/ Post for pronouncement ofjudgment on 13th August, 2009 ‘ #0 Sdl— ~ . ‘ ‘T.P. Sharma Judge V, gIGH COURT OF CHHATTISGARH BILASPUR M Second Apgeal No.273 of 2004 APPELLANTS: ’ Smt. Kunti Bai and another .Versus RESPONDENTS: ‘ Victoriya Bai and others 4/1 M HIGH COURT OF‘CHHATTISGARHISB‘ILASP’UR ' ‘I r" Second Appeal No.273 of 20014 Smt. Kunti Bai, aged about 45 years, widow of LatePannalal Mahar, Surendra Kumar, aged about 22 years, S/o Late Pannalal Mahar, Both R/o Village Mahud-B, P.C.No.40, Tahsil Gunderdehi, Distt. Durg, C.G. Versus Victoriya Bai, aged about 70 years, widow of Late Baggu Ram Mahar, Devendra Kumar, aged about 50 years, S/o Baggu Ram Mahar, Both R/o Village ‘ Mahud—B, P.C. No.40, Tahsii Gunderdehi, .Distt. Durg, C.G. (Defendant No.3) State of Chhattisgarh, 'through Collector, Durg, C.G. (Defendant No.4) {Second civil appeal under Section 100 of the Code of Civil Procedure, 1908} APPELLANTS/ : (Defendants) 1. ESPONDENTS/: (Plaintiff sn: V E Preet Mr. Vimiesh Bajpai,gcounsel for the appellants.) M‘r.-R.S. Patel, counsel for respondent No.1. Mr. Sushil Dubey, Govt. Advocate for the State/respondent No.3. Single Bench: Hon’ble Mr. T.P. Sharma, J JUDGMENT (Delivered on 13th August 2009) . This second appeal is directed against the judgment & decree dated 29-3-2004 passed by the District Judge, Durg in Civil Appeal No.28- A/2003 affirming the judgment & decree dated 31-7—2003 passed by he '2“d Civil Judge Class—I, Durg in Civil Suit No.108—A/2002, whereby learned Civil Judge has decreed the suit for declaration & injunction. udgment & decree are challenged on the ground that both the Courts below have not considered the factum of partition and the fact that the property was not owned by respondent No 1, It was pUrchased In the name of respondent No 1 by her husband ie i. .I * R ) t . J 2 M3 fatherrin—Iaw of appellant No.1 & grand-father of appellant No.2, and thereby, Committed-illegality. .V Brief facts giving rise to filing of this second appeal are that the property in dispute was purchased in the name of respondent No.1 L ‘ by a registered sale deed. According to the case of respondent No.1, , she herself has purchased the property and she was in possession of the same. Appellant No.1 is daughter-in—iaw of respondent No.1 and appellant No.2 is grand son of respondent No.1. The appellants & respondent No.2 tried to mutate theirnames by filing application ' before'the Revenue Court on the basis of one document of partition, then reSpondent No.1 filed suit for declaration & injunction of the suit land. . The‘appellants denied the claim of respondent No.1 and alleged that I the property was purchased by the husband of respondent No.1 in the name of respondent No.1 and the property was owned & possessed by the appellants and respondents No.1k& 2. After the de’athv‘of the husband of' respondent No.1, partition took place between respondents No.1 & 2 on 31-3-94 vide document EX.D-9 I and they applied for mutation before the Revenue Court. The Court belowframed issues on the basis of averments of the parties and after affording opportunity of hearing to the parties, the trial Court has decreed the suit and declared that only respondent No.1 is owner of the suit land, and injunction was granted in herfavour. Mutation order was also declared null & void. The present appellants preferred an appeal and the same was dismissed by the judgment & decree impugned. I following substantial questions of law have been formulated fo ‘ d . ra ecision of this second appeal: - (1)Whether the finding of the lower appellate Court ' ‘ that thedisputed property was purchased by the plaintiff from the money Obtained by her, from her maternal home and by which the finding of the trial Court has been reversed, is a-perverse finding? (2)Whether the courts below were justified in granting decree of perpetual injunction to the plaintiff without prayer for decree of possession under the admitted premises that the defendant was in possession of the suit property? - ,7 J , (3)Whether the order of partition In favour of the defendant could be set aSIde Without challenging the document of exhibit D 9 being a partition memo on the baSIS of which the said order was pass‘ed? (4)Whether the fmdmg of the appellate Court that the document of partition exhibit D 9 was Inadmlsslble for want of registration is legal? V.’I have heard learned counsel for the parties and perused thew impugned Judgment as also the record of the Courts below. Learned counsel for the appellants vehemently argued that the’ Courts below have not conSIdered the mode of purchase of land in ’ ‘Vthe name of respondent No 1 espeCIally that the money was paid by_ husband of respondent No 1 owner of the property was husband of respondent No 1 respondent No 1 was not in posses5ion and any decree for inJunction was not legally p055ible Partition in favour of respondents No 1 & 2 cannot be set aSIde Without challenging the partition document EX.D 9. Learned» counsel further argued that respondent No.1 herself has admitted that she was dependent upon her husband and money was paid by her husband. Burden to prove genuine transaction was on respondent No 1 but she has not [g discharged her burden, however the Court below has illegally decreed the suit ‘ On the other hand, learned counsel for respondent No.1 vehemently argued that the property was purchased by respondent No.1 herself from the money obtained from her mother, she was the sole bsolute owner of the property and the property is'in her possession, ‘the alleged memorandum of partition Ex.D-9 is shame and bogus document and it was not admissible in evidence without registration under Section 75 of the Registration Act, 1908, respondent No.1 has discharged her burden though the burden to prove that the sale was ‘ y w not genuine was on the appellants, however, they. have not discharged theirburden. s regards substantial questions of law Nos.3 & 4, both the questions re relating to Ex.D-9, the alleged document of partition. Ex.D-9 reveals that earlier, the partition has been effected between the parties and they have recorded the share accorded to different coparceners It appears that it is a memorandum of partition which :does not create or extingwsh the title of any party, it only recognizes y ' . “ (. a . 'A a w Q( ‘the factum of previous partition and the memorandum of partition is not the substantial docUment. 5 '10.In the matter of Kale and others v. Deputy Director of Consolidation and others (AIR 1976 SC 807), the Apex Court has‘held that the family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family. The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence. Itis well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing but memorandum prepared after the family arrangement does not require any registration. 11.As held by the Apex Court in the matter of Kale (supra), the memorandum of partition does not require any registration. Ex.D-9, memorandum of partition, is not a substantial document creating title over the parties or extinguishing the title of any party, therefore, any relief related to such memorandum is not reqUired for any party. Consequently, substantial questions of law Nos.3 & 4 are a decided negative. 12.Burden to prove the fact that the property in dispute was purchased by father-in-law of’appellant No.1 & grand father of appellant No.2 in ”the name of respondent No.1 Victoriya Bai, money was not paid by the husband of respondent No.1 and was obtained from her maternal ‘ E hom’e by respondent No.1, was on the appellants, but both the parties led evidence. 13.Respondent No.1 herself has deposed that the property is herself— acquired property and she has purchased the property at the instance of her father. In para 12 of her cross—examination, she has admitted that the money was paid ,by her husband before the Registrar, but she has explained that the money was brought from “her mother and was paid by her husband before the Registrar. She has specifically deposed that it was her self-acquired property. She hasalso admitted that she was living with her husband in the life - time of her husband. 4.Appellant No.1 Kuntl Bai has examined herself and has deposed that her‘father—in-law was having ancestral propetty at village Eeraguda 4 1 5 and after selling the property of the appellants, he has purchased the uit property in the name of her mother—in-law Victoriya ‘Bai who was dependent upon her husband. But in para 6 of her cross- examination, she has admitted that when her marriage took place and she ‘came to the house of respondents No.1 & 2, the property was in the name of respondent No.1. It is also admitted in para 7 of her cross—examination that respondent No.1 is the only child of her father. She has also admitted that she has heard that mother & father of respondent No.1 were having property. 15.-Loknath (DW—2). & Netram (DW—3) are the witnesses of partition l ‘ memorandum Ex.D-9 who have specifically admitted that they were told that the property was owned by respondents No.1 & 2, they have partitioned the property vide Ex.D-9. Evidence of‘these two witnesses shows that they were only present at the time of alleged partition and they are not the witnesses of any purchase. 16.Apellant No.1 Kunti Bai was also not having any personal p wldg of the lleed se made n fvour f sn , _ spondent N 1 pecficaly ose at he proet a by t y od frm tr a cal end h her husb has puraed t r r nae. T orty was recorde n th am f esonent o he ba s d. Existence of se ed not bee is the e ans the ed ht t p and f rspo ., terer No. w sle owner of te prery an t e ppellats e also co-owns 0f he prert How th pella av n dischard th burde of a h roprty as purchad y the husband o ent . d n rm the my bai fro matenal m o rspde No.1 i , reondent N1, r the propt has specifc posed that she a pchas the proper o f he moey pa her mtha hub as not p th my .Aft onsider maral uced on ealf f paties, learned lower appellate Court has arrived at a finding that the property has been purchased by' respondent No.1 out of the money obtained from her maternal home, and has reversed the finding of knoee ag al i a o repondet No.1 only re o has sil depd th t pry ws purchased her from he mone btaine o her mohe and she ‘ hs specmly die tat and chs he poperty In he m he prpe d I e ne o rpd ‘ No.1 n t sis of ale dee al de has n I dputed by presnt appellt, but y have allge ta he money was aid by the husb o endent No1 hfoe, respondent 1 as not the o h opt d he prsent an ar er t opy. ever, e present apnts he ot ge e n proving tht te pe w se b f rsponde No1 an ot fo one otned m the r hoe f eonnt , nter alia sp o. purchase of ery, ially de hs ured ty ut o t n. id by oer’nd her sand h aid e one. .,17er cing the tei add bh Q the r —ju s \ K? n .‘ the tria! Court. Finding of the lower appeHate Court is based on the evidence of both the parties and the said finding is not perverse. 18 Respondent No 1 has speCIflcaHy alleged and adduced eVIdence that she Is m possessuon of the property and the property is recorded In her name. The appellants have not filed any document or adduced ocular evidence to show that they are in possession of the property. In absence of such evidence, the evidence of respondent No.1 that she ls in possession of the property on the basis of ownership appears to be ju'st and reasonable. Learned lower appellate Court has also arrived at. a finding that the appellants have not proved their possession, inter alia, respondents No.1 & 2 have proved their possession. The finding of the lower appellate Court is based on: admissible evidence. Taking into consideration the possession of respondent No.1, grant of decree of perpetual injunction in favour of ' respondent No.1 was justified. 19.’For the foregoing reasons, substantial question No.1 is decided as negative and substantial question No.2 is decided as positive that the defendants were not in possession of the suit'property. ‘20 On the baSIs of findings upon the substantial questions of law formulated for the deCISion of this appeal the appeal is dev0id of’ r V merit same is liable to be dismissed and it is hereby dismissed ‘21.The"appe|lants shall bear their costs of the suit as well as of the appeal and also the costs of the respondents. 22.Advocate‘ fees as per schedule. V \23.Decree be drawn up accordingly 6 Jreé .’ Soma- , .