Ankit Gupta

In absence of any checks and balances, the plea of ‘oral partition’ has been abused by dishonest litigants to prolong frivolous and vexatious civil suits, thereby, reducing it to a tool for legal abuse.

Property disputes form a major percentage of the total civil cases filed/pending before the Trial Courts in the country. The most common among them are the disputes arising between family members, primarily concerned with division/ partition of shares in cases of intestate succession. Although the Hindu Succession Act, 1956 provides elaborate and detailed provisions for devolution of properties in cases of intestate succession, it is often seen that parties resort to the plea of ‘oral partition’ to somehow defeat the rights of their adversaries (family members). This is done by setting up a case/ defence wherein, an oral partition is alleged to have been effected prior in time between the family members, and shares in the property are prayed to be determined in terms of the oral partition and not as per the provisions of the Hindu Succession Act, 1956.

This plea of ‘oral partition’ is cleverly engineered by unscrupulous litigants to support and prolong false and vexatious civil suits. A litigant resorting to such a plea knows fully well that such a plea inevitably requires recording of evidence, both documentary and oral. A plea of oral partition may be proved by either deposing the beneficiary of such partition or those acquainted with the same which generally involves, friends and other relatives. In appropriate cases, even the revenue records are relied upon to support the plea of oral partition. Hence, by taking shelter under the plea of ‘oral partition’, a civil suit, bereft of any merit whatsoever, is subjected to the rigors of a full-fledged trial thereby, subjecting innocent parties to the judicial process. 

Plea of ‘oral partition’ is also often used to defeat title in properties owned by a person in their name, though used as a common residence by all the family members. In such cases, the plaint is cleverly drafted with an averment that the property was purchased out of the family funds of the parents of the parties, but the same came to be registered in the name of one individual son/ daughter only out of love and affection. The factum of common residence further gives credence to such an averment and Courts are prima facie convinced as to the factum of an oral partition. Since property transactions generally date back to the 1900s, there is almost no proof of any payment whatsoever, and as such Courts tend to regard such properties to be purchased out of joint funds, though registered in an individual name. As these disputed questions of facts coupled with the plea of ‘oral partition’ inherently require examination of evidence, the Courts, notwithstanding the falsity of such a plea, are constrained to relegate the parties to trial rather than rejecting the plaint under Order VII Rule 11, CPC, 1908 or altogether dismissing the suit as frivolous, exercising its inherent powers under Section 151 CPC, 1908.

It is unsettling how a mere plea of ‘oral partition’ is abused to infuse life and prolong a purely false and frivolous civil suit which otherwise, deserves to be rejected at the very threshold. It would not be out of place to mention that such ingenious pleas are in fact, often used as a bargaining chip by dishonest litigants to compel their adversaries to succumb to their illegal and unlawful demands.

Unfortunately, there is no precedent that can guide the Trial Courts as to how a bald plea of ‘oral partition’ should be nipped in the bud and parties be saved from the rigmarole of a civil trial. Though there are some judgments that can surely be looked into, however, they do not authoritatively lay down any parameters to prevent abuse in cases of civil actions, premised upon the false plea of ‘oral partition’. In 2016, the Hon’ble Delhi High Court, while passing a decree in Sandeep Kohli and Anr. v. Vinod Kohli and Ors., reported as 2016 SCC OnLine Del 6533  recognized that undoubtedly, a plea of oral partition is an inherently required trial, however, the Court noted that a plea of ‘oral partition’ based on solemn affirmation of co-ownership and documents executed on oath cannot be countenanced to permit abuse of process of Court. 

The Hon’ble Delhi High Court in Chander Mohan Sharma v. Jagdish Prasad Sharma, reported as 2016 SCC OnLine Del 984, while hearing an appeal from the judgment and decree of the Trial Court, had in reference to the plea of ‘oral partition’ observed that such a plea can only be permitted in cases where a party establishes any pre-existing right or share in the property. However, this judgment failed to take note of situations where properties are alleged to have been purchased through family funds and purchased in individual names.

It was in Shri Virender Kumar Garg. V. Shri Ravinder Kumar Garg, reported as 2013 SCC OnLine Del 4661, that the Hon’ble Delhi High Court while hearing an appeal from the Trial Court’s order dismissing the suit gave some comprehensive insights to deal with a plea of ‘oral partition’. The Court cautioned that a plaint premised upon a plea of ‘oral partition’ should contain necessary particulars as to how the plaintiff’s father bought the suit property out of ancestral property funds, the description of such property, the approximate date, or even year of sale of such property and some particulars of such property. The pleadings must also contain as to how and when the oral partition took place, who were parties to it, and even the approximate month and year when it occurred. The Court essentially laid down that a plea of ‘oral partition’ can never be a sketchy or vague assertion, but a cogent and clear averment supported by facts. 

Although the judgments of the Hon’ble Delhi High Court shed some light upon the plea of ‘oral partition’, they are, however, fact-centric observations that cannot be objectively applied as a uniform proposition of law. It may also be noted that except for the third judgment as mentioned above, others have rejected the plea of ‘oral partition’ only after the conclusion of a full-fledged trial and have even acknowledged that a plea of ‘oral partition’ should generally be relegated to trial. 

It is only recently that the Hon’ble Supreme Court came down heavily upon dishonest litigants resorting to the plea of ‘oral partition’. The Hon’ble Supreme Court of India in the case of Vineeta Sharma v. Rakesh Sharma, (reported as (2020) 9 SCC 1) was seized of the question surrounding conflicting interpretations of Section 6(5) of the Hindu Succession Act, 1956 dealing with rights of a daughter in a coparcenary property. Though in relation to Section 6(5), the Hon’ble Court made pertinent observations qua a plea of ‘oral partition’. The Court noted: 

“135. …The provisions of section 6(5) are required to be interpreted to cast a heavy burden of proof upon the proponent of the oral partition before it is accepted such as separate occupation of portions, appropriation of the income, and consequent entry in the revenue records and invariably to be supported by other contemporaneous public documents admissible in evidence, may be accepted most reluctantly while exercising all safeguards….

…When such a defence is taken, the Court has to be extremely careful in accepting the same, and only if very cogent, impeccable, and contemporaneous documentary evidence in the shape of public documents in support is available, such a plea may be entertained, not otherwise. We reiterate that the plea of an oral partition or memorandum of partition, unregistered one can be manufactured at any point in time, without any contemporaneous public document needs rejection at all costs…”

(emphasis supplied)

A perusal of the aforementioned judgments of the Hon’ble Delhi High Court shows that nothing has been authoritatively laid down which can help the Trial Courts in dismissing a dishonest plea of ‘oral partition’ at the very threshold without relegating the parties to trial. On the other hand, the observations of the Hon’ble Supreme Court lay down certain parameters but fall short of laying down any practice directions for the Trial Courts for in limine dismissal of a plea of ‘oral partition’, which has otherwise snowballed into a menace. 

A combined reading of the precedents and keeping in mind the practical considerations, principles which can be culled out for determining the genuineness of a plea of ‘oral partition’ and its outright dismissal are summarized herein:

1. A bald plea of ‘oral partition’ must be rejected by the Trial Courts at the very threshold and suit should not be allowed to proceed on a mere plea of ‘oral partition’;
2. A plea of ‘oral partition’ should only be entertained only when a person prima facie establishes any pre-existing right in the suit property; 
3. A plaint based upon a plea of ‘oral partition’ should necessarily have specific pleadings clearly enumerating all the facts and circumstances surrounding the factum of oral partition; and
4. In no case, should the plea of ‘oral partition’ be accepted unless accompanied by evidence in the form of public documents such as House Tax Receipts, Electricity Bills, Mutation Entry Records, etc.

The aforesaid principles are parameters which the Trial Courts should always keep in mind whenever a plaint founded upon a plea of ‘oral partition’ is presented before it. Trial Courts should always proceed with caution whenever a plea of ‘oral partition’ is set up so that innocent litigants are saved from fighting frivolous civil actions. In conclusion, every endeavor must always be made to prevent bogus litigation which only works to scuttle the trust people pose in the Indian judiciary.

The author is an alumnus from the National Law Institute University, Bhopal – and is currently a practicing advocate at the Delhi High Court.