Rameshwar Dass vs Sardha Ram

N.K. Kapoor, J.—This is plaintiffs Regular Second Appeal against the judgment and decree of the Additional District Judge whereby judgment and decree of the trial Court was set aside and the suit of the plaintiff was dismissed.

Briefly put, the plaintiff filed a suit for partition inter alia, pleading that the plaintiff and defendants are owners in equal shares of the residential house bearing No. XI-631 situated in Mohalla Dyalpura Karnal which was inherited by both of them in equal shares from their father Sh. Jhandu Ram; The house is still joint and has not been partitioned by meats and bounds.

Defendants filed written statements and took preliminary objections as to the locus standi of the plaintiff to file the present suit being bad for mis-joinder and non-joinder of parties, and that the plaintiff is estopped by his own act and conduct to file the present suit. Plea was also taken that the plaintiff on different occasions had been mortgaging the property in his exclusive possession vide separate mortgage deeds which amounts to separation.

On the pleadings of the parties following issues were framed:-

(1) Whether the plaintiff is a co-sharer in the property in dispute? OPP.

(2) If issue No. 1 is proved whether the plaintiff is entitled to the partition of the property in dispute? OPP.

(3) Whether the plaintiff has got no locus standi to file and maintain the present suit? OPD.

(4) Whether the suit is bad for mis-joinder and non-joinder of necessary parties? OPD.

(5) Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD.

(6) Whether the suit is time barred? OPD.

(7) Relief.

The trial Court passed a preliminary decree to the effect that the plaintiff are entitled to separate possession of 1/2 share in the disputed property after getting the same partitioned. Issues No. 1 and 2 were decided in favour of the plaintiff. Issues No. 3, 4 and 6 were decided against the dependents. Issue No. 5 was decided in favour of the plaintiff holding that in the previous suit defendants admitted the suit property to be the joint property.

The appellate Court once again examined the case on facts as Well as on law. The appellate Court has not given its decision in respect of each issue as framed. It has discussed the oral is well as documentary evidence of the parties and reached to the conclusion that there was oral partition between the two brothers of the house in dispute. As per this oral partition, western part came to the share of the plaintiff whereas eastern part fell to the share of the defendants. This is amply clear from the conduct of the plaintiff. Reliance for this view was placed on some of the mortgage deeds alleged to have been executed by the plaintiff and the subsequent order of redemption etc. The Court, however, came to the conclusion that there is a common stair case and a common passage for both the parties. It is this finding of the lower appellate Court which is being as-sailed by the appellant terming this to be wholly illegal on the precise ground that the conclusion of the lower appellate Court is nothing but conjectual.

According to the appellant, there is not an iota of evidence on record to suggest that at any precise time parties to the dispute agreed to partition the joint holding. In fact, this has not been pleaded by the respondent-defendant. According to the appellant, the lower appellate Court has simply glossed over the oral admission made by the defendant as well as the fact that as proved on record plaintiff is only in occupation of 72 sq. yards whereas defendants are in possession of 132 sq. yards of land. In support of his assertion the counsel made mention of the fact that the whole of the disputed property bears one house tax No. 631/XI. Had there been partition of the joint holding as pleaded by the defendants, both the properties would have been given separate house numbers. Thus as per assessment register, both the parties continued to be recorded as owner/occupiers in respect of the aforesaid house. Challenging the finding of the lower appellate Court as to its conclusion that on account of alleged mortgage deeds the suit property if ipso facto stands partitioned, the counsel urged that such a conclusion is illegally impermissible. These mortgage deeds have not been properly proved and even otherwise there is no ground to hold or to conclude that there had been a partition between the brothers.

Justifying the decision of the lower appellate Court, the counsel for the respondents urged that the very fact that the plaintiff had been mortgaging the exclusive area in his possession vide separate mortgage deeds executed long before the present controversy would itself place between the brothers and there-after were put in possession of separate pieces of land upon which they later built their houses. The fact that they had been living separately and proclaiming themselves to be owners of the area in their respective possession goes to prove that they partitioned their joint holding. In support of the above submissions the'' counsel made reference to para 325 of the Hindu Law by Mulla and the decisions of the apex Court in cases reported as Kalyani (Dead) by Lrs. Vs. Narayanan and Others, and Apoorva Shantilal Shah, HUF Vs. Commissioner of Income Tax, Gujarat-I, Ahmedabad, .

I have heard learned counsel for the parties and perused the relevant evidence as well as the documents referred to during their submissions. Broad facts are not in dispute. Jhandhu, grandfather of the present appellant and the respondents, was owner of the suit property. On his death, Lajja Ram and Sardha Ram, predecessor-in-interest of the present appellant and the respondents respectively, succeeded to the estate of the deceased. Being brothers both had equal share. There is no dispute between the parties that each of them have built up separate houses from their own individual resources. Dispute, however, exists between the parties as to whether the suit land stood partitioned with their consent or by their conduct or the same is yet to be partitioned. According to the plaintiffs till today the suit land is a joint property of the parties whereas the defendants have set up a case that there had been oral partition between the parties which is otherwise also proved by the conduct of the parties.

Before examining the pleadings and the evidence led by the parties in this case it would be appropriate to refer in brief the earlier litigation between the parties. It is the case of the plaintiff that when the defendants illegally and forcefully demolished a portion shown red in the plan and started raising construction there on that he filed a suit for injunction against the defendants on 21.5.1983 which somehow was dismissed under Order 9 Rule 3 of the Code of Civil Procedure, thus leading to another suit for permanent injunction but the same too had to be withdrawn on 27.3.1985 as objection was raised by the defendants that the suit in the present form is not maintainable and that the plaintiff could not seek relief for partition of the property under law. In view of this objection, the "District Judge granted the plaintiff permission to withdraw the suit and file a suit for partition of the property in question with the stipulation that such a parties were directed to maintain status quo. Complying with the aforesaid directions of the District Judge the present suit was filed on 15.4.85. It is the case of the plaintiff that had there been oral partition between the parties as projected by the defendants and now accepted by the lower appellate Court as well, the defendants would not have raised objection as to the maintainability of the earlier suit allowed to be withdrawn by the district Judge as stated above. Support was also sought from the order dated 15.6.1984 (Exhibit D.11) in case Lajja Ram v. Sardha Ram and Ors. wherein counsel for the defendants Mr. T.P.S. Bedi Advocate made statement on 31.5.1984 to the effect that the defendants would remove the Malba without claiming any compensation thereof in case the suit property falls to the share of the plaintiff in a partition suit. This admission duly noticed in this order, in fact knocks out the main defence of the respondents that the partition had taken place between the parties. Had it been so, the respondents would not have raised objection with regard to the maintainability of the suit filed earlier. One also cannot lose sight of the fact that no specific date of partition has either been alleged or proved. No instrument of partition is forthcoming. However, much emphasis has been laid upon the alleged execution of some mortgage deeds by the predecessor-in-interest of the present appellant (plaintiff) Exhibit D-13 and D-14 for the proposition that execution of these documents clearly prove that parties decided to separate. Counsel for the appellant raised objection with regard to the admissibility of these documents on the ground that the same have not been proved according to law. In fact, both these documents were tendered and exhibited by the counsel for the defendant-respondents without any formal proof.

This objection has merit, The lower appellate Court erred in law in relying upon these documents which have not been proved according to law. Else there is no material evidence by which it could be deduced that the parties agreed to separate. To be fair to the counsel for the respondents, it would be appropriate to note the judgments cited in support of his view. Para 325 of Hindu Law by Mulla deals with topic. How partition may be effected. According to Mulla, partition is a severance of joint status, and as such it is a matter of individual volition. All that is necessary, therefore, to constitute a partition is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severity i.e. to say there should be an intimation, indication or representation of such intention and that what form that manifestation should take would depend upon the circumstances of each case. Thus, there, has to be intimation, indication or representation of such an intention. The case when examined even in the light of these broad principles does not lead us to a conclusion that the parties irrevocably decided to separate. On facts at best it can be stated that they are living apart but that itself is not to mean that there has been severance of joint status. Since it has not been the case of the defendants that there has been an oral partition at some given time, to infer such a conclusion would tantamount to be conjectural in nature.

12.There is no dispute with regard to the proposition as enunciated by the apex Court in case reported as Kalayani (supra) as well as in case Apoorva Shantitlal Shah (supra). As held in the aforesaid two judgments partition in one sense is severance of joint status and coparcener of a coparcener is entitled to claim it as a matter of individual volition. In this narrow sense, all that is necessary to constitute partition is a definite and unequivocal indication of intention to separate himself from the family and enjoy his share in severality. Neither the averments nor the evidence led by the respondents lead to the conclusion that there has been a severance of joint status of the parties. The respondents have failed to substantiate the factum of oral partition or reasons as to why both the brothers (predecessor-in-interest of the present parties) decided to partition the joint holding unequally (i.e. 72 sq. yards to the plaintiff and 132 sq. yards to the defendants).

Resultantly, I accept the appeal and set aside the order of the Additional District Judge and affirm the judgment and decree passed by the trial Court. No order as to costs.