MONASIR RAIN KACHARY VS.

JEUN KHATUN, NKP (2048)

PRESENTORS:
Aman Katuwal
Khushbu Nagarkoti
Rupak Karki
Puja Yadav
DETAILS OF THE CASE
Decision no. : 4243
Decision date: 2047/12/06
Case: Partition registration
NKP: 2048
Decided by:
⚫ Hon’ble Justice Surendra Prasad Singh
⚫ Hon’ble Justice Gajendra Keshari Bastola
Plaintiff : Jeun Khatun
Defendant: Monasir Rain Kachary
CONTENT
Fact of the case
Claim of plaintiff
Response of defendant
Decision of district court
Decision of regional court
Appeal in supreme court
Legal provisions
Arguments from plaintiff in supreme court Argument from defendant in supreme court Decision of supreme court
Principle Established
FACT OF THE CASE
Safida, sister of plaintiff Jeun Khatun was married to defendant Monasir Rain. Because
her sister was sick, she, Jeun Khatun who was also a widow get married to Monasir
Rain on 2036/05/10.

Jeun Khatun gave birth to a daughter, Jaimun on Aashad, 2037 from the same
marriage.

On 2042/02/05 Ali Mohhammad, the son of Monasir Rain collected some witnesses and
demanded partition of property.

Jeun Khatun requested the partition to be made in 4 parts separating the wedding
expenses for her unmarried daughter.

Mohhammad denied Jeun Khatun’s request saying, “the partition will be made only in
3 part you will not get any so just leave the house.”

Then Jeun Khatun filed the case of partition on 2042

CLAIM OF PLAINTIFF

Jeun Khatun claimed the she is married to Defendant Monasir Rain and have a daughter with him.

So, she demanded the partition of their property to be made into four parts for herself, Monasir Rain, Safida, and Ali Mohhammad separating the
wedding expenses for her unmarried daughter.
RESPONSE OF DEFENDANT

Defendant claims that he is not married to plaintiff, Jeun Khatun. The Islamic law does not allow him to get married to the sisters from the same
parents.

The plaintiff filed the case with the malicious intention of obtaining my property. So, the complaint should be cancelled.
DECISION OF DHANUSHA DISTRICT COURT
The plaintiff, Jeun Khatun appears to be a sister-in-law of the defendant, Monasir Rein.

No any evidence was found to prove her marriage with defendant.

As the law does not allow a sister-in-law to demand partition with her brother-in-law, the claimant's claim is not val
CASE GOES TO CENTRAL REGIONAL COURT

Now plaintiff appeals in regional court stating the decision of district court to not provide ¼ of
partition as per the claim is inconsistent with laws
DECISION OF CENTRAL REGIONAL COURT

Statement of witness, photos included in the document, plaintiff living in the same house as of defendant and filing the complaint from the same location proves that plaintiff is
defendant’s wife.

The day before the complaint was filed will be considered the day of their separation.

And the Regional Court ordered District Court to initiate proceedings to provide plaintiff with lawful part of the property as per the claim.
CASE GOES TO SUPREME COURT

Defendant goes to supreme court claiming the decision made by the Central Regional Court is against the chapter 13 – on partition number 20, 21, 22 and 23 and section 54 of Evidence Act, 2031.

Plaintiff was married before she had marital relation with defendant. So, deciding plaintiff as defendant’s wife before investigating in the matter is unlawful.

The marriage is said to be done in 2036 and the daughter was born on 2037 and there is no any evidence to prove that the daughter is from defendant.

So, the decision of regional court to provide plaintiff 1/4th of partition is against the chapter 13 – on partition number 20, 21, 22 and 23 and section 54 of Evidence Act, 2031.
LEGAL PROVISIONS
Evidence Act, 2031, Section (54), Consequence of improper admission or rejection of evidence: The improper admission or rejection
of evidence pursuant to this Act shall not be ground of itself from the reversal of any verdict (decision) or order of the court.
Provided that, if the improper admission or rejection of evidence causes any effect in the decision such verdict (decision) or order
shall be reversed.
MULUKI AIN 2020
CHAPTER 13- ON PARTITION
Number 20: When a suit is filed for the partition of property and if the case proves to be
reasonable, before handing down the verdict, an inventory of the property, movable and
immovable including debts, shall be taken from the head of the family responsible for all
household transactions, and then it shall be partitioned.
Number 21: If the person responsible for giving the inventory of property is didn’t provide it,
then a notice shall be provided to those who want the share in property, with the order that
they need to present the exact inventory of the property to be partitioned in writing and get
them to sign a receipt for the same , then the property shall be partitioned in accordance with
law.
Number 22: If the one who wants the share in the property says that he/she is also unable to
present the inventory for certain reason, a document to the effect shall be prepared and have it
signed, and the verdict shall be made in accordance with law that the rest proceedings shall
take place when he/she prepares and submit the inventory.
Number 23: While describing the details of land, building and other articles; boundaries,
quantity of land in Ropani, Bigha or Muri, the taxes also if levied, boundaries of house and
approximate price of house, number of sellable articles, the description of shape and size and
probable price in cash should be mentioned in the details.
Number 26: If, in a case concerning partition of property, the person required to provide the
inventory of property fails to provide it and partition is made on the basis of the inventory
provided by others, the person who has not provided the inventory shall be, in addition to the
punishment to be imposed by any other Act, punished with a fine that is by Five percent of the
cost of the whole property of which he or she has not provided the inventory.
VERDICT OF THE SUPREME COURT

There is the provision on the section 20, Chapter of Partation of

Muluki Ain, that when a suit is filed for the partition of property and if
the case proves to be reasonable, before handing down the verdict, an
inventory of the property, movable and immovable including debts,
shall be taken from the head of the family responsible for all household
transactions, having him or her swear the god that he or she has shown
all the properties and has not concealed anything, and then it shall be
partitioned.
Also, section 21, Chapter of Partition of the same act have the
provision that Having handed over this order he or she should be made
to sign a receipt for the same and if he or she reports within that period
of time, then the property should be partitioned in accordance with law.
The decision of Central Regional Court hasn’t followed the procedure
of section 21 so, there seems to be mistake on the decision of CRC as
mentioned in section 26. So, the supreme court agrees to give the
permission of Appeal.
ARGUMENT FROM DEFENDANT

The facts to prove plaintiff and defendant as husband and wife are not proved itself.

Defendant do not have any legal obligation to provide partition to plaintiff.

The right to collect inventory of property is vested in Regional Court but it transferred its authority to Dhanusha district court while deciding its decision as void which seems
quite unlawful.
ARGUMENT FROM PLAINTIFF

As the defendant was unable to prove his claim, “Plaintiff is not my wife”. So, there is no any controversy in the fact the plaintiff and defendant are
married, and plaintiff have right to ¼ of the partition.

As both the parties live in Dhanusha District, the decision of Regional court in transferring its authority to collect inventory of property to Dhanusha
is valid and in accordance with the principle, ‘equal access to justice for all
DECISION OF SUPREME COURT
Supreme court decides to make the decision of Regional court as valid
along with analyzing each of its decision.

According to section 28 of Evidence Act, 2031, the burden of proof as

to any particular fact lies on that person who wishes to 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.

So, defendant has the burden to prove plaintiff as his sister-in-law only
and the daughter is not conceived from him. But he was not capable to
prove it.

Plaintiff and defendant are husband and wife, and plaintiff should be
provided with the lawful part of the property.
The decision of Regional court to transfer
the authority to collect details of property
to district court is in accordance with the
principle ‘equal access to justice for all’ as
both the parties are the residence of
Dhanusha district.

So, the decision of Central Regional Court

is valid.
MORAL OF THE STORY

Burden of proof as to particular fact: The burden of proof as to any particular fact lies on that person who wishes to 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.

-Section 28, Evidence Act 2031

REFERENCES

Nepal Kanoon Patrika

Muluki Ain, 2020

Evidence Act, 2
THANK
YOU !