{"id":106237,"date":"2007-08-27T00:00:00","date_gmt":"2007-08-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/8-smt-dhanabai-vs-3-babulal-soni-on-27-august-2007"},"modified":"2019-03-10T04:15:44","modified_gmt":"2019-03-09T22:45:44","slug":"8-smt-dhanabai-vs-3-babulal-soni-on-27-august-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/8-smt-dhanabai-vs-3-babulal-soni-on-27-august-2007","title":{"rendered":"8 Smt Dhanabai vs 3 Babulal Soni on 27 August, 2007"},"content":{"rendered":"
Chattisgarh High Court<\/div>\n
8 Smt Dhanabai vs 3 Babulal Soni on 27 August, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n         IN THE HIGH COURT OF CHATTISGARH AT BILASPUR        \n\n        FA No 90 of 2001\n\n        1 Krishna Kumar Soni\n\n        2 Peelu lal Soni\n\n        3 Narendra Kumar Soni\n\n        4 Ashok Kumar Soni\n\n        5 Dhannu Soni\n\n        6 Suresh Kumar Soni\n\n        7 Smt Meena Soni\n\n        8 Smt Dhanabai\n\n                             ...Petitioners\n\n                                VERSUS\n\n        1 Rajulal Soni\n\n        2 Kamata Prasad Soni\n\n        3 Babulal Soni\n\n                             ...Respondents\n\n!       Shri Sanjay K Agrawal counsel for the appellants\n\n^       1 Shri Vimlesh Bajpai counsel for respondent No 1 plaintiff\n\n        2 Shri R P Tripathi counsel for respondents No 2 and 3\n\n        Honble Shri Dilip Raosaheb Deshmukh J\n\n        Dated: 27\/08\/2007\n\n:       Judgment\n\n\n        First Appeal under Section 96 of the Code of Civil Procedure\n\n\n                           JUDGMENT\n<\/pre>\n
        (Delivered on this 27th day of August, 2007)<\/p>\n
        Being aggrieved by the judgment and decree dated<\/p>\n
24-04-2001   passed   by  Shri  M.   Katulkar,   VIth<\/p>\n
Additional District Judge, Durg in Civil Suit  No.11-<\/p>\n
A\/2000   granting  partition  of  the  joint   family<\/p>\n
property  and  severance of one-fourth share  of  the<\/p>\n
respondent\/plaintiff, the appellants\/defendants  have<\/p>\n
preferred this appeal.\n<\/p>\n
(2)   The  following facts are not disputed  in  this<\/p>\n
appeal:\n<\/p>\n
           Chandulal Soni was the owner of  the  suit<\/p>\n
house  as  shown  in the map annexed  to  the  plaint<\/p>\n
situated in Motipara, in front of Luchki Talab, Durg.<\/p>\n
The      respondent\/plaintiff      Rajulal      Soni,<\/p>\n
appellants\/defendants  No.9, Kamta  Prasad  Soni  and<\/p>\n
No.10, Babulal Soni and Makhanlal Soni were the  sons <\/p>\n
of  Chandulal  Soni.  Makhanlal Soni was  the  eldest<\/p>\n
among the sons.  The appellants\/defendants No.1 to  6<\/p>\n
are  the sons, No.7, the daughter and No.8, the widow<\/p>\n
of Makhanlal Soni.  After the death of Chandulal Soni<\/p>\n
in  1956,  under a family arrangement, late Makhanlal<\/p>\n
Soni  and  his three brothers continued to reside  in<\/p>\n
portions  of  the  suit house  which  were  in  their<\/p>\n
occupation.   Names of Makhanlal Soni,  Kamta  Prasad <\/p>\n
Soni,  Babulal  Soni  and Rajulal  Soni  are  jointly<\/p>\n
recorded over the suit property in the Nazul Records.<\/p>\n
(3)  The respondent\/plaintiff instituted the suit for<\/p>\n
partition  and  separation of  his  one-fourth  share<\/p>\n
specifically  pleading  that the  suit  property  was<\/p>\n
joint and had never been partitioned.  Under a family<\/p>\n
arrangement,   the  coparceners  were   in   separate<\/p>\n
possession of different portions of the suit property<\/p>\n
as  mentioned in the map annexed to the  plaint.   It<\/p>\n
was  also  pleaded that the double storied  house  in<\/p>\n
question  was constructed by late Chandulal Soni  and<\/p>\n
not  by  Makhanlal Soni. It was stated that cause  of<\/p>\n
action  for  institution of the suit arose  when  the<\/p>\n
appellants\/defendants refused  to  give  him  a  shop<\/p>\n
situated  on  the  ground floor for business  of  his<\/p>\n
sons.\n<\/p>\n
(4)  The appellants\/defendants No.1 to 8 pleaded that<\/p>\n
Makhanlal Soni and his three brothers had partitioned<\/p>\n
the  suit property under a family arrangement,  under<\/p>\n
which  the  ground floor had fallen to the  share  of<\/p>\n
Makhanlal  Soni.   Makhanlal Soni had  constructed  a<\/p>\n
hall, shops, latrine at his own expense.  It was also<\/p>\n
pleaded  that Makhanlal Soni had incurred the  entire<\/p>\n
expenditure in the construction of the suit house.<\/p>\n
(5)   Respondents No.2 and 3\/defendants No.9 and  10,<\/p>\n
i.e.,  Kamta  Prasad  Soni  and  Babulal  Soni,   the<\/p>\n
brothers  of  Makhanlal  Soni  admitted  the   plaint<\/p>\n
allegations  in  toto and prayed that  the  suit  for<\/p>\n
partition be decreed.\n<\/p>\n
(6)   The  learned  VIth Additional  District  Judge,<\/p>\n
Durg,  upon appreciation of evidence, held  that  the<\/p>\n
appellants\/defendants had failed to prove that  after<\/p>\n
death  of  Chandulal  Soni,  the  suit  property  was<\/p>\n
partitioned between the parties and upon severance of<\/p>\n
the  joint  status the coparceners were  in  separate<\/p>\n
possession  of  their  respective  shares.   It  also<\/p>\n
recorded a finding that the appellants\/defendants had<\/p>\n
failed to prove that Makhanlal Soni had incurred  the<\/p>\n
entire  expenditure  in  construction  of  the   suit<\/p>\n
property.  On these premises, it granted a decree for<\/p>\n
partition of the suit property and severance of  one-<\/p>\n
fourth share of the respondent\/plaintiff.<\/p>\n
(7)   Shri Sanjay K. Agrawal, learned counsel for the<\/p>\n
appellants\/defendants argued that in the plaint there<\/p>\n
was   a  clear  and  unequivocal  admission  by   the<\/p>\n
respondent\/plaintiff that under a family arrangement,<\/p>\n
Makhanlal  Soni  and his brothers  were  in  separate<\/p>\n
possession of portions of the suit property.  It  was<\/p>\n
also  contended  that  the  unrebutted  testimony  of<\/p>\n
Dhanabai, D.W.-2, the widow of Makhanlal Soni  proved<\/p>\n
that   Makhanlal   Soni  had  incurred   the   entire<\/p>\n
expenditure  in construction of the suit  house.   It<\/p>\n
was   argued  that  the  parties  were  in   separate<\/p>\n
possession  of their respective shares as per  family<\/p>\n
arrangement since more than 50 years and it  is  only<\/p>\n
after    the    death   of   Makhanlal   Soni,    the<\/p>\n
respondent\/plaintiff had filed the suit for partition<\/p>\n
because  of  refusal by the legal representatives  of<\/p>\n
Makhanlal  Soni to give to him a shop at  the  ground<\/p>\n
floor  for  the  purpose  of business  of  his  sons.<\/p>\n
Reliance was placed on Pata Sahu and another vs. Hiru <\/p>\n
Sahu  and  others, AIR 1991 Patna 276  and  Radhamoni  <\/p>\n
Bhuiyanin  and others vs. Dibakar Bhuiya and  others,<\/p>\n
AIR  1991  Patna  95  while arguing  that  there  was<\/p>\n
severance of joint family status since over 50  years<\/p>\n
and  the  parties were in separate mess and  separate<\/p>\n
residence of their respective portions, which  was  a<\/p>\n
definite  and unequivocal indication of the intention<\/p>\n
of  the  members  of  the joint  family  to  separate<\/p>\n
themselves from the family and enjoy their respective<\/p>\n
shares  in  severality.  Reliance was also placed  on<\/p>\n
Kalyani vs. Narayanam, AIR 1980 SC 1173.  <\/p>\n
(8)   On the other hand, Shri Vimlesh Bajpai, learned<\/p>\n
counsel   for  the  respondent\/plaintiff  argued   in<\/p>\n
support  of the impugned judgment and contended  that<\/p>\n
the  property stood joint in the names  of  the  four<\/p>\n
brothers.  Reliance was placed on Girijanandini  Devi<\/p>\n
and others vs. Bijendra Narain Choudhary, AIR 1967 SC <\/p>\n
1124  and  Roop Chand vs. Indradevi and  others,  AIR<\/p>\n
1997  MP  200.   It was submitted that the  sale-deed<\/p>\n
dated  11-10-1957,  Ex.D-7, through  which  Makhanlal<\/p>\n
Soni  had sold the suit property to Foolchand  proved<\/p>\n
that  the  double  storied  suit  house  was  already<\/p>\n
existing,  which negatived the evidence of  Dhanabai,<\/p>\n
D.W.-2  that  the  double  storied  suit  house   was<\/p>\n
constructed  at the expense of her husband  Makhanlal<\/p>\n
Soni.     It    was   also   contended    that    the<\/p>\n
appellants\/defendants  had  failed   to   prove   the<\/p>\n
existence   of  an  unequivocal  intention   of   the<\/p>\n
coparceners to sever the joint family status  at  the<\/p>\n
time of the family arrangement.\n<\/p>\n
(9)    Shri   R.P.Tripathi,   learned   counsel   for<\/p>\n
respondents No.2 and 3 adopted the arguments advanced   <\/p>\n
by  Shri  Vimlesh  Bajpai, learned  counsel  for  the<\/p>\n
respondent\/plaintiff.\n<\/p>\n
(10)  In  Kalyani  vs.  Narayanam  (supra),  the  law<\/p>\n
relating to partition of a Mitakshara Hindu undivided<\/p>\n
family  was  laid  down  by the  Apex  Court  in  the<\/p>\n
following terms:\n<\/p>\n<\/p>\n
          “Partition  is a word of  technical
\n          import in Hindu Law.  Partition  in
\n          one  sense is a severance of  joint
\n          status   and   coparcener   of    a
\n          coparcenary is entitled to claim it
\n          as   a  matter  of  his  individual
\n          volition.  In this narrow sense all
\n          that  is  necessary  to  constitute
\n          partition   is   a   definite   and
\n          unequivocal   indication   of   his
\n          intention  by a member of  a  joint
\n          family to separate himself from the
\n          family  and  enjoy  his  share   in
\n          severality.   Such  an  unequivocal
\n          intention to separate brings  about
\n          a   disruption   of  joint   family
\n          status,  at any rate in respect  of
\n          separating  member or  members  and
\n          thereby   puts  an   end   to   the
\n          coparcenary    with    right     of
\n          survivorship  and  such   separated
\n          member  holds  from  the  time   of
\n          disruption  of  joint   family   as
\n          tenant-in-common.   Such  partition
\n          has  an  impact  on  devolution  of
\n          share  of such member.  It goes  to
\n          his  heirs displacing survivorship.
\n          Such   partition  irrespective   of
\n          whether   it   is  accompanied   or
\n          followed  by division of properties
\n          by  metes and bounds covers both  a
\n          division  of right and division  of
\n          property.   A disruption  of  joint
\n          family  status  by a  definite  and
\n          unequivocal indication to  separate
\n          implies separation in interest  and
\n          in right, although, not immediately
\n          followed  by  a  de  facto   actual
\n          division  of  the  subject  matter.
\n          This may at any time, be claimed by
\n          virtue  of the separate  right.   A
\n          physical  and  actual  division  of
\n          property   by  metes   and   bounds
\n          follows  from disruption of  status
\n          and would be termed partition in  a
\n          broader sense.”\n<\/p><\/blockquote>\n
Thus,  in  order to constitute the partition  of  the<\/p>\n
joint family property severance of joint status and a<\/p>\n
definite  and unequivocal indication of the intention<\/p>\n
by  the members of the joint Hindu family to separate<\/p>\n
themselves  and to enjoy their respective  shares  in<\/p>\n
severality  is  required to  be  established  by  the<\/p>\n
party,  who pleads that under the family arrangement,<\/p>\n
there was a disruption of status under a definite and<\/p>\n
unequivocal  indication  of  the  intention  by   the<\/p>\n
members of the joint family to separate and to  enjoy<\/p>\n
their shares in severality.  Only such an unequivocal<\/p>\n
intention to separate brings about the disruption  of<\/p>\n
joint  family status.  In Pata Sahu and  another  vs.<\/p>\n
Hiru  Sahu and others (supra), it was held that  mere<\/p>\n
fact  of  separate  mess  and separate  residence  by<\/p>\n
themselves are not conclusive proof of partition.<\/p>\n
(11) The decision of the High Court of Madhya Pradesh<\/p>\n
in  Roop  Chand  vs.  Indradevi  and  others  (supra)<\/p>\n
applies  to the present case with full force  as  the<\/p>\n
facts  were identical to the present case.   In  that<\/p>\n
case, the plaintiff\/appellant had filed a civil  suit<\/p>\n
for  partition of the House specified in the  plaint,<\/p>\n
situate  in  the  town of Bhind.  The  plaintiff  was<\/p>\n
claiming  one-fourth share in the  said  house.   The<\/p>\n
plaintiff  alleged that this house was  purchased  in<\/p>\n
the  year  1947 by his father.  His father had  died.<\/p>\n
The   plaintiff  and  his  three  brothers,  who  are<\/p>\n
respondents,  had equal shares of one-fourth  in  the<\/p>\n
said  house.   After  sometime,  the  living  of  the<\/p>\n
plaintiff  and  his brothers was separated  and  they<\/p>\n
continued  to live in separate portions of  the  same<\/p>\n
house  for  quite  sometime.  Later  on  one  of  the<\/p>\n
defendants mortgaged his share in the same  house  by <\/p>\n
mortgage-deed  dated 17-04-1992 to one  Shri  Prakash <\/p>\n
Shivhare  and  put  him in possession.   The  dispute<\/p>\n
arose  later on in respect of the living and  dealing<\/p>\n
with  the  portions of the same house.  The plaintiff<\/p>\n
was aggrieved of his possession being interfered with<\/p>\n
by  the  defendants, and filed a suit for  partition.<\/p>\n
It  was  held  that  mere  admission  that  the  four<\/p>\n
brothers were living separately in the same house and<\/p>\n
doing  separate  business did not  permit  raising  a<\/p>\n
presumption  that  there was a family  settlement  to<\/p>\n
deal with the property independently of their shares.<\/p>\n
The house stood in the name of four brothers jointly.<\/p>\n
There was no mutation of co-shares of their different<\/p>\n
shares and in that view of the matter, no presumption<\/p>\n
could be raised of any settlement much less that of a<\/p>\n
partition.\n<\/p>\n
(12)  The  Apex Court has in Girijanandini  Devi  and<\/p>\n
others  vs. Bijendra Narain Choudhary (supra),  while<\/p>\n
placing  reliance  on  a  decision  of  the  Judicial<\/p>\n
Committee  of the Privy Council in Palani  Ammal  vs.<\/p>\n
Muthuvenkatacharla Moniagar, AIR  1925  PC  49,  held <\/p>\n
that   it  is  the  unequivocal  intention  to  sever<\/p>\n
followed  by  the  conduct of the  coparceners  which<\/p>\n
seeks  to  effectuate that intention  that  partition<\/p>\n
results.    Mere   specification  of  share   without<\/p>\n
evidence  of  intention to sever does not  result  in<\/p>\n
partition.   It was held that in order to  constitute<\/p>\n
partition   the  conduct  of  the  coparceners   must<\/p>\n
evidence  unequivocally the intention  to  sever  the<\/p>\n
joint family status.\n<\/p>\n
(13) Bearing in mind the principles laid down by  the<\/p>\n
Apex  Court,  it requires consideration  whether  the<\/p>\n
appellants\/defendants have been able to prove such an<\/p>\n
unequivocal  intention  to  sever  the  joint  family<\/p>\n
status  by  a family arrangement.  Dhanabai,  D.W.-2,<\/p>\n
the  widow of Makhanlal Soni has admitted in para  10<\/p>\n
that  the  suit  property was never partitioned.   In<\/p>\n
para  8,  she  admitted that all  the  four  sons  of<\/p>\n
Chandulal  Soni  were  living  jointly  in  the  suit<\/p>\n
property.   In  para 3, she stated  that  no  dispute<\/p>\n
regarding  partition ever arose between  the  parties<\/p>\n
before  filing of the suit.  Defendant No.2, Pillulal<\/p>\n
Soni  has  also admitted in para 8 that no  partition<\/p>\n
had  ever  taken  place and Makhanlal  Soni  and  his<\/p>\n
brothers  were  in  respective  possession   of   the<\/p>\n
portions  under the family arrangement.  It  is  also<\/p>\n
not  in  dispute that the suit property  was  jointly<\/p>\n
recorded in the name of Makhanlal Soni and his  three<\/p>\n
brothers.   The  evidence of  Dhanabai,  D.W.-2  that<\/p>\n
Makhanlal Soni had got the suit house constructed  at<\/p>\n
his  own expense is belied by the contents of Ex.D-7,<\/p>\n
which is the sale-deed executed by Makhanlal Soni  in<\/p>\n
favour  of  Foolchand on 11-10-1957  showing  that  a<\/p>\n
double storied pakka house situated in Luchkipara was<\/p>\n
sold.  The documentary evidence on record shows  that<\/p>\n
the  financial condition of the family  had  weakened<\/p>\n
due  to which the suit house was required to be  sold<\/p>\n
by  Makhanlal Soni to Foolchand vide Ex.D-6 in  1957.<\/p>\n
This contradicts the averment that Makhanlal Soni had<\/p>\n
incurred  the entire expenditure in constructing  the<\/p>\n
suit house and fortifies the conclusion drawn by  the<\/p>\n
learned VIth Additional District Judge, Durg that the<\/p>\n
suit  house was constructed by Chandulal Soni  during<\/p>\n
his lifetime.\n<\/p>\n
(14)  The  respondent\/plaintiff has led  evidence  to<\/p>\n
show  that the suit property was recorded jointly  in<\/p>\n
the  name of all brothers and the cause of action for<\/p>\n
filing  the suit for partition arose when  after  the<\/p>\n
death  of  Makhanlal  Soni, the appellants\/defendants<\/p>\n
refused  to give him a shop at the ground  floor  for<\/p>\n
business for his sons.  Respondents No.2 and 3, i.e.,<\/p>\n
the  defendants  No.9 and 10, Kamta Prasad  Soni  and <\/p>\n
Babulal  Soni  have  admitted  the  plaint  in  toto.<\/p>\n
Rajulal Soni (plaintiff), P.W.-1, Kamta Prasad  Soni,<\/p>\n
P.W.-2 deposed that after the death of Chandulal Soni<\/p>\n
since  the ground floor of the suit house was vacant,<\/p>\n
it was occupied by Makhanlal Soni and three brothers,<\/p>\n
i.e.,  Rajulal  Soni, Kamta Prasad Soni  and  Babulal<\/p>\n
Soni continued living on the first floor.<\/p>\n
(15) The learned VIth Additional District Judge, Durg<\/p>\n
has  objectively  appreciated the evidence,  oral  as<\/p>\n
well  as  documentary,  consistently  with  the   law<\/p>\n
relating  to  partition and recorded a  well-reasoned<\/p>\n
finding that the appellants\/defendants have failed to<\/p>\n
prove  that  under  a  family arrangement  there  was<\/p>\n
complete severance of joint family status between the<\/p>\n
parties  and  has  rightly  held  that  such   family<\/p>\n
arrangement could not be construed to be a  partition<\/p>\n
between the parties.  Thus, no interference with  the<\/p>\n
impugned judgment and decree is called for.<\/p>\n
(16)   In  the  result,  the  appeal  fails  and   is<\/p>\n
dismissed.   In the circumstances, the parties  shall<\/p>\n
bear their own cost.\n<\/p>\n
     A decree shall be drawn accordingly.\n<\/p>\n
JUDGE<\/p>\n","protected":false},"excerpt":{"rendered":"
Chattisgarh High Court 8 Smt Dhanabai vs 3 Babulal Soni on 27 August, 2007 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[12,8],"tags":[],"class_list":["post-106237","post","type-post","status-publish","format-standard","hentry","category-chattisgarh-high-court","category-high-court"],"yoast_head":"\n8 Smt Dhanabai vs 3 Babulal Soni on 27 August, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/8-smt-dhanabai-vs-3-babulal-soni-on-27-august-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"8 Smt Dhanabai vs 3 Babulal Soni on 27 August, 2007 - 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