Smt.Sudhabai vs Mohanlal
2022 Latest Caselaw 6456 MP

                                                                    1
                                              IN THE HIGH COURT OF MADHYA PRADESH
                                                            AT INDORE
                                                                   BEFORE
                                                     HON'BLE SHRI JUSTICE PRANAY VERMA
                                                            ON THE 29th OF APRIL, 2022

                                                      WRIT PETITION No. 5194 of 2015

                                         Between:-
                                1.       SMT. SUDHABAI W/O LATE SHRI MAKHANLAL
                                         VERMA, AGED ABOUT 40 YEARS, OCCUPATION:
                                         HOUSE WIFE CHITRA NAGAR RASOMA SQUARE
                                         INDORE (MADHYA PRADESH)

                                2.       PALLAVI D/O LATE MAKHANLAL VERMA, AGED
                                         ABOUT    19   YEARS, OCCUPATION: STUDENT
                                         CHITRA NAGAR, RASOME SQUARE (MADHYA
                                         PRADESH)

                                3.       PRAJAKTA D/O LATE MAKHANLAL VERMA, AGED
                                         ABOUT    18   YEARS, OCCUPATION: STUDENT
                                         CHITRA NAGAR, RASOMA SQUARE (MADHYA
                                         PRADESH)

                                                                                                  .....PETITIONERS
                                         (BY SHRI KAUSTUBH PATHAK, ADVOCATE)

                                         AND

                                1.       MOHANLAL S/O LATE SHRI GANNULAL, AGED
                                         ABOUT 53 YEARS, OCCUPATION: BUSINESS, R/O
                                         BAHETI COLONY, NEAR OM CHAT HOUSE
                                         SANAWAD (MADHYA PRADESH)

                                2.       SOHANLAL S/O GANNULAL, AGED ABOUT 53
                                         YEARS, OCCUPATION: BUSINESS. R/O 27 AZAAD
                                         NAGAR, AZAD ROAD, NEAR JAIN MANDIR
                                         SANAWAD,     DISTT.KHARGONE      (MADHYA
                                         PRADESH)

                                                                                                .....RESPONDENTS
                                         (NONE FOR THE RESPONDENTS THOUGH SERVED)

                                      This petition coming on for orders this day, the court passed the following:
                                                                      ORDER

By this petition preferred under Article 227 of the Constitution of India, the petitioners/plaintiffs have challenged the order dated 15.05.2015 passed by the trial Court whereby their application under Section 65 of the Indian Evidence Act for grant of permission to lead secondary evidence in respect of document dated 02.07.1997 has been rejected.

Signature Not Verified SAN They have also challenged the order dated 10.07.2015 passed by the trial Digitally signed by JYOTI CHOURASIA Court whereby their application for receiving the said document for collateral Date: 2022.05.04 11:11:46 IST

purpose has been rejected by holding that the document is a partition deed and is not a memorandum of oral partition.

A perusal of document dated 02.07.1997 (Annexure P/4) leaves no room for doubt that the same is not a partition deed but is a memorandum of oral partition

having been effected between the parties at an earlier stage. The document specifically recites that the property mentioned therein has been partitioned and shares have been allotted to different parties and they have been put in possession of their respective shares and since the partition had been oral and no writing having been executed in that regard, the document is being written as a memorandum of past transaction.

The trial Court has not appreciated the contents of the document in proper perspective and has held the same to be a partition deed and not a memorandum of oral partition. In this regard the judgments relied upon by learned counsel for the petitioner in Prahlad vs. Shiv Nandan Kumari (dead) through L.Rs. and Ors. I.L.R. [2010] M.P.2441, Roshan Singh and others vs. Zile Singh and others, AIR 1988 SC 881 a n d Kale & Others vs. Deputy Direction of Consolidation, AIR 1976 SC 807 are squarely applicable to the facts of the case.

Consequently, the impugned orders are set aside and the document dated 02.07.1997 is held to be a memorandum of oral partition and not a partition deed. The trial Court is directed to re-consider the applications filed by the petitioners in view of the aforesaid finding afresh in accordance with law.

With the above direction, the petition allowed and disposed off.

(PRANAY VERMA) JUDGE jyoti

Signature Not Verified SAN

Digitally signed by JYOTI CHOURASIA Date: 2022.05.04 11:11:46 IST