Kishan Chand and anr. Vs. Prem Chand and ors. - Court Judgment

Excerpt:
property - partition - plaintiff filed suit for separate possession as suit property belongs to his father - trial court decreed suit of plaintiff declaring plaintiff and defendant nos.1 and 2 to have 1/3rd share each in suit property - defendants filed appeal - rejected - hence, present second appeal - held, plaintiff has not approached court with clean hands as he did not disclose anything about oral partition, pursuant to which site plan mark 'b' was prepared and deed was executed between brothers which is on record - rather, it was pleaded by plaintiff that suit property has not been partitioned and is joint - therefore, from above facts, it is apparent that act and conduct of plaintiff is not aboveboard - however, document mark 'b' is admitted by plaintiff in his statement as well as in his statement - since, case between parties is of oral partition and according to defendants, in view of oral partition, house in question was divided into three parts and all three brothers were given separate portions in view of language of document itself - thus deed of partition is past transaction which does not require registration and is admissible in evidence - once said document is held to be past transaction which does not require registration, findings recorded by lower appellate court stands reversed - there was no occasion for defendants to prove these two documents with any other evidence after admission by plaintiff himself - in view of above, present appeal is allowed and judgment and decree of both courts below are set aside - hindu law -- custom: [vijender jain, c.j., m.m. kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of ancestral property - punjab and haryana - held, in respect of state of punjab by virtue of punjab amendment act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. in punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by hindu law except to the extent it is regulated by sections 6 and 30 of the hindu succession act. in haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. parties can fall back upon hindu law in case they fail to establish that rule of decision is custom. therefore, in haryana both under hindu law and the customary law, the alienation would be open to challenge. custom was given precedent over uncodified hindu law presumably for reason that custom has been consistently replacing the hindu law. however, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst jats of punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. it was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. accordingly, the punjab custom (power to contest) act, 1920 (act no.2 of 1920) was enacted. the hindu succession act was extended to the state of punjab. act 2 of punjab act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. a further provision was made by section 3 that hindu succession act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. whereas section 4 declared that hindu succession act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the succession act was to come into force. in other words, act, no.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. it also preserved the rights of any alienation or appointment of an heir made by a family. after section 7 was inserted in act of 1920 by the punjab amendment act of 1973 right of contest being contrary to custom had been totally effaced and taken away. therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after january 23, 1973. in haryana, the situation as enunciated by act no.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to punjab as brought by amendment act of 1973, had been enacted although right to pre-emption has been substantially abolished in haryana also. no steps even have been taken in that regard. therefore, situation in haryana have to be regarded as it existed under act no. 2 of 1920. hindu succession act,1956[c.a.no.30/1956] -- sections 6 & 30: [vijender jain, c.j., m.m.kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of coparcenary property - law laid down by full bench in joginder singh kundha singh v kehar singh dasaundha singh [air 1965 punjab 407] and pritam singh v assistant controller of estate duty, patiala [1976 punj lr 342] -whether there is any conflict? - held, the basic controversy in the full bench decision of joginder singhs case was regarding constitutional validity of section 14 of hindu succession act and as to whether it infringes article 14 of constitution. it was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. the full bench held that section 14 of hindu succession act postulates that estate held by a hindu female before enforcement of succession act either by inheritance or otherwise, was enlarged and on date of enforcement of succession act, she became a full owner. likewise, if she has inherited any estate after the commencement of the act, she was to be regarded as absolute owner rather than a limited owner. consequently, the limitations on power of alienation automatically vanished. this was the necessary result of the provisions made in section 14 of the act. the full bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. however, it noticed section 30 and observed that it only deals with power of his share in coparcenary property by will, which prior to enforcement of the act, he had no right to do. the only provision made in respect of male proprietor regarding alienation of property was his power of alienation by will. in so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the act. likewise, other restriction on alienation other than disposal by will also continued. the full bench, thus, recognized the superior right of hindu females by virtue of section 14 and upheld the provision as intra vires. the argument that reversioners have ceased to exist after enactment of provisions of section 14 of succession act, was rejected as there was no provision pointed out to that effect. the proposition laid down by the full bench in pritam singhs case was that the hindu succession act has not abolished joint hindu family with respect to rights of those who were members of mitakshara coparcenary, except in the manner and to the extent mentioned in sections 6 and 30 of the act, this statement should also imply, though it does not say so expressly, the succession act to this extent does not affect the rights of the members governed by dayabhaga coparcenary. the full bench in pritam singh;s case expressly noticed the judgment of earlier full bench in joginder singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by customary law and constitutional validity of section 14 of hindu succession act. thus there is no real conflict between the two full bench judgments. both the full bench judgments have been delivered on the assumption that joginder singhs case dealt with question of alienation whereas pritam singhs case had decided the question concerning succession. even on fact in joginder singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in pritam singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. in pritam singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. therefore, there was no question of alienation in pritam singhs case. - it was further pleaded that this partition had taken place amicably to avoid any dispute and to maintain good relations between the family members. 1. that the red portion shown in the site plan, the boundaries of which like as east-courtyard and stair case of the abovesaid house, west-house of lakhmi chand, north house of lal chand and south-road. our heirs will also be bound by this partition like us. however, be that as it may, the fact remains that the document mark 'b' is admitted by the plaintiff in his statement dated 03.06.1983 as well as in his statement when he appeared as pw1 in the suit.rakesh kumar jain, j.1. this appeal is by defendants no. 1 and 2 against the judgment and decree of both the courts below, whereby suit of the plaintiff for separate possession by partition of the property, namely, house nos. 4507/2, 4505/2 and 4403/2 situated in mohalla chatta nanu mal, patiala is decreed and a preliminary decree is passed declaring the plaintiff and defendants no. 1 and 2 to have l/3rd share each in the property in dispute and that the plaintiff is entitled to separate possession of his l/3rd share.2. on 04-08-1982, the plaintiff filed the suit for separate possession alleging therein that the property in dispute belong to their father chiranji lal who had died in the year 1954, leaving behind plaintiff and defendants no. 1 and 2 as his sons, defendants no. 3 and 4 as his daughters and laxmi devi as his widow. since the death of chiranji lal had occurred before coming into force of the hindu succession act, therefore, only plaintiff and defendants no. 1 and 2 succeeded to the property in dispute in equal shares. it was alleged that their mother laxmi devi has also expired. it was claimed in the plaint that the properties of the parties were not partitioned and they were joint.3. in response to this plaint, defendants no. 1 and 2 filed written statement on 16-10-1982 in which, it was pleaded that only house nos. 4403/2 and 4505/2 were left joint, whereas, house no. 4507/2 and other joint articles, jewellery etc. were partitioned by way of oral partition. it was further pleaded that the plan of the house was prepared and portions falling to the share of the plaintiff and defendants were earmarked and consequently on 23.04.1976, a memorandum of partition was prepared. it was further pleaded that this partition had taken place amicably to avoid any dispute and to maintain good relations between the family members.4. on 13.12.1982, replication was filed by the plaintiff to the written statement filed by defendants no. 1 and 2 in which it was denied that any oral partition had taken place. it was denied that any plan was prepared. it was denied that any memorandum of partition was prepared on 23.04.1976.5. since, the defendants no. 1 and 2 were relying upon a site plan and the memorandum of partition dated 23.04.1976 in their written statement, the same were put to the plaintiff in the proceedings under order 10 rule 2 c.p.c., where he made a statement on 03.06.1983 in respect of document which is named as deed of family partition and site plan of the triple storey house no. 4507/2 which were marked as 'mark 'a' and mark 'b' respectively. the statement of the plaintiff which was recorded on oath is reproduced as under:the documents mark 'a' and mark 'b' bear my signatures. vide this partition, i got one barsati and my water has been stopped by the defendants. the courtyard and passage (deori) had not been partitioned, the remaining house had been partitioned. i have right to use the court yard and the passage (deori). i have right to use the barsati. a motor is installed in the court yard, of which, the connection is in my name and the defendants stops me to run my own meter. my wire has been cut.ro & acsd/- prem chand 3/6/836. after suffering the above statement, the plaintiff moved an application under order 6 rule 17 cpc on 19.08.1983 in order to explain the document mark 'a' and mark 'b'. in the aforesaid application, it was mentioned that since defendants no. 1 and 2 are not allowing the petitioner to use water and also threatening the petitioner not to use barsati, the necessity for the amendment of the plaint has arisen. pursuant to that, para 6-a and 6-b are sought to be added which are reproduced as under:6-a: that a document regarding faked partition dated 23.4.1976 as agreement of partition was executed but actual possessions were not taken according to it. the parties were already in possession as they are now. moreover, the plaintiff has not been given the barsati also by the defendants no. 1 and 2.6-b: that even according to the agreement dated 23.4.1976, the dudhi and compound were kept joint. there was a motor installed in the compound which was being worked by the plaintiff also with his own electric connection. the defendants no. 1 and 2 have dis-connected the electric motor from the connection of the plaintiff and have thus deprived the plaintiff of the use of the water and the defendants no. 1 and 2 are also threatening the plaintiff not to use dudhi and compound and also the stair case, which were never partitioned even according to the agreement.7. the application for amendment was allowed. the plaintiff then filed the amended plaint on 17.11.1983 in corporating not only paras 6-a and 6-b but also made a prayer with regard to permanent injunction. the defendants no. 1 and 2 filed a written statement to the amended plaint on 06.12.1983 and denied the averments of the para 6-a and 6-b. the plaintiff filed a replication to the amended written statement on 27.01.1984. in para 6-b thereof, it was however admitted that document dated 23-04-1976 was written.8. on the pleadings of the parties, the trial court framed the following issues:1. whether there was any partition writing between the plaintiff and defendants no. 1 and 2? onus parties (framing of this issue is objected to by the counsel for the defendants).2. if issue no. 1 is proved, whether that partition writing was fake as alleged by the plaintiff also the effect of the statement made by the plaintiff in the court on 3.6.1983? opp3. whether the house no. 4403/2 is not partitioned at this stage being not in possession of the plaintiff and defendants nos. 1 and 2? opd.4. whether defendants nos. 1 and 2 incurred any expenditure on the litigation regarding property in house no. 4403/2? if so, between whom and its effect? also the amount of expenditure?5. whether the plaintiff is entitled to injunction as prayed for? opp6. relief.on issues no. 1 and 2, the trial court had opined in favour of the plaintiff holding that writing mark 'a' dated 23.04.1976 was inadmissible in evidence for want of registration as such, no legal partition of house no. 4507/2 took place and the same is still joint. issues no. 3 and 4 were left undecided on the statement made by the counsel for the parties as these issues were kept for disposal at the time of final decree. on issue no. 5, the plaintiff was not found to be entitled to any injunction.9. the lower appellate court, while dismissing the appeal of the defendants held that the document mark 'a' is not a memorandum but a deed, therefore, it does not envisage recording of a past transaction but signifies a transaction in present and requires registration in the absence of which the document is in-admissible in evidence and cannot be looked into for the purposes of holding that there has already been a partition between the parties regarding the property in dispute. in respect of site plan mark 'b', it was opined that the same was never got proved from shri vidya sagar draftsman who had prepared the site, plan, therefore, it was found to be inadmissible evidence. it was also opined that since the document itself shows that it is a deed and not a yadasht, therefore, it is a transaction in praesenti and required registration.10. mr. j.k. sibal, sr. advocate, counsel for the defendants/appellants has argued that the whole dispute revolves around the fact as to whether document mark 'a' is a past transaction or a transaction in praesenti. during the course of hearing, by way of civil misc. no. 983-c of 2008, english translation of document mark 'a' was placed on record which is being reproduced as under:deed of family partitionwe, gora lal, (2) kishan chand, (3) prem chand sons of shri chiranji lal, are residents of chatta nanu mal, patiala. whereas we jointly own houses no. 4507/2, 4505/2, 4403/2 situated in chatta nanu mal, patiala, of which we are owners and in possession in equal shares. we all three brothers, with our sweet will and understanding and without any gain or loss, have partitioned house no. 4507/2 situated in chatta nanu mal, patiala as per the site plan attached and taken possession of our respective partitioned share as follows:1. that the red portion shown in the site plan, the boundaries of which like as east-courtyard and stair case of the abovesaid house, west-house of lakhmi chand, north house of lal chand and south-road. this portion of the house has come to shri gora lal, of which now he is the exclusive owner, who shall have every right of mortgage, sell etc. and nobody else will have any concern over this share.2. that the blue portion shown in the site plan.sd/- sarla devi sd/- gora lal sd/- prem chandsd/- sarla devi sd/- gora lal sd/- prem chandthis portion of the house has come to shri prem chand, of which now he is the exclusive owner, who shall have every right of mortgage, sell, etc. and nobody else will have any concern over this share.3. that the yellow portion shown in the site plan has come to shri kishan chand, of which now he is the exclusive owner, who shall have every right of mortgage, sell, etc. and nobody else will have any concern over this share. houses no. 4505/2 and 4403/2 have not been partitioned as yet. these will be remained in joint ownership.the stair case and courtyard of the partitioned house will be jointly used for all three. scooter no. pup 485 has come to sh. prem chand, which has been given to him. sh. prem chand will be the exclusive owner of this scooter.sd/- gora lalsd/- kishan chandsd/- prem chandsd/- sarla devithe shop business is running in the name of smt. sarla devi, his wife instead of sh. prem chand. smt. sarla devi has separated herself with her sweet will and understanding, after taking her share from the shop business. now she does not and will not have any concern with the shop business. sh. prem chand will have no concern with the shop business and the capital. now, every transaction of capital in the shop business will be owned by both brothers gora lal and kishan chand.besides this, we all three brothers our respective share in 1021 gram 670 milligram jewellery of the share of sh. prem chand and 4 kg. & 590 gram silver, other utencils, clothes, machine, fans and other household items, as per the abovesaid terms. as per the above, the jewellery and silver etc. have come to all in three equal shares. now we all three brothers do not have any objection against each other with regard to the partition, meaning thereby, we all three have our respective share in 1021 gram 670 milligram jewellery and 4 kgs. 590 grams of silver and other household items.our heirs will also be bound by this partition like us.the passage (deori) will be jointly used by all three. if anyone wants to use the hand pump by putting his own pipe upon this, then others will have not objection to the same. if any brother wish to get electricity meter installed separately, he can do so.the deed of partition is written for record. dated 23.04.1976witness(sd/-) (sd/-) (sd/-)shri jyoti prashad sh. gora lal sh. kishan chands/o j. gopal, r/o (abovesaid) (abovesaid)patiala, goldsmith witness(sd/-) (sd/-)sh. prem chand sh. hira lal jain s/o sh. tara chandr/o jorian bhattian, patiala (sd/-) sarla devi(seal and sign)lall chand bajaj,document writer, patiala no. 51dated 23.4.7611. since, it is an old appeal of 1988, the counsel for the appellant, with the permission of the court, had placed on record the substantial questions of law involved in this appeal which are reproduced as under:1. whether the courts below have erred in law in not acting upon the comprehensive family settlement which entered into between the parties prior to 16.04.1976 as contained in the memorandum of partition (mark 'a')?2. whether the courts below have erred in law in not relying upon the admission of the plaintiff/respondent no. 1 dated 03-06-1983 wherein he admits the execution of memorandum of partition (mark 'a' and mark 'b')?3. whether the court below have misread the documents mark 'a' and mark 'b' and wrongly come to the conclusion that the same requires registration in spite of the fact that it does not constitute a fresh division of property but records a family settlement already entered into and acted upon between the parties prior to the execution of the memorandum of partition?4. whether the courts below have committed an error in law in interpreting the terms of the documents (mark 'a' and mark 'b')?12. it has been argued by mr. sibal, that courts below have not only misread the evidence on record but have also misinterpreted the document. at the very outset, he has referred to document mark 'b' available on record which is a site plan prepared by shri vidhya sagar on 16.04.1976 and has been signed by plaintiff prem chand, defendants gaura lal, kishan chand and sarla devi etc. the learned counsel has submitted that the site plain pertains to house no. 4507/2 which is in dispute, in which portion shown in 'red colour', the ground floor, is shown as the property of gaura lal-defendant no. 1, portion in 'blue colour' is shown as property of prem chand (plaintiff) and portion in 'yellow colour' is shown as property of kishan chand (defendant no. 2). court yard and stair case were kept common for all the three. after this document, the counsel for the appellant has referred the statement dated 03.06.1983 suffered by the plaintiff himself on oath, in which he admitted that document mark 'b' bears his signatures. it is thus argued that once document mark 'b' i.e. the site plan has been admitted, there was no occasion for the defendants to prove the same through draftsman vidya sagar. he also referred to the statement of the plaintiff who appeared as pw1 later on, in which he again admitted that the site plan mark 'b' was got prepared from vidhya sagar and bears his signatures and that of defendants no. 1 and 2 and his wife sarla devi. according to the learned counsel for the appellant, there is no dispute left regarding authenticity of the document mark 'b' which had came into being on 16.04.1976 vide which the house in question was partitioned into three portions by all the three brothers and is occupied also accordingly in order to maintain peace and harmony in the family. it is further submitted that a memorandum was written on 23.04.1976 i.e. seven days thereafter which too was admitted by the plaintiff in his statement on 03.06.1983 in which it was categorically mentioned that 'we all three brothers, with our sweet will and understanding and without any gain or loss, have partitioned house no. 4507/2 situated in chatta nanu mal, patiala as per the site plan attached and taken possession of our respective partitioned share'. the partitioned share were also mentioned in the deed which tallies with the site plan mark 'b' because in the deed, red portion shown in the site plan has been given to gaura lal-defendant no. 1, blue portion given to prem chand-plaintiff and yellow portion was given to kishan chand-defendant no. 2. it was also found mentioned in the deed that the stair case and court yard shall remain common to be used by all the three brothers which is also mentioned in the site plan mark 'b'.13. on the basis of aforesaid facts available on the record, which according to the counsel for the appellant, have not been appreciated in its true perspective by the courts below, it has been submitted that mark 'a' is nothing else but a memorandum of a transaction which had taken place on 16.04.1976 and therefore, it is not in praesenti and does not require any registration.14. shri arihant jain, counsel for the plaintiff has submitted that the language of the document mark 'a' suggests a transaction in present and has basically relied upon the findings recorded by the courts below to the effect that the name of the document is deed of family partition and not a yadasht and also protested that he was given one barsati as per statement suffered on 03-06-1983 but was not allowed to use the same. it is also submitted that the document mark 'b' has not been proved by the defendants in accordance with law as the same was not put to vidhya sagar in his statement who had prepared the same. therefore, it was prayed that no question of law involved in this appeal much less substantial, therefore, the appeal may be dismissed.15. i have heard learned counsel for the parties and have gone through the case file.16. it appears from the sequence of events that the plaintiff has not approached the court with clean hands because when he filed the suit on 04.08.1982, he did not disclose anything about oral partition, pursuant to which site plan mark 'b' was prepared and a deed was executed between the brothers which is on record as mark 'a'. rather in para 4 of the plaint, it was pleaded by the plaintiff that the property in dispute has not been partitioned and is joint. it was, however, mentioned that the plaintiff is in possession of first floor of the house in dispute. before the issues were framed when the plaintiff was confronted with the documents mark 'a' and mark 'b', he admitted his signatures on both but in order to wriggle out of it, it was stated by him that by virtue of this partition, he got one barsati and his water has been stopped by the defendants. meaning thereby, the fact of existence of mark 'a' and mark 'b' was within his knowledge at the time when the suit was filed but the same was not deliberately disclosed. after the statement suffered on 03.06.1983, he again tried to wriggle out of the documents mark 'a' and mark 'b' as he filed an application for amendment under order 6 rule 17 cpc on 19.08.1983 in which, it was specifically mentioned by the plaintiff in para 5 that though the documents mark 'a' and 'b' are in writing but the same have not been acted upon as the defendants no. 1 and 2 are not allowing the petitioner to use water and also threatening the plaintiff not to use the deori/barsati. in para 6-a and 6-b, the plaintiff had tried to show that the document mark 'a' is a fake partition deed dated 23.04.1976. therefore, from the above facts, it is apparent that the act and conduct of the plaintiff is not aboveboard. however, be that as it may, the fact remains that the document mark 'b' is admitted by the plaintiff in his statement dated 03.06.1983 as well as in his statement when he appeared as pw1 in the suit. since, the case between the parties is of oral partition and according to the defendants, in view of the oral partition, the house in question was divided into three parts and all the three brothers were given separate portions which was drawn on site plan mark 'b' on 16.04.1976. mark 'a' which though termed as a deed is in fact a yadasht or a memorandum of a transaction dated 16.04.1976 in view of the language of the document itself. therefore, i hold that the deed of partition mark 'a' is a past transaction which does not require registration and is admissible in evidence. with this, question no. 3 that has been raised as substantial question of law framed by counsel for the appellant is answered in their favour which has great bearing on the decision of this case because once the document mark 'a' is held to be past transaction which does not require registration, the findings recorded by the lower appellate court on issues no. 1 and 2 stands reversed. it is also pointed out that since the plaintiff himself had admitted the signatures on document mark 'a' and mark 'b', there was no occasion for the defendants to prove these two documents with any other evidence after admission by the plaintiff himself. therefore, the findings of the first appellate court that since mark 'b has not been put to vidhya sagar draftsman, therefore, it cannot be taken into consideration is illogical and erroneous. it is also pertinent to mention here that document mark 'a' has been documented by lall chand bajaj, document writer, patiala who has categorically referred to the site plan which is apparently mark 'b' as it tallies with the details mentioned in the partition deed, i hold that nature of the document has to be gathered from the word used specially when the same is drafted by an expert.17. it has also been held by hon'ble the supreme court in c.m. beena and anr. v. p.n. ramachandra rao : air2004sc2103 that the real intention of parties to be deciphered from complete reading of document if any, and surrounding circumstances, including conduct of parties before and after creation of the relationship. it has also been held in the case of prakash roadlines (p) ltd. v. oriental fire and general insurance co. ltd. : (2000)10scc64 that the documents has to be interpreted not by its nomenclature but what is contained in the said document. similarly, in the present case, the nomenclature document mark 'a' i.e. deed of family partition does not mean by nomenclature that it is a transaction in praesenti but from the facts contained therein shows that it is a memorandum of past transaction which had taken place between the parties on 16.04.1976.18. in view of the above discussion, the present appeal is allowed and the judgment and decree of both the courts below are hereby set aside with costs through out.