Ram Kishan Agarwala vs Ramawatar Agarwalla and Others

D.G.R. Patnaik, J.—Both these appeals have been filed by the defendants in two separate sets against a common judgment. First Appeal No. 61 of 1996 by the appellant Ram Kishan Agarwala (defendant No. 2) has been filed against the judgment dated 4.1.1996 and 19.11996 passed by the Sub Judge 2nd Dhanbad in Title (Partition) Suit No. 44 of 1994 whereby the suit was decreed in favour of the plaintiff respondents and against the defendants 1 to 4, 5 to 7 and 13 to 14 on contest and without contest against the other defendants declaring the plaintiffs'' 1/4th share in the properties mentioned in items no 1 to 4 of the schedule to the plaint.

First Appeal No. 63 of 1996R has been filed by another set of defendants against the same judgment and decree of the leaned court below. A cross objection in this appeal has been filed under Order 41 Rule 22 of the CPC by the plaintiffs/respondents against part of the impugned judgment whereby the plaintiffs'' claim for partition of items 5 to 9 of the properties described in the schedule to the plaint was refused.

The suit was filed by the plaintiff-respondents against the appellants/defendants for a preliminary decree for partition of the suit properties described in the plaint, according to the shares of the parties and for carving out separate portions in respect of the properties according to their shares by appointment of a Commissioner for the purpose. Further prayer was made for restraining the defendants No. 5,6,7 from proceeding with the construction work over the land described in item No. 2 of the schedule, and also against the defendants 1, 2,13 and 14 from proceeding to enter into agreement and consequent sale of the properties described in item no 3 of the schedule. The claim of the plaintiff for partition was based on the following pleadings:

The plaintiff and defendant Nos. 1 to 4 and 8 to 12 and 16 to 19 are co-sharers in respect of the suit properties described in item 1 to 9 in the schedule to the plaint which were acquired by their common ancestor namely Nand Kishore Agarawal and also from the joint family fund and the same continued to be held jointly by all co (sic)sharers. It is alleged by the plaintiffs that the defendants 1 and 2 had clandestinely executed a sale deed in favour of defendants 6 and 7 in respect of item No. 2 of the suit properties, though the said properties stand recorded in the municipal survey records in the name of Gajanand Agarwal who was the father of the plaintiffs 1 and 2 and their brothers namely defendants 1 and 2 and the father of defendant No. 4: The defendant No. 5 was in occupation of the premises described in item no 2 of the suit properties as a tenant having his sweetmeat shop therein. The clandestine dealings of the defendants 1 and 2 came to light when the defendant no 5 demolished the shop premises of item No. 2 of the suit properties for making interior constructions and to restrain him, the plaintiffs had to initiate proceedings u/s 144 of the Code of Criminal Procedure on 22.12.1993 and it was in course of the said proceedings that the defendants disclosed that a family partition between the co-sharers was made in respect of the joint family properties on 13.4.1960 and pursuant to the partition, item no 2 of the suit property was allotted to the share of Gajanand Agarwala (father of Plaintiff No. 1) who had executed a sale deed alienating the said property on 27.12.1960 in favour of his sister Saraswati Devi (defendant No. 8) for consideration and that Saraswati Devi had also entered into an agreement of sale on 17.11.1993 in respect of the suit properties with defendants No. 6 and 7 (members of the family of defendant No. 5). Declaring that the aforesaid claim of the defendants was totally false and baseless, the plaintiffs have denied that there was any family partition at any time, much less on 13.4.1960 and have also alleged that the deed of partition and sale deed which was allegedly prepared on 27.12.1960 are forged and fabricated documents which have been created by the defendants in collusion with each other. The further claim of the plaintiffs is that a Title (Eviction) Suit No. 491 of 1962 was filed by Mostt. Bhagwati Devi (wife of late Nand Kishoro Agarwal) in the aunt of the Minis if, Dhanbad for eviction of her son Gajanand Agarwal from the premises, described in item No. 1 of the schedule, on the ground that the defendant Gajanand Agarwal was a tenant in the premises since after the family partition on 13.4.1960, and that the rent for the premises was paid by Gajanand Agarwala at the rate of upees sixty per month. In the said suit, Gajanand had filed his written statement denying the claim of family partition as also the claim of his being a tenant in the said premises. The suit was ultimately dismissed on the funding that there was no relationship of landlord and tenant and in the absence of any appeal preferred by the plaintiff in the said suit, the judgement and decree passed in Title (Eviction) Suit No. 491 of 1962 has remained conclusive and operates as res judicata in respect of the issues relating to the family partition. The plaintiff''s further claim is that it was in course of the proceedings u/s 144 Cr.P.C. that it came to light that defendant No. 1 had illegally entered into an agreement on 10.10.1993 with defendants 13 and 14 who were tenants in the premises mentioned in item No. 4 of the schedule to the plaint, for sale of the said properties and had accepted Rs. 1,00,000/- (rupees one lakh) as part payment of the consideration amount. The plaintiffs have challenged the said agreement on the ground that the properties being joint family property, defendant No. 1 had unauthorisedly entered into an agreement for sale of the said property without the consent of the other co-sharers and as such the said agreement is illegal and inoperative.

Further contention of the plaintiffs is that in view of the aforesaid illegal and clandestine dealings and transactions of the defendants, on 5.2.1994, the plaintiffs had demanded partition of the joint family property from the defendants but on refusal of such demand, the plaintiffs filed the suit for partition.

The suit was contested by the defendants 1 to 4 whose main defence was that there was no unity of title and possession over the suit property, inasmuch as by virtue of a partition dated 13.4.1060 the entire joint family properties were divided amongst the co-sharers and each of the co-sharers had come into possession of his respective shares as detailed in the deed of partition and thus, the partition was acted upon by hem. Late Gajanand Agarwal (father of plaintiffs 1 and 2 and husband of plaintiff No. 3) was also a party to the deed of partition and he had executed a registered sale deed on 27.12.1960, in respect of the properties allotted to the share, in favour of Sarswati Devi (defendant No. 8) wherein he had categorically admitted partition of the joint family property as made on 23.3.1960 and had also acknowledged that the properties sold by him to his sister Saraswati Devi, was his exclusive share on partition. After executing the registered sale (deed, Gajanand Agarwal, by letter dated 29.1.1961 informed the tenants who were in occupation of the premises which he sold to defendant No. 8, about the transfer of his right, title and interest in the properties in favour of defendant No. 1 and had asked them to attorn the said purchaser as their land lady in respect of the premises. The defendants have thus claimed that the plaintiffs are bound by the deed of partition dated 13.4.1960 and they are not entitled to claim further partition in the suit properties described in the schedule to the plaint. The defendants have also claimed that item No. 1 of the suit property is the residential house in which the plaintiffs have been residing, even after demise of their lather who was allowed to live in the said house even after partition though as a tenant under Bhagwati Devi and T.S. No. 491 of 1992 was filed against Gajanand Agarwal by the landlady Bhagwati Devi. The defendants further claim that item No. 2 of the suit property consists of two rooms, each of which was allotted to Gajanand Agarwal and Shiv Karan Agarwal. Later on, Gajanand Agarwala sold his share in the property to his sister Sarswati Devi (defendant No. 8) by virtue of sale deed dated 2.7.12.1960 and after the death of Shiv Karan Agarwal, his heirs (defendants No. 3 and 4) also sold their share to defendant No. 5 by registered sale deed dated 30.12.1993. The further claim of the defendants is that item No. 3 of the suit property was allotted in partition to defendant No. 1 Tarachand Agarwala which is presently in occupation of the tenant S.N. Chatterjee (defendant No. 13) on monthly rent and defendant No. 1 has entered into an agreement with his aforesaid tenant or sale of the said premises. It is further claimed that item No. 4 of the suit property was allotted to the share of Bhagawati Devi who by virtue of her will executed on 1.8.1991, had bequeathed the said property to his son Ram Kishan Agarwal and widow Smt Sita Devi of S.K. Agarwala. The defendants have further claimed that item no 5 and 8 of the schedule to the plaint are serf acquired properties of defendant No. 18 namely Urmila Devi who had purchased the same by virtue of sale deeds dated 7.1.1986,16.2.1989, 28.1.1974 and 23.2.1985 and the properties mentioned in item No. 5 and 8 of the schedule did never constitute any part of the joint family properties. The defendants add that defendant No. 18 being the absolute owner of the aforesaid properties, had constructed her house on the lands. The defendants further claim that the premises mentioned in item No. 6 of the schedule is a tenanted premises wherein defendant No. 1 has been running his exclusive business without any concern with any other member of the family. The defendants have further claimed that the movables mentioned in item No. 9 of the schedule to the plaint are self acquired properties of those in whose names they stand recorded and such properties were not acquired from any joint family fund. The defendants have further chimed that there is no such properties as mentioned in item No. 7 of the schedule. On the aforesaid grounds, the defendants have claimed that the suit being for partition, is not maintainable since the plaintiffs have no cause of action at all.

Defendants 5 to 7 and defendants 13 and 14 are two sets of purported purchasers of the properties mentioned in items No. 2 and 3 of the ; schedule. These defendants have also contested the suit by filing separate written statements. They have supported the claim of the defendants 1 to 4 affirming the purported previous partition between the plaintiffs and the defendants co-sharers on 13.4.1960. Defendants 5 to 7 have assessed their rights over item No. 2 of the suit properties on the ground that the said properties were sold by Gajanand Agarwala to Sarswati Devi who, in her turn had entered into an agreement for sale of the said premises with defendant No. 7 and had also put defendant No. 7 in possession of the property in question. These defendants have also claimed that defendant No. 3 Sita Devi along with her sons had sold away her right, title and interest in the remaining 1/2 share of the properties mentioned in item No. 2 in their favour on which these defendants had constructed a shopping complex in exercise of their exclusive right, title and interest.

The defendants 13 and 14 have claimed that defendant No. 1 had executed an agreement for sale of the properties mentioned in item No. 3 of the schedule with them on 10.10.1993 and had received a sum of rupees one lakh as advance consideration amount from them. These defendants have also claimed that they were originally in occupation of the premises as tenants under defendant No. 1 and they used to pay rent to defendant No. 1.

For better appreciation of the facts of the case, it may be noted that the common ancestor namely Nand Kishore Agarwala had left behind him his four sons, Gajanand Agarwala, Tarachand Agarwala, Ram Kishan Agarwala and Shiv Karan Agarwala, besides other descendents, namely defendants 8 to 12. The plaintiffs represent the branch of late Gajanand Agarwala. Defendants 3, 4, 15, 16 and 17 represent the branch of late Shiv Karan Agarwala. Defendants 18 and 19 are wife and son respectively of defendant No. 1. It is not disputed that the properties mentioned in items No. 1, 2, 3, and 4 of the schedule were ancestral properties acquired, owned and possessed by the common ancestor late N.K. Agarwala.

It may also be noted that the properties mentioned in items No. 1 to 4 in the schedule to the plaint correspond to the properties mentioned in item No. "Ka" to "Cha" in the purported partition deed dated 23.3.1960 (Ext P).

On the basis of the rival pleadings, the trial court framed the following issues for determination:

(i) whether the plaintiffs have a valid cause of action for the suit?

(ii) whether the suit as framed is maintainable ?

(iii) whether the parties to the suit have unity of title and possession in respect of the scheduled properties?

(iv) whether the unregistered deed of partition dated 23.3.1960 purported to have been executed by and in between the parties/their predecessors in interest on 13.4.1960 is a genuine and valid document and, if so, whether the same has been acted upon ?

(v) whether the registered sale deed dated 27.12.1960 purported to have been executed by late Gajanand Agarwala in favour of his sister Sarswati Devi, defendant No. 8, is a valid and genuine document?

(vi) whether the properties/business detailed in item Nos. 5 to 9 have been acquired by the joint nucleus of the family of the parties?

(vii) whether the plaintiffs are entitled to a decree of partition in respect of the suit properties and, if so, what is the extent of the share of the parties in the properties ?

(viii) to what other relief or reliefs, if any, the plaintiffs are entitled?

On issue No. 4 as to whether the partition deed dated 23.3.1960 is a genuine and valid document and whether it could be acted upon, the trial court has observed that the document(Ext. P) was an unregistered document which was drawn on 28.3.1960 on a stamp paper of Rs. 1.25P which was purchased on 20.3.1960 and executed by the parties on 13.4.1960. The defendants sought to explain the discrepancies in the dates stating that the settlement was arrived at after prolonged discussions and deliberations between the parties which continued for several days and though the deliberations were concluded and finalized on 20.3.1960, the stamp paper could be available only on 23.3.1960 and the terms of settlement agreed to mutually by and between the parties was reduced to writing on 28.3.1960 on the stamp paper purchased later. The trial court has also observed that two out of five co-sharers referred to in the document of partition (Tarachand Agarwala and Ram Kishan Agarwala) were described in the document as minors, represented through their mother and legal guardian, but while Tara Chand Agarwala and put his signal are on the document, it was one Mahadeo Lal who had executed the document on behalf of minor Ramkishun Agarwal, though the said Mahadeo Lal was neither a member of the family, nor was the natural guardian of the minor. However, the trial court has also observed that the minors on attaining their respective age of majority, have ratified the document of partition and have relied on the same in support of their pleadings of previous partition. The learned trial court thereafter recorded its finding that the document (Ext. P) which was purported to be deed of partition being an unregistered document, is inadmissible in evidence and cannot be taken into consideration to prove the allotment of shares in the properties to the individual co-sharers. At the same time, the trial court has observed that though plaintiffs have claimed that the purported partition deed was forged and fabricated, they have not been able to prove such claim and on the contrary, since the plaintiffs'' father late Gajanand Agarwala had executed a sale deed dated 27.12.1960 in favour of defendant No. 8 in which reference to the partition dated 23.3.1960 does appear, it was for the plaintiffs to place on record either the original or the copy of the document which has been referred to in the sale deed executed by Gajanand Agarwala. Yet, considering the fact that the document was not a '', registered document and is therefore not admissible in evidence, the trial ! court has recorded its finding that the document of partition is not a partition in law to prove the plea of partition as raised by the contesting defendants. The trial court has also found reasons not to rely upon the partition deed on the ground that the minors were not properly represented in the deed of partition. The trial court proceeded to record its further findings from the evidence adduced by the defendants that they have failed to discharge their onus to prove the previous partition as claimed in their pleadings.

On the issue No. 3 as to whether the parties to the suit have unity of title and possession in respect of the suit properties, the trial court recorded its findings that the plaintiffs and co-sharers (defendants 1 to 4 and defending 15 to 19) have unity of title and possession in relation to the suit properties mentioned and described in items 1 to 4 of the schedule to the plaint and therefore the plaintiffs are entitled to a decree for partition according to their shares ,and has also recorded its finding that each branch emanating from the common ancestor has 1/4th share in the said properties. The learned court below has also observed that as revealed in the evidence of PW8, the common ancestor died prior to 1956 i.e. prior to promulgation of Hindu Succession Act, 1956 and that this fact having not been controverted, the female descendants of the common ancestor N.K. Agarwala did not inherit properties of their deceased father.

On issue No. 5 as to whether the registered sale deed dated 27.12.1960 executed by Gajanand in favour of his sister Saraswati Devi, defendant No. 8, is a genuine document, the trial court has observed that as per the Mitakshara School of Hindu Law, a co-parcenery may alienate his undivided interest in the entire joint family property or undivided interest in specific property forming part of the joint family property and of he does alienate, it is valid to the extent of his own interest in the alienated property. By applying this principle, the trial court: has held that the cause of action having not been controverted by sufficient evidence, the document of transfer of title over the properties demised thereby in favour of the purchaser Sarswati Devi and the subsequent acts of the purchaser whereby she had transferred her right in the properties mentioned in item No. 2 of the schedule to the defendants 3 and 4 and transfer of properties by way of sale in favour of defendants 6 and 7 made by defendants No. 3 and 4 by virtue of registered deed of sale dated 30.12,1.993 was valid. On the same grounds, the learned trial court had declared the document of sale dated 17.11.1993 executed in favour of defendants No. 6 and 7 and another similar agreement of sale dated 10.10.1993 executed in favour of defendants 13 and 14 are legal and valid documents.

The trial court after having recorded its findings that item No. 1 to 4 of the schedule to the plaint are undivided joint family properties, has proceed to record its finding that items 5 to 9 (except item No. 7 of the schedule) over which the contesting defendants have advanced their exclusive claim of right, are self acquired properties of defendant No. 18 who is the wife of defendant No. 1 and further, that the item No. 6 of the schedule to the plaint is the exclusive property of defendant No. 1. The trial court has observed that except the plaintiffs, no other co-sharer has claimed any right, title and interest in the properties mentioned in item No. 5,6 and 8. As regards item No. 9 of the schedule, the trial court has held that since these s properties stand admittedly in the names of defendants No. 2 to 4 and 19, the same are their exclusive properties, not connected with the joint family property. The above finding was recorded by the learned trial court on its observation that the plaintiffs have not been able to prove the existence of any joint family nucleus or even that the joint family property had yielded surplus income from which acquisition of the said properties could be made.

Thus, the trial court has decreed the suit partly in favour of plaintiffs declaring that the properties mentioned in item No. 1 to 4 of the schedule are the joint family properties in which the plaintiffs were entitled to their respective shares and for a decree of partition, though subject to equity of the purchasers namely defendants No. 6, 7, 13 and 14 in respect of the properties mentioned in item No. 2 and 3 of the schedule to the plaint. The claim of the plaintiffs for partition of the properties mentioned in items 5 to 6 was however refused.

Sri R.S. Majumdar, learned Counsel for the appellants in First Appeal No. 61 of 1996 and Sri Rohit Roy, learned Counsel for the appellants in FA No. 63 of 1996 have commonly assailed the impugned judgment and decree of the trial court on the ground that the trial court has erred in failing to consider the evidence on record in proper perspective. It is argued that in view of the deed of partition dated 23.3.1960 and in view of the admitted fact that the plaintiffs'' father had himself executed registered sale deed dated 27.12.1960 in favour of the defendant No. 8 in respect of the properties mentioned in the sale deed which were admitted to be the father''s exclusive property acquired on the basis of the partition of the joint family property, the trial court ought to have considered that there was no unity of title and possession in respect of the suit properties. It is also argued that even according to the evidence of PW4, the trial court ought to have considered that the properties in question are not join, and that the co-sharers had separated since long from each other. It is further argued that the trial court has committed an error of record by observing that the common ancestor namely N.K. Agarwala, died in 1956, whereas according, to the evidence on: record, N.K. Agarwala had died in the year 1958 i.e. long after the promulgation of the Hindu Succession Act and as such, since his daughters were not made parties to the suit, the suit was not maintainable. It is further argued that the learned trial court has erred in failing to consider the evidence adduced by the witnesses of the defendants who had confirmed the partition to have been held in their presence between the co-sharers on 23.3.1960.

The plaintiffs/ respondents in First Appeal No. 63 of 1996 have preferred a cross objection against the findings of the learned court below on issues No. 6 and 7 relating to items No. 5 to 9 of the properties mentioned in the schedule to the plaint affecting the claim of the plaintiffs/respondents over the aforesaid properties. Assailing the findings of the learned court below on the aforesaid two issues, Sri P.K. Prasad, learned Counsel for the respondents argued that the findings of the learned court below declaring that the defendants 6,7,13 an 114 shall be entitled to equity and the properties purchased in respect of items No. 2 and 3 of the scheduled properties should be allotted to their separate Takhta, is contrary to the direction of the Hon''ble Court issued by its order dated 23.81994 in Misc. Appeal No. 88 of 1994R and order dated 6.4.1995 in Misc. Appeal No. 273 of 1994 R respectively, whereby this Court clearly directed that the purchasers shall not be entitled to claim equity. Learned Counsel argues further that the aforesaid findings of the learned court below and the direction for allotment of the properties purchased in the respective Takhta in the final decree is also illegal in view of the fact that the extent of shares of the vendors and the extent of entitlement of purchasers have not at all been discussed by the learned court below while making the said direction, It is further argued that the above findings of the learned court below on these issues is bad in view of the specific findings of the trial court that the plaintiffs/ respondents were entitled to a decree for partition in respect of 1/4th share in items 1 to 4 of the suit properties. The learned trial court ought to have also inferred the existence of sufficient nucleus in favour of the plaintiffs and should have considered therefore that the onus of proof that the properties mentioned in items No. 5 to 9 were not joint family properties, lay upon the defendants. Learned Counsel finds further fault in the findings of the learned court below on the above issues on the ground that though the properties mentioned in items 5 to 9 (except item No. 7) stood in the name of the defendant No. 18 and her son namely defendant No. 19, but neither of them has appeared or filed any written statement on their behalf, nor appeared to depose at the trial and as such, the learned court below ought to have drawn an adverse inference against these defendants in so far as their claim of self-acquisition of the properties is concerned. Learned Counsel argues further that he learned '', court below ought to have considered that the defendant No. 18 was having no source of income while the defendant No. 19 was a minor when the properties mentioned in items No. 5 to 9 came to be acquired. According to the learned Counsel, the learned court below ought to have considered the evidence adduced by the plaintiffs in confirmation of the fact that the properties in item No. 5 to 9 were acquired from the joint family nucleus though in the names of defendants No. 18 and 19.

The controversy which persists and call; for consideration in these appeals is in respect of the dispute between the parties primarily over the issue No. 3 as to whether the parties to the suit have unit) of title and findings of the learned court below on these issues is bad in view of the Specific findings of the trial court that the plaintiffs/respondents were entitled to a decree for partition in respect of 1/4th share in items 1 to 4 of the suit properties. The learned trial court ought to have also inferred the existence of sufficient nucleus in favour of the plaintiffs and should have considered therefore that the onus of proof that the properties mentioned in items No. 5 to 9 were not joint family properties, lay upon the defendants. Learned Counsel finds further fault in the findings of the learned court below or the above issues on the ground that though the properties mentioned in items 5 to 9 (except item No. 7) stood in the name of the defendant No. 18 and her son namely defendant No. 19, but neither of them has appeared or filed any written statement on their behalf, nor appeared to depose at the trial and as such, the learned court below ought to have drawn an adverse inference against these defendants in so far as their claim of self-acquisition of the properties is concerned. Learned Counsel argues further that the learned court below ought to have considered that the defendant No. 18 was having no source of income while the defendant No. 19 was a minor when the properties mentioned in items No. 5 to 9 came to be acquired. According to the learned Counsel, the learned court below ought to have considered the evidence adduced by the plaintiffs in confirmation of the fact that the properties in item No. 5 to 9 were acquired from the joint family nucleus though in the names of defendants No. 18 and 19.

The controversy which persists and calls for consideration in these appeals is in respect of the dispute between the parties primarily over the issue No. 3 as to whether the parties to the suit have unity of title and possession in respect of the properties mentioned in the schedule of the plaint?

It is not disputed that the properties mentioned in items 1 to 4 of the schedule to the plaint are ancestral properties originally held by the common ancestor namely Nand Kishore Agarwal and these properties had devolved upon the heirs of Nand Kishore Agarwal as the point family properties owned and possessed by them jointly after the death of Nand Kishore Agarwal who died some time in the year 1957.

The properties in item No. 1 is a double storeyed residential building while the property in items 2 to 4 are shop rooms purported to have been sold to defendants No. 13 and 14. The properties mentioned on items 5 to 9 according to the plaintiffs were acquired from the joint family nucleus derived from the ancestral properties namely the properties in items 1 to 4. It may also be noted here that the properties mentioned in items 1 to 4 continued to be recorded in the joint names of the heirs of the common ancestor. Since admittedly, the properties mentioned in items 1 to 4 of the schedule had devolved as the joint family properties upon the heirs of common ancestor, the presumption would be that the properties continued to be joint and such presumption could be rebutted only by cogent evidence.

The defendants have relied upon the unregistered instrument of purported partition (Exhibit P) and also on the subsequent transactions indulged by the co-sharers individually, in order to establish that there was no unity of title amongst the co-sharers in respect of the suit properties.

The trial court has refused to accept in evidence the document of partition basically on the ground that it is an unregistered document and its admissibility is prohibited u/s 49 of the Registration Act. Nevertheless, the defendants were allowed to adduce evidence on the point of partition and also in respect of the transactions of sale and transfer of certain properties indulged by'' the co-sharers individually.

Section 49C of the Registration Act prohibits the use of unregistered documents in any legal proceeding in which such a document is sought to be relied upon in support of a claim to enforce or maintain any right, title or interest to or in immovable property. The proviso to Section 49 of the Registration Act says that a document though unregistered deed of partition is, no doubt, not admissible to prove the terms of the partition, but it can be referred to for the purpose of proving collateral fact of partition itself or severance of the joint status. Though not admissible to prove that the properties fell to the share of a particular member in the partition, it can be relied upon to prove separate possession and separate dealings and enjoyment of the properties. In this view of the matter Section 49 of the Registration Act does not bar the proving of unregistered instrument of partition for the purpose of ascertaining the nature of possession of any party to such an instrument. Thus, if the evidence sought to be given does not relate to the terms of the transactions, but relates merely to the factum of existence of the transaction, the other evidence will be properly receivable.

In law there exists a presumption in regard to the continuance of a joint family. The party which raises a plea of partition has to prove the same. Even separate possession of portion of the properties by co-sharers in itself would not lead to a presumption of partition. Several other factors are required to be considered therefor.

A partition in Joint Hindu Family would denote the following three stages : (i) a division in status as between members of coparceners and (ii) division of properties belonging to the joint family by metes and bounds as between the different members of the family, and (iii) taking possession of the properties belonging to them.

It is well settled that severance in status can take place either by unilateral declaration of one of the coparceners or by agreement between all coparceners. Where the severance is effected, as above, it is not a transaction which requires in writing, and even if it is effected by means of any instrument in writing, that will not fall within the scope of Section 17(1)(b) of the Registration Act. Similar will be the position with regard to taking possession of the properties. Once a division of properties by metes and bounds takes place between members of the coparcenary and the parties taking possession as coparceners of the respective items allotted to them, such partition assumes division in status having taken place between the parties. Therefore, though an unregistered deed of partition cannot be admitted in evidence to prove the terms of partition, it can certainly be admitted in evidence for proving the division in status and taking possession and the nature and character of possession of the shares allotted, these being collateral purposes. This view is supported by the Judgment of the Madras High Court in the case of C.S. Kumaraswami Gounder Vs. Aravagiri Gounder and Another, and also by the Judgment in the case of Rikhi Ram Vs. Sada Ram and Others, .

Similarly, taking possession of the shares allotted to each one of the Parties at the partition will be purpose collateral to the fact of partition and such taking possession, not agreeing, declaring, assigning, limiting or extenuating any right, title or interest to or any immovable properties will not require registration and therefore, an unregistered deed of partition can be used for collateral purpose namely for proving the nature and character of the possession of the respective items of properties in the hands of'' he members of coparcenary.

In the instant case, the document of partition (Ext. P) though being an unregistered document, is sought to be relied upon by the defendants for collateral purposes and in support of their claim that the document confirms the change of status and severance of jointness amongst the coparceners and that the; said document confirms that on and from the very date of execution of the document, there is no further unity'' of title and possession among the coparceners in respect of the ancestral property which they held as coparceners prior to the partition. The defendants would also rely upon the sale deed dated 27.12.1960 (Ext.B) claimed to have been executed by Gajanand Agarwala (rather of plaintiffs No. 1 and 2) in favour of the defendant No. 8. It is pointed out by the defendants that specific recital in the aforesaid sale deed declares that the properties transferred under the sale deed was the exclusive property of the vendor Gajanand Agarwala which was allotted to his share in the deed of partition executed on 23.3.1960 and this fact is further confirmed by the letter issued by Gajanand Agarwala on 29.1.1961 to the tenants in occupation of the said premises, which he had transferred to defendant No. 8 informing them about the transfer of the ownership of the premises and calling upon the tenants to a torn the purchaser (defendant No. 8) as their land-lady. The defendants have also claimed that pursuant to partition, one of the co-sharers namely Bhagwati Devi, widow of late N.K. Agarwala to whom the properties mentioned in item No. 4 of the schedule to the plaint was allotted, had bequeathed her aforesaid share by will executed on 1.8.1991. in favour of the son of Rak Kishan Agarwala and the widow of Shiv Karar Agarwala. The defendants have adduced oral evidence to prove the aforesaid fact, besides adducing the document namely the sale deed, as referred to above, in evidence. Thus, according to the defendants, such transact on indulged by members of the joint family pursuant to the partition of the joint family property between them, denote that co-sharers had separated in status and there v as no more unity of title and possession of the joint family properties between them.

Learned Counsel for the respondents argued that where properties are held jointly by co-parceners, separate possession by members of the joint family of some of the properties cannot establish in itself a separation. Leaned counsel for the appellant counters, on the other hand, that inter se mutual transactions between the members of the joint family stand on an entirely different footing and they suggest a strong evidence of separation.

The test of partition, therefore, is whether there was a division in status between the coparceners? Whether there was a division of properties belonging to the joint family by metes and bounds? And whether the members had taken possession of the properties allotted to each one of them ? In the instant case, as appearing from the oral evidence of the defendants, the properties in item No. 2 of the schedule to the plain which consisted of two rooms, were allotted in partition to Gajanand Agarwala and Shiv Karan Agarwala and both of them had come into possession of the rooms Later, Gajanand Agarwala sold his share in the property to defendant No. 8, Saraswati Devi, while the heirs of S.K. Agarwala (defendants No. 3 and 4) sold their shares to defendant No. 5 by a registered sale deed. It has also been adduced in evidence by the defendants that item No. 3 of the suit property on being allotted to defendant No. 1, Tara Chand Agarwala, he had come into possession of the said properties and had inducted defendant No. 13 as a tenant on monthly rent exclusively under him. Likewise, one of the co-sharers namely Bhagwati Devi, by virtue of her will executed on 1.8.1991, had bequeathed the properties mentioned in item No. 4 in favour of Ram Kishan Agarwala and widow of S K. Agarwala. As per the defendants, the above transactions by the individual members of the family manifests mutual transactions between the members of the family and makes out a very strong evidence to suggest that the members of the family including father of the plaintiffs 1 and 2 had not only accepted the partition mutually agreed upon between them, but had also taken possession of their respective shares and had acted upon the factum of partition by entering into mutual transactions between them.

Learned Counsel for the plaintiffs/ respondents has tried to point out that though in the alleged partition, Gajanand Agarwala was allotted separate property, but he had continued to occupy and possess the same house which was in his occupation prior to the alleged partition and that in the suit for eviction filed by Bhagwati Devi against him, Gajanand Agarwala had denied the partition. The defendants counter reply is that the continued occupation of the house allotted to Bhagwati Devi by Gajanand Agarwala was in fact as a tenant under Bhagwati Devi, and it is for this reason that the eviction suit was instituted against him by Bhagwati Devi and therefore the denial of partition made by Gajanand Agarwala in the said eviction suit could at best be construed as a defence raised by him in the suit for eviction and should be treated as being limited for the purpose of the eviction suit and that such denial in itself does not obliterate the fact that the sale deed was executed by him in favour of defendant No. 8 in respect of the properties allotted to his share in the partition as he had categorically declared that the property sold to defendant No. 8 was his exclusive share which was allotted to him in partition.

Admittedly, on the alleged date of execution of the purported deed of partition, two of the members of the joint family, namely Tara Chand Agarwal and Ram Kishan Agarwala were minors, yet Tara Chand Agarwal appears to be a signatory to the purported deed and not represented by his mother/legal guardian. The other minor Ram Kishan Agarwal has not been represented by his mother or natural guardian. Rather, he was represented by one Mahadeo Agarwal, who happens to be a total stranger to he family. Furthermore, it also appears that the common ancestor Nand Kishore Agarwal died in the year 1957 as admitted by the defendant 1 Tara Chand Agarwal in his evidence. The trial court appears to have misread the evidence in this context by inferring that the common ancestor had died prior to 1956. The death of the common ancestor having occurred much after the coming into force of the Indian Succession Act, the daughters of Nand Kishore Agarwala were necessary parties to the partition, but they do not appear to have been involved in the purported partition, although some arrangement for their future marriage expenses is purported to have been made in the said document of partition. Then again, the discrepancies in the actual date of partition as discussed in the impugned judgment by the court below, also appears to be irreconcilable and the explanation offered by the defendants does not appear to be convincing. Furthermore, according to Ext. P, Gajanand Agarwal was given specific portion of properties in his share and similarly his brother Tara Chand Agarwal was given another portion of the property. Yet, admittedly, neither Gajanand Agarwal nor Tarachand Agarwal had taken possession of the portion pertaining to their respective shares as per the deed of partition and even according to the evidence of the defendant No. 1 Tara Chand Agarwal (DW1), he continued to be in occupation and possession of the premises not allotted to his share fur more than 35 years even after the date of alleged partition. An attempt was made by the defendants to suggest that the occupation of Gajanand Agarwal of the premises allotted to the share of Bhagwati Devi was by way of a tenant, but such attempt was rendered futile by the decision of the court in the earlier Title (Eviction) Suit No. 491 of 1962 wherein the court had recorded its finding that there was no relationship of landlord and tenant between Bhagwati Devi and Gajanand Agarwal.

Above all, there is evidence brought by the plaintiffs contradicting the pleadings of the defendants which suggest that in the aforesaid the Title (Eviction) Suit No. 491 of 1962 Gajanand Agarwala had specifically denied the partition of the joint family properties and had also denied the genuineness of the partition deed. He had similarly denied to have executed any sale deed in respect of any portion of the joint family property in favour of his sister Sarswati Devi. The defendants in the instant case have sough support from the deed of sale purported to have been executed by Gajanand Agarwala in favour of sister Saraswati Agarwal and clam that this is an instance of mutual transaction between members of the family which affirms that the deed of partition was acted upon by the members.

In law there is a presumption that a registered document is validly executed. A registered. document therefore would prima facie be valid in law. The onus of proof therefore would be on the person who leads evidence to rebut the presumption. In the instant case, the defendants have relied heavily upon the deed of sale claimed to have been executed by Gajanand Agarwala in favour of his sister Sarswati Agarwala, but the plaintiffs specifically deny the genuineness of the aforesaid document on the ground that the purported vendor had himself denied to have executed the document of sale. In view of the specific denial, it was incumbent upon the contesting defendants to produce the original document in evidence and to prove the same by comparing the admitted signatures of Gajanand Agarwala available in the records of Title Suit Mo. 491 of 1962 with the disputed signatures appearing in Ext P and in the sale deed claimed to have been executed in favour of Sarswati Agarwala. In view of the admitted fact that Gajarand Agarwala had denied the genuineness of both the documents aforementioned, the plaintiffs'' onus extended only to deny the genuineness of the documents and the onus thereupon had shitted upon the defendants to prove the genuineness of both the documents which the defendants have failed to discharge. The trial court has wrongly cast the onus upon the plaintiffs. The alleged sale deed cannot therefore be recognized as an instance of mutual transaction between the members of the family to suggest separation. Yet again, though admittedly, the joint family was in possession of substantial movable properties also, but Ext P does no; indicate that there was any partition of any movable property. The facts, including those admitted even by the contesting defendants, suggest that the purported partition was never acted upon even by the conduct of the parties. In fact, the defendant Tara Chand Agarwal in his own deposition has admitted that even after partition, everything continued to remain as before between the members of the family. Contrary to the claim of partition, the defendant Tara Chand Agarwal had admittedly continued to run a business in the property purportedly allotted to the share of Bhagwati Devi, situated at Dari Mohalla, the ugh not as a tenant.

Next, the purported letter of attornment allegedly issued by Gajanand Agarwala to his tenants also do not appear to have been supported by reliable and consistent evidence. On reading the evidence of DW 13 who is a tenant, together with the evidence of DW1, it would appear that there could be no occasion for Gajanand Agarwal to personally meet the tenants along with his Sister for realization of rent or to issue any letter to the tenants at the time of his visit to the tenants along with his sister, since according to DW 1, it was he who used to look after the affairs of the properties of Sarswati Devi and her husband. In her written statement, Sarswati Devi claims that letter dated 29.1.1961 was addressed to her husband by Gajanand Agarwala to collect rent from the tenants, whereas according to DW13, it was Saraswati Devi who was authorized by Gajanand to realize the rents.

Defendants have next relied upon Ext-E series which are municipal receipts in original. The plaintiffs have pointed out a very serious anomaly in these receipts by indicating that though these receipts are purportedly of the year soon after the alleged date of partition, but the holding numbers and ward numbers mentioned therein are those numbers which were revised after re- assessment by the municipal Holding numbers in the year 1979 and of which the defendants could never have imagined prior to 1979. This fact abundantly indicates that the receipts may not be genuine and could be of more recent origin.

The clear inference from the above faces is that there was no division in status between the members of the joint family nor was there any division of the joint family properties between the members by metes and bounds in terms of the purported deed of partition and neither had the members taken possession of any share in the properties as per the purported partition. The defendants have not been able to prove any prior partition, nor could they rebut the presumption of joinitness and unity of title. Unless partition of joint family property takes place by metes and bounds, mere separate possession of certain properties by the individual members of the family would not lead to presumption of partition. The finding of the trial court that the properties described in item 1 to 4 of the Schedule to the plaint are joint properties in which the plaintiffs have 1/4 share, is correct.

As a consequence of the above findings, the defendants No. 6, 7, 13 and 14 are not entitled to equity nor can they claim allotment of the properties purportedly purchased by them in respect of items No. 2 and 3 of the schedule of the plaint in separate Takhta of their vendors. The finding, of the learned court below to the contrary is incorrect and not based upon proper appreciation of the facts and the law applicable thereto.

The issue which remains to be considered now is whether the plaintiffs are entitled to a decree of partition in respect of the properties mentioned in items No. 5 to 9 of the schedule which admittedly stand in the names of the defendant No. 18 and 19. The answer to this question would depend upon the answer to the analogous question as to whether there was sufficient nucleus of the joint family from which the properties detailed in items No. 5 to 9 of the schedule, could be acquired or whether the said proper ties were acquired by individual members separately on their own without any reference to the joint family nucleus?

The contesting defendants have claimed that the properties mentioned in items No. 5 to 9 of the schedule are their separate properties which were acquired separately in the names of defendants No. 18 and 19. The defendants have further claimed that there was no joint family nucleus sufficient enough to enable the members of the family to indulge in any joint family business.

The plaintiffs on the other hand, argue that the fact that the joint family properties comprise of the shops which were let out and it yielded a source of regular income, amply demonstrate that there was sufficient nucleus of the joint family and it is from this fund that defendant Tarachand Agarwala had set up the business within the portion of the joint family house and that the income generated from the properties mentioned in items No. 5 to 9 of the schedule were acquired. Learned Counsel for the plaintiffs points out that the defendant No. 18 had no source of separate income, while defendant No. 19 was yet a minor on the date the properties mentioned in items No. 5 to 9 of the schedule were claimed.

In a suit for partition where a party claims that any particular item of the property is joint family property, the burden of proving it to be so rests on the party asserting it. The onus therefore is on the asserting party to prove that there was a joint family nucleus through a regular source of income and that the nucleus was sufficient enough to enable acquisition of further properties by members of the family. Once the asserting party discharges its onus the burden would shift upon the party claiming separate acquisition to prove that the properties were acquired not from joint family nucleus but by his own separate income without the aid of the joint family nucleus.

From the evidence adduced by the plaintiffs to show that there was a regular source of income to constitute joint family nucleus, it appears that the plaintiffs have claimed that the shop rooms mentioned in item No. 3 of the scheduled property used to fetch a monthly rental of rupees six hundred while the shop in item No. 2 of the schedule property fetched rupees twenty-two only per month. There is no definite evidence as to what was the income derived from the shop in item No. 4 of the schedule property. Even if such evidence has been brought on record to suggest that there was a regular source of income from the monthly rental of me shop, but there is no proof on record to suggest that there was any savings from the aforesaid income through monthly rentals. Even other wise, these rents were collected by the father of the plaintiffs who had the liability to main members of his family including his unmarried daughters. From the evidence of the plaintiff No. 1 who was examined as PW 10, it appears that his father who, during his life time until his death, was the karla of the joint family, had never purchased any property in individual name of any member of the family. Yet, the document on the basis of which properties mentioned in item No. 5 to 8 were acquired, indicate that the same was acquired in the name of the defendant No. 18 though in the year 1986. The plaintiffs have not brought any such evidence to suggest that the joint family had maintained any joint family business with the participation of the members of the family. On the contrary, evidence has been brought on record by the defendants that the plaintiff No. 1 was employed in a private firm since 1988. The defendants have also adduced evidence to confirm that the defendant No. 1 Tarachand Agarwala had undertaken his own separate business which was run in a portion of the joint family house and this fact has been admitted even by the plaintiffs. The plaintiffs have not brought any evidence on record to suggest that they were associated in the business run by the defendant No. 1. Significantly, except the plaintiffs/ no other member of the joint family has claimed any share in items No. 5 to 9 of the properties. Learned Counsel for the plaintiffs has argued that the claim of the defendant No. 18 that she had acquired the properties out of her own earning cannot be believed, since she has not adduced any i evidence to prove that she had any separate source of her own income at the time when the properties mentioned in item Nos. 5 to 8 were acquired, and likewise, there is no evidence brought by defendant No. 19 as to how even during his minority, he could acquire the properties mentioned in items No. 8 and 9. It is not disputed that defendant No. 1 and defendants 1.8 and 19 constitute the same family. In absence of any cogent and reliable evidence on the side of the plaintiffs to prove that the properties mentioned in items No. 5 to 9 were purchased from the savings of the joint family nucleus in the names of the defendants No. 18 and 19, the defendants 18 and 19 cannot be called upon to explain the details of the source of their income and the manner of acquisition of the properties.

The evidence brought by the contesting defendants on record are sufficient to discharge their onus to prove that the properties mentioned in items No. 5 to 9 are their separate properties, unconnected with the joint family properties and the plaintiffs have, therefore no right to claim any share by way of partition of the properties mentioned in items No. 5 to 9 of the schedule.

In view of the above discussions, both these appeals are dismissed. The cross objection taken by the plaintiff(s) is also dismissed accordingly.