IN THE HIGH COURT OF CHATTISGARH AT BILASPUR
FA No 90 of 2001
1 Krishna Kumar Soni
2 Peelu lal Soni
3 Narendra Kumar Soni
4 Ashok Kumar Soni
5 Dhannu Soni
6 Suresh Kumar Soni
7 Smt Meena Soni
8 Smt Dhanabai
...Petitioners
VERSUS
1 Rajulal Soni
2 Kamata Prasad Soni
3 Babulal Soni
...Respondents
! Shri Sanjay K Agrawal counsel for the appellants
^ 1 Shri Vimlesh Bajpai counsel for respondent No 1 plaintiff
2 Shri R P Tripathi counsel for respondents No 2 and 3
Honble Shri Dilip Raosaheb Deshmukh J
Dated: 27/08/2007
: Judgment
First Appeal under Section 96 of the Code of Civil Procedure
JUDGMENT
(Delivered on this 27th day of August, 2007)
Being aggrieved by the judgment and decree dated
24-04-2001 passed by Shri M. Katulkar, VIth
Additional District Judge, Durg in Civil Suit No.11-
A/2000 granting partition of the joint family
property and severance of one-fourth share of the
respondent/plaintiff, the appellants/defendants have
preferred this appeal.
(2) The following facts are not disputed in this
appeal:
Chandulal Soni was the owner of the suit
house as shown in the map annexed to the plaint
situated in Motipara, in front of Luchki Talab, Durg.
The respondent/plaintiff Rajulal Soni,
appellants/defendants No.9, Kamta Prasad Soni and
No.10, Babulal Soni and Makhanlal Soni were the sons
of Chandulal Soni. Makhanlal Soni was the eldest
among the sons. The appellants/defendants No.1 to 6
are the sons, No.7, the daughter and No.8, the widow
of Makhanlal Soni. After the death of Chandulal Soni
in 1956, under a family arrangement, late Makhanlal
Soni and his three brothers continued to reside in
portions of the suit house which were in their
occupation. Names of Makhanlal Soni, Kamta Prasad
Soni, Babulal Soni and Rajulal Soni are jointly
recorded over the suit property in the Nazul Records.
(3) The respondent/plaintiff instituted the suit for
partition and separation of his one-fourth share
specifically pleading that the suit property was
joint and had never been partitioned. Under a family
arrangement, the coparceners were in separate
possession of different portions of the suit property
as mentioned in the map annexed to the plaint. It
was also pleaded that the double storied house in
question was constructed by late Chandulal Soni and
not by Makhanlal Soni. It was stated that cause of
action for institution of the suit arose when the
appellants/defendants refused to give him a shop
situated on the ground floor for business of his
sons.
(4) The appellants/defendants No.1 to 8 pleaded that
Makhanlal Soni and his three brothers had partitioned
the suit property under a family arrangement, under
which the ground floor had fallen to the share of
Makhanlal Soni. Makhanlal Soni had constructed a
hall, shops, latrine at his own expense. It was also
pleaded that Makhanlal Soni had incurred the entire
expenditure in the construction of the suit house.
(5) Respondents No.2 and 3/defendants No.9 and 10,
i.e., Kamta Prasad Soni and Babulal Soni, the
brothers of Makhanlal Soni admitted the plaint
allegations in toto and prayed that the suit for
partition be decreed.
(6) The learned VIth Additional District Judge,
Durg, upon appreciation of evidence, held that the
appellants/defendants had failed to prove that after
death of Chandulal Soni, the suit property was
partitioned between the parties and upon severance of
the joint status the coparceners were in separate
possession of their respective shares. It also
recorded a finding that the appellants/defendants had
failed to prove that Makhanlal Soni had incurred the
entire expenditure in construction of the suit
property. On these premises, it granted a decree for
partition of the suit property and severance of one-
fourth share of the respondent/plaintiff.
(7) Shri Sanjay K. Agrawal, learned counsel for the
appellants/defendants argued that in the plaint there
was a clear and unequivocal admission by the
respondent/plaintiff that under a family arrangement,
Makhanlal Soni and his brothers were in separate
possession of portions of the suit property. It was
also contended that the unrebutted testimony of
Dhanabai, D.W.-2, the widow of Makhanlal Soni proved
that Makhanlal Soni had incurred the entire
expenditure in construction of the suit house. It
was argued that the parties were in separate
possession of their respective shares as per family
arrangement since more than 50 years and it is only
after the death of Makhanlal Soni, the
respondent/plaintiff had filed the suit for partition
because of refusal by the legal representatives of
Makhanlal Soni to give to him a shop at the ground
floor for the purpose of business of his sons.
Reliance was placed on Pata Sahu and another vs. Hiru
Sahu and others, AIR 1991 Patna 276 and Radhamoni
Bhuiyanin and others vs. Dibakar Bhuiya and others,
AIR 1991 Patna 95 while arguing that there was
severance of joint family status since over 50 years
and the parties were in separate mess and separate
residence of their respective portions, which was a
definite and unequivocal indication of the intention
of the members of the joint family to separate
themselves from the family and enjoy their respective
shares in severality. Reliance was also placed on
Kalyani vs. Narayanam, AIR 1980 SC 1173.
(8) On the other hand, Shri Vimlesh Bajpai, learned
counsel for the respondent/plaintiff argued in
support of the impugned judgment and contended that
the property stood joint in the names of the four
brothers. Reliance was placed on Girijanandini Devi
and others vs. Bijendra Narain Choudhary, AIR 1967 SC
1124 and Roop Chand vs. Indradevi and others, AIR
1997 MP 200. It was submitted that the sale-deed
dated 11-10-1957, Ex.D-7, through which Makhanlal
Soni had sold the suit property to Foolchand proved
that the double storied suit house was already
existing, which negatived the evidence of Dhanabai,
D.W.-2 that the double storied suit house was
constructed at the expense of her husband Makhanlal
Soni. It was also contended that the
appellants/defendants had failed to prove the
existence of an unequivocal intention of the
coparceners to sever the joint family status at the
time of the family arrangement.
(9) Shri R.P.Tripathi, learned counsel for
respondents No.2 and 3 adopted the arguments advanced
by Shri Vimlesh Bajpai, learned counsel for the
respondent/plaintiff.
(10) In Kalyani vs. Narayanam (supra), the law
relating to partition of a Mitakshara Hindu undivided
family was laid down by the Apex Court in the
following terms:
“Partition is a word of technical
import in Hindu Law. Partition in
one sense is a severance of joint
status and coparcener of a
coparcenary is entitled to claim it
as a matter of his individual
volition. In this narrow sense all
that is necessary to constitute
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
severality. Such an unequivocal
intention to separate brings about
a disruption of joint family
status, at any rate in respect of
separating member or members and
thereby puts an end to the
coparcenary with right of
survivorship and such separated
member holds from the time of
disruption of joint family as
tenant-in-common. Such partition
has an impact on devolution of
share of such member. It goes to
his heirs displacing survivorship.
Such partition irrespective of
whether it is accompanied or
followed by division of properties
by metes and bounds covers both a
division of right and division of
property. A disruption of joint
family status by a definite and
unequivocal indication to separate
implies separation in interest and
in right, although, not immediately
followed by a de facto actual
division of the subject matter.
This may at any time, be claimed by
virtue of the separate right. A
physical and actual division of
property by metes and bounds
follows from disruption of status
and would be termed partition in a
broader sense.”
Thus, in order to constitute the partition of the
joint family property severance of joint status and a
definite and unequivocal indication of the intention
by the members of the joint Hindu family to separate
themselves and to enjoy their respective shares in
severality is required to be established by the
party, who pleads that under the family arrangement,
there was a disruption of status under a definite and
unequivocal indication of the intention by the
members of the joint family to separate and to enjoy
their shares in severality. Only such an unequivocal
intention to separate brings about the disruption of
joint family status. In Pata Sahu and another vs.
Hiru Sahu and others (supra), it was held that mere
fact of separate mess and separate residence by
themselves are not conclusive proof of partition.
(11) The decision of the High Court of Madhya Pradesh
in Roop Chand vs. Indradevi and others (supra)
applies to the present case with full force as the
facts were identical to the present case. In that
case, the plaintiff/appellant had filed a civil suit
for partition of the House specified in the plaint,
situate in the town of Bhind. The plaintiff was
claiming one-fourth share in the said house. The
plaintiff alleged that this house was purchased in
the year 1947 by his father. His father had died.
The plaintiff and his three brothers, who are
respondents, had equal shares of one-fourth in the
said house. After sometime, the living of the
plaintiff and his brothers was separated and they
continued to live in separate portions of the same
house for quite sometime. Later on one of the
defendants mortgaged his share in the same house by
mortgage-deed dated 17-04-1992 to one Shri Prakash
Shivhare and put him in possession. The dispute
arose later on in respect of the living and dealing
with the portions of the same house. The plaintiff
was aggrieved of his possession being interfered with
by the defendants, and filed a suit for partition.
It was held that mere admission that the four
brothers were living separately in the same house and
doing separate business did not permit raising a
presumption that there was a family settlement to
deal with the property independently of their shares.
The house stood in the name of four brothers jointly.
There was no mutation of co-shares of their different
shares and in that view of the matter, no presumption
could be raised of any settlement much less that of a
partition.
(12) The Apex Court has in Girijanandini Devi and
others vs. Bijendra Narain Choudhary (supra), while
placing reliance on a decision of the Judicial
Committee of the Privy Council in Palani Ammal vs.
Muthuvenkatacharla Moniagar, AIR 1925 PC 49, held
that it is the unequivocal intention to sever
followed by the conduct of the coparceners which
seeks to effectuate that intention that partition
results. Mere specification of share without
evidence of intention to sever does not result in
partition. It was held that in order to constitute
partition the conduct of the coparceners must
evidence unequivocally the intention to sever the
joint family status.
(13) Bearing in mind the principles laid down by the
Apex Court, it requires consideration whether the
appellants/defendants have been able to prove such an
unequivocal intention to sever the joint family
status by a family arrangement. Dhanabai, D.W.-2,
the widow of Makhanlal Soni has admitted in para 10
that the suit property was never partitioned. In
para 8, she admitted that all the four sons of
Chandulal Soni were living jointly in the suit
property. In para 3, she stated that no dispute
regarding partition ever arose between the parties
before filing of the suit. Defendant No.2, Pillulal
Soni has also admitted in para 8 that no partition
had ever taken place and Makhanlal Soni and his
brothers were in respective possession of the
portions under the family arrangement. It is also
not in dispute that the suit property was jointly
recorded in the name of Makhanlal Soni and his three
brothers. The evidence of Dhanabai, D.W.-2 that
Makhanlal Soni had got the suit house constructed at
his own expense is belied by the contents of Ex.D-7,
which is the sale-deed executed by Makhanlal Soni in
favour of Foolchand on 11-10-1957 showing that a
double storied pakka house situated in Luchkipara was
sold. The documentary evidence on record shows that
the financial condition of the family had weakened
due to which the suit house was required to be sold
by Makhanlal Soni to Foolchand vide Ex.D-6 in 1957.
This contradicts the averment that Makhanlal Soni had
incurred the entire expenditure in constructing the
suit house and fortifies the conclusion drawn by the
learned VIth Additional District Judge, Durg that the
suit house was constructed by Chandulal Soni during
his lifetime.
(14) The respondent/plaintiff has led evidence to
show that the suit property was recorded jointly in
the name of all brothers and the cause of action for
filing the suit for partition arose when after the
death of Makhanlal Soni, the appellants/defendants
refused to give him a shop at the ground floor for
business for his sons. Respondents No.2 and 3, i.e.,
the defendants No.9 and 10, Kamta Prasad Soni and
Babulal Soni have admitted the plaint in toto.
Rajulal Soni (plaintiff), P.W.-1, Kamta Prasad Soni,
P.W.-2 deposed that after the death of Chandulal Soni
since the ground floor of the suit house was vacant,
it was occupied by Makhanlal Soni and three brothers,
i.e., Rajulal Soni, Kamta Prasad Soni and Babulal
Soni continued living on the first floor.
(15) The learned VIth Additional District Judge, Durg
has objectively appreciated the evidence, oral as
well as documentary, consistently with the law
relating to partition and recorded a well-reasoned
finding that the appellants/defendants have failed to
prove that under a family arrangement there was
complete severance of joint family status between the
parties and has rightly held that such family
arrangement could not be construed to be a partition
between the parties. Thus, no interference with the
impugned judgment and decree is called for.
(16) In the result, the appeal fails and is
dismissed. In the circumstances, the parties shall
bear their own cost.
A decree shall be drawn accordingly.
JUDGE