9911796707
TMI Blog2008 (4) TMI 825X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 natu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. Ghamandi Ram (Dead) through Gurbax Rai [1969] 3 SCR 681. 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Mitakshara Coparcenary. 28. We may also notice that the Patna High Court in Dhanu Pathak v. 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, a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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