I have considered the rival submissions made
by learned counsel for the parties. I have also
perused the material on record and in particular,
document dated 24th June, 1980. By that document,
Vishwanath and Raosaheb had relinquished their
share in survey no.63. In so far as the submission
of Mr.Tungar that in the past, an agreement was
entered into among the brothers is concerned,
perusal of document does not indicate the said
fact. In my view, by that document itself,
Vishwanath and Raosaheb had relinquished their
share in survey no.63. If that be so, as per
Section 17 of the Act, said document is required to
be compulsorily registered and proper stamp duty is
required to be paid thereon. The learned trial
Judge, therefore, declined to exhibit the said
document.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.1302 OF 2013
Santosh Motiram Solanke Vs Arjun Asaram Solanke
CORAM : R.G.KETKAR, J.
DATE : JULY 4, 2013
Citation; 2014(2) ALL MR 273
Heard Mr.N.K.Tungar, learned counsel appearing
for the petitioners and Ms.M.B.Gangwal, learned
counsel for respondents.
2] By this petition under Articles 226 of the
Constitution of India, the original defendants have
challenged the judgment and order dated 18th
January, 2013 passed by the learned Civil Judge
Junior Division, Dharur below exhibit 73 in Regular
Civil Suit No.83 of 2011. By that order, the
learned trial Judge rejected the application made
by the defendants for exhibiting the document dated
24th June, 1980.
3] In support of this petition, Mr.Tungar invited
my attention to the document styled as agreement
dated 24th June, 1980. By that agreement,
Shri.Vishwanath Rustumrao and Shri.Raosaheb @
Jhumbar Shahajirao Solanke had relinquished their
share in survey no.63. He submitted that there was
already a family arrangement among the family
members and the said facts were reduced in
writing. He submitted that under that agreement,
partition was not effected. He, therefore,
submitted that the learned trial Judge committed
error in holding that this document cannot be
exhibited as it is not registered as per Section 17
of the Indian Registration Act, 1908 (for short
“the Act”).
4] In support of his submissions, he relied upon
decisions of the Apex Court in the case of (i)
V.N.Sarin Vs. Ajit Kumar Poplai, AIR 1966 SC 432,
and (ii) Digambar Adhar Patil Vs. Devram Girdhar
Patil (died), AIR 1995 SC 1728.
5] On the other hand, the learned counsel for the
respondents supported the impugned order.
6] I have considered the rival submissions made
by learned counsel for the parties. I have also
perused the material on record and in particular,
document dated 24th June, 1980. By that document,
Vishwanath and Raosaheb had relinquished their
share in survey no.63. In so far as the submission
of Mr.Tungar that in the past, an agreement was
entered into among the brothers is concerned,
perusal of document does not indicate the said
fact. In my view, by that document itself,
Vishwanath and Raosaheb had relinquished their
share in survey no.63. If that be so, as per
Section 17 of the Act, said document is required to
be compulsorily registered and proper stamp duty is
required to be paid thereon. The learned trial
Judge, therefore, declined to exhibit the said
document.
7] In the case of V.N.Sarin (supra), the Apex
Court considered Section 5 of Transfer of Property
Act, 1882 as also Section 14(6) of the Delhi Rent
Control Act, 1958. In paragraph 10 of that report,
the contention raised on behalf of the appellant
that when an item of property belonging to the
undivided Hindu family is allotted to the share of
one of the coparceners on partition, such allotment
in substance amounts to the transfer of the said
property to the said person and it is, therefore,
an acquisition of the said property by transferwas
considered. The Apex Court observed as under :
“.....Prima facie, it is not easy to
accept this contention. Community of
interest and unity of possession are the
essential attributes of coparcenary
property; and so, the true effect of
partition is that each coparcener gets a
specific property in lieu of his
undivided right in respect of the
totality of the property of the family.
In other words, what happens at a
partition is that in lieu of the property
allotted to individual coparceners they,
in substance, renounce their right in
respect of the other properties; they get
exclusive title to the properties
allotted to them and as a consequence,
they renounce their undefined right in
respect of the rest of the property. The
process of partition, therefore, involves
the transfer of joint enjoyment of the
properties by all the coparceners into an
enjoyment in severality by them of the
respective properties allotted to their
shares. Having regard to this basic
character of joint Hindu family property,
it cannot be denied that each coparcener
has an antecedent title to the said
property, though its extent is not
determined until partition takes place.
That being so, partition really means
that whereas initially all the
coparceners have subsisting title to the
totality of the property of the family
jointly, that joint title is by partition
transformed into separate titles of the
individual coparceners in respect of
several items of properties allotted to
them respectively. If that be the true
nature of partition, it would not be easy
to uphold the broad contention raised by
Mr. Purshottam that Partition of an
undivided Hindu family property must
necessarily mean transfer of the property
to the individual coparceners. As was
observed by the Privy Council in Girja
Bal v. Sadashiv Dhunadiraj and Others.(1)
"Partition does not give him (a
coparcener) a title or create a title in
him; it only enables him to obtain what
is his own in a definite and specific
form for purposes of disposition
independent of the wishes of his former
co sharers".
In paragraph 13 of that report, the Apex Court
confined its decision to a narrow question related
to Section 14(6) and observed as under :
“In regard to cases falling under s.
14(6), a person who had no title to the
premises and in that sense, was a
stranger, becomes a land lord by virtue
of the transfer. In regard to a
partition, the position is entirely
different. When the appellant was
inducted into the premises, the premises
belonged to the undivided Hindu family
consisting of respondent No. 1, his
father and his brother. After partition,
instead of the undivided Hindu family,
respondent No.1. alone bad become
landlord of the premises. We are
satisfied that it would be unreasonable
to hold that allotment of one parcel of
property belonging to an undivided Hindu
family to an individual coparcener as a
result of partition is an acquisition of
the said property by transfer by the said
coparcener within the meaning of s.
14(6). In our opinion, the High Court was
right in coming to the conclusion that s.
14 (6) did not create a bar against the
institution of the application by
respondent No. 1 for evicting the
appellant.
In the case of Digambar Adhar Patil (supra), the
Apex Court observed that it is not necessary that
the partition should be affected by a registered
partition deed. Even a family arrangement is
enough to effectuate the partition between the
coparceners.
8] In my opinion, the decisions relied upon by
Mr.Tungar do not advance the case of the petitioner
as, prima facie, I have already held that by
document dated 26th June, 1980, Vishwanath and
Raosaheb had relinquished their share in survey no.
63.
9] I do not find that the learned trial Judge
committed any error in passing the impugned order.
The Writ Petition fails and the same is dismissed.
10] It is expressly made clear that the
observations made herein are tentative and prima
facie and the learned trial Judge shall decide the
suit on the basis of material on record, as also,
on its own merits and in accordance with law,
uninfluenced by the observations made herein.
11] It is further expressly made clear that where
the decree is appealed from by the petitioners, any
error, defect or irregularity in the impugned
order, affecting the decision of the case, may be
set forth as a ground of objection in the
memorandum of appeal, as per Section 105(1) of the
Code of Civil Procedure, 1908.
[R.G.KETKAR, J.]
Print Page
by learned counsel for the parties. I have also
perused the material on record and in particular,
document dated 24th June, 1980. By that document,
Vishwanath and Raosaheb had relinquished their
share in survey no.63. In so far as the submission
of Mr.Tungar that in the past, an agreement was
entered into among the brothers is concerned,
perusal of document does not indicate the said
fact. In my view, by that document itself,
Vishwanath and Raosaheb had relinquished their
share in survey no.63. If that be so, as per
Section 17 of the Act, said document is required to
be compulsorily registered and proper stamp duty is
required to be paid thereon. The learned trial
Judge, therefore, declined to exhibit the said
document.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.1302 OF 2013
Santosh Motiram Solanke Vs Arjun Asaram Solanke
CORAM : R.G.KETKAR, J.
DATE : JULY 4, 2013
Citation; 2014(2) ALL MR 273
Heard Mr.N.K.Tungar, learned counsel appearing
for the petitioners and Ms.M.B.Gangwal, learned
counsel for respondents.
2] By this petition under Articles 226 of the
Constitution of India, the original defendants have
challenged the judgment and order dated 18th
January, 2013 passed by the learned Civil Judge
Junior Division, Dharur below exhibit 73 in Regular
Civil Suit No.83 of 2011. By that order, the
learned trial Judge rejected the application made
by the defendants for exhibiting the document dated
24th June, 1980.
3] In support of this petition, Mr.Tungar invited
my attention to the document styled as agreement
dated 24th June, 1980. By that agreement,
Shri.Vishwanath Rustumrao and Shri.Raosaheb @
Jhumbar Shahajirao Solanke had relinquished their
share in survey no.63. He submitted that there was
already a family arrangement among the family
members and the said facts were reduced in
writing. He submitted that under that agreement,
partition was not effected. He, therefore,
submitted that the learned trial Judge committed
error in holding that this document cannot be
exhibited as it is not registered as per Section 17
of the Indian Registration Act, 1908 (for short
“the Act”).
4] In support of his submissions, he relied upon
decisions of the Apex Court in the case of (i)
V.N.Sarin Vs. Ajit Kumar Poplai, AIR 1966 SC 432,
and (ii) Digambar Adhar Patil Vs. Devram Girdhar
Patil (died), AIR 1995 SC 1728.
5] On the other hand, the learned counsel for the
respondents supported the impugned order.
6] I have considered the rival submissions made
by learned counsel for the parties. I have also
perused the material on record and in particular,
document dated 24th June, 1980. By that document,
Vishwanath and Raosaheb had relinquished their
share in survey no.63. In so far as the submission
of Mr.Tungar that in the past, an agreement was
entered into among the brothers is concerned,
perusal of document does not indicate the said
fact. In my view, by that document itself,
Vishwanath and Raosaheb had relinquished their
share in survey no.63. If that be so, as per
Section 17 of the Act, said document is required to
be compulsorily registered and proper stamp duty is
required to be paid thereon. The learned trial
Judge, therefore, declined to exhibit the said
document.
7] In the case of V.N.Sarin (supra), the Apex
Court considered Section 5 of Transfer of Property
Act, 1882 as also Section 14(6) of the Delhi Rent
Control Act, 1958. In paragraph 10 of that report,
the contention raised on behalf of the appellant
that when an item of property belonging to the
undivided Hindu family is allotted to the share of
one of the coparceners on partition, such allotment
in substance amounts to the transfer of the said
property to the said person and it is, therefore,
an acquisition of the said property by transferwas
considered. The Apex Court observed as under :
“.....Prima facie, it is not easy to
accept this contention. Community of
interest and unity of possession are the
essential attributes of coparcenary
property; and so, the true effect of
partition is that each coparcener gets a
specific property in lieu of his
undivided right in respect of the
totality of the property of the family.
In other words, what happens at a
partition is that in lieu of the property
allotted to individual coparceners they,
in substance, renounce their right in
respect of the other properties; they get
exclusive title to the properties
allotted to them and as a consequence,
they renounce their undefined right in
respect of the rest of the property. The
process of partition, therefore, involves
the transfer of joint enjoyment of the
properties by all the coparceners into an
enjoyment in severality by them of the
respective properties allotted to their
shares. Having regard to this basic
character of joint Hindu family property,
it cannot be denied that each coparcener
has an antecedent title to the said
property, though its extent is not
determined until partition takes place.
That being so, partition really means
that whereas initially all the
coparceners have subsisting title to the
totality of the property of the family
jointly, that joint title is by partition
transformed into separate titles of the
individual coparceners in respect of
several items of properties allotted to
them respectively. If that be the true
nature of partition, it would not be easy
to uphold the broad contention raised by
Mr. Purshottam that Partition of an
undivided Hindu family property must
necessarily mean transfer of the property
to the individual coparceners. As was
observed by the Privy Council in Girja
Bal v. Sadashiv Dhunadiraj and Others.(1)
"Partition does not give him (a
coparcener) a title or create a title in
him; it only enables him to obtain what
is his own in a definite and specific
form for purposes of disposition
independent of the wishes of his former
co sharers".
In paragraph 13 of that report, the Apex Court
confined its decision to a narrow question related
to Section 14(6) and observed as under :
“In regard to cases falling under s.
14(6), a person who had no title to the
premises and in that sense, was a
stranger, becomes a land lord by virtue
of the transfer. In regard to a
partition, the position is entirely
different. When the appellant was
inducted into the premises, the premises
belonged to the undivided Hindu family
consisting of respondent No. 1, his
father and his brother. After partition,
instead of the undivided Hindu family,
respondent No.1. alone bad become
landlord of the premises. We are
satisfied that it would be unreasonable
to hold that allotment of one parcel of
property belonging to an undivided Hindu
family to an individual coparcener as a
result of partition is an acquisition of
the said property by transfer by the said
coparcener within the meaning of s.
14(6). In our opinion, the High Court was
right in coming to the conclusion that s.
14 (6) did not create a bar against the
institution of the application by
respondent No. 1 for evicting the
appellant.
In the case of Digambar Adhar Patil (supra), the
Apex Court observed that it is not necessary that
the partition should be affected by a registered
partition deed. Even a family arrangement is
enough to effectuate the partition between the
coparceners.
8] In my opinion, the decisions relied upon by
Mr.Tungar do not advance the case of the petitioner
as, prima facie, I have already held that by
document dated 26th June, 1980, Vishwanath and
Raosaheb had relinquished their share in survey no.
63.
9] I do not find that the learned trial Judge
committed any error in passing the impugned order.
The Writ Petition fails and the same is dismissed.
10] It is expressly made clear that the
observations made herein are tentative and prima
facie and the learned trial Judge shall decide the
suit on the basis of material on record, as also,
on its own merits and in accordance with law,
uninfluenced by the observations made herein.
11] It is further expressly made clear that where
the decree is appealed from by the petitioners, any
error, defect or irregularity in the impugned
order, affecting the decision of the case, may be
set forth as a ground of objection in the
memorandum of appeal, as per Section 105(1) of the
Code of Civil Procedure, 1908.
[R.G.KETKAR, J.]
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