- (1.) THE second defendant in a suit for declaration of title and possession is the appellant before us. Respondents 1. 2 and 3 were plaintiffs in the said suit. Respondent 4 was the first defendant and the appellant was the second defendant in the said suit. For convenience, we will refer to the paries, by their ranks in the suit. THE first plaintiff was the step-mother and plaintiffs 2 and 3 are the step-brothers of the first defendant. THE first defendant sold field No.47. measuring 5 bigha 18 biswas to the second defendant (appellant) under sale deed dated 17.5.1978. It may be mentioned that at the time of such purchase the second defendant was a minor and represented by his father.
(2.) IN the year 1981. the plaintiffs filed a suit for declaration and possession alleging that the suit property (field No.47) was a joint family properly of Raj Bahadur Singh (father of defendant No. 1 and plaintiffs 2 and 3 and husband of plaintiff No. 1) and his brother Shiv Bahadur Singh; that there was an oral partition in the year 1968 which was affirmed by reducing it into writing in the form of a family settlement dated 15.2.1970; and that under the said partition field No.47 was allotted to the share of Dharmendra Singh - third plaintiff. It was contended that the first defendant who was allotted a different property at the partition and therefore had no right title or interest in field No.47, sold the said property to the second defendant and consequently the sale by the first defendant in favour of the second defendant was null and void. The second defendant-appellant resisted the suit by contending that the suit property belonged to the first defendant and the sale was valid. He denied that the suit property was a joint family property and that it was allotted to the share of third plaintiff at the family partition. Parties went to trial. The trial court by its judgment dated 16.11.1989 decreed the suit. It held that there was an oral partition in the year 1968 and that was reduced to writing subsequently as per Exhibit P. 1. The trial court held that being a confirmation/acknowledgment of an earlier oral partition, the said document did not require registration. 3. Feeling aggrieved, the second defendant filed an appeal before the High Court The High Court by the impugned judgment dated 21.10.2002 dismissed the appeal affirming the findings of fact recorded by the trial court. The said judgment is under challenge in this appeal. The only question raised by the appellant is that the Memorandum of Partition (Exhibit P. 1) not having been registered, could not have been relied upon by the courts below. As noticed above the courts below have found that there was an oral partition in the year 1968 and that the terms thereof were embodied in the form of a memorandum subsequently, as per Exhibit P.1. This Court has held that where there is an oral partition of the ancestral property, a subsequent memorandum embodying the factum of partition would not require registration I.L.R.[2010 J.M.P.,] Vikram Cement vs. Commissioner of Commercial Tax 2443 (See Rosham Singh and Others vs. Zile Singh and Others AIR 1988 SC 881). Therefore, the contention of the appellant that Exhibit P. 1 could not be relied upon is liable to be rejected. If the said contention goes, what remains is the concurrent finding of fact recorded by the trial court and the High court that the property was a joint family property and that it was allotted to the share of third plaintiff. It is not open to question.
(3.) THEREFORE, the appeal is dismissed as there is no merit. Appeal dismissed.;