Writ Petition No.1302 of 2013

4th July, 2013

Petitioner Counsel: Mr. N.K. TUNGAR, Mr. B.N. PATIL
Respondent Counsel: Ms. M.B. GANGWAL

Cases Cited:
V.N. Sarin Vs. Ajit Kumar Poplai, AIR 1966 SC 432 [Para 4,7]
Digambar Adhar Patil Vs. Devram Girdhar Patil (died), AIR 1995 SC 1728 [Para 4,7]

JUDGMENT

JUDGMENT :- Heard Mr. N.K. Tungar, learned counsel appearing for the petitioners and Ms. M.B. Gangwal, learned counsel for respondents.

2. By this petition under Articles 226 of the Constitution of India, the original defendants have challenged the judgment and order dated 18th January, 2013 passed by the learned Civil Judge Junior Division, Dharur below exhibit 73 in Regular Civil Suit No.83 of 2011. By that order, the learned trial Judge rejected the application made by the defendants for exhibiting the document dated 24th June, 1980.

3. In support of this petition, Mr. Tungar invited my attention to the document styled as agreement dated 24th June, 1980. By that agreement, Shri. Vishwanath Rustumrao and Shri.Raosaheb @ Jhumbar Shahajirao Solanke had relinquished their share in survey no.63. He submitted that there was already a family arrangement among the family members and the said facts were reduced in writing. He submitted that under that agreement, partition was not effected. He, therefore, submitted that the learned trial Judge committed error in holding that this document cannot be exhibited as it is not registered as per Section 17 of the Indian Registration Act, 1908 (for short "the Act").

4. In support of his submissions, he relied upon decisions of the Apex Court in the case of (i) V.N. Sarin Vs. Ajit Kumar Poplai, AIR 1966 SC 432, and (ii) Digambar Adhar Patil Vs. Devram Girdhar Patil (died), AIR 1995 SC 1728.

5. On the other hand, the learned counsel for the respondents supported the impugned order.

6. I have considered the rival submissions made by learned counsel for the parties. I have also perused the material on record and in particular, document dated 24th June, 1980. By that document, Vishwanath and Raosaheb had relinquished their share in survey no.63. In so far as the submission of Mr. Tungar that in the past, an agreement was entered into among the brothers is concerned, perusal of document does not indicate the said fact. In my view, by that document itself, Vishwanath and Raosaheb had relinquished their share in survey no.63. If that be so, as per Section 17 of the Act, said document is required to be compulsorily registered and proper stamp duty is required to be paid thereon. The learned trial Judge, therefore, declined to exhibit the said document.

7. In the case of V.N. Sarin (supra), the Apex Court considered Section 5 of Transfer of Property Act, 1882 as also Section 14(6) of the Delhi Rent Control Act, 1958. In paragraph 10 of that report, the contention raised on behalf of the appellant that when an item of property belonging to the undivided Hindu family is allotted to the share of one of the coparceners on partition, such allotment in substance amounts to the transfer of the said property to the said person and it is, therefore, an acquisition of the said property by transferwas considered. The Apex Court observed as under :-

"..... Prima facie, it is not easy to accept this contention. Community of interest and unity of possession are the essential attributes of coparcenary property; and so, the true effect of partition is that each coparcener gets a specific property in lieu of his undivided right in respect of the totality of the property of the family. In other words, what happens at a partition is that in lieu of the property allotted to individual coparceners they, in substance, renounce their right in respect of the other properties; they get exclusive title to the properties allotted to them and as a consequence, they renounce their undefined right in respect of the rest of the property. The process of partition, therefore, involves the transfer of joint enjoyment of the properties by all the coparceners into an enjoyment in severality by them of the respective properties allotted to their shares. Having regard to this basic character of joint Hindu family property, it cannot be denied that each coparcener has an antecedent title to the said property, though its extent is not determined until partition takes place. That being so, partition really means that whereas initially all the coparceners have subsisting title to the totality of the property of the family jointly, that joint title is by partition transformed into separate titles of the individual coparceners in respect of several items of properties allotted to them respectively. If that be the true nature of partition, it would not be easy to uphold the broad contention raised by Mr. Purshottam that Partition of an undivided Hindu family property must necessarily mean transfer of the property to the individual coparceners. As was observed by the Privy Council in Girja Bal v. Sadashiv Dhunadiraj and Others.(1) "Partition does not give him (a coparcener) a title or create a title in him; it only enables him to obtain what is his own in a definite and specific form for purposes of disposition independent of the wishes of his former cosharers".

In paragraph 13 of that report, the Apex Court confined its decision to a narrow question related to Section 14(6) and observed as under:-

"In regard to cases falling under s. 14(6), a person who had no title to the premises and in that sense, was a stranger, becomes a landlord by virtue of the transfer. In regard to a partition, the position is entirely different. When the appellant was inducted into the premises, the premises belonged to the undivided Hindu family consisting of respondent No. 1, his father and his brother. After partition, instead of the undivided Hindu family, respondent No.1. alone bad become landlord of the premises. We are satisfied that it would be unreasonable to hold that allotment of one parcel of property belonging to an undivided Hindu family to an individual coparcener as a result of partition is an acquisition of the said property by transfer by the said coparcener within the meaning of s. 14(6). In our opinion, the High Court was right in coming to the conclusion that s. 14 (6) did not create a bar against the institution of the application by respondent No. 1 for evicting the appellant.

In the case of Digambar Adhar Patil (supra), the Apex Court observed that it is not necessary that the partition should be affected by a registered partition deed. Even a family arrangement is enough to effectuate the partition between the coparceners.

8. In my opinion, the decisions relied upon by Mr.Tungar do not advance the case of the petitioner as, prima facie, I have already held that by document dated 26th June, 1980, Vishwanath and Raosaheb had relinquished their share in survey no. 63.

9. I do not find that the learned trial Judge committed any error in passing the impugned order. The Writ Petition fails and the same is dismissed.

10. It is expressly made clear that the observations made herein are tentative and prima facie and the learned trial Judge shall decide the suit on the basis of material on record, as also, on its own merits and in accordance with law, uninfluenced by the observations made herein.

11. It is further expressly made clear that where the decree is appealed from by the petitioners, any error, defect or irregularity in the impugned order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal, as per Section 105(1) of the Code of Civil Procedure, 1908.

Petition dismissed.