SURAJ BHAN Vs. SIRI RAM

JUDGEMENT

(1.) The appeal is at the instance of the defendant against whom a decree for partition of 1/3rd share has been granted in respect of a suit property which consists of 6 shops. The plaintiff and the defendants are brothers. The suit was contested by the defendants on a plea that the plaintiff himself was residing in a house which had not been included in the suit and the suit was bad for partial partition. There were tenants in the property and the suit without impleading them was also bad for non-joinder of necessary parties. It was the further contention of the defendants that there had been a partition of suit property through a memorandum of partition, which was a mere record of an oral partition that had been taken place earlier. The partition of the suit property again was not valid.

(2.) At the trial, the Court found that the memorandum of partition was true and it contained the signatures of all the parties, but it still proceeded to hold that it was required to be registered and the same not having been done, the property must be taken as a joint property. The Court also upheld the defence of the defendants that the house property in the hands of the plaintiff was a joint property which had been purchased in the name of the plaintiff as the eldest son and one Dipti Ram son of Milkhi Ram jointly even prior to the time when the memorandum of partition was written. The suit filed without including the said property was bad for partial partition. He also held that the suit was bad for non-joinder of necessary parties. For all these contentions, the suit had been dismissed.

(3.) In appeal, the Court reversed the finding and held that if the unregistered document could not be given effect to for its nonregistration, the trial Court was still not justified in finding the house property that was not included in suit as belonging to the family. It was held that the contention of the defendants that the property belonged to the joint family had not been established and that further the finding regarding the genuineness of the memorandum was also erroneous. While assessing the evidence of the scribe-DW1, who had stated that one of the brothers Sohan Lal had not signed the document in his presence, the appellate court held that the document was also not proved.