w 3< HSGH COURT OF JUDICATURE AT BILASPUR (CHHATTiSGARH) Second Apoeal No.718 of 2003 APPELLANTS: Gokul, S/o Vishram Das, Aged about 65 years, R/o Sindhi Coiony, Champa, Tehsil Champa, District: Janjgir-Champa. Smt. Phooibai, W/o Bhajandas, aged about 57 years, R/o village Paraskola, Tehsil Saranggarh, District Ramgarh, Hal Mukam Datod, Tehsi! Sakti, District: Janjgir-Champa. Ve rs u s RESPONDENTS: Bharatdas, S/o Vishram Das, aged 52 years, R/o Patharra, P.0. Kotetara, Tehsii Jaijaipur, District: Janjgir-Champa (C.G.). State of Chhattisgarh, Through District Magistrate District: Janjgir Champa. :'t JUDGMENT -•/-^ Postfor:^ ^02-2004 Sd/- L.C. Bhadoo Judge HSGH COURT OF JUDICATURE AT BILASPUR fCHHATTISGARH) Second Appeal NoJ18 of 2003 APPELLANTS: i Gokul, S/o Vishram Das, Aged about 65 years, R/o SindhiColony, Champa, Tehsil Champa, District: Janjgir-Champa. Smt. Phoolbai, W/o Bhajandas, aged about 57 years, R/o village Paraskola, Tehsil Saranggarh, District Ramgarh, Hal Mukam Datod, Tehsil Sakti, District: Janjgir-Champa. Ve rs u s RESPONDENTS: Bharatdas, S/o Vishram Das, aged 52 years, R/o Patharra, P.0. Kotetara, Tehsil Jaijaipur, District: Janjgir-Champa (C.G.). State of Chhattisgarh, Through District Magistrate District: Janjgir Champa. Present: Shri A. W. Khan, counsel for the appellants. Smt. Chitra Shrivastava, Panei Lawyerforthe State/respondent No.2. JUDGMENT (Delivered on ^feg^.February 2004) As per L.C. Bhadoo J. The appellants herein defendants in Civil Suit No.334-A/2002 (Bharatdas V. Gokuldas & Others) have preferred this second appea! being aggrieved by the judgment and decree dated 1-10-2003 ofthe appellate Court i.e. Additionai District A t / Judge, Sakti passed in civil reguiar first appeal No.21-A/2002 and the judgment and decree dated 25-7-2002 passed by the Additional Civi! Judge, Class-I, Sakti in civil regular suit No.334-A/2002 whereby the tria! Court i.e. Civi! Judge, Class-1 decreed the suit of plaintiff/respondent No.1 against the appeilants and oonfirmed by the Additionai District Judge, Sakti in above civil first appeals. 2. Brief facts of the civij suit necessary for the disposai of this second appeai are that respondent No.1 herein, piaintiff in the suit, who is the real brother ofthe appeiiants, filed a civil suit against the appellants hereln with the averments that the agricuiture iand bearing Khasra Nos.15/1, 42,215, 266, 32, 79/1 and 228, area 0.01,0.01, 0.79, 0.52, 0.03, 0.18 and 0.52 and Khasra No.7 and total area 3.06 acre of Patwari Haika No.18 of viiiage Patharra, Tehsil Sakti is plaintiff's property and he is in possession of that property. The defendants have no right to interfere in his possession and the defendants have no right to claim declaration and partition ofthe land. 3. Further case of respondent No.1 was that the father of the appeilants and respondent No.1 nameiy, Vishram Das was having tota! land of 5.85 acres, which was described in the Schedule-A and partitioned by their father by an orai partition in his iifetime amongst two brothers i.e. the plaintiff and the defendant No.1. The land mentioned in the schedule-B of the p!aint was given in the share of the plaintiff respondent herein, as the defendant No.1 was not interested in residing at the village; therefore, he sold al! his agricuiturai land to others. After the death of their father the defendant/appeiiant No.1 herein secretly got entered his name aiong with the name of defendant No.2 in the revenue records whereas, the pialntiff is in possession and he is the only owner of that land. The defendant No.1 had moved an application before the Tehsildar, Jaijaipur for partition of the said !and whereas the piaintiff is in continues possession of that land for last more than 12years. 4. The joint written statement was filed by the defendant Nos. 1 and 2 and they denied any partition in the lifetime of their father and it was further mentioned that the agriculture was the only source of income of their father. The appellant N0.1 used to maintain the whoie family. He never sold his land, nor he secretiy got the name of the defendant/appeliant No.1 entered in the revenue records. The disputed land described in the schedule-B of the plaint was never came into the share of the plaintiff and the ptalntiff wants to grab the joint Hindu Family Property. On the basis of the pieadings of the parties issues were framed and thereafter the suit of the plaintiff was decreed as mentioned above and the first appeai filed by the defendants was also dismissed. 5. I have heard Shri A.W. Khan, learned counsel for the appeliants on admission. S. As per the provisions of Section 100 of the Code of the Civii Procedure "second appeai to the High Court lies oniy if the High Court is satisfied that the case involves a substantial question of iaw, otherwise second appeai is not maintainabie." The substantial questions of law which the learned counse! for the appeilants tried to raise are as follows:- (i) Whether the trial Court and the appeliate Court have committed materia! iljegaiity by believing the piaintiff's evidence and hoiding that the joint Hindu famiiy ancestrai property was partitioned by an oral partition befr^veen the two brothers in the lifetime oftheir father, as ciaimed by the plaintifl? (ii) Whether the judgment and decree of both the Courts are contrary to the Section 14 ofthe Hindu Succession Act, 1956 under which a Hindu femaie becomes an absolute owner ofthe property? After going through the judgments of the trial Court as wei! as the appeliate Court and aiso evidence of the parties, i am of the opinion that the appeliants have faiied in raising a substantial question of law. In other words, no substantial question of iaw is involved in this matter for consideratlon of this Court. As the piaintiff since beginning averred in his plaint that the father of the plaintiff/defendant namely Vishram Das partitioned the property in his llfetime and gave agricuiture property described in the schedule-B of the plaint to the plaintiff and other property of scheduie-A came to the share of the defendant No.1 who was working as Teacher and was not interested to reside in a small vil!age and, therefore, he sofd all properties of his share and started residing at Champa. 7. It has come in the evidence that even the property which came to the share of the piaintiff was mortgaged by his father and the defendant No.1. When piaintiff asked them to get the property released from mortgage, they asked him that since that property has come to his share, if he is interested then he can pay the mortgage money and get that property released from mortgage. Under the circumstances, he paid Rs.4800/- to his father and defendant No.1 and that property was got reieased from mortgage and since then that property is in his possession. J t 8. The appeiiant No.1, defendant has categorica!!y admitted in para-5 and 6 of his evidence that in the lifetime of their father partition did take place and the plaintiff is in possession of agricuiture land since beginning. He is cultivating that iand. This fact even has been proved by the plaintiffs witnesses. On this point there i's concurrent findlng of both the Courts i.e. trial Court as well as the 1st appeliate Court and there is no ground before this Court to take a different view or disturb the concurrent finding, as this finding is based on the evidence on record. 9. Now, coming to the question of the partition of the Hindu Joint Ancestral Property, it is settled law that the joint Hindu ancestrai properiy can be partitioned by the co-sharer by oral partition as the partition is a severance ofjoint status, and as such it is a matter of individual volition. A!l that is necessary, therefore, to constitute a partition is a definite and unequivoca! indication of his intention by a member of a joint family to separate himseif from the famiiy and enjoy his share in severalty. There should bean intimation, indication, or representation of such intention and that what from that manifestation should take would depend upon the circumstances of each case. It is implicit in this principle that this manifestation or declaration of intention should be to the knowledge of the persons affected for a mere uncommunicated declaration may amount to no more than merely harbouring an intent to separate. A partition can be effected by an orai agreement between the parties. 10. The transfer of property Act, which requires a registered instrument in the case of transfer of immoveabie properties, does not require that a release, surrender, or partition of immoveable properties should be effected by a registered instrument, or even by a writing although in one sense each of them involves a transfer of property. A partition between the coparceners or co-owners, partakes the character of a release and conveyance, and it cannot be said to be either a saie or an exchange. No writing would, therefore, be necessary for a partition. Therefore, partition by agreement can take place of a joint hindu family property by the joint owners of the property and in this case as has been mentioned above, in the lifetime of the father of the plaintiff and defendant they partitioned the agricuiture iand and they were put into possession of their respective shares and since then the piaintiff is in possession of his share, as has been held by both the Courts. 11. Now coming to the question of absoiute right of the defendant No.2 who is the sister of the plaintiff and the defendant No.1, as per the provisions of Section 14 of the Hindu Succession Act, 1956, first of a!l this point had not been raised in the written statement before the trial Court nor before the 1 appej]ate_£QuriL therefore, this question cannot be ailowed to be raised for the first time in this second appeaj. The defendant No.2 nameiy Smt. Phool Bai never ciaimed her share nor she was in possession of !and at any given point of time, as she was married to Bhajandas of viliage Paraskoia, therefore, she is residing wlth her husband. Even she had not come forward to give her evidence before the triai Court for ciaiming her share. Even the written statement was not fjied by her separately, thorefore, in the circumstances, this mixed question of fact and iaw cannot be aiiowed to be raised for the first time in second appeai. No other point was raised by the iearned counsel for the appeilants. 12. Since no substantiai question of law is involved in this second appeaj, fhis second appea! fails and it is dismissed in limine. Sd/- L.C. Bhadoo Judge Bar^e*