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Sikhari Lakshmaiah and ors. Vs. Sikhari Peddamallaiah (Died) and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberC.C.C. Appeal No. 17 of 1975
Judge
Reported inAIR1979AP275
ActsEvidence Act, 1872 - Sections 91; Registration Act, 1908 - Sections 17 and 49
AppellantSikhari Lakshmaiah and ors.
RespondentSikhari Peddamallaiah (Died) and ors.
Appellant AdvocateM.A. Narasaiah Choudary, Adv.
Respondent AdvocateKotam Raju and ;Jenardhana Rag, Advs.
Excerpt:
.....for future partition. 5. on issues 1 and 2 the lower court gave a finding that the partition dated 11-9-1960 is true, that the suit lands were partitioned between defendants 1 and 8 and that their respective shares are being enjoyed separately. he denied the suggestion that the properties are jointly enjoyed by defendants 1 and 8. d. a-1 to a-8 also do not show that the lands are being enjoyed jointly. gopala rao (1941) 54 mad lw 449 it is held that the finding that a deed of partition is inadmissible to show what properties fell to each co--sharer must result in the conclusion that each co-sharer enjoyed an undivided share m each item of the properties and in such circumstances even if one co-sharer happened to be in sole enjoyment of a particular property by virtue of such a..........then defendants 1 and 8 who have been living separately have taken their respective shares in the suit properties also it is not true that the partition dated 11-9-1960 is a nominal one. the plaintiffs having kept quiet all these years, have held this suit with mala fide intention. defendants 6 and 7 who are the daughters of the 1st defendant and who were impleaded subsequently, filed a separate written statement. they also support the plea of the 1st defendant.4. on the basis of these pleadings the lower court filed the following issues:--1. whether the plaint-schedule properties were partitioned on 11-9-1960 between the 1st end 8th defendants as alleged by the 1st defendant in his written statement? 2. whether the alleged partition dated 11-9-1960 is true and valid and binding on the.....
Judgment:

1. The plaintiffs are the appellants. They filed the suit for partition of the plaint schedule proper ties comprised in S. Nos. 864, 865, 866. 867/1, 867/5, 868 and 869 and to allot their share in Ac. 19-29 Guntas in the Schedule properties and put them in possession thereof.

2. The averments in the plaint are as follows:-- The plaintiffs are the sons of the 8th defendant. The 5th defendant is the wife of the 1st defendant. Defendants 1 and 8 are brothers The and defendant is the wife of late Pochaiah the deceased son of the 1st defendant Defendants 3 and 4 are daughters of the 2nd defendant. Defendants 1 and 8 and their father constituted joint family enjoying the plaint schedule properties as well as the other properties which are the ancestral properties. After the death of their father, defendants 1 and 8 continued to enjoy these properties till they got divided some immovable properties between them leaving the plaint-schedule properties undivided for future partition. As per the plaint schedule properties are concerned, they are enjoying them as co-owners. The plaint schedule properties are in the names of defendants land 8 in the revenue records and the 8th defendant is under the influence and control of the 1st defendant and is not interested in looking after the interests of the plaintiffs. if the properties are divided by metes and bounds, the plaintiffs would be in position to carry out improvements the lands allotted to their share. The plaintiffs are making demands to effect partition but the defendants are not caring for the same. Defendants 2 to 4 were entitled to 1/4th share in the plaint schedule properties as successors of undivided share of late Pochaiah They filed a suit against the 1st defendant for partition of the joint family properties. Defendants 1 and 8 brought about a nominal partition-deed in the year 1960 according to which all the plaint-schedule properties are shown to have been partitioned between them. The alleged partition has not been acted upon and is a sham and nominal one. Plaintiffs are not patties to the partition deed and the same is not binding on them. The document is not registered and therefore it is inadmissible in evidence. As the 1st defendant has agreed to sell some portion of the plaint-schedule lands, the suit was filed.

3. In the written statement filed by the 1st defendant the relationship between the parties has been admitted It is further stated that defendants 2 to 4 filed a suit (O. S 33 of 1964) on the file of the First Addl. Judge, Hyderabad it is denied that the plaint schedule properties constitute joint family properties end that the 8th defendant is under the influence of the 1st defendant On 11-9-1960 there was a partition effected between the 1st and 8th defendants in the presence of mediators and the lands in S. Nos. 861/1, 868 and 869/1 have fallen to the share of the 1st defendant. A partition deed was executed and signed by defendants 1 and 8 on 11-9-1960, but the same was not registered Since then defendants 1 and 8 who have been living separately have taken their respective shares in the suit properties also It is not true that the partition dated 11-9-1960 is a nominal one. The plaintiffs having kept quiet all these years, have held this suit with mala fide intention. Defendants 6 and 7 who are the daughters of the 1st defendant and who were impleaded subsequently, filed a separate written statement. They also support the plea of the 1st defendant.

4. On the basis of these pleadings the lower Court filed the following issues:--

1. Whether the plaint-schedule properties were partitioned on 11-9-1960 between the 1st end 8th defendants as alleged by the 1st defendant in his written statement?

2. Whether the alleged partition dated 11-9-1960 is true and valid and binding on the plaintiffs?

3. Whether the alleged partition deed being inadmissible in evidence can be used for collateral purposes to show the partition as alleged by the 1st defendant?

4. Whether the plaintiffs have no cause of action for the suit?

5. Whether the valuation and court fee paid is correct?

6. Whether the allotment of properties in the alleged partition deed was not unequal?

7. To what relief the plaintiffs ate entitled?

5. On issues 1 and 2 the lower Court gave a finding that the partition dated 11-9-1960 is true, that the suit lands were partitioned between defendants 1 and 8 and that their respective shares are being enjoyed separately. On Issue No. 3 the lower Court held that since the partition deed dated 11-9-60 hasn't been filed either by the plaintiffs or the defendants, it is not admitted in evidence and therefore the question of relying on it for collateral purpose does not arise. The findings on other issues are not very material for the purpose of this appeal.

6. The learned counsel for the appellant contends that the partition-deed of the year 1960 is not admissible in evidence and therefore any oral evidence as to what items Tell to the sharers under such an inadmissible partition-deed is inadmissible under Section 91 of the Evidence Act, that even if the plaintiffs and defendants are enjoying some portions of the suit lands separately, they are doing so only as co-owners and therefore a partition by metes and bounds can always be Claimed by them. Before I proceed to consider this question, it becomes necessary to refer to the relevant evidence in this regard.

7. P. W. 1 is the plaintiff No. 1. He deposed that the suit was filed for partition of the plaint schedule proper ties, which item is kept joint. He further deposed that he himself and the 1St defendant are enjoying the suit properties jointly and also paying the Kist in equal shares. In cross-examination he stated that he does not know whether defendants 1 and 8 partitioned 'he 'Chelka' lands. P. W. 3 is the Head-Clerk in the Tahsil Office, Hyderabad Urban. He was examined to mark the Pahanis Exs. A-1 to A--4 and the Chowfasla Ex. A-5. D.W.1 is the husband of the 6th defendant. He proved the tax receipts showing the payment of taxes by the 1st defendant. He also stated that in 1960 there was a partition and the 1st defendant got survey Nos. 867, 868 and 869, while the 8th defendant got S. Nos. 864, 865,867/3 and 866. Defendants 1 and 8 took possession of their respective shares and they have been leasing out their lands separately. He also stated that there was no notice of the filing of the suit. In cross-examination he stated that the 8th defendant is not under the control of the 1st defendant D. W. 2 is an agriculturist having some lands at Malkajgiri. He also stated that there was a partition in the year 1960 between defendants 1 and 8 and they were enjoying their respective shares separately and there is a boundary also duly indicating the lands allotted to the 1st and 8th defendants separately. In cross-examination he stated that defendants 1 and 8 are leasing their respective portions of the land to others. He denied the suggestion that the properties are jointly enjoyed by defendants 1 and 8. D. W. 3 is the brother of D. W. 2. He also spoke about the partition. Therefore the oral evidence of D. Ws. 1 to 3 fully shows that there was such a partition in the year 1960. The case of the plaintiffs also is to the effect that except the suit land all other properties were divided long time back. They simply said that they were not aware of the partition that took place in the year 1460. At any rate, they say that it is only sham and nominal one. It may be mentioned here that the plaintiffs have themselves stated that they are paying kist also separately. P. W. 2 also deposed that defendants 1 and 8 are having lands separately and enjoying them separately. Exts. A-1 to A-8 also do not show that the lands are being enjoyed jointly. In these documents the lands are not shown as joint family properties. Therefore, there is no doubt whatsoever that on 11-91960 there was a partition of the plaint schedule properties between defendants 1 and 8 and they have been enjoying their respective shares separately.

8. Yet another important circumstance to be noted in this regard that admittedly defendants 2 to 4 filed a suit against the 1st defendant for partition. The 2nd defendant is no other than the widow of Pochaiah the pre-deceased son of the 1st defendant, and defendants 3 and 4 are her daughters. That suit O. S. 33 of 1964 was tried by the 1st Additional Judge, City Civil Court, Hyderabed The properties sought to be partitioned in the said suit included Survey Nos. 867/1, 868 and 869 also. According to the defendants, these Survey Numbers also were allotted to the 1st defendant in the partition of 1960. The 8th defendant,, the father of the plaintiffs, gave evidence in O.S. 33 of 1964 supporting the partition of 1960. The suit was decreed and Ex B-l is the copy of the decree. It can, therefore, be seen that S, Nos. 867/1, 868, and 869 fell to the share of the 1st defendant in the partition of 1960. It also shows that there was a partition of the present suit schedule properties in 1960 and the partition was acted upon. Therefore, the plea of the plaintiffs that the partition of 1960 is sham and nominal and not acted upon, has to be rejected outright.

9. But the contention of the learned counsel for the appellants is that all this evidence in support of the partition in the year 1960 cannot be looked into in view of the fact that the partition deed itself is inadmissible as not being registered. It must be mentioned here that neither the plaintiff nor the contesting defendants bled the partition deed dated 11-9-1960. But it is not in dispute that there was such a partition and the same war reduced to writing. That being so, the question is whether the oral evidence can be admitted in view of Section 91 of the Evidence Act. In Veera Raghavarao v. Gopala Rao (1941) 54 Mad LW 449 it is held that the finding that a deed of partition is inadmissible to show what properties fell to each co--sharer must result in the conclusion that each co-sharer enjoyed an undivided share m each item of the properties and in such circumstances even if one co-sharer happened to be in sole enjoyment of a particular property by virtue of such a partition, he cannot sue in ejectment if another ca-owner disturbs such enjoyment and that he could only bring a suit for partition of all the properties. This view of Patanjali J, was upheld by a Full Bench of the Madras High Court in Ramayya v. Achamma (1944) 57 Mad LW 472 and the learned Judges held that where the agreement for partition cannot be proved in Court, the property must be regarded as still belonging to the joint family. In the instant case admittedly the partition deed is unregistered and therefore it is inadmissible. As held by the Division Bench of the Madras High Court in Subbu Naidu v. Varadarajulu Naidu. AIR 1948 Mad 26 no unregistered partition deed is not admissible and the oral evidence to prove the terms of the agreement is barred under Section 91 of the Evidence Act. Therefore, the learned counsel may be right to the extent that where a partition deed is executed at the time when the division in status is brought out, it must be compulsorily registered. other wise it is inadmissible and the oral evidence in support of the terms of the agreement cannot be admitted. But the real question in the present case is whether there was a division in status in the joint family in 1960 for the first time and in accordance with that the suit properties were partitioned or whether the suit properties were divided in 1960 in accordance with the division in status and partition that took place some years ago. The plaintiffs also admit that there was I division in status and also a partition of all the properties belonging to the joint family some years ago. But they however maintain that the suit properties were kept joint for future partition. The defendants also admit that in 1960 the suit properties which were kept joint were partitioned It can, therefore, be seen that the partition of the suit properties in 1960 was only a continuation of the general partition of the properties which was already effected. The parties took possession of their respective shares in 1960 so far as the suit lands are concerned This is also established by the evidence of D.W. 2 Under these circumstances, the principles laid down in veera Raghava Rao v. Gopala Rao, (1941) 54 Mad LW 199 and Ramayya v. Achamma (1144) 57 Mad LW 472 (FB)do not apply to the facts of this case. It is not in dispute that all the joint family members got themselves divided and partitioned the properties some years prior to 1960 and have been enjoying their respective shares separately. It is also agreed that it was decided during the time of the general partition of the properties to keep the suit item joint for future division and there was such a division in 1960 in accordance with the terms agreed upon during the general partition. The two brothers, viz., defendants 1 and 8 were only taking possession of their respective shares in respect of this item of property of which shares were already determined during the general partition Therefore, even if the partition deed of 1960 is not registered, oral evidence can be let in to show that defendants 1 and 8 took over their respective shares of the suit item of property in the year 1960. This view of mine is also supported by a decision of a Division Bench of the Madras High Court in C. S.Kumaraswami v. A Gounder. : AIR1974Mad239 , wherein it is held as follows:

''Thus it will be seen that in the case of an express, completed partition there will be three different stages-(i) the stage of effecting a division in status, (ii) the stage of dividing the properties by metes and bounds and (iii) the stage of each party taking possession of the properties allotted to his share. As far as these three stages are concerned, it is conceded, having regard to the decided cases, that each and every one of them can be effected orally without there being a document. Even if there is a written document in respect of the first and third stages, then also it is conceded that the document does not require registration. because neither the division in status nor the actual taking possession of the properties can be said to create, declare, assign, limit or extinguish any right, title or interest to or in immovable property. Therefore, it is only with regard to the second stage, namely, division of properties different shares and allotment thereof to the various members, if the same is reduced to writing, it requires registration under S. 17(1)(b) of the Act. Under the Hindu Law, it is well settled that, severance in status can take place either by the unilateral declaration of one of the coparceners or by agreement between all the coparceners. Where severance is effected as above, it is not a transaction which requires any writing and even if it is effected by means of any instrument in writing, that will not fall within the scope of S. 19(1)(b) of the Act. Similar will be the position with regard to taking possession of the properties. From the very nature of the case. once a division of the properties by metes and bounds has taken place as between the members of a coparcenary and the parties take possession as exclusive owners of the respective items allotted to them, such a partition assumes a division in status having taken place between the parties. Therefore, though an unregistered partition deed cannot be admitted in evidence to prove the terms of the partition it can certainly be admitted in evidence for proving the division in status and the fact of partition, as pointed out by several decisions based on the judgment of the Privy Council in Rajangam Ayyar v. Rajangam Ayyar. 50 Ind App 134: (AIR 1922 PC 266). Similarly, taking possession of the shares allotted to each one of the parties at the partition will be a purpose collateral to the purpose of partition and such taking possession not creating. declaring assigning, limiting or extinguishing any right, title or interest to or in immovable property, will not require registration.'

10. For aforesaid reasons, the appeal is dismissed with costs.

11. Appeal dismissed.


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