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CASE NO.: Appeal (civil)  3040 of 2008

PETITIONER: Hardeo Rai

RESPONDENT: Sakuntala Devi and others

DATE OF JUDGMENT: 29/04/2008

BENCH: S.B. SINHA & V.S. SIRPURKAR

JUDGMENT: J U D G M E N T REPORTABLE

CIVIL APPEAL NO. _3040 OF 2008 (Arising out of SLP (C) No. 2569 of 2007)

S.B. SINHA, J.  

1.      Leave granted.

2.      Appellant is aggrieved by and dissatisfied with a judgment and order  dated 16th November, 2006 passed by a Division Bench of the Patna High  Court in LPA No.1334 of 1997 whereby and whereunder a judgment and  order dated 15th September, 1997 passed by a learned Single Judge of the  said Court was set aside. 3.      Appellant and the father of respondents herein had entered into an  agreement to sell a property admeasuring 18 kathas and 5 dhurs of land  situate in the District of Begusarai on or about 10th April, 1978.  In the said  agreement a representation was made by the appellant herein that a partition  of the joint family property had taken place and each of four co-sharers had  been in possession of separate portions of the property allotted to them.   4.      Father of the respondents had paid a sum of Rs.16,000/- out of the  total consideration of Rs.25,000/-.  They were put in possession of 16 kathas  and 5 dhurs of land.  The balance amount of Rs.9,000/- together with interest  of Rs.4,000/- was to be paid within 4 months from the date of agreement of  sale i.e. 10th August, 1978. 5.      Admittedly the said agreement was scribed by PW-14, Ram Gulam  Pandit;, PW-11, Garib Nath Chaudhary & PW-12, Narayan Singh were  witnesses to the said agreement.  6.      As despite notice, the appellant failed and/or neglected to execute a  sale deed in terms of the said agreement a suit praying for specific  performance thereof, which was registered as Title Suit No.79 of 1978, was  filed in the Court of the Subordinate Judge, Begusarai.   7.      In his written statement, the appellant raised two defences :

a)      he was forcibly made to sign blank stamped papers  whereon the purported agreement of sale was scribed  later on.  b)      that the said property was a joint family property. 8.      Respondents’ father in support of his case examined himself as a  witness.  The scribe of the agreement as also the witnesses were also  examined in the said suit. 9.      Appellant also examined 7 witnesses to prove his case.  DW-2, Geeta  Rai, admitted that the appellant had been in possession of the land in dispute.   Even appellant in his deposition before the learned trial Judge, although  stated in the examination-in-chief that he and his brothers had not been in  separate possession of the land, in the cross-examination stated as under :- "Bhiku Rai is my uncle.  He has = share on the south of

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the said property.  My 4 kathas and 19 dhurs is measured  with 15 kathas of land on which there is my house.  I  have = share in that there is no plot of 3 kathas and 6  dhurs.  Brajkishore does not have possession over any  plot Khasra No.1971 is measuring 1 bigha and 17 dhurs.   There is my share as well as share of Bhiku Rai in the   south of the said property.  There is no plot of 4 kathas.   No part in possession of Brajkishsore Rai.  I have  possession over the land over which there is brick kiln  Khasra No.2526 is as measuring 17 kathas.  My share is  from the east."

10.     Appellant, however, failed to explain the stipulation contained in the  said agreement that a partition of the joint family property had already taken  place.   Brothers of the appellant were not examined to prove joint  possession.  Existence of the coparcenary had not been established.  The  learned trial court keeping in view the nature of the evidences brought on  record, decreed the suit, dis-believing the defence of the appellant that the  said agreement was an outcome of a forcible execution.  It, however, did not  enter into the question in regard to jointness of the property.  11.     On an appeal having been preferred therefrom, the appellate court  allowed the appeal of the appellant by a judgment and decree dated 15th  September, 1997 on the sole ground that the suit property was a joint family  property.   The first appellate court in its judgment held :-

"11.    In his evidence the defendant has explained his  alleged admission of private partition in the family in the  Mahda in question.  According to him his signature and  left thumb impression was forcibly, on the point of gun,  obtained by the plaintiff on blank papers and later on a  forged and fabricated Mahdanama was scribed over those  papers.  

12.     I find that even in the Mahdanama (Ext.1), it stood  recited that rent receipt of entire joint family lands were  issued only in the name of Ram Autar Rai, the father of  the defendant.  I further find that DWs 2, 5 and 6 and the  defendant himself as DW 7 have supported jointness in  the family of the defendant at the time of execution of the  alleged Mahdanama and till date.  Even after the death of  his father in the year 1986.  Nothing in their cross- examination has been taken by the plaintiff to discredit  their testimony in the regard.  The defendants’ case that  the lands shown is schedule A to the plaint have no  separate identification and it stood amalgamated on the  spot with other lands belonging to the family is supported  by the report (Ext.8) of the Advocate Commissioner   (DW-3).  In such situation not only jointness of the  defendant with his brothers and father was proved, the  plaintiff’s claim for being put in possession over 16  kathas 5 dhurs, including the brick kiln (schedule B) on  10.4.1978 was also falsified."     12.     The first appellate court, however, failed to determine the issue as to  whether the signatures of the appellant were forcibly obtained.  In fact it did  not enter into the said question at all.   13.     The Division Bench of the High Court, as noticed hereinbefore,  allowed the appeal preferred by the respondents herein. 14.     Mr. Nagendra Rai, learned senior counsel appearing on behalf of the  appellant, would submit that keeping in view the specific defence raised by  the appellant herein that the property in question was a joint family property,  it was obligatory on the part of the trial court as also the Division Bench of  the High Court to go into the said question.   15.     The Division Bench, Mr. Rai would contend, wrongly proceeded on

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the basis that the suit of the respondents could be decreed only on the basis  of the representation made by the appellant herein.  16.     Mr. Gaurav Agrawal, learned counsel appearing on behalf of the  respondents, on the other hand, would submit :- i)      Jointness of a family must be established having regard to  jointness of kitchen and mess, which having not been proved  and on the contrary, separate possession of the appellant in the  property having been admitted, there is no infirmity in the  impugned judgment. ii)     Main defence of the appellant in the suit being that he had not  executed the document, and the same having been found to be  incorrect by the learned trial court there is no infirmity in the  impugned judgment particularly when no finding contrary  thereto was arrived at by the first appellate court.    17.     There exists a distinction between a Mitakashra Coparcenary property  and Joint Family property.  A Mitakashra Coparcenary carries a definite  concept.  It is a body of individuals having been created by law unlike a joint  family which can be constituted by agreement of the parties.   A Mitakashra  Coparcenary is a creature of law.  It is, thus, necessary to determine the  status of the appellant and his brothers.   18.     We may at the outset notice the characteristics of a Mitakakashra  Coparcenary from the decision of this Court whereupon Mr. Rai has placed  strong reliance being State Bank of India  vs.  Ghamandi Ram (Dead)  through Gurbax Rai : AIR 1969 SC 1330.   Therein this Court was concerned with a notification issued by the  Government of Pakistan in terms of Section 45 of the Pakistan  (Administration of Evacuee Property) Ordinance, 1949.  We may, however,  notice the dicta laid down therein :   "7.      According to the Mitakshara School of Hindu  Law all the property of a Hindu joint family is held in  collective ownership by all the coparceners in a quasi- corporate capacity. The textual authority of the  Mitakshara lays down in express terms that the joint  family property is held in trust for the joint family  members then living and thereafter to be born (See  Mitakshara, Chapter I. 1-27). The incidents of co- parcenership under the Mitakshara law are: first, the  lineal male descendants of a person up to the third  generation, acquire on birth ownership in the ancestral  properties of such person; secondly that such descendants  can at any time work out their rights by asking for  partition; thirdly, that till partition each member has got  ownership extending over the entire property conjointly  with the rest; fourthly, that as a result of such co- ownership the possession and enjoyment of the properties  is common; fifthly, that no alienation of the property is  possible unless it be for necessity, without the  concurrence of the coparceners, and sixthly, that the  interest of a deceased member lapses on his death to the  survivors. A coparcenery under the Mitakshara School is  a creature of law and cannot arise by act of parties except  in so far that on adoption the adopted son becomes a co- parcener with his adoptive father as regards the ancestral  properties of the latter."

19.     The first appellate court did not arrive at a conclusion that the  appellant was a member of a Mitakashra co-parcenary.  The source of the  property was not disclosed.  The manner in which the properties were being  possessed by the appellant vis-a-vis, the other co-owners had not been taken  into consideration.  It was not held that the parties were joint in kitchen or  mess.   No other documentary or oral evidence was brought on record to  show that the parties were in joint possession of the properties.   20.     One of the witnesses examined on behalf of the appellant admitted  that the appellant had been in separate possession of the suit property.   Appellant also in his deposition accepted that he and his other co-sharers

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were in separate possession of the property.   21.     For the purpose of assigning one’s interest in the property, it was not  necessary that partition by metes and bounds amongst the coparceners must  take place.  When an intention is expressed to partition the coparcenary  property, the share of each of the coparceners becomes clear and  ascertainable.  Once the share of a co-parcener is determined, it ceases to be  a coparcenary property.  The parties in such an event would not possess the  property as "joint tenants" but as "tenants in common".   The decision of this  Court in State Bank of India (supra), therefore is not applicable to the  present case. 22.     Where a coparcener takes definite share in the property, he is owner  of that share and as such he can alienate the same by sale or mortgage in the  same manner as he can dispose of his separate property.  23.     We have noticed the representation made by the appellant.  If the  representation to the respondents’ father was incorrect, the appellant should  have examined his brothers.  He should have shown that such a  representation was made under a mistaken belief.  He did nothing of that  sort.    24.     In M.V.S. Manikayala Rao  vs.  M. Naraisimhaswami and others :  AIR 1966 SC 470 this Court   stated the law thus :-

"It is well settled that the purchaser of a coparcener’s  undivided interest in joint family property is not entitled  to possession of what he has purchased."

       Thus, even a coparcenary interest can be transferred subject to the  condition that the purchaser without the consent of his other coparceners  cannot get possession.  He acquires a right to sue for partition. 25.     It does not appear that in State Bank of India (supra) binding  precedent in M.V.S. Manikayala Rao (supra) was noticed.     26.     However, in view of the admission made by the appellant himself that  the parties had been in separate possession, for the purpose of grant of a  decree of specific performance of an agreement, a presumption of partition  can be drawn. 27.     The learned Single Judge of the High Court, with respect, committed  a serious error in so far as it failed to take into consideration the essential  ingredients of a Mitakshra Coparcernary.   28.     We may also notice that the Patna High Court in Dhanu Pathak vs.   Sona Koeri : (1936) XVII Patna Law Times 380  had held thus :- "It is hardly necessary to add that there would have  been no estoppel, if there had been any collusion  between the plaintiffs and the defendant, and if it  had been established that the former had  deliberately misrepresented themselves to be  tenure-holders to the knowledge of the latter to  defeat the provisions of the Chota Nagpur Tenancy  Act."

29.     The decision of the Patna High Court in Bageshwari Prasad Duivedi   vs.   Deopati Kuer and another :  AIR 1961 Patna 416 whereupon reliance  has been placed by Mr. Rai was rendered on a finding that the family was  governed by Mitakashara School of Hindu Law and the parties thereto was  joint and in that view of the matter the share of defendant No.2 therein not  having been defined, no decree could be passed against him for the  execution of the mukarrari patta.  In the aforementioned situation it was held  that agreement of sale cannot be enforced against the defendant No.1  therein.  Such is not the position here.    30.     The question which now arises for consideration is as to whether in a  situation of this nature the Court shall exercise its discretionary jurisdiction  under Section 20 of the Specific Relief Act, 1963.   31.     The agreement was entered into in the year 1978.  The suit had been  decreed on 7th February, 1981.  Respondents’ father had been put in  possession of the property.  No suit has been filed by the alleged coparceners  of the defendant/appellant so long.  There was, therefore, in our opinion, no  reason as to why the judgment and decree passed by the learned trial court

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should be interfered with.   32.     For the reasons abovementioned the appeal fails and is dismissed with  costs.  Counsel’s fee assessed at Rs. 10,000/-.