RAJARAM GOPAL GOVEKAR Vs. ARJUN GOPAL GOVEKAR

JUDGEMENT

(1.) The dispute before the trial Court in Regular Civil Suit No. 45 of 1979 pertains to Survey Nos. 134, 135 and 137. The plaintiff and defendant are real brothers and the claim was for partition and separate possession to the extent of half share of the plaintiff in the suit property. The trial Court recorded the finding that there was already a partition effected of Survey Nos. 134 and 135 between the plaintiff and the defendant on 02.11.1970, which is the document at Exh.40. Hence, the claim for partition and separate possession in respect of this was rejected. The trial Court found that Survey No. 137 was not covered by this document at Exh.40 and therefore, passed a decree for partition and separate possession in respect of it on 25.04.1985. This was the subject matter of challenge in Regular Civil Appeal No. 144 of 1989 preferred by the original defendant and Civil Appeal No. 150 of 1985 preferred by the plaintiff. Both these appeals were heard together and the lower appellate Court passed a decree for partition and separate possession in respect of Survey Nos. 134 and 135 and maintained the decree passed by the trial Court for partition in respect of Survey No. 137 by its judgment and order dated 27.04.1993. The original defendant is, therefore, before this Court in this second appeal.

(2.) The appeal was admitted on 02.08.1993 on the substantial questions of law framed in ground Nos. (iii), (iv) and (v) which are reproduced below.

(3.) The basic question pertains to the Document at Exh.40, dated 02.11.1970, whether this is to be construed as a deed of partition or a family arrangement. Undisputedly, the document divides the shares of parties in Survey Nos. 134 and 135 only. Though much arguments were advanced before the Courts below and the trial Court has considered it to be the family arrangement, the appellate Court has considered it to be a partition deed. In the absence of registration as required by Section 17 of the Registration Act, the appellate Court has held that the document is not admissible in evidence, though the trial Court acted upon it and recorded the finding that the partition has already taken place.