1 SA 405.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 405 OF 2010 Shivaji S/o Shankarrao Daware .. Appellant Versus 1. Awadhut S/o Shankarrao Daware and others .. Respondents WITH CIVIL APPLICATION NO. 14 OF 2011 IN SECOND APPEAL NO. 405 OF 2010 Shivaji S/o Shankarrao Daware .. Applicant Versus 1. Awadhut S/o Shankarrao Daware and others .. Respondents Shri R. R. Mantri, Advocate for the Appellant. Shri P. R. Katneshwarkar, Advocate for the Respondent No. 1. CORAM : S. V. GANGAPURWALA, J. DATE : 26TH APRIL, 2011. PER COURT : . The present respondents/original plaintiffs had instituted 2 SA 405.10 suit for partition and separate possession on the ground that the plaintiffs and defendants are brothers interse and initially there was a joint family comprising of plaintiff, defendants and their father. During the lifetime of the father partition had been effected and each and every person was given a separate share and the present suit property i. e. land gat No. 407 was allotted to the share of the father of the appellants namely Shankarrao, who died in the year 1997. After his death, the plaintiffs and defendants have 1/3 share in the suit property. 2. The Trial Court decreed the suit. The defendant preferred an appeal. The Appellate Court also dismissed the appeal confirming the judgment and decree passed by the Trial Court. The defendant has assailed the said judgment in the present second appeal. 3. During the pendency of the present second appeal for admission, the appellant has also filed an application bearing Civil Application No. 14/2011 for amendment in the written statement thereby incorporating an additional ground that the documents relied by the appellant at Exhibit 42 as a partition deed is the last valid will of the late father Shankarrao and he 3 SA 405.10 bequeathed suit land to the applicant. The said application for amendment and the second appeal is decided together. 4. Shri Mantri, the learned counsel for the appellant contends that the nomenclature of the document would not be relevant. The intention of the executant of the said document would be relevant. The defendant can raise as many alternate pleas to amend his written statement based on the document which is already on record and the plaintiff has already examined the attesting witness and contends that if the amendment is allowed the defendant would not lead any further evidence and there is no impediment to allow the amendment. According to the learned counsel the fact that the partition had taken place earlier amongst plaintiffs, the defendant and their father is not disputed. It is also undisputed that the suit property was given to the share of Shankarrao. According to the learned counsel, said Shankarrao has given the said property to the defendant vide the partition deed (Vatanipatra) dated 30th May, 1993. In such circumstances, the plaintiff would not get any right to claim partition. The said document shows the intention that the said property was to be bequeathed to the defendant by Shankarrao in lieu of the fact that he was maintaining the father. The lower 4 SA 405.10 Appellate Court committed an error in not relying on the said document and observed that the said document would require registration without framing the issue to that effect. Shri Mantri, the learned counsel further contended that in fact, the plaintiffs have not challenged the said document and without raising a challenge to the said document the suit itself was not maintainable. If the challenge would have been raised to the document, the defendant would have taken his defence regarding the said document more particularly with regard to requirement of registration or not, whether the said document is conveyance or a will. 5. Shri Mantri, the learned counsel further contends that there was no contention on the part of the plaintiff that the suit property was more than Rs. 100/- and that no transaction could have been effected without registered instrument. In absence of said contention by the plaintiffs, the District Court could not have given a finding that as the document is unregistered, no right is created in favour of the defendant. 6. Per contra, Shri Katneshwarkar, the learned counsel submits that after partition the suit property became the 5 SA 405.10 separate property of Shankarrao and after his death the same was inherited by the plaintiff and defendants having 1/3rd share each. According to the learned counsel, the District Court rightly came to the conclusion that the partition can only take place between the co-sharers and the said document could not bestow any right, title or interest in favour of the defendant. According to the learned counsel after having suffered decree before two Courts, the defendants have moved the application for amendment in second appeal that too taking a contrary stand to the stand already taken in the written statement. In the written statement the defendant contended that the said document dated 30th May, 1993 is a partition deed and wants to contend otherwise by way of an amendment raising plea that the said document is a will. Such an amendment cannot be allowed. 7. With the assistance of learned counsel I have gone through the judgments, passed by both the Courts. 8. No doubt, the defendant is entitled to take as many alternate pleas as possible. The defendant in his written statement came with a specific plea that the said document is a partition deed. Para 7 and 8 of the written statement reads as 6 SA 405.10 under : "7] That, father of the parties by name Shankarrao Ganpatrao Daware was owner of suit land to the extent of 07 Acres 14 Gunthas, he retained that land to his share in alleged partition between plaintiff and defendant till his death defendant maintained him and he died when he was 100 years old. On 03.05.1993 he effected partition and allotted Gat No. 407 admeasuring 07 Acres 14 Gunthas to the share of defendant and put defendant over suit land and executed deed of partition in favour of defendant on stamp paper before witnesses. 8] That, on the basis of said partition mutation entry No. 959 was also sanctioned in favour of defendant and name of the defendant is entered revenue record. Since the date of partition defendant is cultivating the suit land peacefully and as defendant is improved the land, plaintiff now has got ill-eye over the suit land and in order to grab it preferred initially appeal before Dy. Collector Parbhani and when not succeeded filed this false suit." 9. Perusal of the same, it shows that the defendant had come with a positive assertion that the said property was given by his father to him in partition. On the basis of said defence the suit proceeded further before the Trial Court and the lower Appellate 7 SA 405.10 Court. Now for the first time, in the present second appeal the defence is been sought to be raised that the said document was a will and by the said document the property was bequeathed to the defendant by his father. Such a plea cannot be allowed at the second appellate stage. The second appeal would be required to be decided on the substantial question of law as would arise on the basis of judgment delivered by the Courts below and the case of the parties as pleaded and sought to be proved before the Courts below. In the light of that, I am not inclined to allow this civil application for amendment. 10. The facts are undisputed the suit property was given to the Shankarrao for partition, same became his separate property. A partition can only take place between co-sharers. There cannot be a partition of a property between a person who is absolute owner of the property and a third person who is stranger qua- property. If same property is been given to a stranger who inherently does not have share in the property, then the said transaction would not partake the character of partition. The Apex Court in a case of Hiraji Tolaji Bagwan vs. Shakuntala reported in AIR 1990 (1) SCC 440 has considered this issue and has held that partition of property can only be amongst co- 8 SA 405.10 sharers. 11. In the light of the undisputed fact that Shankarrao was absolute owner of the property, then in such circumstances, the said property could not have been given to the defendant by a deed styled as partition that too unregistered. The contention of the learned counsel for the appellant that the document was not challenged and so the defence regarding the deed could not be specifically taken cannot be countenanced in as much as the suit was filed for partition and separate possession on the death of the father by the plaintiff. It was the defendant who took the plea that the said property was given to him in partition by virtue of said document. So it was for the defendant to substantiate its case on the basis of said document and not for the plaintiff to contend otherwise. 12. The contention about the aspect that the plaintiffs have not pleaded that the value of the property was more than Rs. 100/- and as such it requires registration is not sustainable in view of the fact that the plaintiffs case was for partition and separate possession and it was the defendant who was relying on the said document and it was required to plead and prove the said 9 SA 405.10 document and all the necessary ingredients required for the same. Moreover, once having held that a partition can only be amongst the co-sharers and not between the absolute owner of the property and third person, the defendant would not get any right on the basis of said document. The said transaction would partake the character of the gift. The property being immovable property the gift requires registration, even if it would be below Rs. 100/-. It is nobodies case that the document Exhibit 42 is sale. Nor the defendant has proved that the value of the same is below Rs. 100/-. 13. In the light of above the second appeal does not involve any substantial question of law and same is dismissed, however, with no order as to costs. [ S. V. GANGAPURWALA, J. ] bsb/April 11