1995(1) ALL MR 507
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
M.L. DUDHAT, J.
Shri Shivdas Deochand Patil Vs Sri Ramrao Devchand Patil And Others.
Second appeal No. 237 of 1987
19th June, 1995
Petitioner Counsel: Mr. R.V.Desai
Respondent Counsel: Mr. P.N.Karlekar
Hindu Law- Joint family property-Reopening of partition-Property allotted to plaintiff in partition-In view of certain legislation which had retrospective effect it transpired that property allotted to Plaintiff could not have belonged to joint family even on date of partition-Held,plaintiff was entitled to get partition reopened.
Maharashtra Land Revenue Code (1966), S.36(3)
At the time of partition effected on 4-12-1972, joint family property was allotted to the respective shares of plaintiff, defendants Nos. 1, 2 and 3 respectively. In the same partition, lands bearing Gat Nos. 86 and 83 came to the share of the plaintiff by consent of all the parties. That means, at the time of the partition, to the knowledge of the parties, lands bearing Gat Nos. 86 and 83 were joint Hindu family property of the plaintiff and his three brothers. However, because of the amendment to the Maharashtra Land Revenue Code, 1966 which was introduced in 1972, sale of agricultural lands by Adivasis in favour of non-Adivasis was declared invalid retrospectively. In view of the said legislative provision, sale of lands bearing Gat Nos.86 and 83 effected by Defendent No. 8 - Adivasi vide sale deeds dated 6.4.1962 and 13.11.1967 became invalid retrospectively. Because of the legal fiction, virtually on the date of partition i.e. on 4.12.1972 the said landed property of Gat Nos. 86 and 83 did not belong to the Joint Hindu family of the Plaintiff and Defendants Nos. 1 to 3, but belonged to Defendant No. 8. The aforesaid mistake took place not because of any conscious act on the part of any of the co-parceners but it was as a result of the legal fiction developed out of S.36(3) of the Maharashtra Land Revenue Code, 1966. That being the position, plaintiff was entitled to get the partition reopened. [Para 5,6,7]
JUDGMENT
JUDGMENT: Both these appeals are companion appeals filed against the judgment and decree passed by the District Judge, Dhule, dated 7.8.1986 in the Civil Appeal No. 47 of 1983 preferred against the judgment and decree dated 5.11.1982 passed by the Civil Judge, Junior Division, Nandurbar in Regular Civil Suit No. 128 of 1980. Hence, both these appeals can be disposed of by a common judgment.
2. Plaintiff in this case filed the aforesaid suit before the Civil Judge, Junior Division, Nandurbar for reopening of the partition, which was effected on 4th December 1972. It is the case of the plaintiff that there was the partition in the Joint Hindu Family consisting of plaintiff himself and his three brothers Ramrao (Defendant No. 1), Ratan (Defendant No. 2) and Baliram (Defendant No. 3) on the 4th of December 1972 and as per the aforesaid partition of the joint Hindu family property, lands were partitioned and each was allotted his share in the Hindu Joint Family property. As per the said partition effected on 4th December 1972, Plaintiff was allotted two lands i.e. land bearing Gat No. 86 admeasuring 7 Acres - 35 Gunthas and land bearing Gat No. 83 admeasuring 11 Acres - 20 Gunthas. Plaintiff further contended that after the said partition, Additional Tahsildar started proceedings under section 36(3) of the Maharashtra Land Revenue Code, 1966 and in the said proceedings, lands allotted to the share of plaintiff viz. land bearing Gat No. 86 and Gat No.83 were taken in possession and were given back to Adivasi i.e. Defendant No. 8, from whom the said lands had been purchased. Admittedly, the aforesaid two lands allotted to the share of the plaintiff in the partition dated 4.12.1972 were purchased by plaintiff from Defendant No. 8 for Rs.3000/- under sale deeds dated 6.4.1962 and 13.11.1967 as Karta of the Joint Hindu Family property. As the aforesaid two lands were taken back in the proceedings under section 36(3) of the Maharashtra Land Revenue Code, 1966, plaintiff filed a suit being Regular Civil Suit No. 128 of 1980 against the defendants for reopening of the partition effected on 4.12.1972. It was contended on behalf of the Defendant No. 1 in the suit that once the partition is effected, under the Hindu law, each member of the family becomes owner in respect of his property allotted to him and the same cannot be reopened except in exceptional circumstances. In the facts and circumstances of the present case, according to Defendant No. 1, there are no exceptional circumstances on the basis of which partition can be reopened. The trial Court, by its judgment and decree dated 5th November 1982 decreed the suit and as a result thereof, plaintiff, defendants 1 and 2 and defendants 3 to 6 were allotted 1/4th share each in the lands mentioned in Schedule 'C' to the plaint and accordingly directed partition of the suit land. Against the aforesaid judgment and decree, the defendants Nos.1 to 6 preferred an appeal being Civil Appeal No. 47 of 1983 and the lower appellate Court partly allowed the appeal by setting aside the order of reopening of the partition and further ordering readjustment of the shares of the plaintiff and defendants to the extent of the value of land bearing Gat Nos. 83 and 86. Against the aforesaid judgment and decree dated 7th August 1986 passed by the District Judge, Dhule, Defendant No. 1 preferred an appeal, which is Second Appeal No.397 of 1987, while against the same judgment and decree, plaintiff preferred an appeal to this Court, being Second Appeal No. 237 of 1987. Since the aforesaid two companion second appeals are preferred against the same judgment and decree passed by the lower appellate Court, I am disposing of both these second appeals by this common judgment.
3. Admittedly, on 4.12.1972, partition of the Joint Hindu Family property took place between the Plaintiff, Defendants Nos. 1, 2 and 3. In the said partition, lands bearing Gat Nos. 86 and 83 were allotted to the share of the plaintiff, while rest of the Joint Hindu family lands were distributed amongst the three other brothers. It is also an admitted fact that Gat Nos. 83 and 86 allotted to the share of Plaintiff were purchased from Defendant No. 8, an Adivasi, by different sale deeds dated 6.4.1962 and 13.11.1967 respectively. It is also an admitted fact that subsequently Additional Tahsildar initiated proceedings under section 36(3) of the Maharashtra Land Revenue Code, 1966 in respect of the two lands bearing Gat Nos. 86 and 83 allotted to the plaintiff in the partition effected on 4.12.1972. The said proceedings were under case Nos. 84 and 85 of 1975. In the said proceedings, final order was passed on 8.11.1976 and 16.11.1976, whereby possession of the lands bearing Gat Nos. 82 and 86 was handed over to Defendant No. 8, who was an Adivasi.
4. On the basis of these admitted facts on record, Mr. Desai, learned counsel appearing on behalf of the plaintiff, contended that the lands in question allotted to the share of the plaintiff were taken away under the proceedings under Section 36 of the Maharashtra Land Revenue Code, 1966 on 18th November 1976. Relying on the provisions of section 36, sub-section (3) of the Maharashtra Land Revenue Code, 1966, Mr. Desai contended that by a legal fiction, the sale of the lands bearing Gat Nos. 86 and 83 under the sale deeds dated 6.4.1962 and 13.11.1967 became ineffective retrospectively. Therefore, by the aforesaid legal fiction, lands belonging to the Joint Hindu Family were taken away from the ownership of the Joint Hindu Family on the date of the sale deeds and, therefore, by the legal fiction, the said lands, though included in the partition by the said deeming fiction under section 36, clause (3), did not belong to the Joint Hindu Family from the date of purchase itself. On the other hand, family partition was effected between plaintiff, defendants Nos. 1, 2 and 3 on 4th December 1972 on the basis that the lands bearing Gat Nos. 86 and 83 belonged to the Hindu Joint Family property and the said lands were allotted to the share of plaintiff. In view of this, plaintiff's case comes within the ambit of properties of reopening of the partition under the Hindu law. Under Hindu law, partition once effected cannot be reopened unless the same was effected by fraud, coercion, misrepresentation or mistake. According to Mr. Desai, partition effected on 4th December 1972 was under mistaken notion that lands bearing Gat NOs. 86 and 83 belonged to Joint Hindu Family, which according to legal fiction, as mentioned aforesaid, do not belong to Hindu Joint Family. Therefore, Mr. Desai contended that the lower appellate Court erred in setting aside the order of the trial Court.
5. As against the aforesaid argument, Mr. Karlekar learned counsel appearing on behalf of the Defendant No.1 contended that partition between plaintiff and Defendants Nos. 1, 2 and 3 was effected on 4th December 1972. The said partition was effected by volition of all the parties. Mr. Karlekar appearing on behalf of Defendant No. 1 further drew my attention to the fact that plaintiff was Karta of the Joint Hindu family and as such in the partition he has, undoubtedly, taken a large share in the partition. According to defendant No. 1, since the partition was effected in the aforesaid conditions, the same cannot be reopened on the ground of 'mistake', as urged by Mr. Desai. Mr. Karlekar, learned counsel appearing on behalf of defendant No. 1, further contended that, in fact, plaintiff never entered the witness-box to point out what mistake was committed at the time of the partition. However, defendant No. 1 entered witness-box and contended that partition was, in fact, effected on the volition of the plaintiff. In view of this, it was strenuously argued by Mr. Karlekar, appearing on behalf of defendant No. 1, that the decree passed by the trial Court as well as by the appellate Court are liable to be dismissed. According to my opinion at the time of partition effected on 4th December 1972, joint family property was allotted to the respective shares of plaintiff, defendants Nos. 1, 2 and 3 respectively. In the same partition, lands bearing Gat Nos. 86 and 83 came to the share of the plaintiff by consent of all the parties. That means, at the time of the partition, to the knowledge of the parties, lands bearing Gat Nos. 86 and 83 were joint Hindu family property of the plaintiff and his three brothers. However, because of the amendment to the Maharashtra Land Revenue Code, 1966 which was introduced in 1972, sale of agricultural lands by Adivasis in favour of non-Adivasis was declared invalid retrospectively.
6. In view of the said legislative provision, sale of lands bearing Gat Nos. 86 and 83 effected by Defendant No. 8 - Adivasi vide sale deeds dated 6.4.1962 and 13.11.1967 has become invalid retrospectively. Because of the legal fiction, virtually on the date of partition i.e. on 4.12.1972 the said landed property of Gat Nos. 86 and 83 did not belong to the Joint Hindu family of the Plaintiff and Defendants Nos. 1 to 3, but belonged to Defendant No. 8. The aforesaid mistake took place not because of any conscious act on the part of any of the co-parceners but it was as a result of the legal fiction developed out of section 36, clause (3) of the Maharashtra Land Revenue Code, 1966. In view of this mistake, as per the proposition enunciated by the Hindu Law, more particularly on pages 336 to 338 of the commentary by Mulla on Hindu Law, 16th Edition, the plaintiff, according to me, is entitled to reopen the partition. It is true that in the suit, the plaintiff has not entered the witness-box to point out the mistake, but as already pointed out above, mistake, as stated by the plaintiff, is not mistake of fact but the same mistake crept in because of the legal fiction introduced by the legislature by adding Section 36, clause (3) to the Maharashtra Land Revenue Code, 1966 and, therefore, without going to the witness-box, plaintiff is entitled to rely upon the said addition brought about by the legislature, which more particularly has retrospective effect of cancelling the sale deeds dated 6.4.1962 and 13.11.1967, by which defendant No. 8 sold the said lands bearing Gat Nos. 86 and 83 to the Joint Hindu Family consisting of Plaintiff and Defendant Nos. 1 to 3.
7. This being the position, for the reasons given above, plaintiff is entitled to get the partition reopened. Therefore, the judgment and decree passed by the lower appellate Court is set aside. Second Appeal No. 237 of 1987 is allowed and the judgment and decree passed by the lower appellate Court dated 7.8.1986 in Civil Appeal No. 47 of 1983 is set aside and the judgment and decree passed by the trial Court in Regular Civil Suit No. 128 of 1980 dated 5.11.1982 is restored with no order as to costs. In view of the aforesaid reasons, appeal preferred by Defendant No. 1, being Second Appeal No. 397 of 1987, is dismissed with no order as to costs.