SIDROMANI & ORS. versus HEM KUMAR & ORS.

Citation: [1968] 3 S.C.R. 639 · Decided: 04-04-1968 · Supreme Court of India · Bench: J.C. SHAH · Disposal: Appeal(s) allowed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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B 
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D 
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639 
SIDROMANI & ORS. 
11. 
HEM KUMAR & ORS. 
April 4, 1968 
[J. C. SHAH AND V. RAMASWAMY, JJ.j 
I11dilln Registration Act (16 of 1908), s. 11(1)(b)-Partition of pro-
pem in specific shores-Deed not registered-Admissibility. 
Pleadings-Plea of.acquiescence-Not raised in pleadings-Cannot be 
allowed to be set up subsequently. 
Hindu Law-Agharla 'Caste-Custom of lethansi allowing larger share 
of family property to eldest son--Outmoded custom loses legal force. 
Indian Evidence Act (I of 1812), s. 91-Bar on oral evidence. 
D died in 1940 leaving certain agricultural land as well as house pro-
perty. 
He bad two children by his first wife the elder of whom was 
mpoodent no. 1. 
By his· second wife, appellant no. 2, he had a son, 
appellant no. 1. The family belon~d to the Agharia caste and wns 
aovemed by the Benares School of Hindu Law. In 1956 Appellants I and 2 
liled a suit in the Court of the Qvi! Judge Raigarh (now m Madhya Pta· 
deob) claiming that they were entitled to ~th share each in D's estate and 
that there should be a partition by metes and bounds of joint family 
: property. According to their pleadings Ex.D.4 dated December 27, 1943 
by which appellant no. 2 accepted a lesser share of the properties than 
was due to her and her son was executed as a result of coercion by res-
pondent no. I. The latter along with other respondents contested the 
suit, relying on Ex.D-4. The trial court, the· first appellate court, as well 
as the High Court decided against the appellants who by special leave 
came to this Court. The que.tions that fell for consideration were : (i) 
whether Ex.04 was admissible in evidence without having been register· 
ed; (ii) whether Appellant No. 2 was precluded 
from demanding her 
share because her signing of Ex. D4 showed acqui...,eme on her part; 
(ill) whether a higher share far respondent no. 1 was justified because 
of tho custom of Jethansi in the Agbaria caste according to which the 
eldest son was entitled lo a larger share than others; (iv) whether it was 
open to tho respondents to give oral evidence of actual partition subse· 
quent to the execution of Ex.04. 
HELD: (i) Tho recitals in Ex.D.4 showed that there was allotment 
of specific properties to individual co-parceners and tho document there-
fore fell within tho mischief of s. 17(1J(b) of the Registration Act .. It 
followed that Ex.D-4 was not, admissible in evidence to prove tho title of 
any of the. C01'&fl'Cner& to any particular property or to prove that any 
particular progerty had ceased to be joint property. The document was 
only admDsiblo tO prove an· intention on the part of the co-parceners. to 
becnme divided in status. [643 F-HJ 
Nanni Bal v. Gita Bal, [1959] S.C.R. 479, relied on. 
(ii) There was no pleadin~ on behalf of the respondents and no i!sue 
framed to the effect that by signing Ex.D-4 appellant no. 2 had acquiese· 
ed in the division of properties among her sons without claiming the 
share to which she was entitled und"I' the Mitaksbara Law of the Benares 
640 
SUPREME COURT REPORTS 
[1968) 3 S.C.R. 
School. The respondents therefore could not be allowed to set up the 
A 
plea of acquiescence by appellant no. 2 (644 El 
(iii) The d0¥lfine of "Jethansi" or "Jeshtbhagam" 
is now obsolete 
and unen'forceable. 
The principle of Hindu Law is equality of division 
and the exceptions to that rule, have almost, if not altogether disappeared. 
All between br_others or other relations absolute equality is now the in-
varia·ble rule in all the State5, unless, perhaps, where some special family 
B 
custom to the contrary is made out. 
The re5pondents had failed to 
prove ihat such a custom was prevalent in the caste di Agharias to which 
the parties belonged. (644 F-0; 645 F·G; 646 A-F] 
M. Y. A. A. Nachiappa Chettiar v. 
M. Y. A. A. Muthu Karuppan 
Cftettiar, A.I.R. 1946 Mad. 398 and Hur Purshad v. Sheo Dyal, 3 I.A. 
259 at p. 285, referred to. 
(iv) The evidence showed that document Ex.D-4 was intended by the 
parties to be the sole evi~ence of partition and since it had been held that 
Ex.D..4 was not admissible in evidence on account of non.registration to 
establish when the property was so partitioned, it was manifest that no 
oral evidence was admissible to prove any subsequent partition having 
regard to the prLvisions of s. 91 of the Evidence Act. [646 G-647 Al 
CIVIL APPELLATE JURISDICTION : 
Civil Appeals Nos. 749 
and 750 of 1965. 
Appeals by special leave from the jud

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