It has been clearly laid down that once the shares
are defined by way of partition, the partition becomes
complete. The parties may divide the property by
metes and bounds or they may continue to live together
and enjoy the property in common as before. Such
conduct affects only the mode of enjoyment but not
the tenure of the property. The property ceases to be
the joint family property upon the shares being defined
and the parties hold the property as the
tenantsin common. The Courts below have, therefore,
committed an error in holding that the property
continued to be the joint family property in spite of the
registered Partition Deed dated 641955.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Second Appeal No.393 of 1995.
1] Smt. Venubai wd/o Natthu @ Devidas
….VERSUS ....
1] Smt. Vimlabai w/o Keshaorao Thakare,
Coram : R. K. Deshpande, J
Date : February 06, 2013.
Citation; 2013 (3) MH L J 895
1. Heard finally by consent of the learned Advocates
appearing for the parties.
2. In Special Civil Suit No.38 of 1979 the learned Civil
Judge, Senior Division, Amravati passed a decree for
partition and separate possession on 991986 with all
other consequential orders. The plaintiff Vimalabai was
held entitled to 1/8th share in the whole properties
described in PartI ScheduleB attached to the plaint,
except the portion of field Survey Nos.51/1 and 53/1
situated at village Sonora Kakade Pragane Mangrul
Dastgir, Tq. Chandur Rly, District Amravati sold by
Motiram. Regular Civil Appeal Nos.496 of 1986 and
498 of 1986 preferred by both the parties were
dismissed on 2121995 with some modification to the
extent of holding the plaintiff entitled to 1/24th share in
the properties shown in ScheduleB (Part I and II),
agricultural lands and house property except the
property sold by Motiram during his life time. Hence,
this second appeal by the original defendant Nos. 8 & 9
claiming through the defendant No.1.
3. Undisputed factual position is that the ancestral
property in the hands of one Motiram Mankar was
partitioned by executing a registered Partition Deed
dated 641955 to which Natthuji @ Devidas the
defendant No.1 who was the son of Tulsabai the first
wife of Motiram was a party. The property which had
fallen to the share of Motiram in this partition was
further partitioned on 27101969 between Motiram and
his third wife Satyabhama the defendant No.2. There
were other transactions also in the form of Gift Deed
and Exchange Deed and it is not necessary to refer
them here. Vimalabai the original plaintiff who claimed
to be the daughter of Narmadabai the second wife of
Motiramji filed a suit in question i.e Special Civil Suit
No.38 of 1979 for partition and separate possession of
1/8th share in the entire property excluding the property
sold by Motiramji in the year 1977.
4. Both the Courts below have disbelieved the
registered Partition Deed dated 641955 for the reason
that the burden of proof to prove that the Partition Deed
was real, genuine and not nominal was upon the
defendants which was not discharged and that there
was evidence brought on record to establish that the
parties continued to live together and enjoy the
property in common as before. It is not in dispute that
if such Partition Deed is accepted to be true, correct
and binding upon the parties, the plaintiff will be
entitled to 1/24th share in the property which had fallen
to the share of Motiramji Mankar alone of course
excluding the property which was sold by Motiram and
excluded by the Courts below. In such eventuality, the
plaintiff would not be entitled either 1/8th share or 1/24th
share in the entire property as has been held by the
Courts below.
5. While admitting this second appeal the Court had
framed the following substantial questions of law :
“1] Whether both the Courts below were
justified in holding that the partition deed dated
6.4.1995 was nominal, not real and genuine,
since not acted upon by the parties ?”
“2] Whether the burden of proving the
existence of joint family was on the original
plaintiff, especifically on the face of the
registered partition deed dated 6.4.1955? If yes.
whether the Courts below were right in casting
the negative burden on the appellants?”
“3] Whether Section 23 of the Hindu
Succession Act imposes a restriction on a
female heir to demand partition of a house
property? If yes, whether the original plaintiff
can enforce a partition in respect of the house
property shown in ScheduleB of the plaint?”
6. So far as the substantial question of law at serial
No.3 is concerned, it is conceded by Sh. Sohoni, the
learned Advocate appearing for the appellants that the
plaintiff would be entitled to 1/24th share in the property
which had fallen to the share of Motiramji in the
Partition Deed dated 641955. Hence, the said
substantial question of law does not deserve any
consideration.
7. Sh. Sohoni, the learned Advocate appearing for
the appellantdefendants has urged that it is the
plaintiff who is coming before the Court with a case
that the registered Partition Deed dated 641955 was
not real, genuine but was nominal and not to be acted
upon. He, therefore submits that once the Partition
Deed is proved it is for the plaintiff to establish the case
with which he has come before the Court. If the facts
are not proved then it is the plaintiff who shall fail in
the matter. He, therefore, submits that the Courts
below have committed an error in holding that the
burden of proof in respect of such facts was upon the
appellantdefendants. Relying upon para 322 of Mulla’s
Principles of Hindu Law, he has urged that once the
shares are defined, the parties may continue to live
together and enjoy the property in common as before.
He submits that the property ceases to be the joint
family property. Sh. Badhe, the learned Advocate
appearing for the plaintiffrespondents has supported
the findings recorded by the Courts below.
8. The Partition Deed dated 641955 is a registered
document and it is proved and marked as Exhibit116. It
is the plaintiff who is coming before the Court with a
case that this Partition Deed was not the real, genuine
but was merely a nominal and the parties had decided
not to act upon it. In view of this, the burden of proof in
respect of such facts clearly lay upon the
plaintiffrespondents. The Courts below have
committed an error of law in holding that it was the
burden upon the appellantdefendants to establish that
the said Partition Deed was real, genuine and binding
upon the parties.
9. The provisions contained in para 322 of Mulla’s
Principles of Hindu Law relied upon by Sh. Sohoni is
reproduced below :
“322. What is Partition.According to the
true notion of an undivided Mitakshara
family, no individual member of that family,
whilst it remains undivided, can predicate of
the joint property, that he—that particular
memberhas a certain definite share,
onethird or onefourth. Partition, according
to that law, consists in a numerical division
of the property; in other words, it consists in
defining the shares of the coparceners in the
joint property; an actual division of the
property by metes and bounds is not
necessary ( c). Once the shares are defined,
whether by an agreement between the parties
or otherwise, the partition is complete. After
the shares are so defined, the parties may
divide the property by metes and bounds, or
they may continue to live together and enjoy
the property in common as before. But
whether they do the one or the other, it
affects only the mode of enjoyment, but not
the tenure of the property. The property
ceases to be joint immediately the shares are
defined, and thenceforth the parties hold the
property as tenantsincommon (d).
Where at a partition between a Hindu,
his two sons, and his two wives onefifth
was allotted to each of the sons and
threefifths to the father and his wives, it was
held that the father and his wives became
tenantsincommon, but though they had not
divided their shares by metes and bounds
inter se there could be no reunion between
them, and the father therefore had no right to
sell the properties of the wives and any such
alienation by him was not binding on them
(e).”
It has been clearly laid down that once the shares
are defined by way of partition, the partition becomes
complete. The parties may divide the property by
metes and bounds or they may continue to live together
and enjoy the property in common as before. Such
conduct affects only the mode of enjoyment but not
the tenure of the property. The property ceases to be
the joint family property upon the shares being defined
and the parties hold the property as the
tenantsin common. The Courts below have, therefore,
committed an error in holding that the property
continued to be the joint family property in spite of the
registered Partition Deed dated 641955.
10. In the result, the second appeal is allowed. The
Judgment and decree dated 991986 passed in
Regular Civil Suit No.38 of 1979 by the trial Court as
modified by the appellate Court in Regular Civil Appeal
Nos.496 of 1986 and 498 of 1986 by its common
Judgment and order dated 2121995 is hereby quashed
and set aside to the extent of granting 1/8th or 1/24th
share to the plaintiff in the entire suit property. It is
held that the plaintiff is entitled to 1/24th share in the
properties which had fallen only to the share of
Motiramji at the time of his death, of course excluding
the property which was sold i.e 51/1 and 53/1 situated
at Sonora Kakde Pragane Mangrul Dastgir, Taluka
Chandur Rly., District Amravati which was sold by
Motiramji. Rest of the decree passed by the trial Court
is maintained in respect of share of the plaintiff as
decreed by this Court. No order as to costs.
JUDGE
Deshmukh
Print Page
are defined by way of partition, the partition becomes
complete. The parties may divide the property by
metes and bounds or they may continue to live together
and enjoy the property in common as before. Such
conduct affects only the mode of enjoyment but not
the tenure of the property. The property ceases to be
the joint family property upon the shares being defined
and the parties hold the property as the
tenantsin common. The Courts below have, therefore,
committed an error in holding that the property
continued to be the joint family property in spite of the
registered Partition Deed dated 641955.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Second Appeal No.393 of 1995.
1] Smt. Venubai wd/o Natthu @ Devidas
….VERSUS ....
1] Smt. Vimlabai w/o Keshaorao Thakare,
Coram : R. K. Deshpande, J
Date : February 06, 2013.
Citation; 2013 (3) MH L J 895
1. Heard finally by consent of the learned Advocates
appearing for the parties.
2. In Special Civil Suit No.38 of 1979 the learned Civil
Judge, Senior Division, Amravati passed a decree for
partition and separate possession on 991986 with all
other consequential orders. The plaintiff Vimalabai was
held entitled to 1/8th share in the whole properties
described in PartI ScheduleB attached to the plaint,
except the portion of field Survey Nos.51/1 and 53/1
situated at village Sonora Kakade Pragane Mangrul
Dastgir, Tq. Chandur Rly, District Amravati sold by
Motiram. Regular Civil Appeal Nos.496 of 1986 and
498 of 1986 preferred by both the parties were
dismissed on 2121995 with some modification to the
extent of holding the plaintiff entitled to 1/24th share in
the properties shown in ScheduleB (Part I and II),
agricultural lands and house property except the
property sold by Motiram during his life time. Hence,
this second appeal by the original defendant Nos. 8 & 9
claiming through the defendant No.1.
3. Undisputed factual position is that the ancestral
property in the hands of one Motiram Mankar was
partitioned by executing a registered Partition Deed
dated 641955 to which Natthuji @ Devidas the
defendant No.1 who was the son of Tulsabai the first
wife of Motiram was a party. The property which had
fallen to the share of Motiram in this partition was
further partitioned on 27101969 between Motiram and
his third wife Satyabhama the defendant No.2. There
were other transactions also in the form of Gift Deed
and Exchange Deed and it is not necessary to refer
them here. Vimalabai the original plaintiff who claimed
to be the daughter of Narmadabai the second wife of
Motiramji filed a suit in question i.e Special Civil Suit
No.38 of 1979 for partition and separate possession of
1/8th share in the entire property excluding the property
sold by Motiramji in the year 1977.
4. Both the Courts below have disbelieved the
registered Partition Deed dated 641955 for the reason
that the burden of proof to prove that the Partition Deed
was real, genuine and not nominal was upon the
defendants which was not discharged and that there
was evidence brought on record to establish that the
parties continued to live together and enjoy the
property in common as before. It is not in dispute that
if such Partition Deed is accepted to be true, correct
and binding upon the parties, the plaintiff will be
entitled to 1/24th share in the property which had fallen
to the share of Motiramji Mankar alone of course
excluding the property which was sold by Motiram and
excluded by the Courts below. In such eventuality, the
plaintiff would not be entitled either 1/8th share or 1/24th
share in the entire property as has been held by the
Courts below.
5. While admitting this second appeal the Court had
framed the following substantial questions of law :
“1] Whether both the Courts below were
justified in holding that the partition deed dated
6.4.1995 was nominal, not real and genuine,
since not acted upon by the parties ?”
“2] Whether the burden of proving the
existence of joint family was on the original
plaintiff, especifically on the face of the
registered partition deed dated 6.4.1955? If yes.
whether the Courts below were right in casting
the negative burden on the appellants?”
“3] Whether Section 23 of the Hindu
Succession Act imposes a restriction on a
female heir to demand partition of a house
property? If yes, whether the original plaintiff
can enforce a partition in respect of the house
property shown in ScheduleB of the plaint?”
6. So far as the substantial question of law at serial
No.3 is concerned, it is conceded by Sh. Sohoni, the
learned Advocate appearing for the appellants that the
plaintiff would be entitled to 1/24th share in the property
which had fallen to the share of Motiramji in the
Partition Deed dated 641955. Hence, the said
substantial question of law does not deserve any
consideration.
7. Sh. Sohoni, the learned Advocate appearing for
the appellantdefendants has urged that it is the
plaintiff who is coming before the Court with a case
that the registered Partition Deed dated 641955 was
not real, genuine but was nominal and not to be acted
upon. He, therefore submits that once the Partition
Deed is proved it is for the plaintiff to establish the case
with which he has come before the Court. If the facts
are not proved then it is the plaintiff who shall fail in
the matter. He, therefore, submits that the Courts
below have committed an error in holding that the
burden of proof in respect of such facts was upon the
appellantdefendants. Relying upon para 322 of Mulla’s
Principles of Hindu Law, he has urged that once the
shares are defined, the parties may continue to live
together and enjoy the property in common as before.
He submits that the property ceases to be the joint
family property. Sh. Badhe, the learned Advocate
appearing for the plaintiffrespondents has supported
the findings recorded by the Courts below.
8. The Partition Deed dated 641955 is a registered
document and it is proved and marked as Exhibit116. It
is the plaintiff who is coming before the Court with a
case that this Partition Deed was not the real, genuine
but was merely a nominal and the parties had decided
not to act upon it. In view of this, the burden of proof in
respect of such facts clearly lay upon the
plaintiffrespondents. The Courts below have
committed an error of law in holding that it was the
burden upon the appellantdefendants to establish that
the said Partition Deed was real, genuine and binding
upon the parties.
9. The provisions contained in para 322 of Mulla’s
Principles of Hindu Law relied upon by Sh. Sohoni is
reproduced below :
“322. What is Partition.According to the
true notion of an undivided Mitakshara
family, no individual member of that family,
whilst it remains undivided, can predicate of
the joint property, that he—that particular
memberhas a certain definite share,
onethird or onefourth. Partition, according
to that law, consists in a numerical division
of the property; in other words, it consists in
defining the shares of the coparceners in the
joint property; an actual division of the
property by metes and bounds is not
necessary ( c). Once the shares are defined,
whether by an agreement between the parties
or otherwise, the partition is complete. After
the shares are so defined, the parties may
divide the property by metes and bounds, or
they may continue to live together and enjoy
the property in common as before. But
whether they do the one or the other, it
affects only the mode of enjoyment, but not
the tenure of the property. The property
ceases to be joint immediately the shares are
defined, and thenceforth the parties hold the
property as tenantsincommon (d).
Where at a partition between a Hindu,
his two sons, and his two wives onefifth
was allotted to each of the sons and
threefifths to the father and his wives, it was
held that the father and his wives became
tenantsincommon, but though they had not
divided their shares by metes and bounds
inter se there could be no reunion between
them, and the father therefore had no right to
sell the properties of the wives and any such
alienation by him was not binding on them
(e).”
It has been clearly laid down that once the shares
are defined by way of partition, the partition becomes
complete. The parties may divide the property by
metes and bounds or they may continue to live together
and enjoy the property in common as before. Such
conduct affects only the mode of enjoyment but not
the tenure of the property. The property ceases to be
the joint family property upon the shares being defined
and the parties hold the property as the
tenantsin common. The Courts below have, therefore,
committed an error in holding that the property
continued to be the joint family property in spite of the
registered Partition Deed dated 641955.
10. In the result, the second appeal is allowed. The
Judgment and decree dated 991986 passed in
Regular Civil Suit No.38 of 1979 by the trial Court as
modified by the appellate Court in Regular Civil Appeal
Nos.496 of 1986 and 498 of 1986 by its common
Judgment and order dated 2121995 is hereby quashed
and set aside to the extent of granting 1/8th or 1/24th
share to the plaintiff in the entire suit property. It is
held that the plaintiff is entitled to 1/24th share in the
properties which had fallen only to the share of
Motiramji at the time of his death, of course excluding
the property which was sold i.e 51/1 and 53/1 situated
at Sonora Kakde Pragane Mangrul Dastgir, Taluka
Chandur Rly., District Amravati which was sold by
Motiramji. Rest of the decree passed by the trial Court
is maintained in respect of share of the plaintiff as
decreed by this Court. No order as to costs.
JUDGE
Deshmukh
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