JUDGMENT
A.K. Shrivastava, J.
1. This appeal has been preferred by plaintiffs being aggrieved by judgment and decree dated 14-9-1988 passed by 8th Additional District Judge, Jabalpur dismissing their appeal and confirming the judgment and decree dated 11-1-1982 passed by the Trial Court holding that partition took place in the year 1954 and in pursuance to that partition the parties arc possessing their respective shares.
2. The suit was originally filed by Moorat Lal Tiwari and on his death the present appellants were brought on record. The original plaintiff Moorat Lal filed suit against Nathuram, Lakhan Lai and Smt. Malida Bai. Moorat Lal was having two wives. From his first wife Nathuram defendant No. 1 was born. After the death of his first wife, Moorat Lal married to Malida Bai (defendant No. 3) and Lakhan Lal (defendant No. 2) is his son from his second wife. Amarnath, Yogendranath and Ravindra Nath, who were brought on record as plaintiffs on the death of the original plaintiff Moorat Lal are his grand-children, they are the sons of Lakhan Lai.
3. Moorat Lal filed suit for declaration that the suit property is his self acquired property and as such he is the owner of the said property shown in Schedules A and B annexed to the plaint. An alternative prayer has also been put forth by him that a decree for partition be passed dividing the property by meter and bounds and allowing 1/4th share to the plaintiff out of the property shown in Schedules A and B annexed to the plaint. In the plaint it has been pleaded that the plaintiff purchased the property shown in schedule attached to the plaint out of his self earned income and he is the sole proprietor of the land shown in Schedule A and house shown in Schedule B. The defendant No. 1 namely Nathuram after his retirement from police department started harassing the plaintiff and other defendants due to his bad habits which he developed in his police service. As per plaint, defendant No. 1 Nathuram is asserting that the suit property is the property of Joint Hindu Family and the plaintiff is not the exclusive owner of it and hence the present suit for declaration has been filed. An alternative plea has also been taken that if it is held that the property does not belong exclusively to the plaintiff, he being a coparcener of Joint Hindu Family is entitled to 1/4th share in the suit property and in that case he is entitled to be placed in possession after partition of his 1/4th share in the property. In Para 6 of the plaint, it has been specifically pleaded by him that he had executed a Will on 19-2-1973 and got it registered in the office of the Sub-Registrar, Sihora bequeathing the agricultural land of Village Satuli to his wife Smt. Malida Bai and the entire property of Village Budri including dwelling house has been bequeathed to his grand-children namely, Amarnath, Yogendranath and Ravindranath sons of Lakhan Lal. It has been further pleaded in the plaint that he did not bequeath any property to his sons namely Nathuram and Lakhan Lal who are defendant Nos. 1 and 2 respectively.
4. The plaint averments were resisted by defendant No. 1 Nathuram by filing a separate written statement. The other defendants namely Lakhan Lal and Smt. Malida Bai admitted the plaint averments and it was also submitted by them that in case it is found that the suit property is Joint Hindu Family property, same may be partitioned.
5. The learned Trial Judge framed the issues, however, before the evidence could be recorded the original plaintiff Moorat Lal breathed his last thereafter his legal representatives, who are his grand-sons, were brought on record as plaintiffs. The Trial Court came to hold that partition took place between the parties long back in the year 1954 and since then the plaintiff and defendants are residing and possessing their respective shares. Eventually, the Trial Court dismissed the suit holding that the suit property is not the self acquired property of the original plaintiff Moorat Lal and because the partition already took place in the year 1954 therefore, alternative prayer seeking decree of partition was also not allowed and the suit was dismissed in toto.
6. An appeal was preferred by the plaintiffs has also been dismissed, hence this appeal.
7. This appeal was admitted on the following substantial question of law:–
“Whether the appellants are entitled to declaration & possession of at least 1/4th share Moorat Lal bequeathed to them and others as per Will, Ex. P-2?”
8. Both the Courts below recorded finding of fact that the entire suit property was partitioned in 1954 and memorandum of partition (Ex. D-1) was reduced in writing acknowledging their respective shares by the parties. It has been contended by Shri Awasthy, learned Counsel for the appellant that by Ex. D-1 the property was partitioned and, therefore, this document is not admissible in evidence since the same has not been registered. The argument is considered. Both the Courts below held the document (Ex. D-1) to be a memorandum of partition. I have also gone through the document and find it to be only a memorandum and therefore it does not require any registration, See Roshan Singh v. Zile Singh, AIR 1988 SC 881.
9. It has come in the evidence and several documents in that record have been filed that after the partition, took place in the year 1954 and in terms of memorandum of partition the properties were mutated in the revenue record in the respective share of each coparcener which was obtained by him after partition. Thus after the year 1954 each party was possessing its own share obtained by him on partition which would mean that it is his self acquired property. Indeed Moorat Lal should have bequeathed his share only which he obtained in the year 1954 in partition. But, he bequeathed all the properties prior to the partition by Will (Ex. P-2) for which he was not competent as he was not the owner of the entire property. After the severance, there was no property of Joint Hindu Family. Indeed Joint Hindu Family, after partition did not remain in existence and, therefore, Moorat Lal was not having any joint interest in any undivided estate and, therefore, Section 30 of the Hindu Succession Act, 1956 is also not having any applicability in the present case.
10. Indeed the Will (Ex. P-2) executed by Moorat Lal can not be acted upon for the simple reason that the property which has been bequeathed was not of his. Indeed he bequeathed the entire property which was partitioned long back in the year 1954 and, therefore, he was not the owner of the entire suit property. At the most, he could have bequeathed the share allotted to him in the year 1954, but, it was not done and, therefore, the Will (Ex. P-2) is not workable and can not be implemented.
11. In the result, the appeal is devoid of any substance and is hereby dismissed. The parties are directed to bear their own costs. Counsel fee as per Schedule if certified.