M. VENKATARAMANA HEBBAR (D) BY L.RS. versus M. RAJAGOPAL HEBBAR AND ORS

Citation: [2007] 4 S.C.R. 941 · Decided: 05-04-2007 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed

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Judgment (excerpt)

1 
M. VENKA TARAMANA HEBBAR (D) BY L.RS. 
A 
v. 
M. RAJ AGO PAL HEBBAR AND ORS 
APRIL 5, 2007 
B 
[S.B. SINHA AND MARKANDEY KA TJU, JJ.] 
Partition-Joint family property-Appel/ant and Respondents co-owners 
entered into a family settlement-Appellant was to pay a stipulated sum in 
consideration of which Respondents were to relinquish their share in the C 
property-Amount not paid by Appellant-Suit for partition subsequently 
filed by Respondents-Held: ls liable to be decreed as the family settlement 
was not given effect. 
Code of Civil Procedure 1908-0rder VIII, rr. 3 & 5-Partition suit-
Averments made by plaintiff-Not denied by defendant in written statement-
Held: Averments made by plaintiff would be deemed to be admitted-Fact 
admitted need not be proved-Evidence Act, 1872-s.58. 
'D 
Appellants and Respondents were co-owners of joint family property. They 
entered into a family settlement in terms of which Appellant had to pay a 
stipulated sum in consideration of which the Respondents were to relinquish E 
their share in the joint property. Appellant did not make payment of the 
stipulated amount. 
The question which arose for consideration in the present appeal is 
whether the suit for partition subsequently filed by the Respondents was liable . p 
to be decreed as the family settlement was not given effect. 
Dismissing the appeal, the Court 
HELD: 1.1. The execution of the deed of family settlement is not in 
question. It is furthermore not in dispute that all the co-shareholders are not G 
parties thereto. Any co-owner can cause a severance in the status of joint 
family by expressing his unequivocal intention to separate. Such intention 
can be expressed even by filing a suit for partition. But, despite such 
separation in the joint status, parties may continue to possess the lands jointly 
941 
942 
SUPREME COURT REPORTS 
{2007] 4 S.C.R. 
A unless a partition of the joint family property takes place by metes and bounds. 
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(Para 9) f 946-EJ 
1.2. For the purpose of this case, this Court will proceed on the 
assumption that the said deed of family settlement was not required to be 
compulsorily registered, in terms of Section 17 of the Registration Act as by 
B reason thereof; the relinquishment of the property was to make effect in future. 
But there cannot be any doubt whatsoever that before the Court rejects a claim 
of partition of joint family property, at the instance of all the co-owners, it 
must be established that there had been a partition by metes and bounds. By 
reason of the family settlement, a complete partition of the joint family 
C property by metes and bounds purported to have taken place. One of the co-
sharer, however, did not join in the said purported family settlement. 
(Para 10)(946-F-G] 
1.3. The contract between the parties, moreover was a contingent 
coQtract It was to have its effect only on payment of the said sum ofRs.15,000/ 
D - by the plaintiff and other respondents by the defendant Nos. I to 3. No such 
payment had been made. Even there had been no denial of the assertions made 
by the appellant in their written statement in that behalf. The said averments 
would, therefore, be deemed to be admitted. (Para 111 (946-H; 947-AI 
1.4. If a plea which was relevant for the purpose of maintaining a suit 
E had not been Si>t:Cifically traversed, the Court was entitl~ to draw an.inference · 
that the ~ame had been ad~itted. A fact-admitted in terms of-Section 58 ofthe . 
Evidence Act need not be proved. (Para 12) [947-G) 
2. Even otherwise, the Court had framed an issue and arrived at a positive 
F finding that the appellant did not pay the said sum of~ 15;~0/- in favour of 
plaintiff Nos. 1 to 3. The High Court has also affirmed the said finding. The 
High Court, therefore, cannot be said to have committed any error' whatsoever 
in arriving at the finding that by reason of the said purported de_ed of family 
settlement, the co-owners had not partitioned thejoint family property by 
metes and bounds. The plaintiffs/respondents were thus, yet to relinquish their 
G rights in the joint family properties by receiving the said amount of Rs. 
15,000/-. Deed of family settlement had not been given its full effect to. The 
High Court was right in holding that even on that count, the plai,ntiff's suit 
should ·have been decreed. (Paras 13, 14 and lSJ.(947-ff; 948.-A-C) 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 706 I of 2000. 
H 
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M. VENKATARAMANA HEBBAR (D) BY 

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