9911796707
TMI Blog2007 (4) TMI 749X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 15,000/- each. That amount is to be paid in 15 yearly installments of ₹ 1000/- each. On payment of last installment 2 and 4 of us relea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 3. Allegedly, the said family settlement had not been acted upon in so far as the appellant herein did not pay a sum of ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ects 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. 9. The contract between the parties, moreover was a contingent contract. It was to have its effect only on payment of the said sum of ₹ 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 10. 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 ₹ 15,000/- in favour of the plaintiff Nos. 1 to 3. The High Court has also affirmed the said finding. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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