The Commissioner of Income Tax-II vs. M/s OM R.S.Wines

1 HIGH COURT OF CHHATTISGARH AT BILASPUR S.A. No. 481 of 2015 Manohar Versus Shivkumar and Others _____________________________________________________ C A V JUDGEMENT Post for pronouncement of the judgement dated 02 /07/2024 (Arvind Kumar Verma) Judge 02 /07/2024

2 AFR HIGH COURT OF CHHATTISGARH, BILASPUR JUDGMENT RESERVED ON 16.04.2024 JUDGMENT DELIVERED ON 02 .07.2024 SA No. 481 of 2015 • Manohar S/o. Ramcharan, Aged About 75 Years R/o Vill- Changori, Tah. Janjgir, Dist- Janjgir - Champa, Chhattisgarh, Present Address- Vill- Khoksa, Tah. Janjgir, Dist- Janjgir - Champa, Chhattisgarh ---- Appellant Versus 1. Shiv Kumar S/o Nityanand, Aged About 70 Years 2. Ramkumar S/o Nityanand, Aged About 68 Years 3. Devkumar S/o Nityanand, Aged About 58 Years 4. Laxmi Kumar S/o Nityanand, Aged About 63 Years 5. Pramod Kumar S/o Nityanand, Aged About 59 Years 6. Ramesh Kumar S/o Nityanand, Aged About 55 Years 7. Kamlesh Kumar S/o Nityanand, Aged About 51 Years 8. Umesh Kumar S/o Nityanand, Aged About 45 Years All are R/o Vill- Changori, Tah. Akaltara, Dist- Janjgir - Champa, Chhattisgarh 9. Savitri Devi D/o Nityanand, Aged About 73 Years W/o Chintamani Pandey, Present Address- Daroga Para, Near Gudhidai Temple, Raigarh, Tah. And Dist- Raigarh, Chhattisgarh, 10. Brihaspati Devi D/o Nityanand, Aged About 61 Years W/o Ramnivas Pandey, R/o Vill- Konar, P. O. Kutighat, Tah. Akaltara, P. S. Mulmula, Dist- Janjgir-Champa, Chhattisgarh, 11. Mandavi D/o Nityanand, Aged About 53 Years W/o Indrajeet Pathak, R/o Vill- Khaira, Chilhati, Tah. Seepat, Dist- Bilaspur, Chhattisgarh, 12. Ahilya Bai (Died And Deleted) In Compliance Of Hon'ble Court Order Dated 04.03.2024. 13. State Of Chhattisgarh, Through Collector, Janjgir, Dist- Janjgir - Champa, Chhattisgarh ---- Respondents

3 For Appellant : Shri H.V.Sharma, Advocate For Respondent Nos. 1 to 11 : Shri Somnath Verma, Advocate For Respondent No.13/State : Shri Pratik Tiwari, PL Hon’ble Shri Justice Arvind Kumar Verma C A V Judgment This second appeal under Section 100 of the CPC has been preferred by the sole plaintiff/appellant herein against the impugned judgment and decree passed by the learned First Appellate Court in Civil Appeal No. 21-A/2013 (Annexure A/1) whereby allowed the appeal filed by the respondent/defendant by setting aside the judgment and decree of the trial court dated 30.08.2010 passed by the Second Civil Judge Class-1 Janjgir, District Janjgir-Champa in Civil Suit No. 999-A/2005. 2. The appeal was admitted by formulating the following substantial questions of law: “Whether the finding of the First Appellate Court regarding earlier partition is perverse?” [For the sake of convenience, the parties would be referred hereinafter as per their status shown in the suit before the trial Court] 3. The facts necessary for disposal of the present appeal in brief are that the appellant/plaintiff had instituted a suit before the trial Court which was registered as Civil Suit No. 999-A/2005 for possession of the suit land as per Schedule ‘B’ of the plaint or partition of the joint family property as mentioned in Schedule ‘A’ of the plaint and separate possession of half share should be given to the plaintiff.

4 4. The plaintiff has obtained the suit land vide order dated 04.08.1982 passed by the Tehsildar in a Revenue Case No. 3-A/27/1979-80 but the defendant Nityanand (deceased) managed to mutate the land in his name in revenue records along with his share detailed in Schedule C of the plaint. It is admitted fact that the plaintiff and defendant Nityanand (deceased) are real brothers and the original defendant (Nityanand) died during the pendency of the appeal and the present respondents are the legal heirs of the defendant Nityanand. 5. Defendant Nityanand denied the averment of the plaint and contended that the earlier order for partition has been set aside in appeal No.1-A/27/1982-83 before Sub Divisional Officer, Janjgir vide order dated 30.12.1983 and further contended that in the proceedings u/s. 145 Cr.P.C. before the SDO, the defendant obtained the possession of Khasra No.1231 area 2.06 acres and Khasra No. 1222 area 0.09 acres as per compromise in M.Cr.C. No. 380/1983 dated 24.07.1985 hence, the suit is barred by limitation and the suit for repartition of the said land is not maintainable. 6. Learned trial court decreed the suit for partition and directed to initiate the proceeding under Section 54 of the Civil Procedure Code for obtaining separate possession of the land detailed in Schedule- ‘A’ to the extent of half share. That the trial court further held that the earlier partition has not been given effect to as after the remand order passed by the Sub divisional Officer vide order dated 30.12.1983 as the parties failed to appear before the Tehsildar and therefore there is no final order for partition. That the compromise entered before SDO in a proceeding under Section 145 Cr.P.C. (Ex.D-3) does not confer title on the parties

5 but only declares the possession two months prior to preliminary order hence decreed the suit for partition. 7. In the appeal, learned first Appellate Court set aside the judgment and decree passed by the trial court on the ground that the prior partition has been proved therefore the suit for partition is not maintainable. The learned first Appellate Court held that the trial court has dismissed the suit for possession against which no appeal has bee preferred by the plaintiff hence no decree for possession may be granted. 8. The learned Appellate court allowed the appeal despite of the fact that the land detailed in Schedule-A of the plaint has been partitioned by the Tehsildar but in the appeal, the partition order passed by the Tehsildar has been set aside and in absence of final order relating to partition in possession of the parties is simply family arrangement between the parties and therefore the suit for partition is maintainable. 9. Learned counsel for the appellant/plaintiff vehemently argued that the property of Schedule ‘A’ was not divided at all with metes and bounds. There was always a dispute regarding partition of the suit land. The plaintiff has obtained the suit land as per Schedule ‘B’ vide order dated 04.08.1982 passed by the Tehsildar in Revenue Case No. 3-A/27/1979-80 but defendant Nityanand mutated the land in his name in the revenue record along with his share detailed in Schedule ‘C’ of the plaint. The earlier partition has not been given effect as after the remand order passed by the SDO vide order dated 30.12.1983 and remanded the case of the Tehsildar but the parties failed to appear before the Tehsildar therefore there is no final order for partition. Learned First Appellate Court has failed to consider the above aspect and set aside

6 the order of partition decree passed by the trial court. 10. Per contra, learned counsel for the respondent contended that earlier there was mutual partition by and between the parties but the plaintiff started raising dispute over the share therefore the revenue case No. 3-A/27/1979-80 filed before the Tehsildar for partition of holding of agricultural land and the Tehsildar has divided the joint holding of the property and mutated the land in the revenue records. This order for partition has been set aside in appeal No,1-A/27/1982-82 by the Sub Divisional Officer, Janjgir-Champa vide order dated 30.12.1983. Learned counsel for the defendant further contended that in the proceeding under Section 145 Cr.P.C. before the SDO, (Ex.D-3), the defendant obtained the possession of Khasra No. 1221 area 2.06 acres and Khasra No. 1222 area 0.09 acres as per compromise in M.Cr.C. No. 380/1993 dated 24.07.1985 therefore the First Appellate Court has rightly set aside the judgment and decree of the trial court. He has relied upon the judgment of Smt Krishnabai Bhritar Ganpatrao Deshmukh V. Appasaheb Tuljaramarao Nimbalkar and Others reported in (1979) 4 SCC 60, wherein the Apex Court has held thus: “In an undivided Hindu family of Mitakshra concept, no member can say that he is the owner of one-half, one- third or one-fourth share in the family property, there being unity of ownership and commonality of enjoyment while the family remains undivided. Such unity and commonality or the essential attributes of the concept of joint family status. Cesser of this unity and commonality 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

7 the properties by metes and bounds. Disruption of joint status, itself, as Lord Westbury put it in Appavier v. Rama Subha Aivan. [1886] 11 MIA. 75, in effect, "covers both a division of right and division of property." Reiterating the same position, in Girija Bai v. Sadashiv [1916] 43 IA. 151, the Judicial Committee explained that division of the joint status, or partition implies " separation in interest and in right, although not immediately followed by a de facto actual division of the subject matter. This may, at any time, be claimed by virtue of the separate right." The division of the joint status may be brought about by any adult member of the joint family by intimating, 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 severality. Such intimation, indication or representation may take diverse forms. Sometimes it is evidenced 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 preliminary recital in the deed, therefore, assumes importance. Read in the light of the surrounding circumstances and in the perspective that the 'Desgat' land was partible coparcenary property of the two brothers, each of whom had an equal interest therein and an equal right to get his share divided and thereafter enjoy it in severally, this recital establishes with a preponderance of probability, that sometime before the execution of the deed, Ex. 39, Ramachandrarao had communicated to his brother, in clear, unmistakable terms his intention not only to separate in residence and user and put an end to commonality, but also to sever the unity of ownership and enjoy his share in severalty. The result was division of the joint status. “

8 11. He has further referred to the decision of this Hon’ble Court in a case of Bisauha Singh Vs. Baldau Singh passed in SA No. 421 of 2006, wherein it has been held by this 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 and he has separated from the family. Thus it is quite clear that once severance of 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. 12. In support of his contention, Shri Sharma, learned counsel for the appellant/plaintiff placed his reliance upon the decision of the Orissa High Court in the case of Heram Patel Vs. Parikhita Patel and Others reported in 1987 SCC Online Ori 208, wherein the High Court had 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 status and therefore, it is a matter of individual volition. What is necessary to constitute a partition is therefore a definite unequivocal indication of the intention of a member of joint family and enjoy his share in severality………. 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 sanding by themselves not conclusive proof of partition, yet may lead to the conclusion that there has been partition in the family.”

9 13. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the records with utmost circumspection. 14. In order to appreciate the above substantial question of law, it would be necessary to mention here that the property of 'A' was a joint family property. The Tehsildar has passed the order in Revenue Case No.3-A/27/1979-80 and partitioned the khaata (holding) which was challenged before the SDO (Ex.D-1) and vide order dated 30.12.1983, the order passed by the Tehsildar has been set aside and remanded the case before the Tehsildar. However, the parties failed to appear before the Tehsildar for obtaining partition of the property of 'A'. Therefore there is no final order for partition of the property of 'A'. 15. Sukalu (PW-1) has deposed that there was mutual partition between them but there was a dispute between the parties. Which is supported by Manohar (PW-2) and Gaya Ram (PW-3). 16. Shiv Kumar (DW-1) has admitted in his cross-examination that all the land was jointly in the name of the parties in the revenue record of area 9.50 acres and there was a dispute for partition. He has deposed that “he is the power of attorney holder of his father Nityanand DW-1. He has deposed that there was oral partition by and between the plaintiff and defendant No.1 and they were in possession of their respective shares. However, he obtained partition order from the Tehsildar (Ex.D-1) of the entire property. But in Appeal, SDO, Janjgir set aside the order of the Tehsildar (Ex.D-2). The land admeasuring No. 1083 area 0.081 acres was in the

10 share of defendant No.1 and on the same, a house has been constructed, upon which defendant No.1 is in possession.” In cross examination, he has stated that “mlds firk vkSj mlds pkpk ds uke ls tks fd oknh izfroknh gS ‘kkfey [kkrs dh Hkwfe Fkh tks yxHkx 9-50 ,dM+ Fkh muds chp caVokjs dk fookn gSA [kkrk foHkktu vkosnu tks 1983 esa is’k fd;k x;k Fkk mldh tkudkjh ml le; ugha gksuk crk;k gS ftlds fo#) vihy gqbZ FkhA bl lk{kh us bl ckr dks lgh crk;k gS fd caVokjkukek dk fu.kZ; fy;k x;k fQj Lor% dFku fd;k gS fd dbZ ckj vkilh caVokjkukek gqvk FkkA rglhynkj ds U;k;ky; esa vkilh caVokjk gksus ds ckn [kkrk foHkktu gks x;k Fkk vkSj vyx vyx ch&1 _.k iqfLrdk cu x;k FkkA ftldh vihy esa izdj.k fjekaM fd;k x;kA ijarq fjekaM gksus ds ckn og rglhynkj ds U;k;ky; esa mifLFkr ugha gqvkA bl ckr dks lgh crk;k gS fd orZeku esa [kkrk foHkktu dk vkns’k vfLrRo esa ugha gSA D;ksafd ,l-Mh-vks ds vkns’k ds ckn [kkrk foHkktu vkns’k fujLr gks x;k gSA vr% mHk; i{k ds chp orZeku esa [krk foHkktu ugha gksuk ik;k tkrk gSA” 17. Hence, Nityanand DW-1 has already admitted the fact that forever there was a dispute by and between the parties regarding partition of the property Schedule ’A’. Therefore, earlier oral partition between the parties was not actual partition but merely a family arrangement by and between the parties. Therefore an application for partition of Schedule ‘A’ property was filed before the Tehsildar and the Tehsildar divided the property between the shareholders, accordingly. The order of Tehsildar (Ex.D-1) was set aside by the SDO, Janjgir and the case was remanded to Tehsildar for fresh order vide Ex.D-2. But the parties failed to appear before the Court of Tehsildar and hence the partition of property is not in

11 existence. 18. Apex Court in the matter of Kalyani (dead) by Lrs. Vs. Narayanan and Others reported in AIR 1980 SC 1173 in 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 survivorship and observed as under: “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 severally. 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 shares of such members. It goes to his heirs displacing survivorship…... 19. Thereafter, in the matter of Shub Karan Bubna alias Shub Karan Prasad Bubna Vs. Sita Saran Bubna and Others, reported in (2009) 9 SCC 689, the Apex Court has defined the word “partition” in following terms: Partition' is a re-distribution 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. A partition of a

12 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. In a suit for partition or separation of a share, the prayer is not only for declaration of plaintiff's share in the suit properties, but also division of his share by metes and bounds.” 20. It has been further held by the Apex Court in the matter of Bhagwati Prasad Sah and Others Vs. Dulhi Rameshwari Kuer and Another reported in AIR 1952 SC 72, wherein it has been held that there is no presumption because one of the members of the family separated himself, there has been separation with regard to to all. It was thus observed that : “ the general principle is that a Hindu family is presumed to be joint unless the contrary is proved, yet where it is admitted that 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 other 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

13 whether there was a separation amongst the other coparceners or they remained united and the burden would undoubtedly lie on the party who asserts the existence of a particular state of things on the basis of which he claims relief.” 21. Likewise, in the matter of Hans Raj Agarwal and Another Vs. Chief Commissioner of Income Tax and Others reported in (2003) 2 SCC 295, the Apex Court while dealing with the consequences of partition, placing reliance upon its earlier decision in the matter of Nanni Bai And Others vs 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 former sense, it is not necessary that all the members of the joint family should agree, because it is a matter of individual volition. If a coparcener expresses his individual intention in unequivocal language to separate himself from the rest of the family, that effects a partition, so far as he is concerned, from the rest of the family. By this process, what was a joint tenancy, has been converted into a tenancy in common. 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

14 the exclusive title of the coparcener to whom a particular property is allotted by partition, and is, thus, within the mischief of s. 17(1) (b).”