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PETITIONER: SHIROMANI  & ORS.

       Vs.

RESPONDENT: HEM KUMAR & ORS.

DATE OF JUDGMENT: 04/04/1968

BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. SHAH, J.C.

CITATION:  1968 AIR 1299            1968 SCR  (3) 639  CITATOR INFO :  RF         1981 SC 178  (106)

ACT: Indian Registration Act (16 of 1908),s. 17 (1) (b)-Partition of   Property  in  specific  shares-Deed   not   registered- Admissibility. Pleadings-Plea  of  acquiescence-Not  raised  in  pleadings- Cannot be allowed to be set up subsequently. Hindu Law--Agharia caste-Custom of Jethansi allowing  larger share  of  family property to  eldest  son--Outmoded  custom loses legal force. Indian Evidence Act (1 of 1872), s. 91-Bar on oral evidence.

HEADNOTE: D died in 1940 leaving certain agricultural land as well  as house  property.  He had two children by his first wife  the elder  of  whom was respondent no.. 1. By his  second  wife, appellant no. 2, he had a son, appellant no’. 1. The  family belonged  to  the  Agharia caste and  was  governed  by  the Benares  School  of Hindu Law.  In 1956 Appellants 1  and  2 filed a suit in the Court of the Civil Judge Raigarh (now in Madhya  Pradesh) claiming that they were entitled to 1/4  th share  each  in  D’s  estate and  that  there  should  be  a partition  by  metes and bounds of  joint  family  property. According to their pleadings Ex.D-4 dated December 27,  1943 by  which  appellant no. 2 accepted a lesser  share  of  the properties than was due to her and her son was executed as a result  of  coercion by respondent no. 1. The  latter  along with other respondents contested the suit, relying on  Ex.D- 4.  The trial court, the first appellate court, as  well  as the High Court decided against the appellants who by special leave  came  to  this Court.  The questions  that  fell  for consideration  were : (i) whether Ex.D-4 was  admissible  in evidence  without  having  been  registered;  (ii)   whether Appellant  No.  2  was precluded from  demanding  her  share because  her signing of Ex.  D-4 showed acquiescence on  her part; (iii) whether a higher share for respondent no.  1 was justified  because of the custom of Jethansi in the  Agharia caste  according to which the eldest son was entitled  to  a larger  -share than others; (iv) whether it was open to  the respondents to give oral evidence of actual partition subse- quent to the execution of Ex.D-4.

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HELD:     (i)  The recitals in Ex.D-4 showed that there  was allotment of specific properties to individual  co-parceners and  the document therefore fell within the mischief  of  s. 17(1) (b) of the Registration Act.  It followed that  Ex.D-4 was not admissible in evidence to prove the title of any  of the coparceners to any particular property or to prove  that any  particular property had ceased to be  joint  -property. The  document  was only admissible to prove an intention  on the  part of the co-parceners to become divided  in  status. [643 F-H] Nanni Bai v. Gita Bai, [1959] S.C.R. 479, relied on. (ii) There was no pleading on behalf of the respondents  and no  issue  framed  to  the effect  that  by  signing  Ex.D-4 appellant no. 2 had acquiesced in the division of properties among  her sons without claiming the share to which she  was entitled under the Mitakshara Law of the Benares 640 School.   The respondents therefore could not be allowed  to set up the plea of acquiescence by appellant no. 2 [L644 E] (iii)     The doctrine of "Jethansi" or "Jeshtbhagam" is now obsolete  and unenforceable.  The principle of Hindu Law  is equality  of division and the exceptions to that rule,  have almost, if not altogether disappeared.  As between  brothers or  other relations absolute equality is now the  invariable rule in all the States, unless, perhaps, where some  special family Custom to the contrary is made out.  The  respondents had failed to prove that such a custom was prevalent in  the caste  of Agharias to which the parties belonged. [644  F-G; 645 F-G; 646 A-F] M.   Y.  A.  A.  Nachiappa Chettiar v. M.  Y.  A.  A.  Muthu Karuppan Chettiar, A.I.R. 1946 Mad. 398 and Hur- Purshad  v. Sheo Dyal, 3 I.A. 259 at p. 285, referred to. (iv) The  evidence showed that document Ex.D-4 was  intended by  the  parties to be the sole evidence  of  partition  and since  it  had been held that Ex.D.4 was not  admissible  in evidence  on account of non-registration to  establish  when the  property  was so partitioned, it was manifest  that  no oral  evidence  was  admissible  to  prove  any   subsequent partition  having regard to the provisions of s. 91  of  the Evidence Act.  [L 646 G-647 A]

JUDGMENT: CIVIL  APPELLATE JURISDICTION : Civil Appeals Nos.  749  and 750 of 1965. Appeals by special leave from the judgment and decree  dated November 8, 1963 of the Madhya Pradesh High Court in  second appeals Nos. 569 and 568 of 1960 respectively. S.   V. Gupte and G. L. Sanghi, for the appellants (in  both the appeals). Sarjoo  Prasad and D. N. Mukherjee, for the respondents  (in both the appeals). The Judgment of the Court was delivered by Civil Appeal No. 749 of 1965: Ramaswami, J. This appeal is brought, by special leave, from the  judgment of the High Court of Madhya Pradesh,  Jabalpur dated November 8, 1963 in Second Appeal No. 569 of 1960. Respondents  nos.   1  and  3,  Hemkumar  and  Dinomani  and appellant no.  1 Shiromani are the sons of late Dharam Singh Agharia.   Appellant  no. 2 Mst.  Subhagwati is  the  second wife of Dharam Singh and the mother of appellant no. 1. Mst. Jampalhin,  the  mother of respondents 1 and 3  died  before Dharam                             641

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Singh  married  appellant  no. 2. The  relationship  of  the parties will appear from the following pedigree                  Dharam Singh                      : ------------------------------------------------------------- :                                         : First wife: Mst.  Jampalhin     Second wife: Mst. Subhagwati                                     (Plff.  No. 2)                                          :                                          :                                  (Plff.  No. 1) ---------------------------------------------------------------- :                                            : Hem Kumar                                 Dinmani (Dfdt. No. 1)                          (Dfdt. No. 3) :                                              : Etwar Singh                        Chandra Bhusan Singh (Dfdt. No. 2)                          (Dfdt. No. 4) It  is  not disputed that the parties are  governed  by  the Benares, School of Hindu Law.  It appears that Dharam  Singh was murdered in 1940 and his son Hemkumar was involved as an accused   but  he,  was  acquitted  in  that   case.    Mst. Subhagwati,  appellant  no.  2  appeared  as  a  prosecution witness in the murder case and deposed against Hemkumar.  At the tingle of his death, Dharam Singh had left 102.28  acres of ryoti land in village Tilgi and 16.56 acres of ryoti land at   village   Supaka  and  also  some   house   properties. Appellants  1 and 2 instituted C.S. no. 43-A of 1956 in  the court of the Civil Judge, First Class, Raigrah claiming that they  were entitled to 1/4 th share each of  Dharam  Singh’s estate and there should be partition by metes and bounds  of the joint family proper-ties.  They challenged the  validity of  Ex.  D-4 dated December 27, 1943.  It was  alleged  that Mst.   Subhagwati was compelled by Hemkumar under threat  of violence  to execute the deed, Ex.  D-4.  It was  said  that the  deed  Ex.  D-4 was prejudicial to Shiromani who  was  a minor at that time because he was given less than the  share to which he was entitled and his mother Mst.  Subhagwati was also  not given her due share of ’joint  family  properties. The  appellants  accordingly prayed that there should  be  a fresh partition by metes and bounds of the joint family pro- perties and they should be given 1/4 th share each  therein. The suit was resisted by the respondents on the ground  that the  parties were bound by the deed of partition,  Ex.   D-4 and  there was no ground for reopening the  partition  which had  already  taken place.  The trial judge found  that  the partition  deed.  Ex.  D-4 dated December 27, 1943  was  not executed by Mst.  Subhagwati under undue influence and  that document  was acted upon.  If was further held by the  trial judge that though the partition 642 deed  did  not reserve any share to  Mst.   Subhagwati,  the appellants were not entitled to reopen the partition because Mst.   Subhagwati was not entitled to a share  and  Hemkumar was entitled to an increased share on account of the  custom of "Jethansi".  The appellants took the matter in appeal  to the District Judge of Raigarh but the appeal was  dismissed. The  appellants preferred a Second Appeal to the High  Court of  Madhya Pradesh which dismissed the Second  Appeal.   The High Court took the view that the deed, Ex.  D-4 was neither an  award  nor  was it a  document  effecting  partition  of immovable properties of the value of more than Rs. 100.   It was  held that Ex.  D-4 was admissible in evidence in  order to  show  that there was separation of  status  between  the coparceners.   The High Court also rejected the plea of  the

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appellants that the partition should be reopened because  it did not give a share to Mst.  Subhagwati.  According to  the Benares  School of Hindu Law, Mst.  Subhagwati was  entitled to a share in the joint family properties equal to that of a son  but  the  High  Court found  that  there  was  a  clear acquiescence  on  the  part of  Mst.   Subhagwati  when  she executed  the deed, Ex.  D-4 and it must be taken that  -she relinquished  her share in favour of the other  coparceners. On the question of "Jethansi" ,claimed by Hemkumar, the High Court  found  that the evidence ,established the  custom  of "Jethansi" whereby the elder son was, given a greater  share in  the  property  of his father.  On the  basis  ,of  these findings the High Court dismissed the Second Appeal. The  first  question  to be considered  in  this  appeal  is whether  the  deed,  Ex.  D-4 dated  December  27,  1943  is admissible  in :evidence.  On behalf of the  appellants  Mr. Gupte  put  forward  the  argument  that  the  document   is inadmissible in evidence as it effected the partition of the properties of the value of more than Rs. 100 and it was  not registered.   It  was  argued that there  was  allotment  of specific  properties  to  individual  coparceners  in   this document and its registration was therefore compulsory under s. 17 (1 ) (b) of the Registration Act.  In our opinion, the argument  put forward on behalf of the appellants  is  well- founded  and must be accepted as correct.  It was  contended on  behalf  of  the respondents that the  document  was  not necessary to be registered because there was only  severance of joint status of the members of the coparcenary and  there was no partition of the properties by  metes  and bounds.  It is not possible  to  accept  this argument  -as correct.  The relevant portion of Ex.  D-4  is to the following effect :                "For the partition of our joint land in Mauza               Tilgi and Supa and house and utensils etc. and               Dhan, movable and immovable property,  amongst               us  three  brothers,  the  Panchas  have  been               appointed.   The  partition  and  distribution               effected by the under-mentioned                                    643               Panchas will be acceptable to us and also  the               undermentioned conditions will also have to be               accepted by us.               1.    Out  of  lease land in Mauza  Tilgi  and               Mauza  Supa totalling 123 acres,  Hem  Kumar’s               share including Jethosi will be 51 acres  that               is 51 shares and Dinmani’s 39 acres that is 39               shares and minor Shiromani’s whose guardian is               Smt.   Subhagwati 33 acres that is 33  shares.               The three of them will be in possession of the               same.  Out of 123 acres of land, the land near               Munga Tikra Gara Para will be given to Dinmani               and  minor  Shiromani  through  guardian  Smt.               Subhagwati for building a house instead of the               old house.  For building of the house in Munga               Tikra  the  three brothers will give  Rs.  60.               Out  of  the ’Mitti Khatu’  and  Gobar  khatu,               there   is  in  the  house,  after   deducting               Hemkumar’s  tenth share will be  divided  into               three equal shares amongst the three  brothers               and  they  will take it so.   They  will  also               divide the buried Khatu into their shares.               5     . That out of the old house the house on               the side of the village the length of which is               30  haath  and the stone used in  it  and  the               house  on  the side of ’Patav’ the  length  of

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             which  is 30 haath, is given to Hem  Kumar  in               his share and as Jethosi and the Bamboo,  wood               etc.  used in the other house is given to  the               two  brothers Dinmani and Shiromani.   Besides               the house and Kotha there is old and new  wood               and 3 new doors.  All this is given to Dinmani               and Shiromani." With  regard to ryoti lands, para I definitely  states  that Hemkumar  is allotted 51 acres, Dinmani 39 and Shiromani  33 acres.   With  regard  to the joint family  house  there  is partition between the three brothers by metes and bounds and specific shares are given to each.  In view of the  recitals in  Ex.   D-4 we are of opinion that there is  allotment  of specific  properties  to  individual  coparceners  and   the document  therefore falls within the mischief of s.  17  (1) (b)  of the Registration Act.  It follows that Ex.   D-4  is not admissible in evidence to prove the title of any of  the coparceners to any particular property or to prove that  any particular  property  has ceased to be joint  property.   Of course, the document is admissible to prove an intention  on the part of the coparceners to become divided in status;  in other  words, to prove that the parties ceased to  be  joint from the date of the instrument dated December 27, 1943 (See the decision of this Court in Nanni Bai v. Gita Bail). (1)  [1959] S. C. R. 479. 644 We  proceed to consider the next question arising in this  a peal,  namely,  whether Mst.  Subhagwati was entitled  to  a share,  p in the joint family properties equal to that of  a son  and whether the alleged partition effected by Ex.   D-4 was  invalid because no such share was allotted to her.   It is not disputed on behalf of the respondents that  according to  the  Mitakshara  Law of the Benares  School  a  wife  is entitled, on partition between her sons, to a share equal to that of a son.  But the contention put forward on behalf  of the  respondents is that by signing the document,  Ex.   D-4 Mst.    Subhagwati  acquiesced  in  the  division   of   the properties  between her sons without claiming any share  for herself  and  it  must  consequently  be  taken  that   Mst. Subhagwati relinquished her share.  It was pointed out  that Ex.  D-4 was executed on December 27, 1943 and for a  period of  1  1 years Mst.  Subhagwati did not take any  action  to impeach that document.  We are unable to accept the argument put forward on behalf of the respondents as correct.   There is  no  issue  in  the trial  court  regarding  the  alleged acquiescence  of  Mst.  Subhagwati, nor was  it  pleaded  on behalf  of  the respondents that there was an  agreement  by which  Mst.  Subhagwati gave up her share in favour  of  the other coparceners.  On the contrary, it is alleged in para 9 of the Written Statement that Subhagwati was not entitled to any.share and therefore the partition alleged to be effected by  Ex.   D-4  was  not  prejudicial  to  the  interests  of plaintiff  no.  1.  To,  put it  differently,  there  is  no pleading on the part of respondents of acquiescence by  Mst. Subhagwati  and  there  is  no  issue  on  the  question  of acquiescence.   We  are  accordingly unable  to  accept  the argument  of the respondents that there was acquiescence  on the  part of Mst.  Subhagwati or that she  relinquished  her share in favour of the other coparceners and the finding  of the High Court on this point is erroneous.  We  pass on to consider the next question arising  in  this appeal,  namely, whether Hemkumar was entitled to a  greater share of joint family properties for the reason that he  was the eldest brother on the principle of "Jethansi".  But  the doctrine of "Jethansi" or "Jeshtbhagam" is now obsolete  and

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unenforceable.   The principle of Hindu Law is  equality  of division and the exceptions to that rule have almost, if not altogether,  disappeared.   One  of the  exceptions  was  in favour  of the eldest son, who was originally entitled to  a special share on partition, either a tenth or a twentieth in excess  of the others, or some special chattel, or an  extra portion of the flocks (Apastamba, 11, 6, 14, 10-13;  Baudh., 11, 2, 2-5; Gaut., XXVIII, 11, 12; Vas., XVII, 42-45;  Manu, TX.  112, 114, 156).  But unequal partition of ancestral  or joint   property  was  from  early  times   condemned.   The Smritichandrika,    the   Vyavahara   Mayukha    and’    the Viramitrodaya declare that unequal partition is forbidden in the Kali age (Smritichandrika, TIT, 16; V. May., IV, iv, 11; Viramit.,                             645 III,  16 (Setlur’s ed., 319).  The Commentary of  Mitakshara on Yajnavalkya. 11. 117 is briefly as follows :               "Unequal division though found in ’the sastras               (e.g.  Manu IX. 105, 112, 116, 117, Yaj.   II.               114)  should not be practised because  it  has               come  to be condemned (or has  become  hateful               to)   by  the  people,  since  there  is   the               prohibition (in Yaj.  1. 156) that an  action,               though  prescribed in the sastras, should  not               be performed when it has come to be  condemned               by  the people, since such an action does  not               lead   to  the  attainment  of  Heaven.    For               example,  though  Yaj. 1. 109  prescribes  the               offering  of a big ox or a coat to  a  learned               brahmana  guest,  it  is  not  now   practised               because  E  people have come to hate  it:;  or               just as, although there is a Vedic text laying               down the sacrificing of a cow 6     one should               sacrifice  a barren cow called anubandhya  for               Mitra  and  Varuna’,  still  it  is  not  done               because  people condemn it.  And it  has  been               said  ’just as the practice of niyoga  or  the               killing  of the anubandhya cow is not  now  in               vogue, so also division after giving a F special               share (to the eldest son) does not now exist". As between brothers or other relations, absolute equality is now the invariable rule in all the States, unless,  perhaps, where some special family custom to the contrary is made out (For  example, see the decision of the Madras High Court  in M.Y.A.A.  Nachi  appa Chettiar v.  M.Y.A.A.  Muthu  Karuppan Chettiar(1). On  behalf of the respondents, however, reliance was  placed upon  the special custom of "Jethansi" said to be  prevalent in  the  caste  of Agharias to  which  the  parties  belong. Reference was made to the evidence of D.W. 4, Baratram, D.W. 5, Sitaram, D.W. 6, Yalobra and D.W. 7, Khewlal to show that there was such a custom in the caste whereby the eldest  son was  given  a greater share in the property of  the  father. Mr.  Sarjoo  Prasad took us through the  evidence  of  these witnesses but ’we are not (1)  A. I. R. 946 Mad. 398. 646 satisfied on their evidence that the custom pleaded for  has been established.  It is well-established that a custom must be Proved to be ancient, certain and reasonable if it is  to be recognised and acted upon by Courts of law; and being  in derogation  of the general rules of law the custom  must  be construed  strictly (See Hur Purshad v. Sheo Dyal) (1).   In the,  present  case, the evidence adduced on behalf  of  the respondents  to prove the alleged custom  is  unsatisfactory

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and conflicting.  D.W. 4, Baratram stated that the custom of "Jethansi"  was  prevalent  in  Agharias  community  but  he admitted when cross-examined, that he was not present at any partition.  He further said that there was "no fixed  custom about Jethansi and the eldest brother could be given more or less".   D.W:  5,  Sitaram  said that "I  got  16  acres  of Jethansi  land in a partition between my own  brother."  The total  area of land was 100 acres.  He admitted  that  there was  no written document about the custom.  D.W. 6,  Yalobra said that his brother Sita Ram got Jethansi land of 16 acres out  of a total area of 100 acres.  When cross-examined,  he said  that no more than Dashanshi was given "and the  people who  divided did not tell any account of it".  The  evidence of  Khewlal,  D.S. 7 is that there was partition  among  his brothers  and  the eldest brother Din Dayal  was  given  5-6 acres of land as Jethansi.  The total area of the land to be divided was 100 acres.  No documentary evidence of partition has  been adduced on behalf of the respondents and the  oral evidence is vague and uncertain.  We are accordingly of  the opinion  that ’the custom of Jethansi alleged on  behalf  of the respondents has not been established by proper  evidence and the finding of the High Court is vitiated because it  is not supported by proper evidence.  We accordingly reject the argument of the respondents that Hemkumar was entitled to  a larger share of the joint family properties on the basis  of the alleged custom of Jethansi in his caste. On  behalf  of  the respondents reference was  made  to  the evidence  of D.W. 1 Dinamani and D.W. 2 Dindayal that  there was  an actual partition of joint family properties  not  on December  27, 1943 when Ex.  D-4 was executed but about  two months  later and specific allotments were made to  each  of the  coparceners.   There is, however, no  pleading  in  the Written  Statement on behalf of the respondents  that  apart from  the  document, Ex.  D-4 there was a partition  of  the joint  family  properties.  We are satisfied in  this  case, upon examination of the evidence, that the intention of  the parties  was  that  document Ex.  D-4  should  be  the  sole evidence  of partition and since we have held that Ex.   D-4 is not admissible in evidence on account of non-registration to  establish  when the property was so partitioned,  it  is manifest  that no oral evidence is admissible to  prove  any subsequent parti- (1)  3 T. A. 259, at p. 285.                             647 tion  having  regard  to  the provisions of  s.  91  of  the Evidence Act.  It is clear therefore that the appellants are entitled  to  a preliminary decree for  partition  of  joint family properties. For the reasons expressed we hold that this appeal should be allowed and the suit brought by the two appellants should be decreed’.  The appellants, Subhagwati and Shiromani are each entitled to 1/4 th share in the joint family properties  and there  should  be  a preliminary decree  drawn  up  for  the partition of 1/4 th share of the joint family properties for each of the appellants, Mst.  Subhagwati and Shiromani.  The question  as to what are the joint family  properties  which are   to  be  the  subject-matter  of  partition  would   be determined  by the trial court in proceedings for the  final decree.  We accordingly allow this appeal with costs.                 Civil Appeal No. 750 of 1965 For the reasons given by us in Civil Appeal No. 749 of  1965 we set aside the judgment of the High Court in Second Appeal No.  568 of 1960 and C.S. No. 36-A of 1956 filed by  Dinmani is dismissed.  We accordingly allow this appeal with  costs. There will be one hearing fee for both this appeal and Civil

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Appeal No. 749 of 1965. G.C.                                                  Appeal allowed 648