{"id":323910,"date":"2024-06-09T11:00:10","date_gmt":"2024-06-09T05:30:10","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=323910"},"modified":"2024-06-13T16:19:31","modified_gmt":"2024-06-13T10:49:31","slug":"once-partial-partition-admitted-proved-presumption-arises-all-movable-immovable-properties-of-joint-family-are-divided-sc-scc-times","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2024\/06\/09\/once-partial-partition-admitted-proved-presumption-arises-all-movable-immovable-properties-of-joint-family-are-divided-sc-scc-times\/","title":{"rendered":"Never Reported Judgment | Admitted\/proven partial partition leads to presumption of division of all properties, movable and immovable, belonging to joint family [(1953) 1 SCC 414]"},"content":{"rendered":"
\n

Supreme Court:<\/span> The present appeal was directed against the judgment and decree passed by the Patna High Court (\u2018the High Court\u2019) reversing the judgment and decree passed by the Second Subordinate Judge at Arrah (\u2018the Trial Court\u2019), whereby respondents\u2019 suit was dismissed. The Division Bench of M.C. Mahajan and N.H. Bhagwati*<\/span>, JJ., held that once there was severance of joint status, properties could continue to be joint between erstwhile members of joint family only by virtue of agreement arrived at between parties to hold such properties as joint tenants and once partial partition was admitted or proved, presumption would arise that all properties, movable and immovable, belonging to joint family were divided.<\/p>\n

Background<\/p>\n

Respondent 1, Ambika Prasad Pathak and his three brothers, were members of a joint and undivided Hindu family which owned movable and immovable properties. The immovable properties comprised milkiat lands, zirait, bakasht, and kast lands. Respondent 1 submitted that he separated from his brothers and there was a partial partition between them of the movable and immovable properties belonging to the family.<\/p>\n

Respondent 1 contended that the movable properties, i.e., an iron chest in which ornaments of around Rs 3265 and several papers were locked up, were not divided, and thus continued joint. Further, the immovable properties which consisted of the milkiat lands were enjoyed by the four branches of the family separately, each to the extent of its 1\/4th share. He also contended that the zirait, bakasht, and kast lands were partitioned for convenience of cultivation irrespective of the parties’ shares and were cultivated separately though no formal partition thereof was affected and that the remaining kast, bakasht, and parti lands and the tenants\u2019 houses together with trees and orchards continued joint. Lastly, he contended that there were debts due from outside parties and decrees obtained by the family, which also continued joint.<\/p>\n

Respondent 1 incurred the displeasure of his brothers because he adopted Respondent 2 and there were disputes between the parties as Respondent 1 had filed a suit in the Trial Court out of which the present appeal arose, for partition claiming his 1\/4th share in the joint family properties which had not been divided till then.<\/p>\n

The trial court concluded that the documents produced by Respondent 1 were fabricated and he failed to prove his case of partial partition. It further held that appellants had proved their case of complete partition and that therefore Respondent 1 was not entitled to any relief. The trial court accordingly dismissed respondents\u2019 suit with costs. An appeal was preferred by Respondent 1 to the High Court against the trial court\u2019s decision. The High Court agreed with the trial court in the appreciation of the evidence led before it by Respondent 1, however differed from the trial court\u2019s appreciation of the evidence led by appellants and held that appellants\u2019 evidence was equally unconvincing. The High Court held that the case of Respondent 1 proved and accordingly reversed the trial court\u2019s decree and decreed respondents\u2019 claim. The present appeal was thus filed by appellants against the High Court\u2019s decision.<\/p>\n

Analysis, Law, and Decision<\/p>\n

The Supreme Court noted that Respondent 1 came with a case of a partial partition alleging that apart from some movable properties which were actually divided, the other properties belonging to the joint family continued to be joint and were liable to be partitioned between him and his three brothers. The Supreme Court held that once there was severance of joint status, these properties could continue to be joint as between the erstwhile members of the joint family only by virtue of an agreement arrived at between the parties at the time of the partition to hold the same as joint tenants.<\/p>\n

The Supreme noted that Respondent 1 separated from his three brothers and there was a severance of joint status between them and there was also a partial partition of some of the movable properties and thus, the Supreme Court opined that once partial partition was admitted or proved, the presumption would arise that all the properties, movable and immovable, belonging to the joint family were divided and Respondent 1 and his three brothers would thereafter enjoy such properties as were not divided by metes and bounds as tenants-in-common with equal shares. Further, none of the properties would continue to be joint between the erstwhile members of the joint and undivided Hindu family and there would be no right of survivorship as between them and the properties would not continue to be joint and would not be liable to be partitioned between them.<\/p>\n

The Supreme Court stated that Respondent 1 had to prove that at the date of the severance of joint status the parties agreed that they would hold the properties which were not thus divided amongst themselves as joint tenants but no such proof was furnished and the only thing which he relied upon was that at the date of the severance of joint status, zirait, bakasht, and kast lands were divided between the parties for convenience of cultivation leaving zirait, bakasht and kast lands admeasuring at least 300 bighas undivided. The Supreme Court stated that even it was assumed that there was a partition of lands admeasuring 200 bighas it did not mean that the remaining lands admeasuring 300 bighas continued to be joint between Respondent 1 and his three brothers as they could at best continue to be enjoyed by them as tenants-in-common with equal shares and no suit for partition in respect of the same could be filed as between Respondent 1 and his three brothers for partition thereof as between members of a joint and undivided Hindu family.<\/p>\n

The Supreme Court stated that Respondent 1 could succeed only by the strength of his own case, and he had to prove that despite the severance of joint status and partial partition which he set up, the rest of the properties belonging to the joint family continued joint as between him and his three brothers. The Supreme Court opined that the trial court and the High Court rightly discredited Respondent 1\u2019s evidence and Respondent 1 failed to establish his case.<\/p>\n

Regarding the movable properties, the trial court negatived Respondent 1\u2019s claim and held that the list of the movable properties mentioned in the plaint was not proved and this finding of the trial court was not challenged by Respondent 1 when the appeal was heard before the High Court, therefore, the Supreme court held that Respondent 1\u2019s claim in this regard could not be sustained.<\/p>\n

Regarding the milkiat properties, the trial court negatived Respondent 1\u2019s claim but the High Court, relied on Section 54<\/a> of CPC<\/a> and Section 12<\/a> of the Estates Partition Act, 1897<\/a> and ordered that a preliminary decree for partition of these milkiat properties should be passed in Respondent 1\u2019s favour. The Supreme Court agreed with the High Court\u2019s decision and held that Respondent 1 was entitled to a declaration that he had 1\/4th share, right, title, and interest in those properties and for a partition of the same by the Collector in accordance with the provisions of Section 54 of CPC.<\/p>\n

Further, regarding the debts and mortgages, the Supreme Court held that Respondent 1 was entitled to a similar declaration that he had a 1\/4th share, right, title, and interest in the same and for a partition of the same securing to him his one-fourth share therein.<\/p>\n

The Supreme Court thus allowed the appeal and set aside the decree passed by the High Court in favour of Respondent 1. Further, Respondent 1\u2019s claim for partition of the movable properties and the immovable properties was dismissed and there was a preliminary decree for partition in favour of Respondent 1 regarding his 1\/4th share, right, title, and interest in the milkiat immovable properties and the debts, decrees, and mortgages. The Supreme Court also held that the order for costs made by the High Court in favour of respondents would be vacated and in view of the partial success of Respondent 1 and the circumstances of the case, there would be no order as to costs throughout.<\/p>\n

[Banraj Alakhdhari Pathak v. Ambika Prasad Pathak, (1953) 1 SCC 414<\/a>, decided on 13-03-1953<\/span>]<\/p>\n

*Judgment authored by: Justice N.H. Bhagwati<\/span><\/strong><\/p>\n

Note: Partial Partition<\/p>\n

Partition under Hindu Law can be total or partial. In total partition, all the members cease to be members of the HUF and all the properties cease to be properties belonging to the said HUF. Partition can be partial also. It may be partial vis-a-vis members, where some of the members go out on partition and other members continue to be the members of the family. It may be partial vis-a-vis properties where some of the properties are divided among the members, other properties continue to be HUF properties. Partial partition may be partial vis-a-vis properties and members both.<\/p>\n

The Supreme Court in Charandas Haridas<\/span> v. CIT<\/span>, (1960) 39 ITR 202 : 1960 SCC OnLine SC 186<\/a>, opined that \u201cthere are three different branches of law to notice. There is the law of partnership, which takes no account of a Hindu undivided family. There is also the Hindu law, which permits a partition of the family and also a partial partition binding upon the family. There is then the income tax law, under which a particular income may be treated as the income of the Hindu undivided family or as the income of the separated members enjoying separate shares by partition. The fact of a partition in the Hindu law may have no effect upon the position of the partner, insofar as the law of partnership is concerned, but it has full effect upon the family insofar as the Hindu law is concerned\u201d<\/span>.<\/p>\n

\n

Advocates who appeared in this case :<\/p>\n

For the Appellants:<\/span> S.C. Isaacs, Senior Advocate (K.B. Asthana, Advocate, with him)<\/p>\n

For the Respondents:<\/span> Harinandan Singh, Ugra Singh, Advocates<\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

This report covers the Supreme Court’s Never Reported Judgment dating back to the year 1953 on partial partition.<\/p>\n","protected":false},"author":1,"featured_media":323918,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[5,58675],"tags":[3228,69608,10202,12861,31854,69607,32195,69606,7441,6701,32371,5363,7181],"class_list":["post-323910","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-casesreported","category-scc-never-reported-judgments-supreme-court","tag-burden_of_proof","tag-divided","tag-hindu-law","tag-huf","tag-immovable-property","tag-joint-family","tag-movable-property","tag-partial-partition","tag-patna-high-court","tag-presumption","tag-properties","tag-supreme-court","tag-trial-court"],"yoast_head":"\nSupreme Court's Never Reported Judgment on partial partition | SCC Times<\/title>\n<meta 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Nageswara Rao, BR Gavai and BV Nagarathna*, JJ has held that a document of partition which provides for effectuating a division of properties in future would be exempt from registration under section 17(2)(v) of\u00a0the\u00a0Registration\u00a0Act, 1908. The Court explained that the test in such a\u2026","rel":"","context":"In "Case Briefs"","block_context":{"text":"Case Briefs","link":"https:\/\/www.scconline.com\/blog\/post\/category\/casebriefs\/"},"img":{"alt_text":"","src":"https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2022\/02\/MicrosoftTeams-image-67.jpg?resize=350%2C200&ssl=1","width":350,"height":200,"srcset":"https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2022\/02\/MicrosoftTeams-image-67.jpg?resize=350%2C200&ssl=1 1x, https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2022\/02\/MicrosoftTeams-image-67.jpg?resize=525%2C300&ssl=1 1.5x, https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2022\/02\/MicrosoftTeams-image-67.jpg?resize=700%2C400&ssl=1 2x, https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2022\/02\/MicrosoftTeams-image-67.jpg?resize=1050%2C600&ssl=1 3x"},"classes":[]},{"id":297456,"url":"https:\/\/www.scconline.com\/blog\/post\/2023\/07\/22\/property-acquired-through-invalid-adoption-to-be-regarded-as-selfacquired-property-sc-legal-news\/","url_meta":{"origin":323910,"position":2},"title":"Never Reported Judgment | Can property acquired through invalid adoption be considered joint family property? [1951 SCC 557]","author":"Simranjeet","date":"July 22, 2023","format":false,"excerpt":"This report covers the Supreme Court's Never Reported Judgment dating back to the year 1951 on whether the property acquired through invalid adoption, will be considered as joint family property.","rel":"","context":"In "Cases Reported"","block_context":{"text":"Cases Reported","link":"https:\/\/www.scconline.com\/blog\/post\/category\/casesreported\/"},"img":{"alt_text":"self acquired property","src":"https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2023\/07\/self-acquired-property.webp?resize=350%2C200&ssl=1","width":350,"height":200,"srcset":"https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2023\/07\/self-acquired-property.webp?resize=350%2C200&ssl=1 1x, https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2023\/07\/self-acquired-property.webp?resize=525%2C300&ssl=1 1.5x, 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