The partition of the property in-dispute took place much earlier to writing down of the details of the property in the Bahi: HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
Case Title: Leela Devi & Ors. versus Amar Chand & Anr.
Case No.: S.B. Civil Writ Petition No. 6969/2006
Decided on: 02/05/2023
Coram: HON’BLE DR. JUSTICE NUPUR BHATI
Facts of the case:
This writ petition under Article 226 & 227 of the Constitution of India has been filed by the petitioner aggrieved of the order dated 17.11.2006 passed by the learned trial court whereby the documents submitted by the respondent no.1 have been permitted to be taken on record. The petitioner-plaintiff filed a suit for partition and permanent injunction on 19.10.2005 before the learned District Judge, Bhilwara, which was subsequently transferred to the court of Additional District Judge, Bhilwara.
The defendant respondent no.1 filed a written statement to the suit, wherein it was submitted that on account of a family settlement arrived between the family members, the property in- dispute came into ownership and possession of the answering defendant. The petitioner-plaintiff filed an affidavit on 26.07.2006. The cross-examination on affidavit was started and during the same, the respondent no.1 defendant submitted a family settlement dated 06.09.1977. The petitioner-plaintiff took an objection upon the filing of the family settlement alleging that the same was not a family settlement but a partition-deed.
It was further contended that since the document in-question being a partition-deed was neither properly stamped nor registered, therefore, cannot be on record to be adduced as evidence. It was further contended that the document in-question was not a family settlement but a partition-deed because the contents of it clearly shows the transfer of land from one person to the other and the other person getting right, title and interest in such property and, therefore, the document cannot be said to be a family settlement but a sale-deed. It has also been contended that the property in-dispute is a self-acquired property and not a joint family property and, thus, in such circumstances the property in-dispute could be transferred only by way of a partition-deed and not by any other mode.
The document in-question being a family settlement does not require registration and, thus, can be taken into evidence. The petitioner being aggrieved of the order dated 17.11.2006 preferred present writ petition.
Judgement:
It is an admitted position that an oral arrangement between the family members was entered into a Bahi with the title “Dastavej Baabat Pariwarik Samjhota”. The parties have antecedent title/claim & interest in the property, which is acknowledged in this settlement.
The family arrangement is voluntary. The arrangement has apparently been arrived at between the members of a family descending from a common ancestor and are near relatives who were looking forward to sink their differences, settle and resolve their disputes to enjoy complete harmony and goodwill in the family.
The Bahi entry was to protect the family unity and solidarity while equitably dividing the family property. This Court finds that the equitable principles like family settlement ought to be relied upon in resolving such disputes and cannot be subjected to rigors of technicalities in law.
The view taken by the learned trial court as the learned trial court was justified in coming to the conclusion that the document in dispute dated 06.09.1977 was admissible in evidence. No case for interference is made out. The writ petition being devoid of merit is dismissed. No order as to costs.
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Written by: Mahima Saini