Dismissed

Rudal Rai and Anr. v. Ram Parichhan Rai and Ors.

Patna HC11 Dec 2012SA/78/2010

Case brief

AI extract

What is this about?

This second appeal against a partition suit decree was dismissed at the admission stage. The court held no substantial question of law existed as the classification of property nature is a finding of fact. Additionally, oral relinquishment without registration does not transfer title or constitute an admission of the original owner's title.

What did the court decide?

Second Appeal dismissed at the admission stage.

Rudal Rai and Anr. Vs Ram Parichhan Rai and Ors. — Partition | Patna HC (2012)

¶1

Patna High Court SA No.78 of 2010 (11) dt.11-12-2012 1

¶2

IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.78 of 2010 ====================================================== Rudal Rai & Anr. .... .... Appellant/s Versus Jai Narain Rai & Ors. .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. A.K.Pandey Mr. N.K.Mishra Mr. Madhukar Mishra For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 11 11-12-2012 (1) Heard the learned counsel, Mr. Dharnidhar Mishra appearing on behalf of the plaintiffs-appellants-appellants under Order 41 Rule 11 C.P.C.

¶3

(2) The plaintiffs-appellants-appellants have filed this Second Appeal against the judgment and decree dated 08.01.2010 passed by the learned Additional District Judge, F.T.C. III, Sitamarhi in Partition Appeal No.15 of 2007/9 of 2007 whereby the learned Lower Appellate Court dismissed the appeal and confirmed the judgment and decree dated 19.01.2007 passed by the learned Munsif Sadar, Sitamarhi in Partition Suit No.131 of 2007.

¶4

(3) It appears that the plaintiffs-appellantsappellants filed partition suit claiming half share in the suit

¶5

Patna High Court SA No.78 of 2010 (11) dt.11-12-2012 2

¶6

property mentioned in detail in the plaint. The defendant nos.1 and 2 filed written statement and claimed that Schedule III of the written statement is also a joint family property, therefore, that property may also be partitioned half and half between the parties.

¶7

(4) The trial court recorded the finding that the property mentioned in Schedule III of the written statement is also joint family property and decreed the plaintiff’s suit for partition. The plaintiffs filed the title appeal before the Lower Appellate Court challenging that part of the decree only whereby it was held by the trial court that Schedule III property of the written statement is a joint family property as the plaintiffs set up a claim that the said property is the self-acquired property of the plaintiff. The Lower Appellate Court considering the materials available on record recorded the same finding that the property mentioned in Schedule III in the written statement is also a joint family property. Accordingly, the title appeal was dismissed.

¶8

(5) The learned counsel, Mr. Mishra appearing on behalf of the appellants submitted that the defendant nos.1 and 2 only filed counter claim with respect to the property of Schedule III of the written statement and their brother, defendant no.3 did not file the counter claim. Moreover, the defendant no.3 compromised with the plaintiffs wherein he relinquished his share

¶9

Patna High Court SA No.78 of 2010 (11) dt.11-12-2012 3

¶10

in favour of the plaintiffs but both the courts below did not even decreed the plaintiff’s suit recording the share of the defendant no.3 in favour of the plaintiffs. According to the learned counsel, the defendant no.3 also deposed before the trial court that he has relinquished his share with respect to Schedule III property. The learned counsel for the appellants further submitted that the Schedule III property mentioned in the written statement was recorded in the name of the plaintiff alone, therefore, it was selfacquired property.

¶11

(6) From perusal of the judgments of both the courts below, it appears that both the courts below after considering the materials available on record recorded the finding that Schedule III property of the written statement is the joint family property. Now, therefore, the question whether the property is joint family property or is self-acquired property is concerned, it has been held by the Apex Court in the case of Narendra Gopal Vidyarthi v. Rajat Vidyarthi, (2009) 3 Supreme Court Cases 287 that this question is a pure finding of fact, therefore, is not a substantial question of law.

¶12

(7) So far the submission of the learned counsel for the appellants that even the share of the defendant no.3 should have been given to the plaintiffs as he had already compromised is

¶13

Patna High Court SA No.78 of 2010 (11) dt.11-12-2012 4

¶14

concerned, it may be mentioned here that it is settled law that title will not pass on admission only. If the statute provides that title will pass only after registering a document then the provisions of the statute i.e. the Transfer of Property Act must be followed strictly. In my opinion, therefore, only because the defendant no.3 has said that he relinquished his share, the plaintiffs cannot be held to be the owner of the property and the same cannot be given to the plaintiffs. In other words, there cannot be any oral relinquishment transferring the property in favour of the person who has no title initially to the property.

¶15

(8) The other fact is that it is the case of the plaintiffs that it is their self-acquired property. If it is their selfacquired property then there is no question of relinquishment made by the defendant no.3 in favour of the plaintiffs. Therefore, in other words, the plaintiffs are admitting title on Schedule III property of the defendants.

¶16

(9) In view of the above facts and circumstances of the case, no substantial question of law is involved in this Second Appeal for decision. Accordingly, this Second Appeal is dismissed at the admission stage itself.

¶17

(Mungeshwar Sahoo, J)

¶18

Saurabh/-

Rudal Rai and Anr. v. Ram Parichhan Rai and Ors.

Case brief

What is this about?

What did the court decide?

Rudal Rai and Anr. v. Ram Parichhan Rai and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Smt. Punam Devi and Anr. Vs Kapil Deo Singh and Anr.

Saroj Kumar Singh Vs Sushila Devi

Santosh Kumar and Ors. Vs Kelawati Devi and Anr.

Rama Kant Singh Vs Fulmati Devi and Ors.

Asarfi Roy and Ors. Vs Sheo Kumar Rai

Dilip Kumar Poddar Vs Sanjay Bhattacharjee and Ors.