1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR J U D G M E N T 1. S.B. CIVIL FIRST APPEAL NO.225/1995. Sohan Lal & another. Vs. Ramjilal & ors. 2. S.B. CIVIL FIRST APPEAL NO.77/1996. Ramjilal Vs. Sohan Lal & others SB CIVIL FIRST APPEALS UNDER SECTION 96 OF THE CPC. DATE OF JUDGMENT: 27th August, 2009. HON'BLE MR.JUSTICE S.P.PATHAK Mr. B.L. Mandhana for the appellants in Civil First Appeal No.225/1995 and for the respondents in Civil First Appeal No.77/1996. Mr. J.P. Goyal for the respondents in Civil First Appeal No.225/1995 and for the appellants in Civil First Appeal No.77/1996. Mr. T.P. Sharma for the respondents in Civil First Appeal No.77/1996. BY THE COURT: These two appeals under section 96 CPC have been filed against the judgment and decree dated 24th Augfust, 1995 passed by the Additional District Judge, No.2, Bharatpur in Civil Suit No.67/;1995 whereby preliminary decree of equal 1/3rd share of plaintiff Ramjilal defendant no.1, Sohan Lal and defendant no.2 Ratan has been passed in the partition suit. One such appeal being S.B. Civil First Appeal No.225/1995 2 has been filed by defendant-appellants Sohan Lal and Hotilal and another appeal being S.B. Civil First Appeal No.77/1996 has been filed by Ramjilal. Since, both these two appeals arise out of the same judgment and preliminary decree dated 24.8.1995 in relation to the property, description of which has been made in para 2(a) and 2(b) of the plaint and para 12 of the written statement, they are being decided together by this common judgment. Briefly stated the facts are that plaintiff Ramjilal filed a suit for partition in relation to the property described in para 2 (a) and 2(b) of the plaint against Sohan Lal defendant no.1, Ratan- defendant no.2, Kalawati- defendant no.3, Kinno- defendant no.4, Bhabhari- defendant no.5, Dhakeli- defendant no.6 (defendant nos. 3 to 6 are sisters and they have relinquished their share) and Hoti Lal- defendant no.7 (subsequently added) before the District Judge, Bharatpur which ultimately came for trial before the Additional District Judge No.2, Bharatpur. It was, inter-alia, averred in the plaint that the property in dispute (two houses) situated in Ward No.6 at Kumher are the ancestral properties, therefore, after the death of the father of the plaintiff, the same was required to be partitioned equally between the plaintiff and defendant nos. 1 and 2 as plaintiff and defendant nos. 1 and 2 were having equal one third share in the property. Since defendant Sohan Lal was never intending to part with the property to the extent 3 of share of the plaintiff and was interested to dispose of the property by sale, therefore, it became essential to file the suit for a decree of partition amongst the brothers. A prayer was made to decree the suit in relation to the property description of which has been made in para 2 of the plaint. Defendant Sohan Lal in his written statement admitted equal share of plaintiff and defendant nos. 1 and 2 in relation to the house description of which has been made in para 2(a) of the plaint but as regards house description of which has been made in para 2(b) of the plaint disputed the fact in relation to the property being HUF and it was, inter-alia, stated that the house description of which was made in para 2(b) of the plaint was purchased by his son Hotilal from his self earned money for a sum of Rs.6,000/- on 24.1.1986 under registered sale-deed from Deshraj, therefore, the same was not liable for partition. It was also averred that there was one more ancestral house description of which has not been made in the plaint situated in Ward No.6, Kumher, Bharatpur. The same was also liable to be partitioned between the plaintiff and defendant nos. 1 and 2 considering equal share of plaintiff and defendant nos. 1 and 2. It was also averred that the plaintiff did not disclose the true and correct facts about the HUF properties, therefore, the suit was liable to be dismissed. It appears that during the course of trial after filing written statement Hotilal who is son of defendant no.1 Sohan 4 Lal moved an application under Order 1 Rule 10 CPC on 18.1.1988 for impleading him defendant in the suit. The learned trial court vide its order dated 14.12.1988 allowed the application and Hotilal was made as defendant no.7 in the suit and he thereafter filed his written statement wherein he admitted the entire contents of the written statement filed by his father defendant no.1 Sohan Lal and also stated that the house which has been described in para 2(b) of the plaint was not of ownership of his father or anybody else but the same was purchased by him under registered sale-deed on 24.1.1986 for a sum of Rs.6,000/- and the same was in his possession and was not liable for partition. On the basis of pleadings of the parties, the learned trial court framed as many as six issues including relief and allowed the parties to lead evidence. Plaintiff Ramjilal examined himself as PW-1 and also examined Gopal Prasad as PW-2 and tendered as many as 10 documents in evidence. The defendants in evidence examined themselves as DW-1 SohanLal, Hotilal as DW-2 and Deshraj as DW-3. Deshraj DW-3 has proved the registered sale-deed EX.A-1 and also the gift-deed Ex.9. The learned trial court after hearing submissions of both sides passed preliminary decree as indicated here-in-above considering equal 1/3rd share of the plaintiff and 1/3rd share of defendant nos. 1 and 2 in three houses vide its judgment and decree 5 dated 24.8.1995. Hence, the present appeals have been filed. I have heard learned counsel for both sides and carefully perused the impugned judgment and preliminary decree and also the material available on record. In the instant case, the point for determination are: (i) whether the trial court has correctly passed preliminary decree or the same requires to be modified in relation to the house claimed by defendant no.7 by his self earned property; and (2) whether in view of gift Ex.-9 which having been proved by attesting witness DW-3 Deshraj, therefore, the property which has been mentioned in gift-deed is not liable to be partitioned and is of the plaintiff. POINT NO.1: It is to be seen that issue nos. 1 and 5 are in relation to the property which is described in para 2 (a) and (b) of the plaint which has been claimed by the plaintiff liable to be partitioned between him and defendant nos. 1 and 2. Hotilal defendant no.7 has claimed in para 12 of the written statement this house as his self earned property. The learned trial court considering the statement of PW-1 wherein he has stated that his father had two houses situated in Ward No.6, Kumher and in relation to one of the house claimed by defendant no.7 permission was sought from Municipal Board by him making application and on the basis of affidavit of Deshraj and also considering the statement of DW-1 Sohanlal, DW-2 Hotilal and 6 DW-3 Deshraj recorded its finding to the effect that it did not stand proved that Deshraj sold the house to the defendant no.7 under registered sale-deed and the same was purchased from the funds of HUF, as such being ancestral property of the plaintiff and defendant nos. 1 and 2, therefore, was liable to be partitioned. It has been the contention of the learned counsel appearing for Ramjilal, the plaintiff who filed the suit that in the instant case finding recored on issue nos.1 and 5 deserves acceptance as the defendants could not prove that the property description of which has been made in para 2(b) was purchased from the self income of defendant no.7 whereas it has been amply proved that it was HUF property, therefore, the finding recorded by the trial court requires no interference. On the other hand, it has been contended that in the instant case the property described in para 2(b) was not liable to be partitioned as the same was purchased by DW-7 under registered sale-deed Ex.1-A. It is also contended that Deshraj DW-3 has sold this property and executed sale-deed in favour of Hotilal and in the absence of any evidence contrary to above to show that this property was purchased from the funds of HUF then in that event the finding of the learned trial court considering this house of HUF and was liable to be divided between plaintiff and defendant nos. 1 and 2 is not a correct finding and to this extent the findings of the trial court 7 requires to be set aside and the findings of the trial court ought to have been that it was self earned property of defendant no.7. I have carefully considered the above submissions. DW-3 Deshraj was the owner of the property and sold the same under registered sale-deed to Hotilal defendant no.7. DW-3 Deshraj in his statement has stated that he sold his land measuring 46x46 ft situated at Nahargate in Ward No.6, Kumher in the year 1986. Ex.1-A is the sale-deed executed by him and it contains his signatures at place 'A' to 'B' on every page. It appears that the entire cross-examination from this witness has been based in relation to Ex.P-9 gift-deed and also in relation to affidavit Ex.P-7 of Deshraj. Ex.P-7 affidavit states that on the above house possession was of Sohan Lal. It does not appear from perusal of this document that he made any statement that this house was not sold to Hotilal or Hotilal purchased the house from the funds of HUF. The only thing which he stated was about the possession of the house. Ex.P-8 is an application moved before the Municipal Board, Kumher by Sohan Lal wherein he stated that permission was required for construction of house as at the disputed place thatched house was there. It appears from the statements of DW-1 Sohan Lal, DW-2 Hotilal and DW-3 Deshraj that under the sale-deed Ex.1-A property description of which has been made in para 2(b) was sold by Deshraj to Hotilal. If that be so, the finding of the trial court that the 8 property mentioned in para 2(b) of the plaint was also liable to be partitioned cannot be said to be legally and factually correct finding based on proper appreciation of evidence. In view of above discussion and also taking into consideration the sale-deed Ex.1-A, the answer to the point no.1 is that the property description of which has been made in para 2(b) of the plaint is the self earned property of defendant no.7 Hotilal and is not liable to be partitioned and the property description of which has been made in para 2(a) is liable to be partitioned equally between the plaintiff and defendant nos. 1 and 2. POINT NO.2 It is contended by the learned counsel for the plaintiff-appellants that the trial court has committed illegality in passing preliminary decree in relation to the house which came in the ownership of the plaintiff in view of the gift-deed executed as Ex.P-9, therefore, this house was not available for partition. On the other hand, the only contention which has been raised is that the gift-deed is not proved as attesting witness has not been produced, therefore, the gift-deed is merely a waste paper and the house mention of which has been made in the gift-deed is also liable to be partitioned and the trial court has committed no illegality in deciding issue no.2 and passing the preliminary decree. 9 I have carefully considered the submissions made before me. Under section 122 of the Transfer of Property Act, 'Gift' has bene defined to mean that 'Gift' is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the doner, to another, called the donee, and accepted by or on behalf of the donee. Section 123 of the Transfer of Property Act states that for the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. Section 68 of the Indian Evidence Act states that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. Thus, perusal of the above provisions clearly indicate that the gift-deed should be registered and the attesting witness is a must to prove the gift-deed. In the instant case, the gift-deed is Ex.P-9, that contains signature of Deshraj DW-3 who is attesting witness. In the cross-examination he has admitted his signatures at place 'A' to 'B' and 'C' to 'D'. The 10 gift-deed was registered before Sub-registrar on 7.11.1970. In view of the above attestation of the gift-deed it can safely be inferred that the house mention of which has been made in Ex.P-9 was not liable to be partitioned, therefore, the trial court has committed illegality in deciding issue no.2 in favour of defendants and passing the preliminary decree for partition in relation to the house description of which has been made in Ex.P-9. The finding of the trial court on issue no.2 is set aside and it is held that as per gift-deed in favour of the plaintiff, the property mention of which has been made in Ex.P-9 is of the plaintiff on the basis of gift-deed. The answer to the point no.2 is accordingly. In view of the fore-going discussion and answer to the points framed, both the appeals are required to be partly allowed. In the result, the appeal No.225/1995 filed by Sohan Lal and Hotilal is allowed to the extent that the house description of which has been made in para 2(b) of the plaint which was sold by Deshraj under the registered sale-deed dated 24.1.1986 to Hotilal is self earned property of defendant no.7 Hotilal and is not liable to be partitioned. Appeal no.77/1996 is partly allowed to the exstent that the house description of which has been made in gift-deed Ex.P-9 is not liable to be partitioned and is of the plaintiff Ramjilal alone. The preliminary decree passed by the trial court 11 stands modified to the above extent. The decree be prepared accordingly. Both the appeals stand disposed of as indicated above. (S.P.PATHAK) J. bblm