# Babu Ram v. Daya Ram

- **Citation:** (2014) 2 ILRA 521
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-05-28
- **Case number:** Second Appeal No. 55 of 1988
- **Bench:** Zaki Ullah Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/babu-ram-v-daya-ram-42937
- **Pages:** 11

## Headnote

C.P.C.-Section 100-Second Appeal- Suit for
partition-on allegation being copartionary
property-entitled for equal share-partition
between family already became final-one
brother
serving
and
maintaining
the
mother-given extra share towards servicesno denial of this fact lower appellate Court
correctly set-a-side the findings of Trial
Court-appeal Allowed.

Held: Para-30
Thus legal position is now very clear that
the family partition on the basis of above
pronouncement of Hon'ble the Apex
Court cannot be re-opened. The father
was living with the appellant-defendant,
therefore, he was given an advantage in
the share but nevertheless that will be
covered by the mutual settlement and
during his life time, the respondentplaintiff did not utter a single word and
did not dispute the rights or claim of the
appellant-defendant. Even the suit filed
by the respondent-plaintiff before the
trial court was not in accordance with
the norms as he did not implead the
mother as party. Therefore, there can be
no fresh division of the portion of the
parties in dwelling house which was
partitioned long back and such partition
which has already been settled in past
and consented to by the respondentplaintiff cannot be re-opened.

Case Law discussed:
A.I.R.(38) 1951 Supreme Court 120; AIR 2011
S.C. 1557; 2002 A.I.R. SCW 2686; 2013(13)
LCD 1593; 2003(2)SCC 355; 1968 2 SCWR
335; [2013(31)LCD 1593; AIR 1968 SC 1018.

## Text

2 All] Babu Ram Vs. Dayaram
521
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.05.2014

BEFORE
THE HON'BLE ZAKI ULLAH KHAN, J.

Second Appeal No. 55 of 1988

Babu Ram... ... Appellant
Versus
Daya Ram ...Respondent

Counsel for the Petitioner:
Sri A.S. Chaudhary, Sri Ran Vijay Yadav

Counsel for the Respondents:
Sri C.B. Verma, Sri Ajmal Khan, Sri Durga
Prasad Verma, Sri Vimal Yadav

C.P.C.-Section 100-Second Appeal- Suit for
partition-on allegation being copartionary
property-entitled for equal share-partition
between family already became final-one
brother
serving
and
maintaining
the
mother-given extra share towards servicesno denial of this fact lower appellate Court
correctly set-a-side the findings of Trial
Court-appeal Allowed.

Held: Para-30
Thus legal position is now very clear that
the family partition on the basis of above
pronouncement of Hon'ble the Apex
Court cannot be re-opened. The father
was living with the appellant-defendant,
therefore, he was given an advantage in
the share but nevertheless that will be
covered by the mutual settlement and
during his life time, the respondentplaintiff did not utter a single word and
did not dispute the rights or claim of the
appellant-defendant. Even the suit filed
by the respondent-plaintiff before the
trial court was not in accordance with
the norms as he did not implead the
mother as party. Therefore, there can be
no fresh division of the portion of the
parties in dwelling house which was
partitioned long back and such partition
which has already been settled in past
and consented to by the respondentplaintiff cannot be re-opened.

Case Law discussed:
A.I.R.(38) 1951 Supreme Court 120; AIR 2011
S.C. 1557; 2002 A.I.R. SCW 2686; 2013(13)
LCD 1593; 2003(2)SCC 355; 1968 2 SCWR
335; [2013(31)LCD 1593; AIR 1968 SC 1018.

(Delivered by Hon'ble Zaki Ullah Khan, J.)

1. The instant second appeal has
been preferred against the judgment and
decree dated 6.11.1987 passed by the IIAdditional
Civil
Judge,
Faizabad,
allowing Civil Appeal No.32 of 1987
(Daya Ram Vs. Babu Ram). The First
Appellate Court has allowed the appeal
preferred against the judgment and decree
dated 13.1.1987 passed by Munsif Haveli,
Faizabad, bearing Civil Suit No.219 of
1985. The trial court decreed the suit in
part.

2. Learned counsel for the appellants
raised the substantial questions of law to
be decided by this Court. Substantial
questions of law raised by the learned
counsel for the appellants are as under :-

(a) Whether there can be a repartition of the joint property at the
instance of a separated member of a
Hindu co-parcenery ?

(b) Whether the 'Iqrarnama' set up by
a party could be read in evidence even
though the same was not registered?

(c) Whether a separated son can
claim a share in the share of the father
who was living with his other son jointly
since long before his death ?

(d) Whether in a partition suit all the
co-sharers should be impleaded ? In the
present case, the mother of the parties was
522 INDIAN LAW REPORTS ALLAHABAD SERIES
alive but was not impleaded as party,
though definitely she had share.

(e) Whether there can be a fresh
division of the portions of the parties in a
dwelling house which was partitioned
long before ?

(f) Whether the suit for the portion of
a grove will be in civil court ?

3. Learned counsel for the appellants
argued that all the questions are very
material and these are substantial questions
of law and the order passed by learned First
Appellate Court suffers from gross illegality
and infirmity. The appellant was defendant
in original suit no.219 of 1985, which was
decreed in part and partly it was dismissed.
The trial court has partly decreed the suit
regarding land which was allocated in
defendant
share,
which
has
been
demarcated in the Commissioner's map
paper no.11C/2, which is in southern side of
the appellant-defendant grove and the
appellant was granted half of the share of
the portion. The trial court has specifically
ordered that in southern portion of the
grove, the respondent/plaintiff has no share
and the suit was dismissed regarding that
share. Aggrieved by the decree and order,
he preferred the civil appeal before the IIAdditional Civil Judge, Faizabad, and the
II-Additional Civil Judge, Faizabad vide
order dated 6.11.1987 allowed the appeal
and set aside the order dated 13.1.1987
passed by the lower court and he passed the
order that respondent/plaintiff shall be
allocated half of the share in the disputed
property and final decree be prepared
accordingly.

4. During the arguments before this
Court in the second appeal, most
important question is that whether a repartition of the joint property at the
instance of separated member can take
place because both the parties during trial
admitted that initially there was a partition
and respondent/plaintiff was allocated
share in north of the grove of the
appellant-defendant,
which
has
been
marked in the Commissioner's map
11C/2. The factual matrix is not to be
discussed here but the important question
is that whether a second partition can take
place. On the contrary, respondentdefendant was of the view that initial
partition was not a partition as it was the
ascertainment of share in the Hindu
coparcenery between father and his two
sons and after the death of father the
division of the remaining portion is must
and from the share of father each of them
will be given half share, therefore, the
previous partition, if any, will not hit the
matter. The second and third questions of
law framed by the appellant will not
create hurdle in partition because the
appellant was taking care and looking
after his father. The appellant has raised
fourth question i.e. mother is also cosharer in the property of father but she
was not impleaded as party, therefore, the
suit was bad for non-joinder of the
necessary party and accordingly fresh
partition of the portion of dwelling house
cannot take place. Therefore, in all, there
are only two debatable questions of law
involved, one relating to re-partition and
whether that agreement will cover the
separate share for father. There is also one
other question related to this query is that
whether there can be fresh division only
regarding portion of dwelling house apart
from previous partition. The second
important legal question is that when the
respondent-plaintiff claimed before the
trial court that he wants a partition and he
claimed regarding the share allocated to
father then why the mother who was
living then was not impleaded as party ?
2 All] Babu Ram Vs. Dayaram
523

5. Learned counsel for the appellantdefendant has cited judgment of Hon'ble
the Apex Court in the case of Ratnam
Chettiar and others v. S.M. Kuppuswami
Chettiar and others, reported in AIR 1976
S.C. Page 1, in which Hon'ble the Apex
Court has held as under :
"A
partition
effected
between
the
members of Hindu Undivided Family by
their own volition and with their consent
cannot be reopened, unless it is shown
that the same is obtained by fraud,
coercion, misrepresentation or undue
influence. In such a case the court should
require a strict proof of facts because an
act inter-vivos can not be lightly set
aside."

6. In para - 19 of the aforesaid case,
the Hon'ble the Apex Court has held as
under :

"Thus on a consideration of the
authorities discussed above and the law
on the subject, the following propositions
emerge:

(1) A partition effected between the
members of the Hindu Undivided Family
by their own volition and with their
consent cannot be reopened, unless it is
shown that the same is obtained by fraud,
coercion, misrepresentation or undue
influence. In such a case the Court should
require a strict proof of facts because an
act inter vivos cannot be lightly set aside.

(2) When the partition is effected
between the members of the Hindu
Undivided Family which consists of
minor coparceners it is binding on the
minors also if it is done in good faith and
in bona fide manner keeping into account
the interests of the minors.

(3) Where, however a partition
effected between the members of the
Hindu Undivided Family which consists
of minors is proved to be unjust and
unfair and is detrimental to the interests of
the minors the partition can certainly be
reopened whatever the length of time
when the partition took place. In such a
case it is the duty of the Court to protect
and safeguard the interests of the minors
and the onus of proof that the partition
was just and fair is on the party
supporting the partition.

(4) Where there is a partition of
immovable and movable properties but
the two transactions are distinct and
separable or have taken place at different
times. If it is found that only one of these
transactions is unjust and unfair it is open
to the Court to maintain the transaction
which is just and fair and to reopen the
partition that is unjust and unfair."

7. Learned counsel for the appellantdefendant has also relied on judgment of
Hon'ble the Apex Court in the case of
Sarju
Pershad
Ramdeo
Sahu
v.
Jwaleshwari Pratap Narain Singh &
others, reported in A.I.R. (38) 1951
Supreme Court 120, in which, "it has been
held that when there is conflict of oral
evidence of the parties on any matter in
issue and the decision hinges upon the
credibility of witnesses, then unless there
is some special feature about the evidence
of a particular witness which has escaped
the trial judge's notice or there is a
sufficient balance of improbability to
displace his opinion as to where the
credibility lies, the appellate Court should
not interfere with the finding of the trial
Judge on a question of fact." In para 7 of
the said judgment the Hon'ble Supreme
Court held as under :
524 INDIAN LAW REPORTS ALLAHABAD SERIES

"The question for our consideration
is undoubtedly one of fact, the decision of
which depends upon the appreciation of
the oral evidence adduced in the case. In
such cases, the appellate court has got to
bear in mind that it has not the advantage
which the trial Judge had in having the
witnesses before him and of observing the
manner in which they deposed in court.
This certainly does not mean that when an
appeal lies on facts, the appellate court is
not competent to reverse a finding of fact
arrived at by the trial Judge. The rule is--
and it is nothing more than a rule of
practice --that when there is conflict of
oral evidence of the parties on any matter
in issue and the decision hinges upon the
credibility of the witnesses, then unless
there is some special feature about the
evidence of a particular witness which has
escaped the trial Judge's notice or there is
a sufficient balance of improbability to
displace his opinion as to where the
credibility lies, the appellate court should
not interfere with the finding of the trial
Judge on a question of fact(1). The gist of
the numerous decisions on this subject
was clearly summed up by Viscount
Simon in Watt v. Thomas (2), and his
observations
were
adopted
and
reproduced in extenso by the Judicial
Committee in a very recent appeal from
the
Madras
High
Court(3).
The
observations are as follows: "But if the
evidence as a whole can reasonably be
regarded as justifying the conclusion
arrived at at the trial, and especially if that
conclusion has been arrived at on
conflicting testimony by a tribunal which
saw and heard the witnesses, the appellate
court will bear in mind that it has not
enjoyed this opportunity and that the view
of the trial Judge as to where credibility
lies is entitled to great weight. This is not
to say that the Judge of first instance can
be treated as infallible in determining
which side is telling the truth or is
refraining from exaggeration. Like other
tribunals, he may go wrong on a question
of fact, but it is a cogent circumstance that
a Judge of first instance, when(1) Vide
Lord
Atkin's
observations
in
W.C.
Macdonald v. Fred Latinmer, AI.R. 1929
P.C. 15, 18. (2) [1947] A.C. 484. at p.
486.(3) Vide Saraveeraswami v. Talluri,
A.I.R. 1919 P.C.p. 3'2. 785 estimating the
value of verbal testimony, has the
advantage (which is denied to Courts of
appeal)of having the witnesses before him
and observing the manner in which their
evidence is given."

8. Learned counsel for the appellantdefendant has also cited on the decision of
Hon'ble the Apex Court in the case of
Saygo Bai v. Cheeru Bajrangi, reported in
AIR 2011 S.C. 1557. In para 10 of the
said judgment the Hon'ble Supreme Court
held as under :

"We are not satisfied on the
appreciation of evidence by the lower
Courts. We have gone through the
evidence of the appellant and the other
witnesses. She has very specifically stated
that after the marriage till the children
were born, her relationship was cordial
with
her
husband.
Thereafter,
the
respondent
brought
a
second
wife,
namely, Gulab Bai at village Chalani
where she was residing in her matrimonial
home. She was very specific in stating
that when the husband brought the second
wife, he declared that he would not keep
the appellant and started ill- treating her
and threw her along with children out of
the house. In her cross-examination, she
admitted that on her husband's request she
2 All] Babu Ram Vs. Dayaram
525
was not prepared to go to his house. This
question was put to her in a very tricky
manner. It was not stated as to at what
point of time the husband came to take
her back. She has also stated in her cross-
examination that her children were with
her but for the last one year they were
with the respondent. She also admitted
very fairly that the respondent was
educating the children. She also asserted
that for the last 4 years her entry to the
house of her husband was stopped. It is
true that in paragraph 13 of the crossexamination she had stated that she had
not been to the house of the non-applicant
(respondent herein) for 4-5 years and then
the non-applicant i.e. the respondent
herein entered into the second marriage
with Gulab Bai. All the Courts below
have relied only on this so-called
admission to hold that she had abandoned
her husband for 4-5 years and it is as a
result of her refusal to come to the house
of her husband that the husband took the
second wife. In fact, this is a totally
incorrect and perverse appreciation of the
evidence. The Court must read whole
evidence. One stray admission cannot be
read in isolation with the other evidence.
She has very specifically stated that she
was thrown out of the matrimonial house
on account of the second wife. All the
Courts below have ignored all her
evidence and chosen to rely on two lines
in paragraph 13 of her cross-examination.
In our opinion, this was wholly perverse
appreciation of evidence. The Courts have
also made a point that she did not call for
a Panchayat and, therefore, have held
against her. We do not understand the
implication of this. Even if she did not
call a Panchayat, it did not mean that the
respondent was justified in throwing her
out of the house and getting married
second time."

9. Learned counsel for the appellantdefendant has also cited a judgment in the
case of Jagbir Sharma v. Babli, reported
in 2002 A.I.R. SCW 2686, in which
Hon'ble the Supreme Court held as under
:

"Evidence
led
by
parties
not
considered objectively. Reasons given by
trial court not discussed. Manner adopted
by appellate court not commendable.
Order set-aside and matter remitted."

In para 5 of the said judgment the
Hon'ble Supreme Court held as under :

"Suffice it to state that on a plain
reading of the judgment of the High
Court, it is clear that the Court while
deciding
the
first
appeal
neither
considered the evidence led by the parties
objectively nor has discussed the reasons
stated in the trial court judgment for
accepting the case of the appellant. The
High Court appears to have proceeded on
the assumption that a mother can never be
cruel towards her children. The appeal has
been disposed of on some general
discussions without considering the case
of the parties on merits. We are unable to
commend the manner in which the first
appeal has been disposed of. We have
avoided delving further into the merits of
the case pleaded by the parties lest it
should affect any of them when the decree
is reconsidered by the High Court."

10. Replying to the arguments,
learned counsel for respondents-plaintiffs
submitted that suit bearing no.219 of 1985
(Daya Ram v. Babu Ram) was filed for
partition of the house shown with letters
ABIE in the commissioner"s report and
526 INDIAN LAW REPORTS ALLAHABAD SERIES
the Sahan land shown as M B A J K L in
the Commission report dated 25.5.195.

11. Appellant-defendant appeared
before the Court below and filed written
statement and admitted that the plaintiffrespondent and the appellant-defendant
are the real brothers and also admitted
that entire land in question belongs to
their father. Appellant-defendant also
admitted that half of the share in the
house is of the respondent-plaintiff.

12. During the life time of the father of
appellant-defendant as well as respondentplaintiff no partition was done. Only some
portion of the house was given to the
respondent-plaintiff to live along with his
family members, in which the respondentplaintiff is living with his family.

13. After the death of father of the
appellant-defendant
as
well
as
respondent-plaintiff, when the appellantdefendant denied the share of the
respondent-plaintiff in the house as well
as in other property, the dispute arose
which necessitated to file the suit before
the trial court for partition of the house.

14. The witnesses D-2 and D-1
admitted the share of the respondentplaintiff in the parental house but the trial
court dismissed the suit of respondentplaintiff regarding share in house and thus
ousted the respondent-plaintiff to live in
open sky.

15. Learned counsel for the
respondent-plaintiff further reiterated that
on the ground above, the trial court
allowed the suit in part by giving half
share of the land shown as M B A J K L,
however, the suit was dismissed regarding
the portion marked by the Commissioner's
letters A B I E. Learned counsel pointed
out that at no point of time the appellantdefendant has ever denied about the share
of the respondent-plaintiff in the house.
On the contrary, he admitted the portion
of the respondent-plaintiff in the house,
therefore, the decree of the learned trial
court is liable to be set aside as no decree
can be passed against the admission. The
prayer sought has to be allowed or denied
in toto, it cannot be considered in part
and, therefore, the First Appellate Court
was rightly set aside the order passed by
the trial court. The appellant-defendant is
trying to give impression against the
pleadings and admission made on record.
The father has given portion of the house,
it cannot be said that it was partitioned
between the parties, although, the suit was
decreed in part but the appellantdefendant did not challenge the findings
of the trial court dated 13.01.1987 by
filing the civil appeal against that portion
of order which was against his interest,
whereas the learned First Appellate Court
decreed the entire suit by setting-aside the
order passed by the trial court by way of
order in appeal.

16. Learned counsel for the
respondent-plaintiff further pleaded that
in case this Hon'ble Court allowed the
instant appeal, the respondent-plaintiff
will be ousted from house having no room
to live and will be bound to live in open
sky as the respondent-plaintiff has no
house except the ancestral house. Not
only this but also the share of respondentplaintiff is admitted at every stage by the
2 All] Babu Ram Vs. Dayaram
527
appellant-defendant
as
well
as
the
defendant witnesses.

17. During life time of father, there
was no partition between the brothers (i.e.
Babu Ram appellant-defendant and Daya
Ram,
respondent-plaintiff),
however,
father has given some portion of house to
his sons to live along with their family
members, which is no manner can be said
to be a partition in the house or property.
When there is no partition, the second
partition does not arise. The appellantdefendant
has
not
annexed
any
documentary proof regarding partition of
the house.

18. During pendency of the instant
second appeal the sole respondentplaintiff Daya Ram died and in his place
his sons and legal heirs have been
substituted as respondents-plaintiffs.

19. Learned counsel for the
respondents-plaintiffs has cited reliance
on the decision of this Court in the case of
Harey Krishna Agrawal and Others v.
Jairaj Krishna (D) and Others, reported in
[2013 (31) LCD 1593]. In paras 39 and 40
of the said judgment this Court held as
under :

"39. So far as right of defendants to
challenge the judgment and decree of T.C.
even though had not contested the suit by
filing written statement, counsel for
respondent could not show any statutory
prohibition or dis-entitlement on their part
in challenging final decision in suit, even
if they did not contest the suit by
participating before T.C. Not only this, if
such an appellants can demonstrate that
despite non-filing written statement, sill
there is/are manifest error, illegality etc.
in the judgment and decree passed by
courts below, on account whereof the
same are unsustainable or have resulted in
a manifest grave injustice, in violation of
some legal principle or statutory provision
etc., I find no bar or disability on their
part in challenging the judgment and
decree of T.C. Or LAC on merits also.

40. Accordingly the Issue No. 2 is
answered in affirmative, i.e., in favour of
defendants-appellants holding that not
only they can file appeal but contest the
matter on merits also despite, they had not
filed written statement or led evidence
before T.C. The only restriction would be
that these appellants will have to confine
to the record of proceedings and cannot
be allowed to lead any evidence or bring a
new fact before Appellate Court. They
also cannot be allowed to fill in the gap at
this stage."

20. A co-ordinate Bench of this
Court (Supra) has also held in paras 48,
49 and 52 as under :

"48. The intention to break joint
family by effecting partition in respect of
joint family property has always been
considered with great respect, where
amicably and peacefully, interacting love
and affection, the members of joint family
have settled their rights mutually. It can
be given effect, orally, as also in writing.

49. In Appovier Vs. Ramasubba
Aiyan (1866) 11 MIA 75 Lord Westbury
528 INDIAN LAW REPORTS ALLAHABAD SERIES
took a view that the partition covers both,
a division of right and a division of
property. This is also reiterated in Girja
Bai Vs. Sadashiv Dhundiraj (1916) 43 IA
151. When the members of undivided
family agreed amongst themselves either
with respect to a particular property or
with reference to entire joint estate that it
shall thenceforth be the subject of
ownership in certain defined shares, then
the character of undivided property and
joint enjoyment is taken away from the
subject matter so agreed to be dealt with;
and in the estate, each member has
thenceforth a definite and certain share
which he may claim the right to receive
and to enjoy in severalty although the
property itself has not been actually
severed and divided.

52. Further whenever there is a
partition, the presumption is that it was a
complete one both as to parties and
property. There is no presumption that
any property was excluded from partition.
On the contrary, it has been held that
burden lies upon him who alleges such
exclusion to establish his assertion."

21. I have gone through the
submissions raised by learned counsel for
the appellant-defendant as well as learned
counsel for the respondents-plaintiffs and
perused the case law cited by the
respective parties in support of their
contention.

22. The main question is that
whether re-partition can take place or not.
It is an admitted fact before the trial court
that oral family partition took place
between the parties and father's share
remained with the appellant-defendant
whereas the respondent-plaintiff was
given
another
share.
In
addition,
advantage was given as per agreement
between the parties to the appellantdefendant because he was caring his
father and looking after his livelihood. At
that time, respondent-plaintiff remained
silent and accepted the family verdict but
subsequently after the death of his father
he staked his claim for additional share
which was allocated to the portion of the
appellant-defendant in lieu of the services
he rendered to his father. The plea has
been substantiated by the fact that in
Hindu co-parcenery, every co-parcener
member has got equal share but equal
share was not given to the respondentplaintiff, on the contrary, differential
treatment took place. Whatever may be
the
reason,
the
respondent-plaintiff,
alleged that the distinction should be
scraped of and he should be allocated an
equal share. The other point is that even,
if, the partition took place, it was not
effected with respect to the dwelling
house and the respondent-plaintiff ought
to have been given share in dwelling
house also as far as factual matrix is
concerned.

23. The only legal question remained
is whether a partition which was effected
between the parties can be re-opened and
whether there can be estopple regarding the
conduct of the respondent-plaintiff. The legal
position regarding reopening of the partition
is very clear and Hon'ble the Apex Court in
the case Ratnam Chettiar and others v. S.M.
Kuppuswami Chettiar and others (Supra) has
clearly ruled out that a partition effected
between the members of Hindu Undivided
Family by their own volition and with their
consent cannot be reopened, unless it is
2 All] Babu Ram Vs. Dayaram
529
shown that the same is obtained by fraud,
coercion,
misrepresentation
or
undue
influence. And in the instant appeal there is
nothing like any misrepresentation or undue
influence.

24. The respondent-plaintiff himself
pleaded before the trial court that since
the appellant-defendant was taking care of
his father he was given an added share to
with stand the expenses and for taking
care of the father. There is no dispute that
respondent-plaintiff was living away and
was not taking any responsibility of his
father. The partition was effected keeping
in view all these facts. In Hindu Law
there can be oral family partition and as
per evidence taken place and there is no
dispute about it. Section 115 of the
Evidence Act is reproduced hereinbelow;

"115. Estoppel.- When one person
has, by his declaration, act or omission,
intentionally caused or permitted another
person to believe a thing to be true and to
act upon such belief, neither he nor his
representative shall be allowed, in any
suit or proceeding between himself and
such person or his representative, to deny
the truth of that thing."

25. Estoppel is based on the maxim
allegans contraria non est audiendus (a
party is not to be heard to allege the
contrary)
and
is
that
species
of
presumption juries et de jure (absolute or
conclusive or irrebuttable presumption),
where the fact presumed is taken to be
true, not as against all the world, but
against a particular party, and that only be
reason of some act done, it is in truth a
kind of argumentum ad hominem. This
principle has been upheld by Hon'ble the
Apex Court in 2003 (2) SCC 355, B.L.
Sreedhar v. K.M. Munireddy.

Representation to form the basis of
an estoppel may be made either by
statement or by conduct. Further, in order
to found an estoppel a representation must
be of an existing fact, not of a mere
intention. A representation may be a
representation of fact although it involves
and includes that which is also a matter of
law. It is now popularity known as
'promissory estoppel'. The Hon'ble Apex
Court has given the ratio in Seth Satnarain
v. Dominion of India 1968 2 SCWR 335.

A person may waive a right either
expressly or by necessary implication. He
may be given a case disentitle himself
from
obtaining
an
equitable
relief
particularly when he allows a thing to
come to an irreversible situation.

26. Thus, it was the appellantdefendant who by his own conduct accepted
the previous partition effected between the
parties and in that partition with mutual
consent the extra share was allocated to the
appellant-defendant and the reason was also
advanced. The defendant maintained silence
till death of his father. Now, question arises
that whether after the death can respondentplaintiff raise this issue leaving aside his own
admission. The other fact is also very
important that parties are Hindu and they rely
on Hindu law of coparcenary, though there is
procedure that after the death of coparcener
how the share is devolved but at one time he
relies on Hindu law of coparcenary but at the
same time he left his own mother, who was
then alive, to be impleaded as party to have
530 INDIAN LAW REPORTS ALLAHABAD SERIES
share in his late father's property. The simple
question is why he ignored his mother and
insisted on claiming the share of his father by
way of succession. The facts on record
suggest that it was not a coparcenery division
but it was family partition that took place and
in view of the case of Ratnam Chettiar and
others v. S.M. Kuppuswami Chettiar and
others( Supra), the partition so effected cannot
be reopened.

27. I have also gone through the
judgment and order of co-ordinate Bench of
this Court in Harey Krishna Agrawal and
Others v. Jairaj Krishna (D) and Others,
reported in [2013 (31) LCD 1593] in which,
it has been ruled out that "whenever there is a
partition, the presumption is that it was a
complete one both as to parties and property.
There is no presumption that any property
was excluded from partition. On the
contrary, it has been held that burden lies
upon him who alleges such exclusion to
establish his assertion" and even the trial
court and before the First Appellate Court,
who could have examined the factual matrix,
have not commented any thing regarding the
bias partition.

28 The co-ordinate Bench of this
Court (Supra) in para 51 of the judgment
held that "family arrangements" also stand
and enjoy same status. It is an agreement
arrived by members of family, either by
compromise doubtful or disputed rights,
or by preserving a family property or by
avoiding litigation for the peace and
security of family or saving its honour.
The co-ordinate Bench has based its
finding on the case of Ram Narain Sahu
v. Musammat Makhana, ILR (1939) All.
680 (PC) and Puttrangamma and Ors. v.
M.S. Ranganna and Ors., AIR 1968 SC
1018)

29. In para 58, the co-ordinate
Bench of this Court (Supra) held as under
:

"58. In Sita Ram v. Board of Revenue,
AIR 1979 All 301, this Court observed that
the expression "settlement" means a nontestamentary disposition of property by an
instrument in writing, containing even a
declaration of trust, for distribution of
property among the settlor's family or his
dependent or those for whom the settlor
desires to provide or for religious or
charitable
purpose.
In
other
words,
settlement among members of family in
respect of the property jointly owned by
them is a kind of compromise/mutual
concession and arrangement between the
members of family to settle their rights in
respect of the member of the family."

30. Thus legal position is now very
clear that the family partition on the basis of
above pronouncement of Hon'ble the Apex
Court cannot be re-opened. The father was
living
with
the
appellant-defendant,
therefore, he was given an advantage in the
share but nevertheless that will be covered by
the mutual settlement and during his life
time, the respondent-plaintiff did not utter a
single word and did not dispute the rights or
claim of the appellant-defendant. Even the
suit filed by the respondent-plaintiff before
the trial court was not in accordance with the
norms as he did not implead the mother as
party. Therefore, there can be no fresh
division of the portion of the parties in
dwelling house which was partitioned
long back and such partition which has
already been settled in past and consented
2 All] Arvind Kumar Vs. State of U.P.
531
to by the respondent-plaintiff cannot be
re-opened.

31. In view of above discussions, all
the legal questions framed above in para 6 of
the judgment are decided in affirmative in
favour of the appellant-defendant and against
the respondent-plaintiff i.e. family partition
cannot be re-opened. It is binding on all the
family members in succession because it was
in good faith and no fraud and malice has
been alleged by the party who has claimed
otherwise. Similarly, the division of property
was as a whole and shall be binding upon
each family member irrespective of its
dimension. It will not be open to challenge
the family settlement arrived at between the
parties earlier on the ground that the portion
allocated to one party is short of his share.
Both these issues have been dealt in detail by
the coordinate Bench of this Court in Harey
Krishna Agrawal and Others v. Jairaj
Krishna (D) and Others (supra). The appeal
is, therefore, liable to be allowed.

32. The appeal is, therefore, allowed
with cost and the judgment and order
passed by the First Appellate Court dated
6.11.1987 is set-aside and the order and
decree dated 13.01.1987 passed by the
learned trial court shall remain effective.
--------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.05.2014

BEFORE
THE HON'BLE MRS. VIJAY LAKSHMI, J.

Criminal Revision No. 263 of 2014

Arvind Kumar................ Revisionist
Versus
State of U.P.................... Opposite Party
Counsel for the Revisionist:
Sri Pradeep Kumar Singh

Counsel for the Opposite Party:
A.G.A.

Cr.P.C. 401-Criminal Revision- Release of
Tractor-application rejected by learned
Magistrate-in
absence
of
complaint-no
power to pass order on release applicationrevision-against-not maintainable-applicant
has alternative remedy to approach before
the authority concern under section 207(2)
of M.V. Act itself.

Held:Para-13
In wake of the crystal clear statutory legal
position discussed by several division
benches of this Court cited above, I do not
find any good ground to take a different
view. Accordingly, I am of the considered
view that the application moved by the
petitioner for release of the vehicle seized
by Mining Officer was not maintainable
before the learned Chief Judicial Magistrate
and learned Chief Judicial Magistrate has
rightly rejected it by the impugned order.
There appears no illegality or irregularity in
the order impugned requiring interference
by this Court. The revision being devoid of
merit is liable to be dismissed and is
dismissed accordingly. However, it will be
open to the revisionist to move application
for release of his vehicle before the
appropriate authority under Section 207 (2)
of the Act and the said authority will pass
appropriate orders in accordance with law
and keeping in view the law laid down by
Hon'ble Apex Court in Sunderbhai Ambalal
Desai Vs. State of Gujrat; 2003 (46) ACC
223 (SC).

Case Law Discussed:
2011(1) ADJ 498; 2003(46) ACC 223; 1995(2)
AWC 849; [2001(1) AWC 551]; [2010(69) ACC
259]

(Delivered by Hon'ble Mrs. Vijay Lakshmi, J.)

1. The present criminal revision has
been preferred against the order dated