2008(5) ALL MR 555
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

V.R. KINGAONKAR, J.

Govind Vishwanath Bansode & Anr.Vs.Manika Gangaram Bansode & Ors.

Second Appeal No.248 of 1987

24th July, 2008

Petitioner Counsel: Mr. A. G. GODHAMGAONKAR
Respondent Counsel: Mr. M. V. DESHPANDE

(A) Civil P.C. (1908), O.22 - Abatement of appeal - Failure to bring legal representatives - Abatement on account of failure to bring legal representatives on record is dependent on nature of the decree - In case where there is joint and indivisible decree, then failure to substitute the legal representatives of a party may cause abatement in entirety. AIR 1962 SC 89 - Ref. to. (Para 12)

(B) Civil P.C. (1908), O.22 - Abatement - Partition suit - In partition suit, the shares are always fluctuating - Death caused after the preliminary decree could not be regarded as an abatement in respect of the entire suit. AIR 1988 SC 2121 - Ref. to. (Para 15)

(C) Civil P.C. (1908), O.6 - Pleadings - No party can be allowed to adduce evidence against the pleadings. (Para 18)

(D) Limitation Act (1963), Art.110 - Ownership - Mere possession for long many years will not ripe into ownership unless element of hostility is proved.

Mere possession for long many years will not ripe into ownership unless element of hostility is proved.

In case of joint Hindu Family, there is commonness of interest and unity of possession amongst all members of joint family and every co-parcener is entitled to joint possession and enjoyment of co-parcenery property. The mere fact that one of the co-parceners is not in joint possession does not mean that he has been ousted. The possession of the family property by a family must be held to be on behalf of himself and other members and possession of one is possession of all. AIR 1995 SC 895 - Rel. on. [Para 23]

Cases Cited:
State of Punjab Vs. Nathu Ram, AIR 1962 SC 89 [Para 11,12]
Reshmabai Vs. Sona Puna Patil, AIR 1974 Bom 118 [Para 11,13]
Purbhaji s/o. Baba Vs. Tuljaram s/o. Kasturchand Rathod, 1999(3) ALL MR 569=1999(2) Mah.L.R. 187 [Para 11,14]
Mohd. Hussain Vs. Occhavlal, AIR 2008 SC 1462 [Para 11,14]
Collector of 24 Parganas Vs. Lalith Mohan Mullick, AIR 1988 SC 2121 [Para 15]
Annasaheb Bapusaheb Patil Vs. Balwant alias Balasaheb Babusaheb Patil, 1995(1) ALL MR 352 (S.C.)=AIR 1995 SC 895 [Para 24]


JUDGMENT

JUDGMENT:- This second appeal arises out of judgment rendered by learned 3rd Additional District Judge, Nanded, in an appeal (RCA No.67/1983) whereby and whereunder partition decree rendered by learned Civil Judge (J.D.), in Suit bearing RCS No. 16/1976 came to be reversed.

2. Subject matter of the partition Suit comprises of three (3) agricultural fields and a residential house mentioned below:

(i) Survey No.17/A, admeasuring 9 acres 18 gunthas.

(ii) Survey No.18/A, admeasuring 12 acres 29 gunthas.

(iii) Survey No. 22/B, admeasuring 11 acres 22 gunthas, situated at village Bori (Kd.) and

(iv) Residential House No.534 to the extent of northern half portion as described in the claim clause of the plaint.

3. There is no dispute about correctness of following pedigree table.

       
Gangaram (Died in 1947)
       
       
|
       
   
 
    |  
|
 
|
 
|
 
    Vishwanath (Died in 1975)  
Manika (Deft. No.1)
 
Bhujanga (Deft. No.2)
 
Shankar
(Deft. No.3)
    |              
    |              
 
 
  |   |   |   |
|
 

Govind (Son)
(Pltff. No.1)

 

Prayagbai (Widow)
(Pltff. No.2)

 

Shashikala
(Married Daughter)
(Pltff.No.3)

Sunderabai
(Married Daughter)
(Pltff.No.4)

Radhabai
(Married Daughter
(Pltff.No.5)

Original defendant No.4 Madhav is relative of the parties and is purchaser of a part of the suit property to the extent of 4 acres 10 gunthas area out of field Survey No. 18/A under a sale-deed dated 31st March, 1973.

4. Govind and other members of the branch of deceased Vishwanath filed the Suit (RCS No.16/1976) for partition and separate possession, claiming 1/4th share in the suit properties. There is no dispute about the fact that Vishwanath, predecessor of the branch of the plaintiffs, was step brother of the respondent Nos.1 to 3. He was born out of the first marriage of deceased Gangaram whereas defendant Nos.1 to 3 were born out of the second marriage.

5. There is no dispute about the fact that the suit properties are the ancestral properties of deceased Vishwanath and the defendant Nos.1 to 3. It is not in dispute that their father, namely, deceased Gangaram had mortgaged the suit fields in favour of one Dhondopant Puranik under a document styled as sale-deed dated 23rd Amardad 1346 Fasli (1937 A.D.).

6. The plaintiffs' case is that due to poor financial condition of deceased Gangaram, their predecessor i.e. Vishwanath migrated to village Salapuri (District Parbhani) to earn his livelihood. Thereafter, defendant No.1 (Manika) used to look after the family affairs of their family. After few years of the death of Gangaram, defendant No.1 mortgaged the family house to one Kisanrao Golegaonkar and by utilizing such amount, the suit fields were redeemed from Dhondopant Puranik @ Pathak. There was civil litigation between Kisanrao Golegaonkar and defendant Nos.1 to 3 regarding the house property which was mortgaged with him. The civil suit of Kisanrao (RCS No.77/1960) for recovery of possession of the house property was decreed. However, during execution proceedings of R.D. No.4/1961, a compromise was arrived at between the parties and half southern portion of the house property was given to said Kisanrao Golegaonkar whereas remaining northern half portion was retained by defendant Nos.1 to 3 for themselves and deceased Vishwanath. It is described as the suit house. The plaintiffs alleged that subsequently defendant No.2 Bhujanga executed a sale deed dated 31st March, 1973 in respect of 4 acres 10 gunthas area out of field Survey No.18/A, in favour of defendant No.4 Madhav. The plaintiffs further asserted that after demise of Vishwanath, they demanded 1/4th share in the suit properties but the defendants refused to give their share. Consequently, they filed Suit for partition and separate possession.

7. By their joint written statement (Exh-29), the defendant Nos.1, 2 and 4 resisted the Suit whereas by his written statement (Exh-49), defendant No.3 resisted the Suit. The defence raised by them is identical. According to the defendants, deceased Vishwanath was not member of the joint family. They contended that after death of Gangaram, deceased Vishwanath had demanded partition of the properties and, therefore, on day of 'Gudi-Padwa' in the year 1950, some talks about the partition were held in presence of panchas. At that time, liability to pay the debt of Rs.4,000/- incurred towards expenditure of the marriages was sought to be equally shared. Though the defendant Nos.1 to 3 were ready to contribute the amounts to the extent of their share for repayment of the loan, yet, Vishwanath declined to pay his share of the debt and declared that he did not want any share in the house and the agricultural fields. He executed a relinquishment deed in their favour. They further asserted that since more than 25 years, they were in possession of the suit properties to the knowledge of Vishwanath and plaintiffs as owners and, therefore, have acquired prescriptive title. They contended that the Suit is barred by limitation. On these premises, they sought dismissal of the Suit.

8. The parties went to trial over issues struck by learned Civil Judge (J.D.) at Exh-56 in the course of trial. They adduced oral and documentary evidence in support of the rival contentions. The learned Civil Judge held that the defendants failed to prove relinquishment of his rights by deceased Vishwanath, as per their averments in the written statements. The learned Civil Judge further held that the possession of the defendants could not be regarded as adverse and the Suit was within limitation. In keeping with such findings, the Suit was decreed. It was held that the plaintiffs were entitled to get 1/4th share in the suit fields and the house property.

9. Feeling aggrieved, the defendants preferred an appeal (RCA No.67/1983). The learned Additional District Judge held that the appeal abated against original plaintiff No. 3 Shashikala and plaintiff No.4 Sunderabai who died during pendency of the appeal as no substitution was made. The learned Additional District Judge held that the share of deceased Vishwanath was relinquished by him in favour of defendant Nos.1 to 3 on account of his refusal to contribute part of the debt. The learned Additional District Judge further held that the defendant Nos.1 to 3 became owners of the suit properties due to adverse possession and that the Suit was barred by limitation. Hence, the appeal was allowed and the Suit for partition was dismissed vide the impugned judgment.

10. This second appeal was admitted on substantial questions of law, which are enumerated as ground Nos.1 and 2 in the appeal memo. For the sake of convenience, these substantial questions of law are redrafted and set forth as follows:

(i) Whether, in the facts and circumstances of the present case, the First Appellate Court committed patent error while holding that the appeal (RCA No. 67/1983) partly abated only against deceased plaintiff No.3 Shashikala and plaintiff No. 4 Sunderabai (respondent Nos.3 and 4, respectively in that appeal) and that it ought to have been held that the appeal abated in its entirety in as much as the decree was indivisible?

(ii) Whether, in the facts and circumstances of the present case, the First Appellate Court committed patent error while reversing the decree of partition?

11. Mr. Godhamgaonkar, would submit that the partition decree rendered by the learned Civil Judge is a composite decree without determining shares of each plaintiff and, therefore, non-substitution of the heirs of original plaintiff Nos.3 and 4 during course of the appeal ought to be regarded as abatement of the appeal in entirety. He would submit that the First Appellate Court committed patent error while holding that the appeal partly abated only against those plaintiffs and not entirely. He would further submit that the First Appellate Court committed patent error while reversing the findings of facts which the Trial Court rightly held that the plaintiffs were entitled to decree for partition. Mr. Godhamgaonkar seeks to rely on "State of Punjab Vs. Nathu Ram" (AIR 1962 S.C. 89), in support of his contention that the appeal before the First Appellate Court ought to have been held as abated in its entirety. He also seeks to rely on "Reshmabai and others Vs. Sona Puna Patil and another" (AIR 1974 BOMBAY 118). He contended that otherwise also, the findings of the First Appellate Court regarding question of limitation and relinquishment by deceased Vishwanath are unsustainable and, therefore, the decree for partition needs to be maintained. Per contra, Mr. M. V. Deshpande supports the impugned judgment. He seeks to rely on "Purbhaji s/o. Baba and others Vs. Tuljaram s/o. Kasturchand Rathod and others" [1999(2) Mah.L.R. 187] : [1999(3) ALL MR 569] and "Mohd. Hussain (Dead) by L.Rs. & others Vs. Occhavlal & others" (AIR 2008 S.C. 1462), in support of his contention that the appeal before the First Appellate Court could not be regarded as abated in its entirety. He would submit that the findings of the First Appellate Court are legal and proper. He urged, therefore, to dismiss the appeal.

12. First, I shall examine whether the First Appellate Court ought to have held that the appeal (RCA No.67/1983) abated in its entirety due to the death of respondent Nos.3 and 4 therein. The legal position in this context is well settled. The abatement on account of failure to bring legal representatives on record is dependent on nature of the decree. In case where there is joint and indivisible decree, then failure to substitute the legal representatives of a party may cause abatement in entirety. In "State of Punjab Vs. Nathu Ram" (supra), the tests laid down by the Apex Court are as follows.

"Courts will not proceed with an appeal -

(a) when the success of the appeal may lead to the Court's coming to a decision which be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the Court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject matter between the appellant and the deceased defendant;

(b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the Court and

(c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is to say, it could not be successfully executed."

13. In "Reshmabai and others Vs. Sona Puna Patil and another" (supra), the Suit was for declaration that sale of the suit land effected on 15th November, 1948 in favour of Reshmabai was void ab initio and not binding on the rights of the plaintiffs. Said Reshmabai died during pendency of the Suit and her heirs were brought on record during pendency of the Suit. During pendency of the appeal, one of the respondents died. It was held that the appeal ought to have been held as abated in its entirety because the decree was joint and indivisible.

14. The Apex Court in "Mohd. Hussain (Dead) by L.Rs. & others Vs. Occhavlal & others" (supra), held that setting aside entire judgment for not bringing entire body of heirs and legal representatives of deceased on record would be too technical. In "Purbhaji s/o. Baba and others Vs. Tuljaram s/o. Kasturchand Rathod and others, [1999(3) ALL MR 569]" (supra), a Single Bench of this Court held that the entire Suit would not abate when the property was represented by other defendants, in case legal representatives of such deceased defendant were not taken on record.

15. In the present case, the decree was for partition to the extent of 1/4th share available to all the plaintiffs together. So, such 1/4th share could be internally arranged to be divided by the plaintiffs within themselves. The plaintiffs claimed their share as the successors of deceased Vishwanath. It is well settled that in partition Suit, the shares are always fluctuating. The death caused after the preliminary decree could not be regarded as an abatement in respect of the entire Suit. In "Collector of 24 Parganas and others Vs. Lalith Mohan Mullick and others" (AIR 1988 S.C. 2121), the Apex Court held that where some of the respondents died during pendency of appeal and the estate was sufficiently represented, the appeal does not abate. Take example, if those plaintiff Nos. 3 and 4 would have died during pendency of the Suit and the substitution was not done, could it be said that the Suit was liable to be dismissed in entirety ? The answer will be "No". For, the plaintiffs sued as successors of deceased Vishwanath and claimed their share together. Their individual shares were not defined nor were subject matter of the litigation. It is for such reason that, the appeal before the First Appellate Court also could not be regarded as abated in entirety.

16. One cannot be oblivious of the fact that original plaintiff No.3 Shashikala and No.4 Sunderabai were the daughters of deceased Vishwanath and their shares were not separately determined by the Trial Court. The branch of Vishwanath is duly represented by other plaintiffs (appellants). The appeal before the First Appellate Court was, therefore, competent in the absence of the deceased plaintiff Nos.3 and 4 (respondent Nos.3 and 4 therein). Under these circumstances, I find it difficult to countenance the contention of Mr. Godhamgaonkar. Needless to say, the first limb of his argument is of no avail.

17. Coming to the merits, it is rather desirable to carefully scrutinize the evidence in keeping with pleadings of the defendants. The First Appellate Court seems to have been impressed by the evidence of the defendants regarding a private document (Exh-123) whereby deceased Vishwanath allegedly relinquished his rights in the family properties because he was unwilling to contribute his share to pay the family debt. This private document is written on a plain paper and is purportedly executed on 03-01-1951 by deceased Vishwanath in favour of defendant No.1 Manika. The First Appellate Court was conscious of the fact that the said private document was produced after three (3) years of filing of the Suit in 1982. The written statements of all the defendants would show that they categorically pleaded that in the year 1950, after 2/4 days of "Gudi-Padwa", a meeting was held in presence of panchas and in such a meeting, family debt and expenditure was settled at Rs.4000/-. They pleaded that the defendant Nos.1 to 3 expressed willingness to give share to deceased Vishwanath on payment of his due share in the debt which he declined to pay and, therefore, he relinquished his rights. Obviously, as per the pleadings of the defendants, the so called relinquishment was effected after 2/4 days of "Gudi-Padwa" of 1950. They pleaded that Vishwanath had executed a document in presence of panchas, but it was lost and, therefore, could not be filed alongwith the written statement. In view of specific pleadings of the defendants, the private document (Exh-123) dated 03-01-1951 cannot be co-related with the pleadings. First, "Gudi-Padwa" festival normally falls in the month of April. The year of such relinquishment as pleaded in the written statement is of 1950 whereas the private document (Exh-123) is said to have been executed in the first week of January, 1951. This is a material contradiction in the pleadings and the proof. The First Appellate Court failed to notice this material contradiction and committed patent error during course of reappreciation of the evidence.

18. It is well settled that no party can be allowed to adduce evidence against the pleadings. The so called relinquishment deed (Exh-123) is unregistered and unstamped document written on a private paper. It had not seen the day of light till it was produced before the Trial Court. Nor any Mutation Entry was obtained on strength of such document in 1951 to show that deceased Vishwanath had relinquished his rights in respect of the suit properties. There is no tangible evidence adduced by the defendants to show that the family was indebted to Rs.4000/- on account of the marriage expenses of the sisters and for other reasons when the so called relinquishment deed (Exh-123) was reduced into writing.

19. Burden to prove the issue pertaining to relinquishment of rights by Vishwanath was on the defendant. DW-1 Manika testified that in the year 1950, there took place a meeting in the month of "Chaitra" and in presence of panchas named by him, debts outstanding against the family were calculated. He further testified that the panchas advised to divide the debts and then to effect partition of the suit properties. He deposed that in said meeting, Vishwanath declared that he was unable to pay his part of the share of the debt and, therefore, the land of his share may be taken by him (DW Manika) after paying the debts of his share. At this juncture itself, it may be stated that the recitals of the relinquishment deed (Exh-123) does not corroborate such contention. As a matter of fact, in the year 1950, the suit fields were not available for partition. It was only in 1951 that the suit fields were redeemed by the defendant Nos.1 to 3 after mortgaging their family house situated at Kandhar in favour of one Pandurangrao alias Kisanrao Golegaonkar.

20. There is no dispute about the fact that deceased Vishwanath left village Bori (Kh.) after some years of mortgaging the suit fields by deceased Gangaram in favour of Dhondopant Puranik @ Pathak. He migrated to village Salapuri, District Parbhani to earn his livelihood. He was away from the native village for many years. The panchas named by DW Manika, who allegedly attended the meeting are no more. Thus, he gave names of dead persons viz. Kishan Zattu, Mahadu Teli and Ramji who were so called panchas at the time of alleged relinquishment. He admits that partition had not taken place in the said meeting though the document (Exh-123) was written; however, the recitals of the document show that the partition was effected.

21. The version of DW-2 Kisanrao reveals that he attended the meeting in which Vishwanath had relinquished his rights in the suit properties. He supported the case of the defendants. He states that he is scribe of the relinquishment deed (Exh-123). He vaguely states that the settlement was effected prior to about 30/32 years. He admits that marriages of defendant No.3 Shankar and sisters of the latter were performed after 5-6 years of the said meeting. Obviously, there was no question of indebtedness on account of such marriages. His version shows that the defendant Nos.1 to 3 separated somewhere in 1969. He admits that he could not locate the names of persons who attended the said meeting. He admits that at the time of said partition, all the properties were joint.

22. The defendants examined DW-3 Shankar alias Nana as a witness who attended the meeting wherein the relinquishment was made by deceased Shankar. He corroborated case of the defendants. Cross-examination of DW Shankar reveals that the meeting was held for effecting partition amongst the brothers. He states that he attended a similar meeting of partition in the family of one Bhosikar which was held 3-4 years back. However, he could not locate details of the said meeting which took place in the house of Bhosikar. He admits that he could not remember the things which happened 3-4 years back. It is difficult, therefore, to trust such a witness who is unable to tell about meeting which took place 3-4 years to his entry in the witness box, but is able to tell details of the meeting which took place about 28 years prior. Similar is the version of DW-4 Shankar. In any case, the versions of these witnesses are not in keeping with the pleadings of the defendants. Therefore, the assessment of the evidence as done by the learned Trial Court was quite proper. The learned Civil Judge discussed the entire evidence and came to conclusion that the document (Exh-123) is not worthy of credence. I am of the opinion that deceased Vishwanath did not relinquish his share in the suit properties. For, the agricultural fields were redeemed in 1951 and the house property was recovered in 1960. There was no occasion to release his rights by Vishwanath in 1950. Though DW-6 Laxman was examined, in support of the execution of the said document, yet, the Trial Court rightly disbelieved such witness for the reason that he does not know 'modi' script. The document (Exh-123) is in 'modi' script. It appears that DW Kisan is an interested witness and attempted to support case of the defendants for some other considerations.

23. This takes me to the question of limitation. It is well settled that mere possession for long many years will not ripe into ownership unless element of hostility is proved. The First Appellate Court came to conclusion that the defendant Nos.1 to 3 became owners of the suit properties due to their hostile possession for many years. The impugned judgment, however, does not show as to how the First Appellate Court reached such conclusion regarding hostile intention of the defendant Nos.1 to 3. It is only stated that deceased Vishwanath was ousted from 1951 onwards and, therefore, possession of the defendants became adverse. The First Appellate Court held that the Suit filed in 1976 was beyond period of twelve (12) years and, therefore, it was barred by limitation. I find it difficult to confirm such finding of the First Appellate Court. In case of joint Hindu Family, there is commonness of interest and unity of possession amongst all members of joint family and every co-parcener is entitled to joint possession and enjoyment of co-parcenery property. The mere fact that one of the co-parceners is not in joint possession does not mean that he has been ousted. The possession of the family property by a family must be held to be on behalf of himself and other members and possession of one is possession of all.

24. The Apex Court in "Annasaheb Bapusaheb Patil and others Vs. Balwant alias Balasaheb Babusaheb Patil (dead) by LRs. & heirs etc." (AIR 1995 S.C. 895) : [1995(1) ALL MR 352 (S.C.), held that absence of a coparcener from the village or non-enjoyment by him by itself would not indicate ouster. The fact that a coparcener temporarily resides separately from the family and did not ask to be maintained by it would not amount to an exclusion from the joint family property. Unless there is a voluntary abandonment or there is explicit exclusion, no inference can be made from mere absence of a member of the joint family that he has been excluded from the joint estate. The burden to prove ouster of deceased Vishwanath was surely on the defendants. Once it is found that the defence of his relinquishment is without substance, then it follows that the ouster of Vishwanath cannot be accepted. Mr. Deshpande pointed out from statement of PW Govind that his father had demanded the partition in the suit property after property was redeemed. This is a vague statement. When was such demand made and what happened to the demand is not clear from such statement. It cannot be overlooked that father of PW Govind i.e. Vishwanath died on 23-08-1975. The vague part of his statement cannot be regarded as admission of ouster of Vishwanath. He admits that he does not remember whether after 2-3 days of "Gudi-Padwa" of 1950, there was a meeting between the panchas and in such meeting, the debt was settled and the partition of the properties was carried out. It is but natural that he could not throw any light on such aspect because when he was examined in 1979, then his age was 32 years. Obviously, in 1950, he was a toddler.

25. The Suit for partition is governed by Article 110 of the Limitation Act. The right to sue would commence from date when the exclusion becomes known to the plaintiff. In the present case, the plaintiffs came out with a case that their demand for partition was specifically refused on 14th January, 1976. The sale-deed of a part of Survey No.18/A to the extent of 4 acres 10 gunthas was executed by DW-2 Bhujanga in favour of defendant No. 4 Madhav on 31st March, 1973. Assuming that the date of such sale gave rise to the cause of action, then also, the Suit is within limitation as provided under Article 110 of the Limitation Act. The First Appellate Court, therefore, committed patent error while holding that the Suit is barred by limitation.

26. Considering the foregoing discussion, I have no hesitation in holding that the plaintiffs are entitled to 1/4th share in the suit properties. The succession opened when Gangaram died and, therefore, Vishwanath was entitled to claim 1/4th share. Deaths of female members i.e. plaintiff Nos.3 and 4 are of no serious consequences because they were not the coparceners with plaintiff No.1 Govind. Their legal heirs may claim separately the shares, if any, from plaintiff No.1 Govind. In this view of the matter, the impugned judgment deserves to be interfered with.

27. In the result, the appeal is allowed with costs. The impugned judgment is set aside and judgment of the Trial Court is restored.

Appeal allowed.