M. Venkataramana Hebbar (D)
by L.Rs Vs. M. Rajagopal Hebbar & Ors  Insc 364 (5 April 2007)
S.B. Sinha & Markandey Katju
S.B. Sinha, J.
Defendant No. 1 in the suit is the appellant herein. The parties hereto were
admittedly co-owners of the suit property. The relationship between the parties
shall appear from the following genealogical table:- M. Ramakrishna Hebbar =
Smt. Sundari Amma (D-9) M. Venkatram- M. Rajgopala M. Mohana M. Anantha And
Hebbar Hebbar Hebbar Hebbar (D-1) (P-1) (D-5) (D-6) | | ____________________ |
| | _____________________________ | | Srirama Srikrishna Srivittala | | (P-2)
(P-3) (P-4) | | | | | | ____________________ | Prasanna Prashantha | (D-7)
(D-8) | | | _____________________________________ M. Gopal M. Harisha M.
Janardhana Krishna Hebbar Hebbar (D-3) (D-2) A suit for partition was filed by
the plaintiffs claiming one-fourth share in the suit property. It is not in
dispute that on or about 30.3.1973, a purported family settlement was arrived
at by the parties. One of the defendants, however, was not a signatory thereto.
In the said purported family settlement, it was stated:- "We each of us
are entitled to < share in the family property. As that property is a small
areca garden and as there are no sites near by to construct a separate houses,
that property cannot be divided. Hence as owelty No. 1 of us is liable to pay
to No. 2 and 4 of us Rs. 15,000/- each. That amount is to be paid in 15 yearly
instalments of Rs. 1000/- each. On payment of last instalment 2 and 4 of us release
their rights in favour of No. 1 of us at his costs. We No. 1, 2 and 4 of us
have agreed for this. The Ist instalment is to begin with the end of March 1973
and end with the period of 15 years at the end of March 1987.
The marriage of Nos. 2 and 4 of us is to be performed by No. 1 of us in the
family House. If the instalments cannot be paid due to the marriage in that
year = the amount is to be paid in that year and the balance is to be paid in
the subsequent year. Accordingly if the entire amount is not paid as stipulated
the same is to be paid by the end of March 1990 by number 1 of us and get a
release deed executed from No. 2 and 4 of us at the costs of No. 1 of us.
No. 2 and 4 of us have to construct separate houses by the end of May 1976
and reside there.
As there are no sufficient movable and gold jewels in the family house No. 2
and 4 have no separate share in it.
No. 1 of us is liable to pay the family dues if any and bear the expenses of
the viniyogas of Gods and devils.
Towards the maintenance of our mother each of us is liable to pay 2 muras of
rice and Rs. 25/- every year and obtain receipts and her obsequies is to be
performed by No. 1, 2, 3 and 4 of us in equal shares. No. 2 and 4 are not
liable for the family debts. The share of No. 3 of us is retained by No. 1 of
us he is liable to deliver the same when he demands, we Nos. 1, 2 and 4 of us
agreed for the terms in the presence of the grahastas with our full consent and
executed this agreement we are liable to abide by all the conditions of this
agreement. If any of us incurs loss etc. by non performing as per the
agreement, the person who had not performed his part is liable to pay the loss
etc. and that person is entitled to recover the amounts. Accordingly we have
entered into this agreement."
Allegedly, the said family settlement had not been acted upon in so far as
the appellant herein did not pay a sum of Rs. 15,000/- to the respondents
herein. In their complaint, the appellant stated:- "VI. The plaintiffs
further submit that the alleged agreement dt. 30.03.1973 has never come into
force and it has never been acted upon. The 1st plaintiff has never been paid
any amount under the said agreement, the averments made in the notice dated
05.05.1988 and the reply dated 12.05.1988 in this regard are palpably false,
defendants 1 to 4 cannot take shelter under the said agreement and deny the
plaintiffs their lawful share in the plaint properties. Further, the said
document is also not valid since the 6th and the 9th defendants are not parties
The averments made in the plaint to that effect had not been denied or
disputed. Appellant, however, raised a contention that by reason thereof as the
parties have arrived at a family settlement and a part of it have been acted
upon; the plaintiffs/respondents were estopped from filing the suit.
Learned trial Judge having regard to the rival contentions raised by the
parties, inter-alia framed the following issue:- "3. Whether defendants 1
to 3 prove that plaintiff-1 and defendant-6 were paid money in respect of their
share as per agreement dated 30.3.1973?"
The first part of the said issue, namely whether the appellant herein had
paid the said sum of Rs. 5,000/- in favour of plaintiff No. 1, was answered in
the negative. Despite the said finding, in view of the said purported family
settlement dated 30.3.1973, the learned Trial Judge decreed the suit. On an
appeal having been preferred by the said decree by the respondent herein, the
High Court by reason of the impugned judgment reversed the same inter-alia
holding:- (i) The said deed of family settlement dated 30.3.1973 not being
registered, was inadmissible in law.
(2) The family settlement could not have been acted upon as all the parties
are not signatories thereto.
It was opined:- "11. The view of the court below that there was a
partition and the plaintiff is governed by the same and severance of status
cannot be accepted at all. Even if there be severance of status, there is no
partition in the eye of law. Therefore, a preliminary decree has to be passed
declaring that the plaintiff is entitled to one fourth share.
12. It is open to the plaintiff to move to (sic) final decree for division
and separate possession. It is open to the 1st Defendant-Respondent to put
forward all his claim regarding his spending moneys on the family in the
minutes of the enquiry to be conducted by the enquiry authority who shall
consider all his objections."
Mr. S.N. Bhat, learned counsel appearing on behalf of the appellant in
support of the appeal submitted that the High Court committed a manifest error
in arriving at the aforementioned finding inasmuch as a deed of family
settlement is not required to be compulsorily registered under Section 17 of
the Registration Act.
Learned counsel contended that the said deed of family settlement has
wrongly been held to be ineffective only because all parties did not sign
The learned counsel appearing on behalf of the respondent, on the other
hand, supported the impugned judgment.
The execution of the said document is not, in question. It is furthermore
not in dispute that all the co-shareholders are not parties thereto.
Any co-owner can cause a severance in the status of joint family by
expressing his unequivocal intention to separate. Such intention can be expressed
even by filing a suit for partition. But, despite such separation in the joint
status, parties may continue to possess the lands jointly unless a partition of
the joint family property takes place by metes and bounds.
For the purpose of this case, we will proceed on the assumption that the
said deed of family settlement was not required to be compulsorily registered,
in terms of Section 17 of the Registration Act as by reason thereof, the
relinquishment of the property was to take effect in future. But there cannot
be any doubt whatsoever that before the Court rejects a claim of partition of
joint family property, at the instance of all the co-owners, it must be
established that there had been a partition by metes and bounds. By reason of
the family settlement, a complete partition of the joint family property by
metes and bounds purported to have taken place. One of the co-sharer, however,
did not join in the said purported family settlement.
The contract between the parties, moreover was a contingent contract.
It was to have its effect only on payment of the said sum of Rs. 15,000/- by
the plaintiff and other respondents by the defendant Nos. 1 to 3. It has been
noticed hereinbefore by us that as of fact, it was found that no such payment
had been made. Even there had been no denial of the assertions made by the
appellant in their written statement in that behalf. The said averments would,
therefore, be deemed to be admitted. Order VIII Rule 3 and Order VIII Rule 5 of
the Civil Procedure Code read thus:- "3. Denial to be specific. It shall
not be sufficient for a defendant in his written statement to deny generally
the grounds alleged by the plaintiff, but the defendant must deal specifically
with each allegation of fact of which he does not admit the truth, except
5. Specific denial. [(1)] Every allegation of fact in the plaint, if not
denied specifically or by necessary implication, or stated to be not admitted
in the pleading of the defendant, shall be taken to be admitted except as against
person under disability.
Provided that the Court may in its discretion require any fact so admitted
to be proved otherwise than by such admission.
[(2) Where the defendant has not filed a pleading, it shall be lawful for
the Court to pronounce judgment on the basis of the facts contained in the
plaint, except as against a person under a disability, but the Court may, in
its discretion, require any such fact to be proved.
(3) In exercising its discretion under the proviso to sub- rule (1) or under
sub-rule (2), the Court shall have due regard to the fact whether the defendant
could have, or has, engaged a pleader.
(4) Whenever a judgment is pronounced under this rule, a decree shall be
drawn up in accordance with such judgment and such decree shall bear the date
on which the judgment was pronounced.]"
Thus, if a plea which was relevant for the purpose of maintaining a suit had
not been specifically traversed, the Court was entitled to draw an inference
that the same had been admitted. A fact admitted in terms of Section 58 of the
Evidence Act need not be proved.
Even otherwise, the Court had framed an issue and arrived at a positive
finding that the appellant herein did not pay the said sum of Rs. 15,000/- in
favour of the plaintiff Nos. 1 to 3. The High Court has also affirmed the said
The High Court, therefore, cannot be said to have committed any error
whatsoever in arriving at the finding that by reason of the said purported deed
of family settlement, the co-owners had not partitioned the joint family
property by meets and bounds. The plaintiffs/respondents were thus, yet to
relinquish their rights in the joint family properties by receiving the said
amount of Rs. 15,000/-. Deed of family settlement had not been given its full
We agree with the High Court that even on that count, the plaintiff's suit
should have been decreed. We, therefore, do not find any merit in this appeal
which is dismissed accordingly. However, in the facts and circumstances of the
case, the parties shall bear their own costs.