RSA No. 3232 of 1986 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 3232 of 1986 (O&M) Date of decision: September 16, 2011 Ajit Singh ...Appellant Versus Ujjagar Singh (through L.Rs) ...Respondents CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. Sanjay Majithia, Senior Advocate with Mr. Shailendra Sharma, Advocate, for the appellant. None for the respondents. GURDEV SINGH, J. (Oral) This second appeal has been preferred by the unsuccessful plaintiff/appellant, Ajit Singh, against the judgment and decree dated 13.9.1986 passed by the Additional District Judge, Jalandhar, vide which he dismissed the first appeal preferred by the plaintiff against the judgment and decree dated 16.11.1985 passed by the Sub Judge Ist Class, Jalandhar, dismissing his suit for possession by way of partition by metes and bounds of the four properties situated in village Atti, Tehsil Phillaur,, fully detailed in the heading of the plaint and described in the maps Annexures A, B, C and D, annexed with the plaint. The case of the plaintiff, as narrated in the plaint, is that the suit properties are jointly owned and possessed by him and the defendant in RSA No. 3232 of 1986 2 equal share. Jointness of these properties has become a source of quarrel between them and it has become difficult for him to derive full advantage of his share. Previously also, he filed Civil Suit No. 313 of 1983 in which the plaint was rejected, vide order dated 21.11.1983, on account of non- fulfilment of the conditions mentioned in under Order 23 Rule 1 of C.P.C. He asked the defendant to admit his claim for partitioning these properties, but he refused. Therefore, he filed suit for possession by way of partition by metes and bounds. The suit was contested by the defendant. In his written statement, he admitted that the properties in dispute were joint properties. However, he denied the other contentions of the plaintiff and, inter-alia, pleaded that all these properties stood partitioned amongst the co-sharers, regarding which memorandum of partition was executed on 3.7.1956. In that partition, the property described as 'A' fell to his exclusive ownership, whereas the properties described as 'B & C' fell to the exclusive share of the plaintiff and the property described as 'D' fell to the share of their third brother Bachint Singh and after his death, their real sister Chinti came in possession thereof. After partition, he is exclusive owner in possession of the property 'A', wherein he has constructed a residential house, consisting of a room, kitchen, bathroom and courtyard, by spending huge amount of Rs. 1 lakh. At the time of the said partition, the plaintiff was minor and the same was effected on his behalf by his mother, Kartari, who had thumb marked the memorandum of partition on his behalf. Since the date of partition, the plaintiff is seeing him to be in exclusive possession of the property 'A' and, as such, is barred by his own act and conduct from filing the present suit. The same is bad for mis-joinder and non-joinder of RSA No. 3232 of 1986 3 necessary parties and for partial partition. He prayed for dismissal of the suit. In the replication to the written statement, the plaintiff denied the contentions raised therein and reiterated all the averments made in the plaint. On the pleading of the parties the following issues were framed by the learned trial court:- “1. Whether the properties in dispute are the joint properties of the parties? OPP 2. Whether the plaintiff is entitled to separate possession of his share of the property in suit by way of partition as claimed in the plaint ? OPP 3. Whether the property in dispute has already been partitioned as alleged in the W.S.? OPD 4. Whether the plaintiff is barred by his own acts and conduct from filing the present suit? OPD 5. Whether the suit is bad for misjoinder and nonjoinder of necessary parties ? OPD 6. Whether the suit is bad being for partial partition ? OPD 7. Relief.” Both the sides produced evidence in support of their respective pleadings. After going through that evidence and hearing learned counsel for both the sides, the learned trial court decided issues No. 1 to 4 against the plaintiff and issues No. 5 and 6 in his favour and resultantly dismissed his suit. I have heard learned counsel for the plaintiff. RSA No. 3232 of 1986 4 It has been submitted by the learned counsel for the plaintiff that the memorandum of partition proved on record as Ex. D.1 could not have been taken into consideration as the evidence by the lower courts, as the partition of the properties of the value of more than Rs. 100/- was effected and it being unregistered document, was inadmissible in evidence. The plaintiff was minor at the time that document was executed and his mother could have entered into such an agreement only after obtaining the permission of the court. No such permission was obtained and he is not bound by the acts of his mother. According to him, the following substantial questions of law arise in the present appeal:- 1. Whether a finding could not have been recorded by the lower courts on the basis of the document Ex. D.1, in favour of the plaintiff? 2. Whether the plaintiff is not bound by the act of his mother in respect of the properties in dispute ? By going through the pleadings of the parties and evidence produced by them, it cannot be said that the finding regarding the partition has been recorded by the lower courts on the basis of the writing Ex. D.1. This document was termed as 'memorandum of partition'. Cogent and convincing evidence was produced by the defendant that the partition was effected one year before this writing was executed, in which the properties in dispute was partitioned by metes and bounds and different properties had fallen to the exclusive shares of different co-sharers. The position would have been different, in case the document Ex. D.1 had been partition deed itself. In that eventuality, the oral evidence regarding the fact incorporated therein was not admissible by virtue of Sections 91 and and 92 of the RSA No. 3232 of 1986 5 Evidence Act, 1872 (for brevity—'the Act'). As per section 91 of the Act, when the terms of any disposition of property are reduced in the form of a document, no oral evidence in respect thereof is admissible for the purpose of adding to, subtracting or varying from the terms thereof. In addition to that, there is no evidence on record on the basis of which it may be concluded that at the time the document Ex. D.1 was executed the market value of the property was more than Rs. 100/-. It is not the case of the plaintiff that he wants to avoid this partition on the ground that his mother was not competent to entertain into such partition on his behalf. She was his natural guardian as his father was not alive at the the alleged partition was effected. As per Section 6 of the Hindu Minority and Guardianship Act, 1956, his mother could have dealt with his property. No doubt, without previous permission of the court, she was not competent to transfer his property, as a result of the bar contained in Section 8 (2) of the Act, but such transfer was voidable at the instance of the plaintiff or by any person claiming under him. In case such option for avoiding the transfer was to be exercised by the plaintiff, the same was to be exercised by him within three years of his having attained the age of majority, in view of the provision of the Limitation Act, 1963. When his statement was recorded in the court on 29.4.1985, his age was stated to be 37 years. The present suit was filed on 6.12.1984. Thus, he was about 36/37 years old at the time the suit was filed. He had attained the majority about 18 years before filing of the suit and, as such, the suit for avoiding the transfer was to be hit by the limitation. In view of the above discussion, the above said substantial questions of law are decided against the plaintiff. There is no merit in the RSA No. 3232 of 1986 6 appeal and the same is hereby dismissed. Records of the courts be returned forthwith. September 16, 2011 (GURDEV SINGH ) prem JUDGE