Patna High Court
Ravi Kumar @ Kumar Ravi Patel (Minor)versusDhirendra Mishra
- Decided
- Disposal
- DISMISSED
- Bench
- KHATIM REZA
Holding
The High Court upheld the appellate court’s decree, confirming the validity of the partition deed and the voidness of the sale deed, and dismissed the second appeal.
Summary
The case arose from a title suit concerning land in Bagaha, West Champaran, where the plaintiffs claimed ownership based on a partition deed (Yadast Batwaranama) executed by their father. The defendants challenged the validity of the partition deed, alleging it was forged and lacked the signatures of all sons, and argued that the sale deed executed by one defendant after the partition was void. The trial court dismissed the plaintiffs, but the appellate court set aside that decision, holding that under Mitakshara law a Hindu father may partition property among his sons without their consent, rendering the sale deed void. On second appeal, the High Court found no error in the appellate court’s findings, noted the defendants offered no evidence to rebut the partition deed, and affirmed that the father’s power to partition is established by Supreme Court precedent. Consequently, the second appeal was dismissed at the admission stage under Order XLI Rule 11 of the CPC.
Issues considered
- Whether the Yadast Batwaranama partition deed is valid despite the absence of signatures of all sons.
- Whether a Hindu father can partition family property without the consent of his sons under Mitakshara law.
- Whether the sale deed executed by defendant No.6 after the partition is void.
- Whether the appellate court's decree can be set aside on any substantive or procedural ground.
Legislation cited
- Code of Civil Procedure, 1908 — s. Order XLI Rule 11
Subjects
- title suit
- partition deed
- Yadast Batwaranama
- Mitakshara law
- Hindu undivided family
- sale deed void
- second appeal
- Civil Procedure Code
- Order XLI Rule 11
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
SECOND APPEAL No.327 of 2017
======================================================
1. Ravi Kumar @ Kumar Ravi Patel (Minor) Son of Sri Abinash Kumar @ Sri
Ram Under the under the guardianship of natural father Sri Abinash Kumar
@ Sri Ram. Resident of Village and Post - Naraipur, Police Station -
Bagaha, under Bagha Municipality, District- West Champaran.
2. Smt. Neesha Devi, Wife of Sri Abinash Kumar @ Sari Ram, Resident of
Village and Post - Naraipur, Police Station - Bagaha, under Bagha
Municipality, District- West Champaran.
... ... Appellant/s
Versus
1. Dhirendra Mishra, Son of Late Madan Mohan Mishra, Resident of Village
and Post - Naraipur, Police Station - Bagaha, District- West Champaran.
2. Upendra Mishra, Son of Late Madan Mohan Mishra, Resident of Village and
Post - Naraipur, Police Station - Bagaha, District- West Champaran.
3. Manorma Devi, W/o Sri Abinash Chaudhary @ Sri Ram Chaudhary,
Resident of Village and Post - Naraipur, Police Station - Bagaha, under
Bagha Municipality, District- West Champaran.
4. Ram Kishore Pandey, S/o Sri Sankalap Pandey, Resident of Village and Post
- Naraipur, Police Station - Bagaha, under Bagha Municipality, District-
West Champaran.
5. Mahendra Mishra, S/o late Madan Mohan Mishra, Resident of Village and
Post - Naraipur, Police Station - Bagaha, under Bagha Municipality, District-
West Champaran.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Neeraj Kumar, Advocate
For the Respondent/s : Mr. Shashi Shekhar Dwivedi, Sr. Advocate
Mr. Abhitabh Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE KHATIM REZA
CAV ORDER
15 11-03-2026 Heard Mr. Neeraj Kumar, learned counsel for the
appellants and Mr. Shashi Shekhar Dwivedi, learned senior
counsel assisted by Mr. Abhitabh Kumar, learned counsel for the
respondents.
2. This Second Appeal has been filed by the
defendants/respondents/appellants against the judgment and
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decree dated 22.02.2017 passed by the Additional District and
Sessions Judge-VI, West Champaran in Title Appeal No. 37 of
2012 whereby the judgment and decree dated 30.03.2012 passed
by the Sub-Judge-II, Bagaha, West Champaran in Title Suit No.
48 of 2005 has been set aside. The matter arises out of Title Suit
No. 48 of 2005 which was filed by the plaintiffs/respondent nos.
1 and 2 for declaration that the plaintiffs have got title over the
disputed land and sale deed executed by defendant no. 6 in
favour of defendant no. 5 and sale deed executed by defendant
no. 5 in favour of defendant no. 4 in respect of Khata No. 164,
Plot No. 714, Area 2 kattha 17 dhurs (Schedule-I ‘Kha’) of the
plaint is illegal, forged and fabricated and are not binding upon
the plaintiffs.
3. The contesting defendants appeared and filed their
written statement but did not adduce oral or documentary
evidence in support of their case. The said suit was dismissed by
the learned Sub-Judge-II, Bagha, West Champaran vide
judgment and decree dated 30.03.2012 which was challenged by
the plaintiff in Title Appeal No. 37 of 2012. After hearing the
parties and considering the materials on record, the learned
Additional District Judge-VI, West Champaran at Bettiah
allowed the said appeal by judgment and decree dated
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22.02.2017 setting aside the judgment and decree of the Trial
Court and allowed the claim and decreed the suit of the
plaintiffs. Against the aforesaid judgment and decree of the
learned court of appeal below, the instant Second Appeal has
been filed by the defendants/appellants.
4. After hearing the parties and on perusal of materials
on record including the judgments of the learned courts below, it
appears that the learned court of appeal below, which is the final
court of facts, after considering the pleadings of the parties and
the evidence adduced by them came to a clear finding that the
plaintiffs have proved the earlier partition through Yadast
Batwaranama (Ext.-1) over which signature of the father of the
plaintiffs and defendant no. 6 is present, whereby, father of the
plaintiffs partitioned the property equally amongst his sons and
also kept a share for himself and consent of the sons is not
necessary for the exercise of power under Section 323 of
Mulla’s Hindu Law (14th Edition). It is further observed that the
effect in law is not only a separation of father from the sons, but
a separation of the sons inter se. The consent of the sons is not
necessary for the exercise of that power and relied upon a
decision of the Hon’ble Supreme Court in the case of Kalyani
(Dead) By Lrs. vs. Narayanan and Ors. reported in AIR 1980
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SC 1173. The claim of the plaintiffs was denied by the Trial
Court only on the basis that the said Yadast Batwaranama does
not contain the signature of three sons and in absence of
signature of the parties over the Batwaranama, the said
Batwaranama is not valid. This finding of the Trial Court is not
tenable in the eye of law. However, the defendants did not
produce any oral or documentary evidence to disprove Yadast
Batwaranama. The learned Appellate Court also mentioned that
cause of partition through Yadast Batwaranama arises when
defendant no. 6 had cut down a full grown mango tree standing
over Plot No. 714 and sold it without informing the father or
other co-shares. The pleadings of the defendants has not been
proved by any evidence. Yadast Batwaranama relates to Plot
Nos. 164, 714 and 700. Defendant no. 6 executed sale deed with
regard to 4 kattha 17 dhurs of Plot no. 714 and he had no right
to sell the aforesaid property as being Karta and as such, the
sale deed executed by defendant no. 6 with regard to 4 kattha 17
dhurs of Plot No. 714 is ab initio void and not binding upon the
plaintiffs. The plaintiffs have no objection with regard to other
land sold by defendant no. 6 and accordingly, set aside the
judgment and decree of the Trial Court.
5. Having considered the facts and circumstances as
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well as materials on record, it is apparent that the defendants
could not prove that Yadast Batwaranama dated 24.03.1989 is
forged and fabricated. Moreover, except the pleadings of denial
of Yadast Batwaranama, the defendants have not proved their
pleadings by any cogent evidence. The principle of partition by
father during his lifetime has already been settled by the Apex
Court in the case of Kalyani (Dead) By Lrs. (Supra), wherein,
the Hon’ble Supreme Court has held that “a Hindu father joint
with his sons and governed by Mitakshara law in
contradistinction to other manager of a Hindu undivided family
or an ordinary coparcener enjoys the larger power to impose a
partition on his sons with himself as well as amongst his sons
inter se without their consent and this larger power to divide the
property by metes and bounds and to allocate the shares to each
of his sons and to himself would certainly comprehend within its
sweep the initial step, viz., to disrupt the joint family status
which must either precede or be simultaneously taken with
partition of property by metes and bounds.” It is apparent from
the aforesaid judgment of the Hon’ble Apex Court that the
father of a joint family has the power to divide the family
property at any moment during his lifetime provided he gives
his sons equal shares with himself. The consent of the sons is
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not necessary for exercise of the said power. However,
defendant no. 6/appellant executed the sale deed much after
Yadast Batwaranama dated 24.03.1989, which is beyond his
power.
6. In the aforesaid facts and circumstances, this Court
does not find any illegality in the impugned judgment and
decree of the learned court of appeal below nor does it find any
substantial question of law involved in the instant Second
Appeal.
7. Accordingly, the Second Appeal is dismissed at the
stage of admission under “Order XLI Rule 11 C.P.C”.
(Khatim Reza, J)
prabhat/-
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