisions cited by Mr. Mehadia do not have any application in this
context. The issue of blending of the share of a female member has no
relevance in the present matter in the light of the above discussion. As
a sequel, I answer Question No.4 in the negative.
21. The upshot of the above entire discussion is, the present
Second Appeal must succeed and the Cross-objection is liable to be
dismissed. Hence I make the following order:-
ORDER
[a] Second Appeal No. 109 of 2015 is allowed.
[b] Cross-Objection No. 11 of 1960 is dismissed.
[c] The Judgment and Decree dated 18th September,
2014 passed by learned District Judge-2,
Chandrapur, in Regular Civil Appeal No. 60 of 2012
is set aside.
sa109.15
[d] The Judgment and Decree dated 20th September,
2001, passed by learned Civil Judge [Senior
Division], Chandrapur, in Special Civil Suit No. 129
of 1987 is restored.
[f] No order as to costs.
Judge
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