Badrilal (decd) Thr. L.Rs. Bherulal and others vs Gita Bai wd/o Mathuralal and others

THE appellants/plaintiffs have filed the present appeal being aggrieved by judgment and decree dated 30.11.2000 passed by Fourth Additional

District Judge, Dewas by which Civil Suit No.96-A/1998 has been dismissed.

Badrilal (since dead now represented through legal heirs) filed the suit for declaration claiming 1/4th share in the House No.18, Sutar Bakhal,

Dewas [hereinafter referred to as ""the suit house""]. As per the pleadings in the plaint, the suit house is recorded in the name of Sonibai who died on

21.07.1987. Mathuralal, the son of Sonibai, had expired on 19.02.1982. The defendant Nos.1 to 3 are sons of Mathuralal and defendant No.5 is

a daughter of Sonibai. The plaintiff Badrilal, late Mathuralal and defendant No.4 Girdharilal are real brothers and sons of Sonibai. According to the

plaintiff no partition had taken place between the three brothers. After the marriage of Mathuralal, Badrilal and Girdharilal, the dispute started and

also due to shortage of space, the plaintiff Badrilal had started living separately in a rented house. Since the partition had not taken place, therefore,

he is entitled 1/2 share in the suit house. Badrilal, being elder brother, was living in the suit house. The defendants were trying to mutate their names

in the record of Municipal Corporation, Dewas and the plaintiff submitted an objection on 02.05.1994. The plaintiff, defendant No.4 Girdharilal

and Mathuralal kept the suit house into the mortgage with Narayansingh and from the mortgaged amount, Mathuralal purchased a Truck. The

plaintiff had signed the mortgaged deed. The entire money was used by defendant Nos.1 to 3, therefore, the liability was on them to re-pay the

amount.

The defendants filed the written-statement by submitting that the plaintiff took Rs.5,000-00 from the mortgaged amount in the year 1968 and

separated himself from the property. By virtue of conditional sale dated 25.06.1968, all the three sons of Sonibai got the money and out of which

Rs.5,000-00 was given to the plaintiff. After the period of 3 years, on 25.06.1971 the suit house was released from the mortgage since the

defendant No.1 paid Rs.50,000-00, therefore, he became the owner of the suit house. The title of Sonibai had came to an end on 25.06.1971,

therefore, the property was no more ancestral property.

On the basis of the pleadings, the Trial Court framed 5 issues for adjudication.

The plaintiff examined himself as PW-1 and got exhibited death certificate as Ex.P/1; land record of Municipal Corporation as Ex.P/2 and

objection dated 23.05.1994 as Ex.P/3.

The defendants examined Gitabai as DW-1; Girdharilal as DW-2; Rajendra as DW-3; Mohanlal as DW-4 and got exhibited mortgage deed

dated 25.06.1968 as Ex.D/1 and photo-copy of the deed dated 25.06.1968 as Ex.D/2.

The learned Trial Court found that the plaintiff had received Rs.5,000-00 in the year 1968 in lieu of his share in the suit house and separated

himself from the joint family. The Trial Court had also disbelieved the contention of Gitabai that after payment of Rs.50,000-00 she has become

the owner of the suit house. The mortgaged deed was still in possession of legal heirs of Ramchandra. Vide judgment and decree dated

30.11.2000 the Trial Court dismissed the suit. Hence, the present appeal before this Court.

The plaintiffs/appellants have assailed the judgment and decree on the ground that after the death of Sonibai in the year 1987, the plaintiff has

become co-owner of the suit house, therefore, he was having 1/2 share. The Trial Court has disbelieved the contention of Gitabai on the ground

that she paid Rs.50,000-00 and get redeem the mortgaged deed. On the basis of oral evidence, the Trial Court has wrongly recorded the finding in

respect of receipt of Rs.5,000-00 and had relinquishment of right from the suit house. Oral relinquishment does not operate transfer of interest of

plaintiff in the life time of Sonibai because his right came into existence on the death of Sonibai in the year 1987. Under Section 6 (A) of the

Transfer of Property Act, the chance of secession cannot be transferred as held by the High Court of Nagpur in the case of Dattatraya Govind v/s

Narayan Gangaram [AIR 1936 Nagpur 186] and the judgment of this Court in the case of Hiralal v/s Bhoja [2002 (3) MPHT 252]. The right in

immovable property can be transferred or released only by registered document. Thus, the findings of the Trial Court are liable to be setaside.

Shri V.P.Saraf, learned counsel appearing for the Respondents argued in support of the judgment and decree and submitted that the learned

Trial Court has rightly appreciated the oral as well as documentary evidence came on the record and found that the plaintiff himself had separated

from the joint family in the year 1968 and never claimed share after the death of Sonibai in the year 1987. Therefore, the Trial Court has rightly

dismissed the suit.

The plaintiff had claimed 1/4th share in the suit house being son of Sonibai. According to the plaintiff after the death of Sonibai in the year 1987

the partition between sons and daughter of Sonibai had not taken place. Therefore, his share in the property is intact and for which he is entitled for

the decree. During life time of Sonibai, the plaintiff along with his two brothers - Mathuralal and Girdharilal, mortgaged the suit house with Narayan

and Ramchandra in Rs.5,000-00. The document was titled as conditional sale. The amount of Rs.5,000-00 was liable to be returned within three

years and all the three sons of Sonibai took joint responsibilities to return the said amount. The plaintiff did not dispute the aforesaid conditional

sale and specifically admitted that all the three brothers, including him, had signed the deed but stated that the amount was received by Mathuralal

only who purchased a Truck but he himself did not receive any amount. He has further admitted that Mathuralal had got released the property.

Para 5 of the evidence is reproduced below :-

VERNACULAR MATTER OMITTED

He has also admitted that since last 16 years he is not residing in the suit house and he himself left the house which was not sufficient to

accommodate the family of all the three brothers and also because of the dispute between the ladies of the family. He has further admitted that he

claimed the share from his mother in the year 1968. He denied the receipt of Rs.5,000-00. In para 18 he has further admitted that he did not return

the mortgaged amount to Narayan and Ramchandra and he is living separately since 1968 and earning also. He did not attend the marriage of son

of Girdharilal and Gitabai. It is clear from the evidence of the plaintiff that he signed the conditional sale along with his brother and mother. The

mortgaged amount was liable to be returned by all who executed it within three years to redeem the property. He never paid any amount to

Narayan and Ramchandra to get the property redeem and the property was got released by Mathuralal only after payment of the mortgaged

amount. Therefore, the plaintiff had relinquished his right from the suit house by signing the mortgaged deed/ conditional sale and since he did not

made any efforts from 1968 till release to re-pay the amount, hence he cannot claim share in the suit house. He further admitted that he demanded

the share from his mother and thereafter he separated from the joint family. Since 1968 he is living separately and he did not attend the marriage

functions, therefore, by way of oral evidence it is clear that virtually the partition in the family had taken place as the plaintiff as he separated himself

from the family by signing the mortgaged deed. One of the brother Girdharilal (DW-2) also did not support the case of the plaintiff and deposed

that his mother had given share of plaintiff in his house and thereafter he left parental house and started living in a rented house and if the amount is

not paid in three years, Narayan and Ramchandra would became the owner. The house is still in possession of Gitabai wd/o Mathuralal and she is

living with her family with the permission of Gitabai Gitabai had paid Rs.50,000-00 to Ramchandra. The plaintiff did not examine any witness in his

support; whereas all the defendants'' witnesses have categorically stated that the plaintiff had separated himself from the family by taking his share.

Girdharilal (DW-2) signed mortgaged deed along with plaintiff has also not claimed share in the property and admitted the title in favour of

legal heirs of Mathuralal. Therefore, the plaintiff as well as Girdharilal, both had relinquished their right in the suit house while executing the

conditional sale and both did not return the amount within three years. Therefore, the learned Trial Court has rightly dismissed the suit. No

interference is called for.

The appeal is dismissed. No order as to costs.