 The first part today is on the procedural law and second aspect would be on substantive law for which you can all connect us with part two of this master series on Sunday. Before we request Mr. Soma Shaker to take things forward in his own subtle way of explaining things. I would request everyone to keep maintaining the social distancing, do vaccination and be safe at home. We have seen that the effect of this is that the cases have started going down. In certain areas, like I can say in Chandigarh, some part of unlocking has started on weekdays, full week it was full, now it's that at least from Monday to Friday the shops establishments are open up to 3 o'clock. So as I say that after every dark days and nights, there's the brightest sunrise which rises. We all hope that we get things better. And I would request sir to take things forward. Thank you on behalf of Daksha legal and beyond law CSE. Good evening Mr. Vitas and good evening friends. As Mr. Vitas Chitrat said, I have divided the subject into two parts. Today, I will be dealing with the procedural aspects in the sense as to what is to be pleaded. What kinds of issues usually arise in a partition suit? What is the oral and documentary evidence to be let in? How the operative portion of the judgment would be in a partition suit? What's the limitation for filing a suit for partition? What is the care to be taken when parties enter into a compromise in a partition suit? When parties withdraw a partition suit and whether dismissal of a partition suit for non prosecution would prevent or preclude the plaintiff from bringing a fresh suit. These are broadly some procedural aspects which I will be covering incidentally one or two things here and there. On 30th I will be dealing with substantive law, the law relating to succession inheritance and other aspects. Perhaps some of you or I believe most of you have heard me on the last vacation about trial of suits for declaration of title, injunction and possession. On that day, I will reproduce verbatim, a plaint in a partition suit filed by a senior advocate of Chitvalapur by name blade Anand Tiltacha. I don't repeat it today. If during 1990s and much earlier to it, when time was not a scarcity and was available in plenty, the proceedings would be so brief. Now when the society is growing fast and when we have no time, should we waste much time on pleading evidence and pleading law? Therefore, when time is scarce, we shall not waste our time on pleading irrelevant facts, pleading evidence, pleading law, citing decisions in pleadings. Let us strictly go by the provisions of order 6 CPC whether it is a plaint or written statement wherein a suit for partition or any other suit. By that, you would also be saving paper. You will not be contributing anymore to environmental pollution if less paper is used. Please remember this. Let the pleadings be brief. It is true, at least as far as the state of Karnataka is concerned, that in a majority of the suits for partition, the parties are Hindus. That does not mean persons belonging to other religions cannot file a suit for partition. They can and indeed they have been filing. The religion of the parties assumes importance in a partition suit for various reasons. It has an effect on the nature of properties. Whether the plaintiff who has filed the suit, he is entitled to a share at all and if so, what is the share to which he or she is entitled? Religion of the parties assumes importance. How it assumes importance will be made known to you on Sunday when I take up these personal laws which speak about the entitlement of a person to a particular share. May not be in great detail depending upon the time available at my disposal. Therefore, whether as a judicial officer while writing a judgment in a partition suit because I find some judicial officers also on the screen, or whether as an advocate when you draft a point, you must be clear to which religion your claims belong. This is extremely important. The second thing is the nature of properties. How does it assume importance? Eddie, I say, I told you that in most of the suits for partition, the parties are Hindus. Eddie, in those suits, the properties generally are joint family properties. But that does not mean that there cannot be a suit for partition in respect of properties which are not joint family properties. Yet he executes a will in favor of a house property jointly between it in favor of his son and daughter. He doesn't say that the eastern portion of that house should go to the son, the western portion should go to the daughter. He simply says that the schedule house shall go to my son and daughter. Therefore, after his death, they would have become joint owners of the property or co-owners by whatever name you call it. If one of them is entitled to file a suit against the other for partition, if physical division is incapable of law, well, maybe the property will have to be sold. Now, a person can jointly purchase a property from someone else. There can be a joint gift to the properties. Those persons who have acquired a joint title, either by way of a will, or by way of a say, or by way of a gift, may be a case of grant also. They are not members of a joint Hindu family. They are not co-partners. They are joint owners or co-owners. There can be a suit for partition even in respect of such property or properties. Then, section 8 of the Hindu succession act, most of you may be familiar, it speaks of interstate succession to the property of a male Hindu. X is a male Hindu who died after coming into force of the Hindu succession act, that is on 17, 6, 1956, living behind his class one years. The properties were his self acquisitions. They are also entitled to a share. His legal years are entitled to a share. They can bring a suit. Why is a Hindu female? She died subsequent to 17, 6, 1956, living behind her years mentioned in section 15 of the Hindu succession act. They are joint owners and co-owners. They can bring a suit for partition. And as far as Mohammedans and Christians are concerned, as you may be knowing, there is no concept of a joint family there at all. Therefore, please do not be under the impression that all suits for partition are in respect of joint Hindu family properties only. There can be a suit for partition of partition of property, which is in the joint ownership or co-ownership of certain persons. I am not familiar with the court fees and suits valuation enactments of other states, but as far as the state of Karnataka is concerned, I am familiar. There is some indication from section 35 of the Karnataka court fees and suits valuation act that there can be a suit for partition, not just in respect of joint family properties, but in respect of properties jointly or owned in common. Section 35 subsection 1 of the Karnataka court fees and suits valuation act reads this. In a suit for partition and separate possession of a share of joint family property or of property owned jointly or in common. I am not on the other aspects of section 35. It is not necessary for us how it is to be valued is totally irrelevant for our discussion today. What I am trying to tell you by reading section 35 of the Karnataka court fees and suits valuation act is there is some indication there is, by a clear indication there is that there can be a suit for partition, not just confined to joint family properties, but in respect of properties jointly owned or in common ownership. Please be clear about it. Therefore, he who drafts a complaint in a partition suit should seek clear instructions from his client as to what is the nature of property. Is it ancestral property, joint family property? Or is it acquired out of joint family funds? Is it under a testament? Is it by way of a sale deed, grant, gift or a simple case of interstate succession? In fact, one of my good friends had phoned me today morning and having seen that there will be making a presentation on this. He told me that I should also emphasize on the fact that when it comes to suits in respect of joint family properties, client should clearly indicate whether it is ancestral property or if it is joint family property, how it is joint family property. Day after tomorrow I will be telling you the distinction between this ancestral property and joint family property. The only thing is ancestral property is a species of joint family property. Joint family property is a broad term, ancestral property is a species of it. In fact, he made this suggestion to me and it is absolutely necessary. In the client, it should be very clearly stated how it is joint family property. I will speak about it in greater detail on Sunday. The next thing is how the parties to the suit are related to the original owner of the property or the propositors, how they are related. And what is the relationship interstate between the plaintiffs and the defendants? Here I want to tell you one thing. I have seen in some plaintiffs in Karnataka without meaning any disrespect to any member of the bar. They say that the plaintiff's father, Vantrushne Gowda and Kari Gowda were brothers. Kari Gowda were brothers. They were entitled to half share in the suit scheduled properties. Plaintiffs have filed the suit for half share. That Kari Gowda is plaintiff's father is dead, Krushne Gowda. That Kari Gowda is still alive. He is the paternal uncle of the plaintiffs. He is shown as the first defendant in the suit. Instead of mentioning Kari Gowda the first defendant, they mentioned this Kari Gowda as a stranger to the suit. Plaintiff's father Krushne Gowda and one Kari Gowda. Who is that one Kari Gowda? He is none other than the first defendant. Please take care to see when you make a reference to the names of persons, whether they are parties to the suit or not, whether they are alive or dead. This is another thing. There is some impression that a genealogy, a genealogy sworn to by the plaintiffs before a revenue officer should be unedged to the plaint. Subject to correction, others may correct me because I do not know the legal position elsewhere in the country. As far as state of Karnataka is concerned, I am sure that no revenue authority or no executive authority can on his own give a genealogy. We have the register of marriages maintained under the special marriage act or under section 8 of the Hindu marriage act. We have the register of births and deaths maintained under the registration of births and deaths act, register of RTC and several admission to school admission register and other things. To my knowledge, I am underlining the word my knowledge, there is nothing like a register of genealogy. In regard to the population of this country, it is unlikely that the executive can be expected to maintain a genealogy of each family. What is happening at least in the state of Karnataka is, I want to file a suit for partition. I go to the village accountant and tell him that my great grandfather was yet, my grandfather was Y, my father was Z, my brothers and sisters are Bs. And before that I say the contents are true and thereafter the village accountant says so and to before me. Instead of swearing before that village accountant, let your client swear before the court and establish that relationship. I can firmly say that the so-called genealogy annexed to the plain has absolutely no evidentiary value. It might at best help the court to understand the relationship. But if it is denied, if the defendants deny that relationship based only on the genealogy, which your clients have sworn to before the village accountant of the Bashildar, you cannot expect the court to uphold the relationship. Please be very, very, very clear about this. About two or three years back, when I was speaking about this genealogy, it is relevant to judicial officers in the judicial academy at Karnataka. One judicial officer brought to my notice some government order or notification issued by the state of Karnataka. He said that genealogy of that kind, even by the revenue authority, appears to be essential. I carefully went through that genealogy, that notification or G war by whatever name you call it. It has been specifically stated therein that this is meant only for obtaining change of katha and other things before the revenue authorities. As for the civil court system, there is no question of producing that so-called genealytical dream, and which is popularly taught by some of our lawyers and judicial officers as GT in short form, and asking the court to accept it as a very valuable piece of evidence and uphold the relationship. Well, in the plane, the genealogy is furnished only to enable the court or the opponent to understand what the genealogy is. I am also given to understand that in first appeal or second appeal before the honorable High Court, there is a practice and some kind of genealogy is instituted upon. Not that equally it is proof of the relationship only to enable the court to understand the case with the parties. Please remember this. So this is, so relationship will have to be clearly stated. Relationship for the parties to the suit to the propositors. Relationship intercede will have to be clearly stated. Of course, there is nothing wrong in putting the table in the plane to show the genealogy. Then I find in most of the suits in the prayer column a prayer for our rough mean profits. As I said on the last vacation, I am somehow in fond of using this expression. If either by default are designed, you have with you the civil procedure code. Please go to the definition of the term mean profits given in section 2-12. Mean profits of property means those profits which the person in wrongful possession of such property actually received or might with ardent religions have received their profit. We are members of a joint family. We are joint owners or co-owners of certain properties. Merely because we are not able to be in actual physical position of the property or occupation of the property. For the reason that we are not staying in the village where the property is situated or the town is or the town where the property is situated or we are in service and therefore we have come out of it. It does not mean that we have lost joint possession and the person who is in physical possession or occupation of the property is in wrongful possession. Every joint owner or co-owner is presumed to be in joint possession of the entire property. Therefore, there cannot be a prayer for mean profits in a suit for partition. It is only in a suit for possession. There can be a prayer for mean profits because it contemplates a wrongful possession. In this regard, I am not aware of the decisions of other high courts. We have that number of decisions. But I refer to only two decisions of division benches of our high court that is the Tarnataka High Court. ILR 1991 Tarnataka 4506. The second one is ILR 2003 Tarnataka 2304. Judicial officers who have heard me in the judicial academy perhaps know. Apart from these two decisions, I have also referred to some three or four old decisions. But it is sufficient if you read these two decisions of the division bench. Now, when I am on the aspect of this mean profits, you find some indication of it in a judgment of the Honorable Supreme Court in ILR 1980 Supreme Court 691. ILR 1980 Supreme Court 691. Neelavati versus Natarajan. Neelavati versus Natarajan. That was a decision rendered interpreting Section 37 of the Tamil Nadu Court Phase and Suits Valuation Act. Section 37 of the Tamil Nadu Court Phase and Suits Valuation Act has been interpreted by the Supreme Court. It is in parry material with Section 35 of the Tarnataka Court Phase and Suits Valuation Act. I am not on the aspect of court. Please be very clear about it. What happened in that case was it was predicted that the defendants were not giving share of drops from obtaining from the family properties and therefore the plaintiff had filed this suit. A contention was argued by the defendants that the plaintiff himself had claimed himself to be out of possession. There it is said, merely stating in the plaintiff that the defendants are not giving the proceeds to the agricultural item would not amount to ouster or exclusive possession. Every joint owner or co-owner is presumed to be in the occupation of the entire property. To fold that a person is in joint possession, it is not necessary that he should be actually receiving any item. Some of you are advocates here, judicial officers and may be in occupational, thought-alive teachers. Properties are in the village or in the town where your brothers and sisters are enjoying. It does not mean that they have excluded from possession. Therefore, to understand this concept, you may also read that. Then, another thing is mostly in suits in respect of joint family properties. There would have been an alienation of one or two items of the plaintiff's individual property before the suit is filed. Here, day after tomorrow, I will tell you who all can alienate, what is their power and all that. But just incidentally, you should know it. Under the classic Hindu law, you may be knowing that the manager or Tarka of the joint Hindu family can alienate the entire joint family property for legal necessity and when you quit the estate. Then, the father has special powers of alienation to discharge debts and also legal necessity. Then, all the co-personers together can affect an alienation. Then, a sole surviving co-personer can also make an alienation. No other co-personer can make an alienation because he cannot say that this is my chair or this is the property which I would get at a partition. Therefore, when is the need to see a declaration that the alienation does not find? When you should see cancellation is the question. Please be very clear about it. It is very unlikely but still, let us assume a situation where the plaintiff co-personer himself has sold one of the properties to an outsider. The plaintiff co-personer in a suit for partition, let us say, has himself sold one of the properties to an outsider. He cannot seek a declaration that the sale deed does not bind him. If it is his case that somebody prayed a fraud on him due to undue influence or coercion, a sale deed was obtained from him. He cannot risk content with seeking a declaration only. He has to seek a cancellation very unlikely. Supposing there is already a partition affected by a deed to which the plaintiff is a party. If at all into the plaintiff, it has been an unfair partition or an inequitable partition or has forced to sign that document. There was some pressure on me, coercion, undue influence, mistake and all that. Then he may have to seek cancellation because he is a party to the document. But if the plaintiff is not one of the alienars or he is not the sole alienar, and if one of the defendants has sold the property to a third person who is also implicated as a fourth or fifth defendant, then there is no need for the plaintiff to seek cancellation of that sale deed. He can just say that the sale deed executed by such and such a defendant in favor of some other defendant in respect of items owns or the plaintiff's schedule does not bind his share. Secondly, even if he does not seek a declaration, even if he does not seek a declaration, that the sale deed effector executed by one of the defendants in favor of the other defendant in respect of a particular item does not bind his share. The suit is perfectly maintainable. Only on the ground that the declaration is sought, the defendant cannot ask the court to dismiss the suit. Appearing for the plaintiff, you need not worry about such submissions made by the defendants themselves. Please be clear about it. Now, we have a very beautiful judgment of Honorable Justice R. V. Rabindran reported in 2010, Volume 12, SCC 112. In fact, what his lordship has stated in the judgment is verbatim extracted in the 14th edition of the specifically backed by Polak and Mulla. So you can read the judgment and no problem, but for your immediate reference, you will get those very observations made by his lordship. In the 14th edition of Polak and Mulla specifically backed, it is at page, starts at page 251 and goes up to 252. His lordship has given a very beautiful illustration. Of course, in the context of court fee, his lordship has explained. When is the relief of cancellation to be sought? And when is the relief of declaration to be sought? This is the example that is given already. The difference can be brought out by following illustration relating to A and B two brothers. A executes a sale deed in favor of C. A and B are brothers. Please remember. A executes a sale deed in favor of C. Subsequently, A wants to avoid the sale. A has to sue for cancellation of the deed because he is a party to the document. On the other hand, if B, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by A is invalid or void and non-test or illegal and he is not bound by it. In essence, both may be suing to have the deed set aside or declared as non-binding, but the form is different and court fee is also different. Therefore, cancellation is to be sought if the case of the plaintiff is that an earlier partition deed was obtained by fraud or illegal or very unlikely that he himself having sold, he would not say cancellation of it, an extreme case. But if the alienation is by one of the defendants in favor of someone else, the plaintiff need not seek cancellation of the document and I go to the extent of telling that no declaration is also necessary. Why I tell it is, well, since I am not dealing with the provisions of the court of fact, I will be totally digressing because we have decisions with the Karnataka High Court to the effect that such a prayer in a partition suit is redundant and no court fee need to be paid. This is another important thing which you will bear in mind. The next thing is with regard to the fact that no cancellation, no declaration need to be sought. You may refer to ILR 90-85 Karnataka 1115, ILR 90-85 Karnataka 1115 and ILR 90-98 Karnataka 2127, ILR 90-98 Karnataka 2127. I am quite conscious of the fact that I am on beyond law form, it is beyond Karnataka, but kindly excuse me, but I am bound to cite decisions with the Karnataka High Court because I am familiar with that. And as far as other aspects are concerned, to the extent possible, I will give you decisions with the Supreme Court only. So, we have seen that in the point, the religion of the parties should be clear, the maker of properties, what the prayer should be. Then, who should all be implanted is the question. Who should all be implanted? All the persons who are entitled to a share in the properties will have to be implanted, absolutely no difficulty about that. They will have to be implanted. But, in the case of these joint family properties, if all the joint family members are not alive or goparsners are not alive, it is sufficient if only the heads of the branches are implanted. There is no need to let us say, yes, has four sums, A, B, C, D, A is dead, living behind effusions, B, C, D are alive. I mean, there is no, let us say, B files are sued against the branch of A, A is alive. It is not necessary to impede all the members of that branch, only the heads are sufficient. Here again, we have two decisions of the Karnataka High Court. One in ILR 1990-99 Karnataka 831, ILR 1990-99 Karnataka 831. And the second one is ILR 2003 Karnataka 2559, ILR 2003 Karnataka 2559. Well, I will come to this non-joinder. How the defendant should plead it, I will tell when I take up what is to be pleaded in the written statement. Now, what is the consequence of not implementing necessary parties? Please go to Order 1, Rule 9 CPC. Order 1, Rule 9 CPC. No suit shall be defeated by reason of the misjoining or non-joinder of parties. And the court may in every suit shall deal with the matter in controversy. So far as regards the rights and interests of the parties actually before it. Provisory does. Provided that nothing in this rule shall apply to non-joinder of a necessary party. Therefore, if a necessary party is not implanted, the suit is bound to fail. The suit will have to be dismissed. Who is a necessary party without whom no relief can be given to the parties? Now, the legal position in this regard is this, the provisions do not say it. For very good reasons, courts have said, if a necessary party is not implanted, the court should not go to the extreme step of dismissing the suit on the ground that the necessary parties are not on radar. The court should give an opportunity to the plaintiff to implement the necessary parties. This is a very settled position and therefore I am not giving you any decision in that regard. But here we will have to be a little careful. Now, the defendants, let us say before the filing of the suit, a legal notice is issued demanding share. Defendants in the reply statement have also mentioned who are all the persons interested in the properties. That is the first occasion for the plaintiff to come to know who else are members of that family or who else are interested in the property. Then in the written statement, if the defendant specifically says that disease also has left behind so and so. There are other members of the names are also given. Plaintiff is already put to notice. In the trust examination of the plaintiff, it is suggested that there are other members of the family XYZ. The plaintiff may admit or deny that is a different thing. The defendant in his chief examination also says it, these are all members of the family, they are not implanted. There is sufficient notice to the plaintiff as to who are all other parties. Should in such a situation, the court given opportunity to the plaintiff to implement the necessary parties. In my opinion, it is not necessary. All right. The court suggests well, or if the court itself so motto, I implements them or directs the plaintiff, that's a different thing. This is another aspect of the matter which you will bear in mind. As to what is that plea to be taken in the trigger? I will tell you when I take a written statement. The next thing is about all the sharers who else? If an alienation has taken place prior to the suit, they should also be implanted because well, whether the alienation was for legal necessity or not. It is the alien who has to establish that there was legal necessity. The burden is on him and therefore without giving an opportunity to him, the court cannot say that the alienation was for legal necessity or was not for legal necessity. And therefore, alien is also a necessary party to the suit. Then, I told you who all should be implanted? Now what all should be into it? Now, if it is a suit for a giant partition of giant family properties, all the giant family properties will have to be included. They'll have to be included. About three or four years back in the Karnataka judicial academy, when I was speaking about this, one very good judicial officer asked me this question. Sir, when necessary parties are not implanted, we even opportunity to the plaintiff to complete those necessary parties. Similarly, when the court thinks that there are other properties, at least prima facie appearing to belong to the family, should we not similarly give an opportunity to the plaintiff to include those properties? I don't have any decision in that regard. But in my opinion, that was a very good question. And I really complimented that officer, though a very junior officer, such a thought came to that officer and I said, please do it. What consequence would follow? Let us not worry, let the lobby lay down. It was a very good question. Just as when you give an opportunity to the parties, to the plaintiff to include necessary parties. Well, if the written statement clearly says that these are the other properties and the records also disclose that at least prima facie they appear to be joint properties or joint family properties. I think there may not be any bar for giving an opportunity to the plaintiff to include those properties also. Well, the consequence of not including is a suit for partial partition would not lie. Here also the legal position is settled by number of decisions and therefore it is necessary to include it. But here again I enter a caveat. Supposing, under two or three sale deeds, I and others purchased certain properties. In the year 2016, I along with one Mr. Yates purchased some property. Two years later, I purchased another property. But today I am interested in a share only in the property purchased in the year 2015. It is not a case of a suit in respect of a joint family property. Of course, I have my own opinion in that regard. Maybe in such a case, if the suit is not in respect of joint family properties, well, there may not be any need to include the other properties also. This is one thing which you may examine. I leave it open there. This is another aspect of the matter which you will bear in mind. Now, what all should be included as it? What is the consequence of not including is also stated. In this regard, you may also keep in view the provisions of order two rule two CPC. Order two rule two CPC. Just today morning, one other good judicial officer has made available to me a decision of a division bench for honorable high court of the High Court of Karnataka, which you may kindly examine the context of order two rule two CPC. I will just give the case number. It is RFA 4,001 of 2013. The Karnataka High Court registers first appeals at a section 96 and order 41 rule one CPC as RFA, that is regular first appeal. RFA 4,001 of 2013. The date of the judgment is 148 2013, 148 2013. Gadi Devva, G-E-G-A-G-A-D-I-G-E-V-V-A, Gadi Devva and others versus Gaurava and others. It is a decision of a division bench for honorable high court by Justice Ken Kumar and Justice Arvind Kumar. Well, you may at your leisure go through it. The scope of order two rule two CPC in the context of a partition suit where it's a defense where the plaintiff has to say all those details are given. I think you may also go through that judgment. Though of course it's a bit of substantial law, which I may have to speak on Sunday. Well, something prompts me to tell it now itself because in the context of the draft of the plaintiff, this may assume importance. You see, many times we have seen in the plaintiff, one of the defendants has sold the minor's interest also in the suit schedule properties, not for legal necessity, not for the benefit of the minor's several other things. It is also pleaded that without taking the permission of the court, such and such a defendant has sold the interest to the minor plaintiffs also. Therefore, the sale is wide and all that. Such pleadings are found in the plaintiff. In this context, reference to section eight of the Hindu minority and Gadi and Shippat becomes absolutely relevant. I will read section eight of the Hindu minority and Gadi and Shippat. The natural guardian of a Hindu minor has power. I am reading subsection one subject to the provisions of the section to do all ads, which are necessary and reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate. But the guardian in no case bind the minor by a personal authority. Subsection two, the natural guardian shall not, without the previous permission of the court, market or charge or transfer by sale, gift, exchange, otherwise any part of the immobile property of the minor, lease other things, leave it. Subsection three, any disposal of immobile property by a natural guardian in contravention of subsection one or subsection two is voidable at the instance of the minor or any person claiming under him. It is not a void sale. Minor has to challenge it. And subsection five says the provisions of the guardian and what set would apply in this regard. To which court you will have to apply to the city seal court or the district court or the court empowered under the guardian and what set is the competent court to give this permission. What is this permission contemplated by section eight? The permission contemplated by section eight is in respect of minor's own property, not in respect of his interest in the joint family or co-personary property. Where do you get it? Please go to section six of the Act. The natural guardian of a Hindu minor in respect to the minor's person, as well as in respect to the minor's property, excluding his or her undivided interest in the joint family property. As far as undivided interest in the joint family property is concerned, it is the manager of the Tata who will represent him, not the natural guardian. Then you may go to section 12, guardian not to be appointed for minor's undivided interest in joint family property. When a minor has an undivided interest in the joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest. There is a proviso attached to it. The High Court has got some special powers to appoint that. A combined reading of section 6 and 13 of the Hindu minority and guardian in Shibat, and the principles of given in the classic Hindu law, relying upon that we have several judgments with the Karnataka High Court. One judgment of the Supreme Court may kindly be noted. 1996, Volume 8 SCC page 54. Para 5 is relevant. The Supreme Court has held that the permission contemplated by section 8 of the Hindu minority and guardianship act is for sale of minor's own property, not in respect of the minor's undivided interest in the co-personary. Just as the manager of Tata of a joint family, then alienate the joint family property for legal necessity and benefit of the state, he can alienate a minor's interest also in that. In fact, in Mulla's Hindu law, it is very clearly stated, and I will read out that relevant passage on Sunday. So please be clear about this. Now, when it comes to the written statement, let the written statement be very specific. Whether your clients admit the relationship set out in the complaint totally, or deny it totally, or partially admit or deny, will have to be specifically stated. Here itself, I might answer an offline question from one of the junior advocates known to me through his friend. The question is whether in the written statement, is it sufficient to say that governments in Para 5 are denied, or is it necessary to extract the entire Para and say that it is denied? Because last time I said that the denial should be specific. Here, what I would suggest is, there may not be any need to reproduce the entire Para of the client and say it is denied. You may say that the material governments in Para so and so of the client to the effect so and so, are hereby specifically denied. That would serve the purpose of R8, Rule 3, Rule 4 and Rule 5. So now we are on the aspect of relationship. So relationship, whether you admit it or deny it totally, total admission, total denial, or you may say that one of the plaintiffs is, it invariably happens. Plaintiffs 2 and 3 are no doubt the children, but plaintiff number one is not the legally wedded wife. Some such things are please are taken. Let there be a specific admission or denial. Denying everything and thereafter saying something is not good. You should be very clear. Then, usual defences. All the properties mentioned in the plaint's schedule are not giant family properties. Some of those properties are self acquisitions. If they are self acquisitions, how they are self acquisitions? Is it by way of a grant? Is it by way of a sale? Under which sale deed, under which grant? Those details will have to be given in the written statement very specifically. The next thing is whether you admit the nature of property or deny it. Do you admit that they are giant family properties, ancestral properties, giant properties? Or is it a case of simple succession under section 8 of the Hindu succession act or 15 of the Hindu succession act? That will have to be specifically stated, pleaded with written statement whether you admit it or deny it. Then, defendants also can seek their share. Supposing they say, well, we are also entitled to overshare, under the Karnataka court piece and suit valuation at section 8 says, when the defendant seeks his share, he has to pay 50% of the court fee, which the plaintiff has to pay. I don't know the provision in other state enactments. And as I perhaps I told this on the last vacation, when the defendant seeks his share, it is not counter-climb under order. It is not counter-to-the-climb made by the plaintiff. Defendant seeks his own share. Here again, we have a decision of a division picture for Karnataka High Court, authored by honorable justice R. V. Ravindran, in ILR 2001, Karnataka 4853. ILR 2001, Karnataka 4853. So, plead regarding the relationship, nature of properties. The next thing is, is it a case of prior partition? Sometimes they plead prior partition. Here, I will have to elaborate a little. My experience has shown that in the written statement, it is pleaded. About 50 years back, there is a partition between 8th and Y, then again 25 years back. It is not stated whether it is an oral partition or a written partition. During the course of trial, some document is produced. That discloses a different date. In the course of the transit examination of the plaintiff, some other date is suggested. Therefore, if it is a case of a prior partition, when it took place, who are all the parties to that partition, then if prior, supposing it might so happen, Y had forced an A, B, C, D. They divided the properties after the death of Y or during the lifetime of Y. Subsequently, the share which A, B, C, D got at that partition, they are again divided. The parties in this particular suit may be the branch of A or may be the branch of B. Whether the written statement refers to a partition between amongst A, B, C, and D or a partition amongst the branch of A would not be clear from the written statement. Please be very, very clear as to what is the prior partition which you plead. Please be very clear in that regard. Then, if according to your clients, certain items of the properties mentioned in the plaintiff are gifted to them by any of their relatives or someone. Let the exact date of the gift deed be mentioned. The exact item in the plaintiff's schedule will be clearly stated. So too, if it is an acquisition under a will, a testamentary succession, who executed the will, when that person died, will have to be clearly stated. This also will keep in mind. Now, the other familiar plea is non-joinder of necessary parties. Well, who are those necessary parties? They have waged plea that the suit is bad for non-joinder of necessary parties. It does not take your client, the defendant anywhere. Nor, compels the court to frame an issue in that regard. Nor, requires the court to give a finding on a fact which is not in respect of which no issue is raised. Because you elicit something in the course of cross-examination. You do not expect the court to give a finding on it. You will have to clearly state who are those necessary parties. Who should have been implanted? All right, according to you, they may be necessary parties, according to the court or according to the plaintiff, they may not be necessary parties. That, the court will examine. If, according to you, if, according to your legal knowledge, if, according to the instructions received by you from your client, they are also necessary parties, please mention their names in the written statement. A vague plea does not take the case any further. Please be clear with that. The next plea that is taken is, this suit is bad for non-inclusion of all the family properties. Then you must say which are those properties which are not included. To then simply make a vague statement, you must specifically tell which are those properties which are not included. Not stating it, suggesting it is because of cross-examination, or producing some RTC extract showing the name of the original owner and then contending that it is also a joint family property without even putting a suggestion to the plaintiff will not help you. Then a vague plea that the suit is barred by time. It is very unlikely that a suit for partition, particularly in the case of joint family properties, is barred by time. A clear case of ouster will have to be pleaded. Therefore, when you say that the suit is barred by time, you should say why it is barred by time under which article of the limitation act. Please be very clear about it. Let there not be a vague plea that it is barred by time. Well, you may have to keep in view the provisions of article 60, 100 on 9 and 110 of the limitation act in this regard because oftentimes we find a plea that the sale deed should have been challenged within 3 years from the date of the plaintiff attaining majority. That would be a case where the property is the minor. Please go to article 60 of the limitation act to set aside a transfer made by the guardian of a ward by the ward who has attained majority within 3 years from the time in the ward attains majority. The suit is in respect of a property belonging to the plaintiff which was sold by his guardian when he was a minor. Then such a suit will have to be filed within 3 years. Not other kinds of suits. Please be very clear about it. You may also read section 8 of the limitation act in that regard. 100 on 9 and 110 are other provisions which have something to do with this. 100 on 9. A suit by a Hindu governed by Mithachirala to set aside his father's alienation of ancestral property 12 years from the time when the alienation takes possession of the property. 110 by a person excluded from a joint family property to enforce a right to a share therein 12 years from the exclusion becomes known to the plaintiff. Please note that article 110 is applicable to a suit for partition in respect of joint family properties. To set aside to enforce a person excluded from a joint family property. If it is an exclusion from a joint property or though there is no exclusion if somebody wants to claim a share in a joint property whether it could be Hindus or Mohammedans or Christians article 110 would not apply. Probably article 113 would apply which would be a subsidiary article. Probably I am telling you because I am also a dead Zen but I am sure that article 110 would not apply. Then when it comes to issues on whom the burden of proof lies is extremely important. Here the classic Hindu law should be very clearly known to the participants. If there is no presumption that a joint family is bound to possess a joint family properties. Totally impoverished persons, beggars also can constitute a joint family. Probably they live happily more than those who have properties because they quarrel. They peacefully live without properties and very affectionate members of the joint family. They don't have property. There is no presumption that a joint family has always a joint family property. Then the next presumption is if there is a joint family property it has continued to be joined. He who asserts that there is a partition has to establish it. If it is a case of partial partition if the plaintiff says that certain properties belonging to the joint family had already been partitioned. The suit properties for some reason were not partitioned. He may say suit property is a house property. Our parents were living there. After the death of our father, mother said so long as alive that this property be not partitioned. We had an unmarried sister, a widowed sister, a divorced sister or a disabled sister. So we did not want to disrupt it. Now that contingency is not there. Therefore now please give us a share. So the presumption is when there is a partition, it's a total partition. Partition amongst all the members of the family. So he who pleads partition has to establish it. He who pleads partial partition will have to establish it. If you read chapter 12 in Mulla's principles of Hindu law 15th edition, co-partner and co-partnery property, you will know these presumptions. Please keep that in view. So therefore to the court correctly does not frame the issue. I must draw the attention of the court. And as I said on the last occasion, a well-meaning judicial officer should, even without a written application, amend the issues if need be. Recast the issues. Please see that it is clearly done. Now here you will have to be very, very careful. Appearing for the plaintiffs. I will give two instances. Please follow this. The plaintiff is this. Plaintiffs are members of a joint Hindu family. The suit schedule properties are all joint family properties. Plaintiffs are entitled to such and such a share. Certainly the plaintiff is not as brief as I have said, but this is the substance of the plaintiff. In the written statement, the substance I am telling, it is true that the parties are related to each other in the manner stated in the plaintiff. It is true that the suit schedule properties are all joint family properties at one point of time. They are no longer joint. They are already partitioned. Item number one has fallen to the share of such and such a defendant. Item number three to the share of the plaintiff. It is a case where the defendants take the burden. There is absolutely nothing for the plaintiff to prove in this case. The first issue in this case is whether the defendants plead the partition pleaded by them, whether the plaintiff is entitled to a decree for partition. Please go to section 103 of the Evidence Act. Please go to section 103 of the Evidence Act. 101 usually says he who asserts a positive fact will have to prove it. 102, he who is likely to fail if no evidence is let in will have to create the burden. 103, the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person. Law here does not necessarily mean a statutory law. Even an unquodified law is also a law. So, classic Hindu law tells that he who pleads partition has to establish it. This is a case where the defendants admit the relationship. They admit the nature of the properties. They plead a prior partition. Therefore, the only material issue and the first issue in this case should be whether the defendants plead or prove the oral partition set up by them, whether the plaintiffs are entitled to a decree for partition if so, merely because there is that one impassive financial issue, the plaintiffs cannot be thumped to start evidence. Please be clear about it. In this context, a reference to order 18 rule 1 CPC is also opposite or 18 rule 1. Right to begin. The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff on contents that either in point of law or on some additional facts alleged by the defendant, the plaintiff is not entitled to any part of the relief which he sees in which case the defendant has the right to begin. Here, the relationship is admitted. The nature of the properties is admitted. A prior partition is pleaded. It is for the defendants to prove. Not a case where he pleads self acquisition. No. Not a case where he disputes the nature of properties in this case. Then I will give two other situations. Under section 8 of the Hindu succession act, after the death of a male Hindu who dies interstate, the years mentioned in class 1, if they are not there, class 2, thereafter agnates, coordinates are entitled to sharing the properties. Let us take a very simple case. Let us not go to class 2, agnates and coordinates. Ex-a male Hindu dies somewhere after 17, 6, 1956 when the act came into force. Leaving behind his widow W, two sons S1 and S2, two daughters D1 and D2. Please take this. Ex-a male Hindu dies after the coming into force of the Hindu succession act. Leaving his wife W, two sons S1 and S2, two daughters D1 and D2. The daughter D1 and D2, they file a suit for partition against their brothers S1 and S2 and the mother W, climbing one-fifth chair each. Now, the defendants, that is the mother and the brothers, they plead. It is true that the properties belong to ex. It is true that he died on such and such a day. It is true that the plaintiffs are his children. It is true that the first defendant is his widow, the other defendants are his sons. But during, after his death, we divided the properties and in that partition such and such a share was given to S1 and S2. It is not a case where the plaintiff takes any burden. He takes the burden of drawing the attention of the court to the fact that he is need not prove anything. It is only that burden which he should do. All the burden is on the defendant. Take another case. Section 15 of the Hindu succession act. A woman lives behind, dies interstate, living behind her own properties. Who are her heirs is stated therein. A suit is filed by one of the heirs against the other heirs, climbing a chair. Those defendants admit that the propositors was their mother or brother's sister or whoever she or she is. They also admit that the properties belong to her. They plead a prior partition. There is absolutely nothing for the plaintiffs to prove. A third case. It is true that the property is belonging to H. She has left behind a will in favor of W, his widow, two sons S1 and S2. Daughters were not given anything. Defendants have to prove that will. What is there for the plaintiff to prove in this case? And something tells you plaintiff has come to the court. He should prove everything. He should stand on his legs. There are occasions when the plaintiff also can sit and relax. There are occasions when the defendant has to stand. Please come out of these notions. They are all general principles. Each of those general principles has some exception. Therefore, as I generally said, the burdening such cases on the plaintiff or his lawyer is to tell the court that he has no burden to take. It is for the defendant to take and frame appropriate issues. The case has to be posted for defendant's evidence. Then, so I have told you how the plaintiff is to be drafted, what is to be pleaded in the written statement, what here has to be taken during the while framing issues. Then when it comes to evidence, if it is a case where the relationship between the parties or with the propositists is denied, obviously the burden is on the plaintiff. As I told you in the beginning that the genealogy which your client has sworn before his excellency the village accountant is no piece of evidence because that is disputed. Relationship is disputed. You can't establish that genealogy on the basis of that genealogical treat sworn to by your client before the village accountant. You will have to establish the relationship. Supposing there is some old document where in the propositists or someone has described this person as his son, as his wife and all that, maybe a piece of evidence, school records, hospital records, some old will gift, voters list, all those things are documentary evidence to establish relationship. If none of those things is available, oral evidence has to be given. Please go to section 50 of the evidence set. What becomes relevant when the relationship is in dispute? Kindly go to section 50. Opinion and relationship when relevant. When the court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct as to the existence of such relationship or any person who as a member of the family or otherwise, please mark those words or otherwise, has special means of knowledge in this subject is a relevant fact. Proviso is not necessary because that is not sufficient to establish relationship in a proceeding under 494 IPC or divorce proceedings and the proceedings into the divorce act. Let us come to this partition suit. Relationship is in dispute. Plaintiff has no documentary evidence to establish it. How do you do it? Close relatives. While your maternal uncle, paternal uncle, maternal aunt, paternal aunt, grand mother, cousin, they may have to give evidence. Or close friends. You take me to your house. Introduce so-and-so as your brother, your sister, wife, mother, father. I accept it. I have a special means. If I casually come to your house, no. If I am your close friend, frequently visiting your house, well, naturally I would have recognized some person as your father or mother because that is opinion evidence that is sufficient to recognize it. So, relationship can be established by documentary evidence if available. If not available, evidence of family members are those who have a special means. Well, you may be close friends. You may frequently visit their house that should be sufficient. To establish the nature of property, is it a joint property or self acquisition? Here, when it comes to joint properties, joint family property, how is it joint? Initial burden is on the plaintiff. Day after tomorrow, I will be telling you this concept of joint family property and ancestral property. I will just give an outline. As I said, ancestral property is a species of joint family property. Then the second case is property acquired from what a joint family is. Property is thrown into the joint family stock. These are different types of joint family properties. Now, many times the argument is this. Land-bearing survey number 6 bar 1, shown as item number 1 of the client schedule, is admittedly the ancestral property or joint family property. The other properties were all acquired from that. It is true that if a property is acquired from a joint family property, well, it is treated as a right, but there is a righter to it. It is called a nucleus. It is that nucleus sufficient to acquire it. The joint family property which the parties had is only one acre of dry land. Whether that one acre of dry land situated in some village is sufficient to acquire a palatial building in a district quarter. Therefore, it would not form sufficient nucleus. It does not use sufficient source to acquire other properties. Therefore, you will have to establish, appearing for the client, that the nucleus was sufficient enough it was capable of generating funds for acquisition of other properties. That is the kind of evidence which you will have to establish to say that the other properties are also joint family properties. Then, if it is a case of a plea of self acquisition taken by the defendant, the age of the particular defendant assumes importance. Now, the sale deed, let us say, is of the year 2012. The sale deed shows that defendant number 3 has purchased that property. The sale deed also discloses that in the year 2012, when the defendant purchased the property or when his name is shown in the sale deed, he was just aged 20 years. Certainly a major. There is absolutely no difficulty. Whether at the age of 20 years, he could have purchased a property worth six lakhs. I am not telling that investors are not capable of purchasing. Please don't mistake me that way. What was the source of earning for him? Had he any independent income, whether even as a student he was earning something, wending to a milk, wending paper, giving some tuition and other things. Therefore, the source of money to acquire that property is very material to prove that it is a case of self acquisition. Many times it happens. For some reason, a father thinks of giving the name of one of his sons to the property and therefore he purchases the property. Well, whether they are hit by the provisions or the benamy transactions, all that, let us not club these issues. Let us not club something else and get ourselves confused. These are things which normally happen. Therefore, what was the source of acquisition for the property assumes importance. Then, to establish gift, the defendant or defendants would have pleaded that some item or certain properties have been gifted to him or them by someone else. The gift is denied. On the last occasion, I had drawn your attention to Section 68 of the Evidence Act and it bears repetition today. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving the execution. If there be an attesting witness alive and subject to the process of the court and capable of giving evidence. Gift is certainly an argument which requires attestation as per the provisions of the Transfer Property Act. Now, Donor obviously in a suit for partition is not a party to be sued. That Donor would have died or may be allied. He has gifted some property to one of the defendants. That is the case of one of the defendants. Now, let us read the provisional to Section 68. Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document not being a will which has been registered in accordance with the provisions the Indian Registration had, unless its execution by the person by whom it purples to have been executed is specifically denied. Defendant Fai says that the property has been gifted to him by his grandmother, grandfather or someone else. That someone else is examined by the defendant. He doesn't deny it. So, there is no need to examine the attesting witness to prove his guilty. Supposing that someone else is examined by the plaintiff and he says that I have not executed this document. This may be a case where the defendant is required to examine the attestant to prove the execution of the gifted. There may also be a plea that a particular property has been acquired by the defendant by way of testamentary succession. Some person executed a will after his death. He has become the owner. He is a legatient of the will. Well, if it is a case of will, obviously the executant is not alive. Therefore, the provisor to section 16 itself might accept it as not being the case of a will. Well, in the case of a will, necessarily one attesting witness will have to be examined. This also I told you on the last quotation. If a probate has already been obtained in respect of a will, there is no need to prove this will in this partition suited. But the title of the testator can still be done. Defendants or defendants need not prove the execution of the will by summoning an attesting witness. But because the probate itself is sufficient proof of the execution of the will. But the testator's title, whether he had an exclusive title to execute a will or whether he had no title, all that can certainly be examined in a suit for partition. I have already told you about this. Then to establish a prior partition if it is an oral partition what is the evidence that you give? It depends upon it depends on the when that oral partition could place. Is it long prior to the filing of the written statement? Or a few years prior to the filing of the written statement it assumes imparted. Now let us say the plaintiff has filed this suit against his brothers for partition of joint family properties. The first defendant has on the date of suit itself was about 70 years. He dies during the pendency of this suit. His legal representatives are brought on the top. His first son let us say is about 40 years. Here at I want to tell something to the lawyers. Many times what I find in view of chief examination the age mentioned in the past title to the plaintiff reiterated. The plaintiff filed in the year 2015 in the year 2015 I was age 59 years. Now in the year 2021 I am age 65 years. Today also if I mention the age as going by the client would it be correct? Please take care to see that the age given in the past title is not repeated in the affidavit filed in view of chief examination. Really do not know the correct age put it as major. Now we are on this first a lot of the first defendant who is aged 40 years who comes to the witness box today. The partition referred to in the written statement which is filed in the year 2016 is a partition which took place about 30 years prior to the filing of the written statement. That takes us to the year 1986. How old was this first defendant's yellow in the year 1986? Loveful whether he was born at all even if he was born he was aged about 5 years. Today he has grown up he is aged about 40 years. Can he speak to a partition? Which is said to have taken place before his birth or at a time when he was a child aged about 5 years. Certainly he is not competent to speak about it. Then we have seen widows and daughters singla entering the witness box and speaking about some partition. Their knowledge is through their husbands acquired after they entering into the family. How can they speak about a partition which took place prior to their marriage or entering into the family. It would be totally hearsay evidence. Please take care to see that such persons are not put to the witness box to speak about that oral partition. Here I have seen in the written statement about 35 years back the partition was made to the plaintiff. It is already a partition. Date is not mentioned. Suddenly it goes to 100 years. In the written statement the partition referred to is among states YZ. Suggestion to the plaintiff is a partition which took place between PQ and R. Such vague suggestions. Suggestions which do not flow from the written statement. Suggestions which flow off at. Which you want to establish. Then if it is a written partition is it a registered partition or an unregistered partition. Last time I told you with an amount of emphasis which I generally do that if it is a prior partition or memorandum of an earlier partition it does not require registration. It reads like this a few years back a partition took place between us there is no written to enable us to have separate today we are reducing this into writing. This is a memorandum of an earlier partition or a record of a oral partition that does not require registration. On the other hand the documents reads well we are dividing the properties today. It is under that very document the division has taken place it requires compulsory registration. Please be clear about this concept. We had a good number of decisions of the Supreme Court and our High Court also have in regard to the fact that the audience is beyond Karnataka I would refer only to a few decisions of the Supreme Court which will quickly make a note. AER 1958 Supreme Court 706 I am avoiding the names of the parties to save time AER 1958 Supreme Court 706 AER 1961 Supreme Court 1077 AER 1961 Supreme Court 1077 AER 1970 Supreme Court 833 AER 1970 Supreme Court 833 AER 1972 AER 1972 Supreme Court 1121 AER 1972 Supreme Court 1121 AER 1968 Supreme Court 1299 kindly mark that particular decision AER 1968 Supreme Court 1299 because I have something to tell you about the decision. Please make a underline that AER 1968 Supreme Court 1299 AER 1988 Supreme Court 881 AER 1988 Supreme Court 881 Please mark that decision also These are some decisions of the Supreme Court in which the legal position is very clear that if there is a thought of a prior partition it does not require registration. On the other hand if the document evidence of the division under that very instrument then it requires registration. I told you to underline these two decisions AER 1968 Supreme Court 1299 Well, please see this. Appearing for the plaintiff you should know these decisions. Of course, appearing for the defendants also you should know it. You see, we said the Supreme Court has said if it is a thought of a oral partition, a prior partition, well certainly registration is not right. If it is a decision which has taken place on that very day it requires registration. Though the documents that the defendants have with them is an unregistered partition deed which shows that the division took place on the very day the deed was instituted. In view of the bar under section 49 of the registration act, it is inadmissible in evidence to prove that the main transaction namely the partition. What is the main purpose for which this document was used by the defendants to prove that prior partition? Based on this unregistered instrument defendants cannot prove that partition. Can they let it oral evidence? The honorable Supreme Court in this decision has said having regard to the provisions of section 91 of the evidence act, when there is a written document no oral evidence can be instituted. What is its effect? So, appearing for the defendants if you have an unregistered partition deed which discloses that a partition took place under that very instrument please take it from me you are bound to fail in that case, suit has to be degree subject of course to establish in the nature of properties and other things relationship because oral evidence cannot be looked into in the bar under section 91 of the evidence act. This document cannot be looked into in the main part of section part in another registration act. The next decision as I said is I have 1988 Supreme Court 881 I find that honorable justice Abdul Nazir in one of the recent records in the Supreme Court which I may give day after tomorrow has referred to this decision this here again it is held that in section 91 oral evidence cannot be let in to prove that partition written evidence documentary evidence is unavailable in your the bar under section 49 of the registration act this is another thing that you will bear in mind now we have this concept of family settlement or family arrangement the Supreme Court in a very leading decision which is frequently cited reported in AER 1976 SC 807 AER 1976 SC 807 it is popularly called as Kale's case Kale versus deputy director of consolidation you will have to read the decision very carefully and hear me very carefully and I usually tell I am not worried about the attendance I am worried about the attention attention is more important than attendance for me please hear me very carefully let there be no mistake and notion about these things the honorable Supreme Court has held in this decision family settlement and arrangement is a thing which the court should not lightly ignore parties have settled the dispute they enter into settle the dispute I mean outside before coming into the court they don't want to litigate they want to live peacefully they enter into some kind of an arrangement and the court should be too strong to upset that family settlement or arrangement after a long gap it doesn't mean that invariably whenever a document evidences family settlement or family arrangement is produced the court should simply accept it and dispute the suit for partition please read the decision carefully it will tell you here again the same rule if that family settlement or arrangement that document is a method of a prior arrangement or a prior settlement it does not require registration if under that very document the settlement or arrangement is made it requires registration please read that decision also when it comes to this now when it comes to marketing of documents as I told you on the last occasion please maintain that chronology let the RTC extracts and other things we mark an order first few documents in respect of item number 1 the other documents in respect of item number 2 please see those things don't today you make an today you produce a certified copy of a sale deed tomorrow you make an application under order 7 rule 40 appearing for the defendant under order 8 rule 1A produce this same set of documents please avoid these things it leads to lot of confusion see what is the document already produced and all that and even in appeal it happens documents are produced under order 41 rule 27 the exhibit p9 is a copy of a registered sale deed produced by the plaintiff in the trial court an application is provided under order 41 rule 27 let us say the defendant has come up in appeal he produces one document which is again a certified copy of the same sale deed at least if he produces the original if it is with him well there is some point so don't go on producing copies of the same document which I have already produced and as I said there is absolutely no point in producing RTC extracts for a period subsequent to the filing of this suit orders passed by the Tashildar and the deputy commissioner and land revenue receipts or tax receipts for having paid revenue or tax due to dependency of this suit then when it comes to argument as I told you on the last occasion no need to cite too many decisions about well settled legal position unless the presiding officer is a new rep through well the new rep throughs are also undergoing intensive training for one year in the Karnataka judicial academy all decisions are given to them they are quite up to date and now everything is available online well you will be able to study the judicial officer and they will know whether he already knows it there is no need to go on citing decisions of you are practicing in Tamil Nadu you cite decisions of Punjab and Haryana high court you are Tamil Nadu high court Madras high court has already given a decision supreme court has given a decision I am in Karnataka I cite a decision of Punjab and Haryana because Dutas Chetra this goes to me let us not go by that the supreme court has given a decision or our high court has given a decision one or two decision should be sufficient in that regard then written arguments let it not be a reproduction of the pleadings and deposition it should highlight what the contentions of your party and what is the contention of the opposite party that is how the written argument should be there clarity in expression it is absolutely necessary well if you are not comfortable in English and the court enterizes it you are free to argue in the local language or in the mother tongue even there it should not be slang it should maintain the dignity of the court and your own profession let that local language or mother tongue it should also be in case what I would suggest is you make some general reading to have good vocabulary and see that both in your written arguments and you make more sufficient so I have told you what the plaint should contain how the plaint should be drafted how the written statement should be drafted how issues are framed what care you will have to take after the issues are framed what evidence has to be let in how the argument should be done well judgment is for the judicial officers but the operative portion of a judgment in a partition soon will have to be in a thousand speak or 20 rule 18 CPC please have a look at it senior members of the bar who have joined this webinar will kindly excuse me I see many youngsters here therefore I am going in detail and referring to the basics senior should not mistake me or 20 rule 18 where the court passes a decree for the partition of property or for the separate position of a share therein if funding so far as the decree relates to an estate assist to the payment of revenue to the government the decree shall declare the rights of the several parties interested in the property but shall direct such partition or separation to be made by the collector or any exited subordinate of the collector deputed by him in his behalf in Athens with such a declaration and with the provisions of section 54 though the word preliminary decree is not used in sub rule one of rule 18 of order 20 it gives an indication that what is to be passed is a preliminary decree section 54 CPC has undergone an amendment in the by the Karnataka state legislature have not aware of the position in the country section 54 CPC has undergone an amendment in Karnataka now it is not for the collector it is for the court itself to it sub rule 2 if funding so far as such a decree relates to any other immobile property or immobile property the court may the partition or separation cannot be conveniently made without further inquiry pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as required therefore the operative portion will have to be in terms of order 20 rule 18 and it says it is not that it is only the share of the plaintiff that is declared the share of the dependence is also declared whether he has paid court fee or not if he has not paid court fee during final decree proceedings that would be let know that I have said about the operative portion the judgment almost I have come to this yet now when a suit for partition is compromised what is the care that is to be taken care of well being a man from Karnataka having worked in the Karnataka judiciary obviously having touch with the decisions of the Karnataka High Court I am not able to lay my hands on a decision with the Supreme Court anyway although it is a decision with Karnataka High Court and it is worth reading we have a judgment of honorable justice R.V. Ravindran as to what is the care that is to be taken by the parties and the court when the parties enter into a compromise in a partition suit ILR 2003 Karnataka 2559 ILR 2003 Karnataka 2559 maybe I have kept it in the file where there are decisions relating to order 23 rule 3 CPC I have separate files for each subject and in the file relating to order 23 rule 3 CPC I believe that the decision is there in ILR 2003 Karnataka 2559 see we usually say when it is a representative suit we go by only order 1 rule 8 it is not order 1 rule 8 only with the representative suit please go to order 23 rule 3 it speaks of a partition suit I mean which speaks of compromise please go to order 23 rule 3 B order 23 rule 3 B no agreement or compromise in a representative suit shall be entering 2 without the legal people expressly retarded in the proceedings and any such agreement or compromise entered into without the legal court so retarded shall be valid before granting such a leave the court shall even notice in such manner as it may conflict to such persons as may appear to be interested in the suit explanation in this rule represent your suit means a suit under section 91 or 92 a suit under rule 8 of order 1 a suit in which the manager of an undivided Hindu family is used or is sued as represented in the other numbers of the family any other suit in which the degree passed may by virtue of the provisions of this court or of any other law for the type being enforced bind any person who is not named as a party to the suit some ex and wife who are not implanted or to the suit who enter into a compromise in a partition suit and their interests are also affected therefore what is to be done has been beautifully explained by justice R.V. Ravindran it's a division bent judgment kindly read it then when it comes to withdrawal of a partition suit again we have a decision of a division bent by justice R.V. Ravindran ILR 2001 ILR 4853 ILR 2001 ILR 4853 which has been followed by a single judge in ILR 2016 ILR 48583 see the permutations there 4853 it is 48583 same numbers in a different order please be careful there ILR 2001 ILR 4853 it's a decision of a division bent by justice R.V. Ravindran ILR 2016 48583 a single judge has followed the decision in ILR 2001 what care is to be taken when permission is given for withdrawal of a partition suit you can go through it and when minors are there in the minors are also parties to the suit well without the permission of the court no question of withdrawal or compromise timely go to order 32 rules 7 I believe yes order 32 rule 7 no next friend or guardian for the suit here then I pass a Y for the benefit of junior members of the park to whom I am their next friend or guardian no next friend or guardian for the suit shall without the leave of the court Love Keep the minor his person who represents them is called the next friend the defendant is a minor he one represents him is called guardian go into common parlance guardian is the person to represent interest of a minor when it comes to reass cur that that next friend is called guardian when it comes to the defendant he is called guardian no next friend or guardian for the suit shall without the leave expressly recorded in the proceedings enter into an agreement or compromise on behalf of a minor with a reference to the suit in which he acts as a net friend or guardian. Then rule 1A, an application for leave under sub rule 1 shall be accompanied by a rapid evit of the net friend or guardian for the suit as the case may be. So the plaintiff is a minor, net friend has to file an rapid evit, if the defendant is a minor, guardian has to file an affidavit as the case may be. And also if the minor is represented by a pleader by the certificate of the pleader to the effect that the agreement or compromise proposed is in his opinion for the benefit of the minor. So that net friend or guardian should make an application around 32, rule 7, rule 1A, accompanied by an affidavit stating that in his opinion the proposed compromise is in the interest of the minor whom he represents. It should also be adapted by a certificate of the pleader and even when it is before the low time the certificate is absolutely necessary. Provided that the opinion so expressed whether in the affidavit or in the certificate shall not preclude the court from examining whether the agreement or compromise proposed is for the benefit of the minor. Therefore the court also has to satisfy itself that the proposed compromise is in the interest of the minor. Any such agreement or compromise entered into without the leave of the court record it shall be voidable as against all persons other than the minor. I think under order 23 when it comes to withdrawal also if my memory serves me right order 23 rule 1 sub rule 1 that is abandonment of the claim or withdrawal is implicit there is a proviso attached to it where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 are part of 32 extent neither the suit nor any part of the claim shall be abandoned without the leave of the court. So that leave of the court is necessary so that it is compromise or with the trial please see that the leave is obtained. So I have told you how the operative portion of the agreement should be disposed otherwise that by a judgment by a compromise I have said by a vote in the trial. There is yet another way of disposal which all of you are familiar that is dismissal for non-prosecution. Please go to order 9 rule 8 see piece order 9 rule 8. Order 9 speaks of dismissal for other purposes non-payment of court fee not punishing the copies of the plaintiff and other things I am not on them. I am at a stage where the case is already ripe for trial please go to order 9 rule 8 first. Procedure where the defendant only appears where the defendant appears and the plaintiff does not appear when the suit is caught on for hearing the court shall make an order that the suit be dismissed unless the defendant admits it like very unlikely or pass thereof in which case the court shall pass a decree against the defendant upon search and vision and where part won't be available. So order 9 rule 8 empowers the court to dismiss the suit when the plaintiff is absent. Go to order 9 rule 9. Where a suit is wholly or partly dismissed under rule 8 the plaintiff shall be precluded from bringing a fresh suit in respect to the same cause of action. I stop here. A suit is dismissed for non-prosecution. Another suit cannot be filed in respect to the same cause of action. There is a clear bar under sub rule 1 of rule 9 then goes further. Is he totally remedy less? But he may apply for an order to set aside the to set the dismissal aside and if he satisfies the court that there are sufficient tasks for his non-appearance when the suit was caught on for hearing the court shall make an order setting aside the dismissal upon such terms. So therefore if a suit is dismissed for non-prosecution the general rule is the plaintiff cannot bring a fresh suit. He has to make an application under order 9 rule 9 for restoration of the suit. But as far as partition suits are concerned it is said that there is a very important action. Even if a partition suit is dismissed for non-prosecution there is no bar in law for filing a fresh suit. We have two decisions. One of a single judge and another of a division bench at the Karnataka High Court. The decision of the single judge is in ILR 2005 Karnataka 3177. ILR 2005 Karnataka 3177. The decision of the division bench is in ILR 2012 Karnataka 4129. ILR 2012 Karnataka 4129 honorable justice N. Kumar heading the division bench has authored this judgment. So these two decisions may be there are decisions of the other high courts and I am not aware. Anyway, if a partition suit is dismissed for non-prosecution there is no bar for filing a fresh suit. Don't cite these decisions when other suits are dismissed. You will be committing a default by not knowing the legal position correctly. If other suits are dismissed for non-prosecution well you can't bring a fresh suit. Your remedy is under order made online only. If a suit for partition is dismissed this is the legal position. I think with this I am done as far as the procedural aspects are concerned. Now with regard to substantive law you will meet on 30th and I will not be able to cover the entire substantive law, all the personal laws. Only a few provisions the Indian succession and I am not going in detail. I will tell you which are the relevant provisions of the Indian succession and when it comes to suits for partition by Parsees and Christians. Some chapters in Mulla's Mahabhadan law are the parties to a suit for partition or a business. Let me very honestly consist before you that my own knowledge of law of inheritance as far as Mahabhadan's and to some extent Christians is limited. Let me not venture to speak about a subject in which I am not very comfortable and in which my own knowledge is limited. But I will tell you the basics there which are those relevant provisions which you should read. Then suits to which the Hindus are parties, giant family properties, self-repositions, section 8, section 15 and other things that I will tell you. Before closing only one thing I want to tell you whether it is the classic Hindu law or classic Mahabhadan law or the statutory provisions of Hindu law that is the Hindu succession act or the Hindu minority and guardianship act or the Hindu marriage act or the Hindu adoptions and maintenance act or Muslim classic law or the Indian succession act. Please do not be under the impression that these personal laws are relevant only in a suit for partition. Even in a suit for declaration of title these personal laws assume importance. I will just give one example and be done in a minute. Now let us say a male Hindu who is a bachelor dies. A bachelor dies. His mother is dead so one class one year is already dead. Baccalaureate said obviously he has no other class one years. Right. His sister is alive. Now that man was staying with someone else that someone else thinks well I have taken care of that person I am entitled to all his property and he starts dealing with that property or he has he has some bank deposits and he has shown that person who was taking care of him as his nominee and he appropriates that entire money. His sister would be a class two year. Therefore I execute a sale deed. Climbing myself to the way the person was taking care of that man and I execute a sale deed. I appropriate the deposits because I am shown as a nominee who is the legal year entitled to it. It is his sister who is alive or someone else who is alive. He has to execute a sale deed or she has to execute a sale deed. Therefore do not be under the impression that these personal laws the Hindu law or the Mohammedan law or the Indian Sensation Act or statutory provisions of the Hindu law are relevant only in a partition suit even in a suit for declaration of title they assume importance. So do the provisions of the Hindu marriage. I don't think that they are relevant only when the dispute is between husband and wife or a institution of political rights and other release such as 16 of the Hindu marriage act. It has its relevance in a partition suit. It has its relevance even in a suit for declaration of title. Please see that. There are other provisions also Hindu adoptions that also has its place in a suit for declaration of title when it comes to the rights of the adoptive persons. Hindu minority and garlic jipper just now I give that example I mean instance of section 8. Therefore junior members of the bar will see that you familiarize yourself with these personal laws not just for suits for partition even in suits for declaration of title. If there are any questions with regard to these procedural aspects I will answer with regard to substantive law with the available time at my disposal on Sunday and witness to the deep spit to extend. On Sunday you are generous at heart. You are generous at time also. If we can extend your time by another 15-20 minutes on Sunday I will cover in detail some substantive because there are good number of decisions on substantive law. I think one hour 15 minutes you have given me. That is a tentative timeline I told you. You are very generous. No, not at all generous. Before we take the questions I would like to thank Kaushik if you can come on the platform. Because it's always a pleasure to connect to a young person who helps us to join. Yes. No, we will remove his shyness. He's the man behind the show. He helps us to connect. A lot of times we are asked Mr. Sova Shekhar but he says that he is the man behind the show because for otherwise in this show because I can't mute myself, unmute myself, present myself. That's what I'm saying. He's the link. Like yesterday we did a session on communication skills to be made more effective. He says communication is more like a thread and the glass and then it makes the garland. So the Beyond Law series can only be connected. You and I can be a thread in this glass and he makes us the garland. We are thread and a flas and you make it a garland. Sir, we have on the YouTube certain questions. We'll see one question here from Praveep Kumar to everyone. Then let's take up the first question first from Venkat Ramu. Yes, please. What is that question from Venkat Ramu? We can repeat that. It says partition suit where defendants claim is based on will. Can the space settled on the basis of a compromise against the terms of the will? Does this order become a legally valid? What is the limitation for filing suit on the ground of fraud? The question is this. When it comes to fraud, I will give the decision there for tomorrow, but now that he has asked that, let me let him please make a note of this important decision of the Supreme Court. When it is a question of fraud, there is no question of limitation there that is in 1976 one SCC 214, 1976 one SCC 214. To remember easily, let him read this AR 1976 Supreme Court page one. Since it is a page one, he can remember it easily. AR 1976 Supreme Court page one. It is the famous Ratnam Chettiar case. This has been followed in 1972 SCC 463. I wanted to refer to these two decisions day after tomorrow. If it is a question of fraud and other things, there is no question of limitation for challenging it. Now, I see some vagueness in his question. Defendants climb on the basis of a will. What is that partition with the defendants climb on the partition suit where the defendant relied upon will? Partition suit where the defendants climb is based on will. Can this be settled based on compromise against the terms of the will? Does this order is this order legally valid? What is the time limitation for filing a suit on the throat of fraud on the fraud? I have said it with regard to the first part of this question. No doubt a will is set up. Will is set up. Let us also presume that the will is genuine. The testator really wanted the properties to go to someone else. Let us proceed on that basis. I don't think that nothing prevents the parties from entering into a compromise despite there being a will. I don't think that there should be any bar to enter into a compromise. Ultimately, whether the compromise is valid and lawful or 23 has a poison. Lawfulness in terms of the provision should be contracted. That compromise also should be free from coercion, fraud and other things. To my knowledge, merely because a will is set up by the defendant, there should be no bar for entering into a compromise. I take a step forward. This proposition normally comes in a lot of cases. And it says that during the lifetime after my death, the property will be the name of the lifetime in the name of the mother. And thereafter it will eventually devolve over his sons or daughters. But after the death, the mother wants to give the property. They all want to sell off and somehow it's a joint property. They want to sell it off and they can settle in their own particular shade as what was intended to be devolved after the death of the mother. So can it be done because some people say you can have under the Hindu Succession Act. Some people say under the specific relief act, there is a bar. I don't think that there's a bar under the specific relief act. But I need to examine the provisions to the Indian Succession Act regarding the disposition under a will. Now when it comes to the Hindu Succession Act, section 30 permits a will even respect of an undivided interest, not only in respect of the Goparswari property, but also in respect of other than Goparswari property, section 30 of the Hindu Succession Act says any Hindu may dispose of by will or other testamentary disposition, any property which is capable of being disposed of by him. Obviously I should have, I should be the exclusive owner or I should have some interest in him by him or her in accordance with the provisions of the Indian Succession Act. Explanation, the interest of a male Hindu in a Goparswari property or the interest of a member of so-and-so shall not be standing anything contained in this act or in any other law shall be deemed to be property capable of being disposed of by him. Well, you said, you said that after her lifetime the property should go to some place. It is contingent that during the lifetime it cannot be, it can be given to the sons. They are matters of detail. I think without referring to the provisions of the Indian Succession Act, I will not be able to answer your question. I plead my ignorance about it because it requires some examination. We have a question from Aishwarya Prasad. As a reference made to an authority wherein it was said that a suit cannot be dismissed for non-joiner of necessary parties. Does that mean that so the contention has been raised at the first instance itself, the court is obligated to provide an opportunity after the conclusion of the trial. Well, I said if the contention is just to wait, say that the suit is bad for non-joiner of necessary parties and if during the course of trial those names appear on retard and if the court also feels that they are necessary parties, certainly an opportunity should be given to the plaintiff. But if from day one the names of those persons who are thought into the defendant is a necessary party is disclosed, that is in the written statement, it is suggested to the plaintiff in the Kharasit examination, asserted by the defendant in the chief examination, I think there should be no need to give an opportunity to the plaintiff to, no need to give an opportunity to the plaintiff to employee. How to prove the subject property purchased out of the same proceeds of ancestral property if no documents are available to establish that the sold property is the ancestral property? How the court will forum the opinion that the subject pattern, subject property is partitionable as the same is purchased out of the same proceeds from ancestral property. How to prove the subject property purchased out of the same proceeds of ancestral property if no documents are available to establish that the sold property is the ancestral property? This goes to the root of the matter. How do you first establish that the property is an ancestral property in the absence of a document? Well, last time when I spoke to you about Soothsaw declaration of title, I incidentally mentioned it. Certainly when I say that a property is my ancestral property, I believe or I assert that at one point of time the property belongs to my forefather. Yes, I do not know how we acquired it. He might have responded to some property since then the property might have continued. Nobody knows how we acquired it. If it is under a sale deed, gift deed, grant, will or under a prior partition, I can understand it. Otherwise, in the case of ancestral properties, as I drew the attention of the audience to a judgment of Justice Srinivas Harish Kumar of the Darnataka High Court, in the case of ancestral properties, based on it is not a question of saying that revenue document is not for title. No, it is not on that. Based on that title, declaration of title can be given in the absence of other documents. Therefore, what other oral evidence could be because if there are revenue documents or house list and other things to show that at one point of time it belongs to the plaintiff's forefathers, I think that evidence should be sufficient. And the other question bets that then. Can you explain oral partition slightly more elaborately? Oral partition slightly, yes. Oral partition generally is in the presence of the elders of the village who are popularly called as panchayatars. Now, what happens there? They will sit together on a particular lay. They will resolve the dispute. They will say that a particular land, eastern portion shall go to one brother, western portion to some other brother, the middle portion to some other person. Well, if those elders are available, if those panchayatars are still available to give evidence, certainly they will be competent witnesses. How well they have fared with rasic examination? How truthful and loyal they are to the defendants who have summoned them? Well, I am not on that point. Everybody is expected to be truthful and loyal. Well, it is for the court to appreciate their evidence, but that is the best piece of evidence that you take. But certainly not evidence of path. Many times I have seen some person aged about 35 years, enters the witness parts and says that he was present at the time of that oral partition, which has taken place at the age of about 35 years prior to the suit. He was aged about 10 years. The 10 year boy is taken as a panchayatar. Don't do it. Let me, please don't miss it. If I turn it to you, he is the only witness available. All right, at least show his age as 55 years. Please don't mistake me that way. It's only a joke that I am telling. If you show his age as 35 years and say that he was present at a partition which took place about 25 years back, no purpose would be served. And if this oral, supposing there is a record of this oral partition subsequently and good evidence can also be given in that. Then what is the time limitation for partition suits after it has been dismissed for non-prosecution? The question is this, in a partition suit as held in these two decisions, there is no, I think it's a recurring cause of action, even if the suit is dismissed for non-prosecution. Well, if he wants to file a petition under ordinary rule line, there is no bar. That petition under ordinary rule line will have to be filed within 30 days from the date of dismissal, not from the date of that knowledge that only show our limited knowledge of the limitation at, as I said, Jyothilalaya on the other day, 30 days from the date of dismissal. Of course, he can make an application for the donation of delay. But if it is another suit, there is no question of limitation as such. In a partition suit in respect of a joint family, as I said already it is article 110 which says, when the exclusion becomes not to the plaintiff, a clear case of ouster will have to be made out by the defendants. The plaintiff who is a member of the joint family has totally been excluded. We have not recognized him as a member of the joint family at all. That requires a high degree of evidence, particularly when we read the judgment of the Supreme Court in a year 1980, Supreme Court 691, Neela Vati versus Natarajan. It's an extreme, although it was in the context of section 37, the Tamil Nadu Court piece and suits valuation and it was an extreme case. The plaint itself, it had been pleaded that the defendants were not giving the plaintiff's share of income. Thereby, the plaintiff would not remain in joint possession. The Supreme Court went to the extent of saying plaintiffs would not remain in joint possession, does not mean that they were excluded from possession. That was an extreme case. Therefore, it is very difficult to plead through this ouster. All the ingredients of, to some extent, the ingredients of adverse possession that run the ouster will have to be established. Then from Dr. Pati's time limit for partition suit that has been done. Partition suit is declared by way of compromise in the suit. One of the defendants has given up a GPA to conduct case to another. Now that defendant who has given GPA can challenge the degree if they are preferring appeal or how? Well, it requires a different session on order 23 because whether it is a partition suit or any other suit, if it is decreed by way of a compromise, there is no question of appeal or appeal or any other suit. Well, there are decisions saying, well, if it is a compromise, if it is perturbed into the person who challenges it, if it is unlawful, the remedy is under section 151 CPC only. Provisions of order 43 rule 1A sub rule 1 or 2 also needs to be examined. That requires a detailed session. Then Is it necessary to show the previous ownership papers by the plaintiff if the document is showing the title of the immobile property? It is challenged by the defendant on the ground by the person who allegedly signed. A seller was not the registered owner of the set. This is better, better say, better disclose it. It's no problem. But if during the process of proving a will, he attesting witness in his cross-examination admits that he had not seen the other witness attesting the will, will it be necessary to call the second witness? Please go through the provisions of the Indian Sensation Act and also the transfer of property. I am reading section 63 of the Indian Sensation Act. I am reading section 63 of the Indian Sensation Act, which you find in chapter 3 dealing with the institution of unprivileged wills. Every testator not being a solider, et cetera, shall execute his will according to the following rules. The testator shall sign a rapid system and then see the will shall be attested by two or more witnesses, each of whom has seen the testator signer of his mark to the will or has seen some other person sign the will in the presence and by the direction of the testator or has received from the testator a personal acknowledgement of his signature or mark or of the signature of such other person and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time and no particular form of attestation shall be necessary. Now, Yates' execution will today. I and Vita's Chitra are attestors to the will. It is sufficient if Vita's Chitra is present and he has seen the testator affixing his mark or signature. If I am not present and Vita's Chitra is present, if I get an acknowledgement that the testator has actually signed it or mark, obviously it will not be the presence of Vita's Chitra. It shall not be necessary that more than one witness be present at the same time. There is no need that both the attesting witnesses should be present. I think and we have a similar provision. The definition of the term attested which we find in the interpretation class in section three of the transfer of property add is also to the same effect. Attested in relation to an instrument means that shall be deemed always to have meant etc. There it says and each of whom has signed the instrument in the presence of the executant, but it shall not be necessary that more than one of such witnesses shall have been present at the same time and no particular form of attestation shall be necessary. This is the legal position, but what happens practically is this. The attesting witness admits that he had not seen the other witness attesting the will. Will it be necessary to call the certain interesting witness? Now, it is a question in the abstract and I have given an answer based on the provisions. Let us look to what happens in the court. If this attesting witness whom we have examined has not fare well in the cross examination. In respect of other material aspects also he gives some vague answers, incorrect answers, pleads ignorance, says that he does not remember. Don't take the risk of not examining the other witness. Clearly it is sound to say that the other witness did not have been present, but practically what happens is we do not know what are the other answers given by this attesting witness. Then, any other question? It says when documents are with the defendant's custody, does plaintiff require to prove his case by furnishing a certified copy or can he see the furnishing of the documents from the custody of the defendant under the rule possession of what? Please go to section 65 of the evidence act. Cases in which secondary evidence can be given of the existence, condition or contents of a document in the following cases. When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved. Well, a partition suit is filed by the plaintiff. He says the properties are all joint properties or joint family properties and entitled to such and such a share. Plaintiff as brief as the one filed by D. Anand Kirtachar of Chigbalapur, whom I remember because I see one other senior advocate of Chigbalapur, Bar Mishra, S.R. Surnarandrao. I see him on video. He has tremendous knowledge. He had also seen Anand Kirtachar. Maybe there is a suit between them also. Well, he knows Anand Kirtachar better than me. He is taking one session on the power of drowning in the month of June. This is a subject which is very familiar to Mr. Surnarandrao and he is more competent. The only thing we share each other is this. He is also S.R.S. I am also S.R.S. He is S.R. Surnarandrao. I am S.R. Swamshakar. There is one other common factor. His father is S. Ram Rao. My father is S. Ram Swamy. It is the only thing. Otherwise, we have no common factors. There is another common factor. Both of you like to share the knowledge and both of you have tremendous knowledge. Both of us are elite but he is taller than me. Otherwise, also taller. He has got good knowledge. He has argued matters. I am just transmuting him. And it is a pleasure to hear him. And this is a subject which he has got a special liking for this subject. He has played on this subject on one or two occasions. I am only afraid that he would ask me some questions in this regard. And I am sure that I will not be able to give an answer. Of course, as a judge, I would have to tell something in the head belt. But now when he asks this question, I don't think I think I will have to. Mr. Rao, you will have to unmute yourself. Direct other questions also to Mr. Rao. Other SRS to answer this. Sir, we are asking him to unmute himself. Some more thing about him. He was born on 26th, 1950. If I am correct. 26th, 1950 on which day we celebrate this Republic Day. He was born on that day. So, he is now 60. I am 71. He doesn't look like that. It was always a pleasure to argue before you, sir. We still remember those days. It was a pleasure for me to hear you also. Hi, sir. He is doing one of our sessions on power, different types of tawny and what is the way forward. Last occasion I told them how brief the plane clause of my question, D Anand Kirtachar used to be. We always remember him with reverence. With reverence. I am able to reproduce two planes even to this day. Today also I wanted to do it, but for what time we did not do it. Now, answering his question, when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved. Plaintiff files are sued for partition against other members of the family. According to the defendants, there is already a written partition. Let us say a registered partition. They also say that the original partition deed was written by the plaintiff. It was not executed in the underparts. He says that the plaintiff is an illiterate person, an educated person. A matriculate in the village is an educated person. He retained the original saying that he would get the katha changed, mutated everything in the names of other repositories. He retained the original. Therefore, it is a case where the original is shown or appears to be in the possession or power of the other person. Defendant has to enter the witness box. As I told you on the last occasion, I have given a report to a judgment of Justice N. Kumar which says, foundation has to be laid for letting in secondary evidence by entering the witness box, not by making an application under section 65 of the evidence side. As to why the original, of course, it is cross-examination. It is open to the plaintiff to bring out. Well, there is no such deal. It is worth a document and all that. Deliberately, it is all that. Well, the defendant can issue notice under all 12s of rule 8 or rule 6, say calling upon the plaintiff to produce that document. If the plaintiff says there is no such document or it is not with me or the one referred to in the written statement is a gorgeous document and all that, that would be a situation where the defendant can produce a certified, not even a certified copy, because in cases AC&D, any secondary evidence of the attendance of the document is applicable. Therefore, that can still be. Yes, any other question? Any other question? Yes, sir. I am just sitting. That would be the last question we would be taking. Yes, sir. So, this is by Pradeep Kumar. An ancestral property was partitioned amongst the children. Partition took place amongst them. One sister stood against other sisters and brothers on partition. One portion got one sister who is deceased now and her children. Other portion of the property got other sisters and their brothers joined them. Partition did not take place amongst them. You will have to read it. It's a quite big question. An ancestral property was partitioned amongst the children. Partition took place among them. One sister stood against other sisters and brothers. On partition, one portion got one sister who is deceased now and her children. Other portion of the property got other sisters and their brothers jointly. Partition did not take place among them. There one brother is a bachelor. Now, when he dies, interstate where his share of the property could be claimed by the opposite party, the deceased sister's children. Please don't mistake me, Mr. Pradeep Kumar. If you are from Karnataka and if you are able to tell it in Kannada, well, I will be in a better position to understand what you intend to tell. If you are not comfortable in Kannada and if you are from some other state, I think you'll have to reframe your question. I am finding it a bit difficult. Anyway, I'm coming on Sunday again. Will you please simplify that question? And it is really difficult for me to understand what you actually want. It goes to the root of the matter. Who are all the persons entitled to a share? When did that person, that bachelor to whom you are referring, die? What is it that he got at the partition? Which sister was not a party to the partition? Was she entitled to a share? He will reframe and he will join on Sunday. The reason to which the parties belong, when that partition took place and whether it is nature of properties, whether it relates to section 6 of the Hindu session 8, 15, several facts are involved. Maybe it's a pending matter or something appears to be from a junior member of the bar. I certainly want to answer his question. Sir, he will post it on Sunday. Reframe the question. If he is from Karnataka and if he is able to speak in Kannada. Most probably he is from Kerala because he joins our sessions. One Pradeep Kumar joins from Kerala. Let me see whether I can have a system from Kerala who can put it to me in English. Sir, meanwhile, we would like to know that it's always fascinating you do the interplay of Hindu succession, Guardians Wardak, CPC. How can when all correlate and correlate all these facts along with sections with judgments, what tip would you like to give it to the young members of the bar and other members of the bar also? My experience on the judicial side for over three decades. I worked in the trial court as a judicial officer for 31 and a half years. Maybe for about four years I was away from judicial work, but I did not lose touch with the subject. I was there at deputation in the Karnataka judicial at Premi where I had to be in touch with the subject. After my retirement for the last five years, I am regularly going to the judicial academy. Well, in places like Chikbalapur and Virajpet where there were senior members of the bar, where there were particularly in Virajpet, there were a number of partition suits. They also helped me in some of these decisions. Chikbalapur bar had excellent lawyers there. Well, they also gave me these inputs. Secondly, I wanted to be a judicial officer. Well, within one week after I joined the bar, not my senior, some other senior told my senior that your junior Somshakar is more fit to be a judicial officer than a lawyer, better train him as a judicial officer. My father was not a lawyer, he was a businessman, but he wanted to become a lawyer. He could not with us of the circumstances then. He wanted to see me as a lawyer, but Samu seeing me, he said that you are fit to be a lawyer, better you join judiciary. I wanted to join judiciary. The moment I got any ability those days, four years was to minimum practice. Unlike these days, mere enrolment coming out of the law college, that's not the requirement then. So the moment I got that eligibility, I took up the examination and I see that I never regretted having joined judiciary. And though as a session student as a magistrate, I had to do criminal work. My love was for civil work. And what I have found is whether it is in the judicial academy or elsewhere or when I address the lawyers, I insist on bringing the parents when I refer to a particular provision. If you are, if you are not good at memory, if you do not have the Bayer Act, it would be difficult for you. And I find that some provision in some management is somewhat related to some other provision. Now, when we speak of 53 of the transfer of property act, we need to refer to section 49 of the registration act as also 17 one A and the concept of equity. Therefore, that is how I have been doing it. And invariably in the judicial academy, I tell the junior members, whatever be the subject shown as is my name in the timetable, they should have with them the civil procedure court, the criminal procedure court and the evidence set. Let me very honestly tell you, sometime to make them bring all that though CPC is given, I will connect to some provision of the evidence set or CRPC, only to enable them to bring that and see that they make an habit to read it, to carry the Bayer Act. And as far as decisions are concerned. What Bayer Act they should bring on Sunday? Sunday, yes. CPC is a much evidence set. Then TPI, registration act, all the four Hindu, it is available in one yellow colour book, Hindula, that is there throughout the country. Professional and universal. It is universal everywhere. Professional, a professional lawyer should have it. Therefore, it has all the four enactments, the Hindu succession act, the Hindu adoptions and maintenance act, the Hindu marriage act and the Hindu minority and guardianship act. Indian succession act, let them have it. As I told you, let me very honestly tell you, my own knowledge of the Indian succession act is very limited. Let me not attempt at something in which I am not comfortable. I will be only drawing the attention of the audience to certain statutory provisions, which they should be familiar while dealing with a suit for partition and the parties of Christians or Parsis. And even in respect of Muhammad and law, as I said, the first occasion for me to deal with a partition suit where parties were Muhammadans was a suit filed by late Mr. D. Anantakirtacha. Maybe some other suit in Virajpet. I don't think that I had any occasion to deal with a suit for partition. Maybe there are other suits relating to gift and all that. My own knowledge is very limited. And particularly calculation of shares amongst in Muhammad and law online, it would be extremely difficult. But I will draw your attention to the relevant pages and chapters in Mullah's Muhammad and law. I think that should be sufficient for them when an occasion arises. Let me very honestly tell you, I may not be that comfortable, fluent as I am when it comes to Indians. As I presume to be, let me not assert myself that I am comfortable. As I presume to be comfortable when it comes to inheritance under the Muhammad and law and the Indian succession act. Well, if a vacation arises under the Muhammad and law, with regard to Muhammad and law of marriage and divorce, if you so want me to speak, I may with a little more comfort and confidence speak on that subject, not with regard to this inheritance. I mean, you have a college you have it seems that we will continue to continue to. You also wanted to ask me something about decisions. Well, when I was a junior working in Chittadurga under my senior second year of my practice, he had perhaps stopped and stopped them into the court. I and brother junior were attending to his work. And my colleague was generally going to the criminal courts. I was attending the civil courts. We had a very senior lawyer in Chittadurga by name M. Encobar, a very learned man. His client also used to be as brief or at least not as that brief has worked out. He certainly wrote also a brief. And he was generally a lasmatic patient. He had no juniors. He used to ask me to represent in the court seeking an adjournment. And I used to receive the abuses from the presiding officers. All that in one particular case, he was our opponent. I and my other colleagues went on citing decisions of Allahabad, the Lahore and other things. And he said after we finished arguments, there was no case for me to oppose. But and you other other friend made a case for me to oppose. When I had decisions of our own, I quote, you were citing decisions of Allahabad and Punjab. That is not the way you should do it. You should maintain a notebook, make a most of the decisions. And most of the legal position is settled by decisions of what I could. It was in 1979. Now we are in 2021, 42 years. I don't think that any field is still left uncovered. Maybe some provisions of transfer of property added to that feeding the grant or easements and other things. Maybe there are not many decisions. Otherwise, everything is covered by decisions of the Karnataka High Court and Supreme Court. It was he who told me to make a note of the decisions. I had kept those notebooks till I moved to the new flat on 2nd or 4th of April. I was sufficiently old. And I thought that this old man need not carry those old books any longer. I just threw it because it was difficult for me to keep them. And then I have the digest and other things. I think I should, my memory should serve me for the rest of my term on Beyond Law Forum and the judicial academy and a bit of arbitration that I am doing. Members of the juniors, members of the barb, it is better they make a note of those important decisions. So a tip for that, how to make the notes? How to make the notes? See, not all decisions of Jammu and Kashmir, Rahaba and all that. See, a lawyer argues the matter. He cites some decision. Please make a note of it. A judicial officer refers to some decision that may, that case might have gone against you. That decision may not favor the contention to be urged by you or urged by you. But it may be helpful to you for some other case. Make a note of the citation and one more thing. Everybody says everything for citation. I rely upon that citation, rely upon the decision. Citation is what you say AER 2019, 2003 cases here. That is citation. That is a short form given by the publishing. I am not relying upon that citation. I am citing the decision. There is a difference between citation and decision. Now the trend is list of citations. Probably they only read the citation and not the decision. Here afterwards I don't want any junior lawyer. Of course, I have no attention to hear them except in the arbitration center. Please don't say I am relying upon this citation. Say I am relying upon this decision. My learned friend has cited this decision. I am citing this decision. Don't say that I am relying upon this citation. Don't rely on the citation. If you rely upon that citation, I will also read that citation and leave it. If you rely upon that decision, I will read the decision. Sir, the last question by Madhukar. Yes, please. What is for foundation under section 66? Yes, 65. 65 of the Indian Evidence Act. Is it necessary for proving secondary evidence? Yes, 65 foundation is necessary as provided in section 65 to lead secondary evidence. What are those circumstances? A big list is given A to G. Whether you appear for the plaintiff or the defendant, if you want to lead secondary evidence, your case should come strictly within classes A to G of section 65. And you will have to issue notice in certain situations to the opponent to produce that secondary evidence. That is covered by section 66. You please read section 65 and 66 that would tell you as to when you should leave secondary evidence. Of course, I have some reservation with Redar too. Secondary evidence when it comes to cross examination. Well, it's a debatable point. Others might join issue with me. I have no problem. The question is this. I know that you have raised the question. I know the firm opinion that this foundation for leading secondary evidence is only as far as chief examination is concerned. If there is a decision to the contrary at which decision binds all of us, well, I have nothing to say. But I am of the firm view that this foundation for secondary evidence is only when it comes to chief examination. I will give a simple example and stop there. Now, this again takes me to Chikbalapur itself. There are some permanent intentions suit where a plea of prior partition was set up to say maybe the plaintiff or the defendant, I forget saying that at a partition he had acquired that property. It was not a partition evidenced by any written instrument. Either the defendant had to show that the property was not in the position of the plaintiff or the plaintiff had to show that the property had fallen to his share. Because it was a suit for permanent engine. I definitely remember. My attention was drawn by a member of the bar. To some document, I will give this example. I file a suit against me who is a member of the family saying that at a partition between me and my brother B, the suit property fell to my share and I am in exclusive possession of the property. He is interfering with my possession. It is a simple case. Now, B disputes that partition. I am aware it is a suit for partition. I am required to show only possession, not full-fledged partition and all that. But at least I will have to probabilize that there are some kind of a partition. Maybe such a situation will arise even in a suit for declaration of title. Now, this B has executed a sale deed in favor of some K who is not a party to this suit. In the sale deed executed by that K, there is a mention at a partition in the family which took place between us. This particular property fell to my share. Let me take an example of a partition suit itself. I file a suit for partition. The defendant set up a prior partition. I execute a sale deed in favor of Mr. Vithas Chatharath in respect of some property. Vithas Chatharath is not a party to this suit. The sale deed, the original sale deed is with Vithas Chatharath. I mention that sale deed at a partition in my family, the property described in the schedule to the sale deed fell to my share which I am disposing. In the schedule, I describe the boundaries to the east, remaining portion of the property in the same survey number having fallen to the share of my brother. West, property having fallen to the share of my another brother. East, some other property in this survey number falling, some other survey number falling to my share. Now, the original sale deed is obviously with Mr. Vithas Chatharath which is not going to give it to me. I might have obtained a photo stamp copy. I might have stolen the original from him obtained a copy. Whatever copy I have with me. Right. Now, I mean not me. The defendant has obtained a copy from Mr. Chatharath. They stand for it. Defendant has obtained a copy from Vithas Chatharath. By somehow he has been able to have access to that. It may be a certified copy or whatever it is. I am in the witness parts. He asked me a question. Well, do you know Mr. K. P. P. Do you know Mr. Vithas Chatharath? I will say there are many Vithas in my place. Then he will say Vithas son of so and so. Then I am forced to admit that I know him. Have you executed a sale deed in his favor or have you sold any property to him? Without seeing the document I can't answer that. All that I am showing with. The defendant cannot be expected to have the original of the sale deed executed by me in favor of Vithas Chatharath. What he has only a photo stat or a certified copy. He confronts that to me. Please go to section 145 of the evidence that previous statement does not refer to our statement under 161 CRPC only. It could be a recited in an document also. He shows that to me. Well, do you admit that you have executed the original of the sale deed? Yes. Have you not stated in this document that at a partition between you and other members of the family the property described in the schedule to that sale deed fell to your share? Yes. I may give some explanation. That's a different thing. Whether it is for the court to answer my explanation. By this I'm not telling that my suit for partition should be dismissed or defendant would succeed. It would probabilize the case of the defendant that there was at one point of time a partition and it would improbabilize my case of not there being a partition. Please go to section 11 of the evidence that facts not otherwise relevant become relevant when they are inconsistent with a fact in issue or relevant fact or when they by themselves are in direction with certain other facts made the existence or non-existence of a fact in issue or relevant fact I need probable or improbable. I raise an objection. I have executed a sale deed. My lawyer raises an objection. Vitas is not a party to this suit. Survey number 11 is not the subject matter of this suit. Why my learned friend should bring in Vitas. He is supportably staying in Punjab and Haryana. Why you should drag him here. There is some other suit. It is inconsistent. My stand in this partition suit that there is no partition is inconsistent with my stand in that sale deed that at a partition between me and my family members a particular property. Why that alone my suit cannot be dismissed. I know it. But that is a piece of evidence. It would improbable by my case of there being not a partition and probable is the case of the dependent and it is inconsistent with my case. It is section 11. Here again I must tell in one case when Mr. D.A. Acharya said that the question is not relevant. Well you know what happens in the court. The other side said it and we presiding officers also try to play say Mr. D.A. it may not be so relevant. I said there is nothing like being relevant. There is nothing like being so relevant either it is relevant or not relevant whether it would probable is or improbable is a fact in issue or a relevant fact. That is what he said. There is nothing like being so not so relevant or it is either relevant or not relevant. That was his competence. And the other side on another occasion said always you would keep the evidence that it is part of those for very fine days there. Yes. And also some dark days there. Let me not share that with you Mr. Sunar. And his bear act itself was like a digest. In all the margins he would write all leading decisions. It would be like a digest itself and he would always bring all the bear acts with him. And one more thing about him. You see normally when the plaint or the written statement is amended you would write that amended portion in reading. He was getting a red teller what is that ribbon on the typewriter and that amended portion of the plaint or written statement used to be typed on that red teller the ribbon. Those days we had that color ribbons. I think and I write Mr. Sunar and all that. Certainly sir. And he also told me once normally I was not dismissing a suit for non-prosecution. There are no petitions in my court under order 9 rule 9. All the petitions filed earlier right. And he said order 9 has no place in this court. When the plaintiff doesn't come adjournment. When the plaintiff come and he seats an adjournment your order 9 has no place in this court. That's what he was telling. See what I'm not finding point with him. He used to educate the court. Let's see kind of and let me take one more minute because excellent days. How intelligent the bar was. Mr. D.A. Acharya was hard of hearing an account of his age. The other side I don't mind mentioning his name. H.R. Sita Ram he played a stalwart liar. He is no perhaps 88 or 90. He was appearing for the other side. He was making some submission which D.A. Acharya could not hear. D.A. Acharya said my learned friend could be could afford to be a little louder. Sita Ram's voice was not all that loud. He said I can't afford to be a little louder. I can afford to be a little nearer. This is how they were doing it. In one case plaintiff or defendant had died. It was already reported. On some other occasion another council filed a memo saying reporting is dead. I regularly said did your client died twice. He immediately thought he'd have a file to the memo already. That was and one other liar B.R. Narasimha Murthy B.R. and we used to call him. This is not to hardest maintaining status though you are telling. Status quo is a term incapable of precision and capable of interpretation. He was capable of such expressions. He goes for very fine days. I finally remember those days. Well I had some. I have brushed my shoulders with such great people. Yes sir we have taken the question. I will ask Mr. Rao to propose a vote of thanks since two close friends have connected. Yes Mr. Suran Narayan Rao. Friends, we had an excellent evening today. It was a delight to hear. Yes sir, so much. In fact I remember the days when you were practicing before him. When we used to cite decisions before him. He would himself say that there are these few other decisions which we can also accept in that way. Is there some problem? Yes sir. I can gather that what he said that whatever the lawyer could prepare Mr. Soma Shekhar used to give more inputs into that because he has already told us that he used to maintain diary and he is still maintaining the diary. And so friends we are thankful to Mr. Soma Shekhar and all those participants who are live with us on this platform YouTube and Facebook. We are thankful the way he has taken us to the trials proceedings etc and do stay connected with us for a day after tomorrow for the part two on substantive law. But meanwhile tomorrow we will be having a lot of people are nowadays discussing what is the role of mediation in the pre-legislative stage. What are the procedures? In what cases pre-mediation litigation can be done? Whether it has a sanctity, whether a private mediation also has a sanctity or quote a next mediation is only having this value. But do stay connected with us. Tomorrow we will be having justice beneath Kuthari. Yes sir. Only one more thing. I find another advocate of Bangalore Bar here Mr. S. P. Srinos. I am seeing him on the video. I must also make a reference to his father Mr. S. K. V. Chalapati. He had conducted a partition suit when I was in the garage bed. I think one of the decisions which I refer to today which says that if it is a record of a prior partition it does not require registration. And on the other hand if it evidences a partition under which the division has taken place I remember it was his father Mr. S. K. V. Chalapati who conducted a partition suit before me. Of course I could not dispose of that suit. I was transferred. I think during the course of trial itself that decision was brought to his notice. I also see him. I request him to convey my respects to his father. Yes, K. S. P. Srinos. Please convey my respects to your father Mr. Srinos, a great gentleman. And one more thing. I saw a question in the chat box from one of the judicial officers. Well, in the process we could not answer his question. He can call me over phone. He has my number and most of the judicial officers here have my number here. I have any questions. Certainly I found one question posed by one of the judicial officers or maybe he wanted me to cover that also. He is free to call me and we will take it on Sunday. If it is a thing to be covered, I will cover it on 30 years. If it is a thing for which I have required to answer, well I will answer him. He is free to call me. I don't want to mention his name here and cause embarrassment to him. So tomorrow friends we will be having wave forward in pre litigation, mediation in India. Challenges and solutions. There are three stalwarts in the mediation centre. One is Justice Vinit Kuthari, a sitting judge of Gujarat Iqut. Then the Ranjan Bhatt, who is a senior mediator and a mediator trainer. In fact, I have also done the mediation training from him. And A. J. Jawad, again a senior mediator and trainer. So do stay connected with us tomorrow at 6 p.m. Everyone stay safe, stay blessed. Keep on wearing your mask, maintain social distancing and do your vaccination at home. Namaskar. Thank you and thank you sir. We will meet on Sunday. Thank you.