ORAL PARTITION OF COPARCENARY PROPERTY- ADMISSIBILITY AND BURDEN OF PROOF

Cesser of Commonality is not conclusive proof of partition. Merely because the members of joint family are separated in food and residence for their convenience, it does not show separation. There is a general presumption that every Hindu family is presumed to be joint unless the contrary is proved. Since time immemorial by way of a customary Hindu law daughters were denied right in coparcenary property. The 2005 Amendment to Hindu Succession act amended Section 6 of the Act in order to align with the constitutional belief of gender equality and by virtue of amended Section 6 of the Hindu Succession Act a daughter is made coparcener by birth. The coparcenary must exist on 9.9.2005 to enable the daughter of a coparcener to enjoy rights conferred on her. As the right is by birth and not by dint of inheritance, it is irrelevant that a coparcener whose daughter is conferred with the rights is alive or not as on 20.12.2004. This position of law has also been cleared by a three Judge bench of the Hon'ble Apex Court in the matter of Vineeta Sharma v. Rakesh Sharma reported in (2020) 9 SCC 1 overruling the ratio of Prakash & Others Vs. Phulavati & Others, (2016) 2 SCC 36.

A.) Exclusion of Partition effected before the 2005 Amendment

Section 6(1) of the Act gives the right to daughters making them coparcener in the coparcenary property however, the proviso to section 6(1) provides that all dispositions, alienations, testamentary depositions, including partition effected prior to 20.12.2004, shall not be reopened. Further, section 6(5) provides that “Nothing contained in this section shall apply to a partition, which has been effected before 20.12.2004.” To the explanation of section 6(5) a special definition of partition has been carved out. It states that for the purposes of this section “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court. Other forms of partition have not been recognized under the definition of 'partition' in the Explanation.

Preliminary Decree would not mean partition effected by Court

The expression used in explanation to Section 6(5) ‘partition effected by a decree of a court’ would mean giving of final effect to actual partition by passing the final decree, only then it can be said that a decree of a court effects partition. A preliminary decree declares share but does not effect the actual partition, which is effected by passing of a final decree. Therefore, a preliminary decree in a partition suit cannot be said to be partition effected by decree of court.

B. Intendment of the Legislature

The intendment of amended Section 6 is to ensure that daughters are not deprived of receiving their share in the coparcenary property, a right accrued to them by birth by way of the amendment, by the setting up of frivolous defence by the other family members of a non-existent oral partition and/or a partition recorded in an unregistered memorandum taken so as to prevent the daughter from receiving her rightful share.

C.) Permissibility of Oral Family Settlement/Oral Partition

Oral Partition and family arrangements amounting to partition, were recognized modes of partition until a special definition was carved out for the partition by way of the amendment in Hindu Succession Act.

The Hon'ble Supreme Court in the matter of Kale Vs. Deputy Director of Consolidation, (1976) 3 SCC 119, was dealing with a question as to whether a document specifying family arrangement needs to be registered compulsorily. It was held in the matter that a document which is in the nature of a memorandum of an early family arrangement and which is filed before the court for its information for mutation of names is not compulsorily registrable and therefore, can be used in evidence of the family arrangement and is final and binding on the parties. On the point of registration of the said document it was held that Registration is necessary only if the terms are reduced to writing but when where the memorandum of the arrangement has been prepared after the family arrangement either for the purpose of record or for information of court, the memorandum itself does not create or extinguish any rights in immovable property and therefore, does not fall within the mischief of s. 17(2) of the Registration Act and is not compulsorily registrable.

This view of the Hon'ble Apex Court has been followed in many subsequent judgments. Therefore, in a nutshell law as settled by the Hon'ble Apex Court is that family arrangements can be entered into to keep harmony in the family. Its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded because in that case it requires registration. It is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in future.

Now the statutory provisions made in section 6(5) change the entire complexion as to partition. However, under the law that prevailed earlier, an oral partition was recognized. Therefore, the question that arises is whether the partitions which were made orally in the form of family arrangements can be considered in view of explanation to section 6 (5) of the Act?

The Hon'ble Supreme Court in the matter of Vineeta Sharma dealt with this issue and after taking into consideration that earlier the family arrangements were not required to be registered and the fact that Courts were rarely approached in the matter of partition for the sake of family prestige held that the plea of oral partition/family arrangement can be considered by the Court. It further held that the provisions of section 6(5) are required to be interpreted to cast a heavy burden of proof upon proponent of oral partition before it is accepted. Therefore, even after the amendment and the special definition of partition under explanation to section 6(5), the oral partition/family arrangement can be considered but a strict burden is placed to prove such a plea.

Duty of the Court

The Hon'ble Supreme Court while deciding the aforesaid case has also laid down the dictum that when a defence of oral partition or oral family arrangement is taken up against the daughter’s claim of her right in the coparcenary property, the Court has to be extremely careful in accepting the same, and only if very cogent, impeccable, and contemporaneous documentary evidence in shape of public documents in support are available, such a plea may be entertained, not otherwise. The plea of an oral partition or memorandum of partition, unregistered one can be manufactured at any point in time, therefore, without any contemporaneous public document should be rejected.

Burden of Proof

When a defence with regard to oral partition or family arrangement is taken the principle of preponderance of probabilities is not available in view of provisions of gender justice and the rigor of very heavy burden of proof is on the person who takes such a plea. The object of giving women right in coparcenary property is a beneficial legislation. Only because earlier, modes other than those provided under section 6(5) of partition were available the oral partition or family arrangement is considered till date. To prove an oral partition or a family settlement, some documents required to be produced and proved by the proponent of oral partition are: a.) Documents relating to separate occupation of the portions; b.) Contemporaneous public documents admissible in evidence; and c.) Entry in revenue records; etc.. A heavy burden is casted on the pleader to prove oral partition and if no such documents are available the said plea cannot accepted.