COMNR.OF I.TAX vs. WESCO

SA No. 08/2011 1 AFR HIGH COURT OF CHHATTISGARH, BILASPUR

Order Reserved on 15/04/2024

Order Delivered on

12/06/

2024

SECOND APPEAL No. 8 of 2011

SA No. 08/2011 2 Hon'ble Shri

Arvind Kumar Verma, Judge

C.A.V. Judgment 1. The instant Second Appeal has been preferred by the appellants/defendants challenging the judgment and decree dated 07.12.2010 passed by the Appel­ late Court i.e. the 4th Additional District Judge, Raigarh, District – Raigarh (hereinafter referred to as “first appellate Court”), in Civil Appeal No. 9-A/ 2008. By the said judgement dated 07.12.2010, the Appellate Court has re­ versed the findings of the judgment and decree dated 28.09.2007 passed by Learned 3rd Civil Judge Class- II Raigarh District Raigarh (C.G.) (hereinafter referred to as “trial Court”), in Civil Suit No.190-A/2006. 2. The following genealogical tree would demonstrate the relationship among the parties herein:- Chandan Singh

1st Wife 2nd Wife Dhora Bhathin Kashi Dihin Son Son Son Son Daughter

Hetram Nanu Ram RamKumar Gyanchand HemKumari (Died issueless) (P4) (P5) Daughter Wife Son NeelKumar(D1) Rajkumari(D2) Kewra Bai (P1) Om Prakash

Daughters Subsequent Purchaser: Laxmi (P2) Tulsi (P3) Namdhari(D3)

(D3) Ramratan(D4) Chamar Singh (D5)

SA No. 08/2011 3 3. The plaintiffs (respondents No. 1 to 6 herein) had filed a suit before the trial Court, which was registered as Civil Suit No.190-A/2006. By way of the said suit, the plaintiffs/respondents No, 1 to 6 had sought for a relief of declaration that all the lands annexed with plaint in schedule-A is joint family property. In brief, the two main reliefs which were sought for by the plaintiffs in the civil suit, are that : “(i) To declare the land annexed in Schedule-A as Joint Property and to declare that sale deed dated 19.10.2001 is not binding on the plaintiff(s) (ii)To grant permanent injunction against respondents/defen­ dants 03 to 05 from giving possession in Khasra No. 374 ad-measuring 0.040 hectare.” 4. The contention of the plaintiffs was that the suit property bearing Khasra No. 374/ having area of 0.040 hectare, situated at Village-Raigarh, is the ances­ tral property of the plaintiffs and defendants and the plaintiffs/respondents have filed a suit for declaration of suit property which is an undivided joint property and for declaration that the sale deed dated 19/10/2001 is not bind­ ing upon the plaintiffs and for permanent injunction to restrain defendants No. 3 to 5 from possession of land bearing Khasra No. 374 ad measuring about 0.40 hectares. 5. After the pleadings were completed and evidences were recorded, the Trial Court vide judgment and decree dated 28/09/2007 dismissed the suit of the plaintiffs stating that there is no evidence that the property is a joint property and no witness who can state that they were holding the suit property jointly. That no a single independent witness/local resident was examined by the plaintiffs to substantiate their plea that the family was a joint in mess and es­

SA No. 08/2011 4 tate. The plaintiffs never objected to any sale transaction entered well prior to the institution of the suit and in particular the admission of the plaintiffs wit­ ness Mohan Patel and Gyanchand. Moreover the plaintiff No. 3 has pur­ chased property from defendant No. 1 & 2, which clearly shows admission on part of the plaintiff that there was partition. 6. The plaintiffs/respondents No. 3 to 5 challenged the said judgment and de­ cree dated 28.09.2007 passed by the trial Court in Civil Suit No. 190A/06 by preferring an appeal before the Appellate Court and said appeal was regis­ tered as Civil Appeal No. 9A/2008. 7. The first appellate Court also after considering the contentions put forth by appellant/plaintiffs No. 4 to 6 in their first appeal, reached to the conclusion that the witnesses could not specify the partition by metes and bounds and the witnesses were not present at the time of partition and the appellate Court allowed the appeal by setting aside the judgment and decree dated 28.09.2007. 8. It is this judgment and decree dated 07.12.2010 which has been put to chal­ lenge by the appellant/defendants No. 3 to 5 in the instant second appeal. 9. The second appeal preferred by the Appellants/Defendants No. 3 to 5 was admitted for hearing by formulating the following substantial question of law:- “Whether the First Appellate Court commit­ ted error in holding that there was no sever­ ance of joint family status and there was no partition?” 10. Brief facts leading to the instant second appeal are that the appellant/defen­ dants are purchaser of the separate property owned by Defendant No. 1 and 2. The respondents are lineal descendant of one Chandan Singh. Chandan

SA No. 08/2011 5 Singh in his life time married twice. His first wife was Dhorabhathin and Sec­ ond wife was Kashidihin. From Dhorabhathin, Chandan Singh had two sons namely Hetram and Nanhudau. Nanhudau died issueless and Hetram had two daughters Nilkumari and Rajkumari, defendant no. 1 and 2 respectively. Around 40-50 years prior to the institution of the Original Civil Suit No. 2A/ 2006, before Trial Court, the said Chandan Singh effected an oral partition and after such partition descendant from his two wives enjoyed their proper­ ties separately and obtained separate possession. Thereafter, from time to time, Hetram has sold his share of property for legal necessity and otherwise to several persons. No objection was ever raised by the plaintiffs and except one transaction no alienation of property was ever challenged by the plain­ tiffs. After the death of Hetram, the property fell into the hands of his daugh­ ters namely Nilkumari and Rajkumari. Both of them sold their share of land to the present appellants by registered sale deed dated 19/10/2001. On 16/07/2002 Nilkumari and Rajkumari sold their shares of land to one Ravin­ dra Kumar and on the same day one of the plaintiff namely, Gyanchand pur­ chased the share of Nilkumari and Rajkumari in the name of his son Om Prakash. In the year 2002, the plaintiffs proposed to purchase the share of Nilkumari and Rajkumari but the sale consideration was not paid by them and for this reason the possession of the property was not delivered to them. Immediately thereafter, the plaintiffs started raising dispute and alleged that the entire suit property was joint property of the heirs of Chandan Singh and they further averred that there was never any severance of Joint family status and partition. 11. Mr. Amit Soni, learned counsel for appellants/defendants submits that in the present case, the plaintiffs and defendants were living separately and holding ownership over their shares of land. This was by virtue of the oral partition

SA No. 08/2011 6 that was effected by Chandan Singh. There is a severance of the status of joint family by an unequivocal declaration by any member of the family. The First Appellate Court has erred in holding that there is no partition only on the ground that the witnesses although admitting the factum of partition could not specify the partition by metes and bounds. It is further submitted that Plaintiff No. 2 Gyanchand in his cross-examination has also admitted that the plaintiff during the lifetime of his father effectuated the partition and was living sepa­ rately from the joint family. In support of his contention, learned counsel for the appellants relied upon a decision of the Hon’ble Supreme Court in the matter of Smt. Krishnabai Bhritar Ganpatrao Deshmukh v. Appasaheb Tuljaramarao Nimbalkar and Ors reported in (1979) 4 SCC 60, which reads thus:- "In an undivided Hindu family of Mitakshra concept, unity of own­ ership and commonsality of enjoyment is present while the family remains undivided. Such unity and commonsality or the essential attributes of the concept of joint family status. Cesser of this unity and commonsality means cesser or severance of the joint family status, or, which under Hindu Law is partition irrespective of whether it is accompanied or followed by a division of the properties by metes and bounds. Disruption of joint status, itself, as Lord Westbury put it in Appovier v. Rama SubhaAivan., (1) in effect, "covers both a division of right and di­ vision of property." Reiterating the same position, in Giria Bai v. Sadashiv, (2) the Judicial Committee explained that division of the joint status, or partition implies isseparation in interest and in right, although not immediately followed by a de facto actual divisi on of the subject matter. This may, at any time, be claimed by

SA No. 08/2011 7 virtue of the separate right. "The division of the joint status may be brought about by any adult member of the joint family by inti­ mating, indicating or representing to the other members in clear and unambiguous terms, his intention to separate and enjoy his share in the family property, in severalty. Such intimation, Indica­ tion or representation may take diverse forms. Sometimes it is ev­ idenced by an explicit declaration (written or oral); sometimes, it is manifested by conduct of the members of the family in dealing separately with the former family properties.” "The recital establishes with a preponderance of probability, that sometime before the execution of the deed, Ex. 39, Ramachan­ drarao had communicated to his brother, in clear, unmistakable terms his intention not only to separate in residence and user and put an end to commonsality, but also to sever the unity of ownership and enjoy his share in severalty. The result was division of the joint status." 12. Taking above legal position, Mr. Soni submits that in the present case, a simi­ lar situation occurred when Chandan Singh made it clear when he recited to divide the shares of land in between the descendants of two families. Both the families were living separately and it was also the case that the plaintiffs purchased property from the defendants which is a clear case of admitting to the fact of partition. 13. He further referred to a decision of this Hon’ble Court in a case of Bisauha Singh v. Baldau Singh passed in SA No. 421 of 2006, it was held by this Honble court that:- “Once the severance is effected by explicit declaration as it is the case of the plaintiff that partial partition had already taken place

SA No. 08/2011 8 and he has separated from the family. Thus, it is quite clear that once severance or partial partition of a person takes place and intention to separate is unequivocally clear, then such severance from the joint status cannot be revoked and thereafter the claim of joint ownership over the claim in rest of the property cannot be made by the separating member.” 14. In support of his contention, Mr. Soni placed his reliance upon a decision of the Hon’ble Orissa High Court in the case of Heram Patel v. Parikhita Pa­ tel and others, reported in 1987 SCC Online Ori 208, the Hon'ble Orissa High Court laid down the following after considering various judgments- “The property ceases to be a joint property immediately after the shares are defined. Partition means a severance of joint sta­ tus and therefore, it is a matter of individual volition. What is necessary to constitute a partition is therefore a definite un­ equivocal indication of the intention of a member of joint family and enjoy his share in severalty.............. It is no doubt true that a person who claims partition has to prove the same, but it may not be necessary in every case to prove the same by document of partition and the same may be discharged by other acts and conducts, though standing by themselves not conclusive proof of partition, yet may lead to the con­ clusion that there has been partition in conjunction with other facts. Separate occupation and independent deal­ ings are such evidence from which a conclusion can be ar­ rived at that there has been a partition in the family.” 15. The appellant has relied upon a decision of the Supreme Court in the case of Bhagwat Sharan (Dead through Lrs) and Purushottam and Ors., re­ ported in 2020 STPL 5410 SC has held in paragraph 21 as under:- “21 An admission made by a party is only a piece of evidence and not conclusive proof of what is stated therein. It is in this light that we have to examine the admission made by Hari Ram and his brothers while filing the written statement to the suit filed by Seth Budhmal. In paragraph 6 the averment was that the de­ fendants constituted trading Joint Hindu Family. It is obvious that the admission was with regard to a trading family and not HUF. In view of the law cited above, it is clear that not only jointness of the family has to be proved but burden lies upon the person alleging existence of a joint family to prove that the property belongs to the joint Hindu family unless there is mate­ rial on record to show that the property is the nuleus of the joint Hindu family or that it was purchased through funds coming out of this nucleus. In our opinion, this has not been proved in the

SA No. 08/2011 9 present case. Merely because the business is joint would not raise the presumption that there is a Joint Hindu Family. As far as paragraph 8 is concerned in our view there is no clear-cut admission. The allegation made was that the minors were rep­ resented by defendant nos. 1-3, who were head of their respec­ tive branches. In reply to this it was stated that defendant Nos. 1-3 were neither the head or the karta, nor the mortgage trans­ action was made in that capacity. This admission cannot be said to be an unequivocal admission of there being a joint fam­ ily.” 16. He submits that in the present case, the Plaintiff in first appellate court namely Gyanchand has already admitted to the fact that property has been parti­ tioned when he brought the share of Respondent 07 & 08 in the name of his son Om Prakash and therefore the claim of declaring the property as joint is untenable in the eyes of law and hence the order passed by first appellate court is bad in the eyes of law. As per the aforesaid judgment it is clear that when two families are living separately in their own estates and the co­ parceners selling their share of land without objection, there are strong rea­ sons to believe that a partition has affected. Thus, the plaintiffs have been en­ joying their share of lands and the defendants enjoying their share cannot be later on claimed to be a joint estate. Hence, the impugned judgment and de­ cree passed by the First Appellate Court is illegal, perverse, arbitrary and un­ warranting to the evidence available on record. 17. Mr. Vineet Kumar Pandey, learned counsel for respondents no. 4 & 5 con­ tended that the suit property Khasra No.374 Rakba 0.040 hectare situated at Village Nawapara, Patwari Halka No. 27, Rajasva Nirikshan Mandal- Pusaur,Tehsil and District Raigarh (C.G.), is an undivided joint hindu family property. Therefore, the sale executed in favour of defendants/appellants No. 1 and 2 by the Nilkumari and Rajkumari are not binding effect on the plain­ tiffs. 18. I have heard the learned Counsel appearing for the parties, considered the ri­

SA No. 08/2011 10 val submissions made hereinabove and perused the records with utmost cir­ cumstances. 19. The question which arises for consideration is “Whether the First Appellate Court committed error in holding that there was no severance of joint family status and there was no partition?” 20. In order to appreciate the above substantial question of law, it would be nec­ essary to mention here that Revenue Records (Ex.P/2) and Khasra Panchshala (Ex.P/3), again Panchshala Khasra (Ex.P/4) in form B-01 and Khasra Panchshala (Ex.P/5) shows that Khasra No. 10, total area 1.333 hectare agricultural land has been recorded in the name of Nilkumari, Rajku­ mari, Kewra Bai, Laxmi Bai, Tulsi Bai, Gyanchand. Section 117 of the Land Revenue Code, 1959 deals with presumption as to entries made in land records, which provides that all entries made in the land revenue records shall be presumed to be correct unless the contrary is proved. Therefore, the Revenue record shows that suit property is a joint Hindu family property. 21. Rajkumari(DW/2) Respondent No. 08 herein has deposed that his forefather namely Chandan Singh had divided his whole property amongst Ramkumari, Gyanchand, Hetram. Hetram had received the share of Nanhu ram of the suit property. As per her version, his father kept selling his share from time to time and after his demise, his legal heirs started selling the property and accord­ ing to that sale, the land has been purchased by the plaintiffs, but there is no objection made by any of the parties. The respondent No. 8 (DW/ 2) has filed a document (Ex.D/2) which shows that Neelk.umari, Rajkumari and Kevrabai and Gyanchand have jointly sold the property to the Ravindra Patel and a document (Ex.D/3) is also a sale deed which was jointly executed by Dhobi­ lal, Nilkumari, Rajkumari, Gyanchand, Kevrabai in favour of the Om Prakash

SA No. 08/2011 11 Patel son of Gyanchand. 22. Rajkumari D/2 deposed in paragraph 2 of her deposition before the trial Court that ;g ckr lgh gs fd dkSu&dkSu ls [kljk uEcj dh tehu esjs firk th caVokjk esa izkIr fd, Fks eSa ugh crk ldrh A ;g ckr lgh gS fd xzke uokikjk esa ge yksxksa dk ‘kkfey [kkrk esa uhydqekjh ,oa esjk rFkk dsaojk ckbz rFkk oknhx.k dk uke ntZ gS A ;g ckr lgh gS fd esjs }kjk eq[; ijh{k.k esa crk;k x;k fodz; u’kek iz-Mh-&1] Mh-&3 ds fodz; esa le; ge ykxks dk [kkrk ‘kkfey Fkk A ;g ckr lgh gS fd esjs firk th Lo- gsrjke ds fgLls caVokjs esa fdruk tehu izkIr gqvk Fkk eSa ugh crk ldrh A ;g ckr lgh gS fd iz’uk/khu Hkwfe dkSu ls [kljk uEcj dh gS eSa ugh crk ldrh A ge yksxks dk iwoZ esa [kfygku ,d Fkk A;g ckr lgh gS fd oknhx.k ls fodz; ds laca/k esa dksbZ lgefr i= ugh fy, Fks 23. The Ganesh Ram(DW/1) has also deposed that he has no information about the partition between the defendants and the plaintiffs and which property has been received to whom in partition. 24. The Supreme Court in the matter of Kalyani (dead) by Lrs. V. Narayanan and others reported in AIR 1980 SC 1173 at paragraph 10 has defined the word “partition” by holding that an unequivocal intention to separate brings about a disruption of joint family status, at any rate, in respect of separating member or members and thereby puts an end to the coparcenary with right of survivor-ship and observed as under:- “10. ... Partition is a word of technical import in Hindu law. Partition in one sense is a severance of joint status and coparcener of a coparcenary is entitled to claim it as a matter of his individual volition. In this narrow sense all that is necessary to constitute partition is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severalty. Such an unequivocal intention to separate brings about a disruption of joint family status, at any rate, in respect of separating member or members and thereby puts an end to the coparcenary with right of survivorship and such separated member holds from the time of disruption of joint family as tenant-in-common. Such partition has an impact on devolution of share of such members. It goes to his heirs displacing survivorship. ...

SA No. 08/2011 12 25. Thereafter, in the matter of Shub Karan Bubna alias Shub Karan Prasad Bubna v. Sita Saran Bubna and others, reported in (2009) 9 SCC 689, the Supreme Court, defined the word “partition” in following terms:- “5. “Partition” is a redistribution or adjustment of pre-existing rights, among co-owners/coparceners, resulting in a division of lands or other properties jointly held by them, into different lots or portions and delivery thereof to the respective allottees. The effect of such division is that the joint ownership is terminated and the respective shares vest in them in severalty. 6. A partition of a property can be only among those having a share or interest in it. A person who does not have a share in such property cannot obviously be a party to a partition. “Separation of share” is a species of “partition”. When all co- owners get separated, it is a partition. Separation of share(s) refers to a division where only one or only a few among several co-owners/coparceners get separated, and others continue to be joint or continue to hold the remaining property jointly without division by metes and bounds. For example, where four brothers owning a property divide it among themselves by metes and bounds, it is a partition. But if only one brother wants to get his share separated and other three brothers continue to remain joint, there is only a separation of the share of one brother.” 26. Also the Hon’ble Supreme Court in the matter of Bhagwati Prasad Sah and others v. Dulhin Rameshwari Kuer and another reported in AIR 1952 SC 72, in which it was held that there is no presumption because one of the members of the family separated himself, there has been separation with re­ gard to all. It was observed as under: - “[7] ... The general principle undoubtedly is that a Hindu family is presumed to be joint unless the contrary is proved, but, as it is admitted here, that Imrit, one of the coparceners, did separate himself from the other members of the joint family and had his share in the joint property partitioned off for him, there is no presumption that the rest of the coparceners continued to be joint. There is no presumption on the plaintiff's side too that because one member of the family separated himself, there has been separation with regard to all. It would be a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation amongst the other coparceners or that they remained united. The burden

SA No. 08/2011 13 would undoubtedly lie on the party who asserts the existence of a particular state of things on the basis of which he claims relief. …” 27. Likewise, in the matter of Hans Raj Agarwal and another v. Chief Commissioner of Income Tax and others reported in (2003) 2 SCC 295, the Supreme Court while dealing with the consequences of partition, placing reliance upon its earlier decision in the matter of Nani Bai v. Gita Bai AIR 1958 SC 706, held as under: - “Partition in the Mitakshara sense may be only a severance of the joint status of the members of the coparcenary, that is to say, what was once a joint title has become a divided title though there has been no division of any properties by metes and bounds. Partition may also mean what ordinarily is understood by partition amongst co-sharers who may not be members of a Hindu coparcenary.... For partition in the latter sense of allotting specific properties or parcels to individual coparceners, agreement amongst all the coparceners is absolutely necessary. Such a partition may be effected orally, but if the parties reduce the transaction to a formal document which is intended to be the evidence of the partition, it has the effect of declaring the exclusive title of the coparcener to whom a particular property is allotted by partition, and is, thus, within the mischief of Section 17(1)(b).” 28. Reverting to the facts of the present case in the light of principle of law enun­ ciated by the Supreme Court in the above-stated judgments, it is quite vivid that in the present case, the appellants did not prove the fact that there has been severance between the parties from a joint family. Therefore the pre­ sumption is in favour of union until a partition is made out, so after a partition the presumption would be against a reunion. 29. Chapter XII Joint Hindu Family Coparceners deals with the Right of Co­ parceners ; no coparcener is entitled to any special interest in the coparce­ nary property, nor is he/she entitled to exclusive possession of any part of the property ‘there is community of interest and unity of possession between all the members of the family’. A member of a joint family cannot predicate at

SA No. 08/2011 14 any given moment what his share in the joint family property is. His share be­ comes defined only when a partition takes place. Each coparcener is entitled to joint possession and enjoyment of the family property. A coparcener has no right without the consent of the other coparceners, to sell the land or any portion thereof to the third party. Where a coparcener dies before partition of the coparcenary property, his undivided interest in the property devolves, not by succession upon his heirs, but by survivorship upon the surviving co­ parceners. 30. A general principle is that a Hindu family is presumed to be joint unless the contrary is proved. The appellants/defendants does not prove that partition has taken place amoungst the coparceners. Therefore, there is a presump­ tion that the coparceners continued to be joint. 31. In present case, there is no partition as metes and bounds. If the property has been partitioned between the defendants and the plaintiffs, there is no document and evidence available which can establish the fact that which khasra of property has been received to whom. The total land of Khasra No. 10 admeasuring 1.333 hectare is in joint name and possession of the plain­ tiffs and defendants. Also the previous sale deed executed by the signature of joint owners. From the plaint averments and the evidence brought on record, there is nothing to demonstrate that the oral partition of the joint Hindu family has been made between the coparceners before 40-50 years back in the life time of Chandan Singh. Therefore, the partition as such does not prove. 32. In view of the legal settled position and above discussed facts and material available on records, the substantial question of law is decided against the appellants holding that the first appellate Court has not committed any error of law by holding that there was no severance of joint family status and the

SA No. 08/2011 15 defendants could not specify the partition by exact metes and bounds. 33. In the opinion of this Court, the first Appellate Court has rightly held that the suit property belongs to the joint ancestral property of the joint family of both the parties. The oral as well as documentary evidence brought on record show that there is no partition amongst coparcener of the family. Therefore there is a presumption that whole property is a joint hindu family property. 34. In view of the reasons mentioned above, the substantial question of law is de­ cided in the negative and the instant second appeal is accordingly dismissed. No order as to costs. Decree be drawn accordingly.

Sd/-

(Arvind Kumar Verma)

Judge Jyoti