Second Appeal No.164 of 1997,Civil Application No.1363 of 2006,Second Appeal No.168 of 1997,Civil Application No.41 of 2005

11th February, 2010

Petitioner Counsel: Mr. S. S. PATWARDHAN
Respondent Counsel: Mr. R. D. SONI,Mr. U. B. NIGHOT,Mr. P. J. PAWAR

Cases Cited:
Maturi Pullaiah Vs. Maturi Narsimham, AIR 1966 SC 1836 [Para 14]
D. S. Lakshmaiah Vs. Balasubramanyam, (2003)10 SCC 310 [Para 14]
Appasaheb Peerappa Chamddgade Vs. Devendra Peerappa Chamdgade, (2007)1 SCC 521 [Para 14]
Shankarrao Dejisaheb Shinde Vs. Vithalrao Ganpatrao Shinde, 1989 Supp. (2) SCC 162 [Para 14]
Mudigowda Gowdappa Sankh Vs. Ramchandra Revgowda Sankh, AIR 1969 SC 1076 [Para 14]

JUDGMENT

JUDGMENT :- So far as Civil Application Nos.1363 of 2006 and Civil Application No.41 of 2005 are concerned, they are for bringing the legal heirs of deceased Arjun Maruti Sathe who is said to have died on 10th January, 2003. For the reasons stated in both the Civil Applications, the same are allowed. Abatement if any stands set aside. Amendment to be carried out forthwith.

2. These two appeals are preferred by the original Defendant No.1. They arise out of a Single Judgment in Civil Suit No.60 of 1983. The parties hereinafter shall be referred to as the Plaintiff and the Defendants.

3. The facts giving rise to these appeals are as under :-

The suit property originally belonged to one Maruti. He left behind him four sons and a widow. The Plaintiff and the Defendant No.1 are the sons of said Maruti. Defendant No.6 is the widow of said Maruti while Defendant No.2 is the son of deceased Laxman - the son of Maruti, and Defendant No.3 is the widow of deceased Laxman. Defendant No.4 Ramrao is the son of deceased Sahebrao - the son of Maruti. Defendant No.5 is the widow of deceased Sahebrao. The first wife of Maruti died leaving behind her one son Sahebrao. Sahebrao started residing separately even prior to the death of Maruti. The Plaintiff contended that since then Sahebrao and his family has no concern with the suit property. It is therefore the case of the Plaintiff that Sahebrao had already taken his share and therefore he is not entitled for any share in the suit property, but he has been made party to the suit only to avoid there being objection of non-joinder. The Plaintiff submits that the Plaintiff and the Defendants have 1/3rd share in the suit property. After the death of Maruti, Defendant No.1 Sarjerao became a Karta of the joint family. He too has 1/3rd share in the suit property. The Plaintiff further contends that the property as described in Schedule-1A was divided between the plaintiff and the defendant No.1 equally and they have been cultivating the said land separately. It is further contended by the plaintiff that there was already partition and accordingly mutation entries Nos.1510 and 1511 were taken. In order to take disadvantage of death of his brother Laxman and his recording own name in the revenue record, the defendant No.1 got those entries cancelled. Further the plaintiff contends that the property at Schedule-1A was recorded in the name of defendant No.1 as karta and being a tenant of the suit property. The defendant No.1 has purchased the said property under Section 32-G of the Bombay Tenancy Act as a karta of the joint family and the Plaintiff and the defendants have 1/3rd share in the same although the proceedings under section 32-G were taken up only in the name of defendant No.1. It is also contended that the properties at Schedule 1-B and 1-C are ancestral properties and they are also being cultivated separately under family arrangement. The Plaintiff further submits that he is entitled to 1/3rd share in the suit property and same may accordingly be partitioned.

4. The defendants No.2 and 3 have filed their written statements and contended that they have 1/3rd share in the suit property and asked for separate possession thereof. Defendant No.4 also claims that he may be given his share in all the properties except property at Schedule 1A. The Defendant Nos.1 and 6 have filed their written statement. The Defendant Nos.1 and 6 do not dispute the relationship between the parties. They do not dispute that the property i.e Gat No.155 described in Schedule 1A was a tenanted property. According to them, the Defendant No.1 alone was the tenant and he himself has purchased the property and nobody has share in it. Further according to them, the part of the said Gat No.155 which was formerly Survey No.189 has been purchased by him under a registered sale-deed and, therefore he is exclusive owner thereof. The defendants further submits that in the year 1945 there was a partition and each of the brothers has been cultivating the lands separately. They also contend that as the land is being cultivated by them separately, they have made improvements in the said land. The defendant No.1 denied the claim of the plaintiff for partition and separate possession.

5. The learned judge of the trial Court framed issues and upon consideration of evidence he found that the Survey Nos.47 and 189 i.e. Gat No.155 as described in Schedule 1A was the self acquired property of the defendant No.1. He found that other suit properties were partitioned in the year 1945 and the plaintiff was therefore not entitled for partition.

6. Feeling aggrieved by the said judgment and decree, the plaintiff preferred an appeal being Appeal No.691 of 1986 while Defendant No.2 preferred an appeal being Appeal No.780 of 1986. These appeals were decided together by the learned Judge of the First Appellate Court. He disagreed with the findings of the trial Court that Gat No.155 was the self acquired property of Defendant No.1. He also disagreed that there was a partition in the year 1945. He found that the Plaintiff, Defendant Nos.1, 2 and 3 were entitled to 1/3rd share in the Gat No.155 and in other properties they were entitled to 1/4th share. He, therefore, allowed the appeals and set aside the judgment and decree of the trial court.

7. Feeling aggrieved thereby these two appeals have been preferred by the defendant No.1. They were admitted by this Court on the following substantial questions of law :

SECOND APPEAL NO.164 OF 1997

1] Whether the Lower Court has failed to consider the legal effect of Appellant having purchased S. No.47 and part of final Gat No.155 by a registered sale-deed ? When there was no challenge to the said registered sale-deed, whether the Lower Court is justified in going behind the said sale-deed and disregarding the claim of the Appellant that the suit property was self acquired property of the appellant ?

2] Whether the Lower Court was justified in holding that although the Appellant has purchased S. No.47 and although the Appellant had obtained S. No.189 in 32(G) proceedings, it does not make the Appellant as sold owner ?

SECOND APPEAL NO.168 OF 1997

1] Whether the Lower Court was justified in holding that although the Appellant has purchased S. No.47 and although the Appellant had obtained S. No.189 in 32(G) proceedings, it does not make the Appellant as sold owner ?

2] Whether the Lower Court should have treated the sale-deed in respect of S. Nos.47 and 32(g) proceedings in S. No.189 as conclusive proof of ownership of the Appellant ?

8. In both the appeals the substantial questions of law are almost identical and can be decided by common discussion and reasons.

9. The learned counsel for the Appellant contends before me that besides these two questions, Ground Nos.2 and 7 in the memo of Appeal No.164 of 1997 are also the questions of law which should fall for determination. Those grounds read as under :-

Ground No.2 :- Whether the Lower Court justified in considering that the Respondents Nos.1 and 2 who were totally ex-parte ? Whether the Lower Court was justified in granting reliefs to the Respondent Nos.1 and 2 even they were ex-parte in Lower Court and did not lead any evidence ?

Ground No.7 :- Whether the Lower Court was justified in considering the additional evidence directly, as if it was an admitted document ?

10. I shall deal with that aspect a little latter. To my mind upon consideration of the submissions as were made before me, the substantial question of law that can arise, for determination, in addition to the above is as follows :

Whether the property was divided under family arrangement in 1945 and that could be treated as partition itself ?

11. I have heard the learned counsel for the Appellant and the Respondents. I find that the Ground No.7 is necessarily a question of law that also needs to be considered first.

12. The Respondent Nos.1 and 2 i.e. the Original Defendant Nos.2 and 3 tendered a certified copy of registered deed of partition between the Plaintiff and the Defendant No.1 for the first time before the District Judge in Appeal No.780 of 1986 along with application Exhibit 12. After this application was filed, the appellant/plaintiff endorsed his say on it by submitting that it may be considered at the time of arguments. The Court directed by an order that the said application Exhibit 12 (which can be said to be an application under Order 41, Rule 27 of the CPC) shall be considered at the time of arguments. There is therefore no order on the said application as such either allowing the application or rejecting the same. The learned Judge of the Appellate Court observes in Para 16 of his judgment as follows with regard to the said application and I quote his observation as under :

"Even apart from all these facts, it is pertinent to note that in appeal bearing Civil Appeal No.780 of 86, the appellant has filed an application at Exh.12, by which a certified copy of the partition deed alleged to have been executed in between the plaintiff and defendant no.1 is produced on record. The defendant No.1 has given his reply to the said application for production of the said partition deed on record, in which he has not denied the execution of any such partition deed. But he submitted that he should be given an opportunity to rebut the said additional evidence. The application at Exh.12 was not decided by the Court and it appears that it was not considered because it was suggested by the parties that it should be considered at the time of hearing of the appeal. After going through the said partition deed, it will be seen that it was executed on 5.4.1977 and it is in between the plaintiff and defendant No.1, in which the properties which are described includes property Survey No.189."

If this part of the judgment is seen it is clear that the learned Judge proceeded to use this document in evidence without first considering the question as to whether production at the appellate stage should or should not be allowed and; secondly without there being any proof of the contents of document. The document produced is not a public document and could not have been read in evidence at all unless the executant or attesting witness was examined. The learned Judge mainly decided the appeal relying on Partition Deed of 1977, though its production was not allowed and the document was not proved.

13. The learned Judge of the appellate court set aside the finding of the trial court with regard to the partition of 1945. The learned judge does so mainly on two grounds. First there is no reference to the partition of 1945 in 1977 registered partition deed and, secondly on the ground that there is no evidence on record to show that the land was allotted to brother Laxman i.e. the father of Defendant No.2. Both these reasons are not sufficient and correct reasons. Since the document of 1977 cannot be read in evidence, since its production is not allowed and it is not proved, the learned Judge could not have found out if there is any reference of 1945 partition in the said partition of 1977. As far as allotment of land to Laxman is concerned, the learned Judge of the appellate court seems to have failed to look into the documents on record in the form of mutation entries. Exhibit 55 is the certified copy of Mutation Entry No.327. It shows that Gat No.223 is sold by wife of Laxman and son of Laxman to Sahebrao and others on 21/11/1984 for Rs.9,500/- Other Mutation Entry No.371 on the same page shows that Laxman's wife Ratanbai has sold Survey Nos.151 and 152 to Shivaji Ghorpade on 16/11/1985 for Rs.15,000/-. Next two documents are 7 x 12 extract of Survey Nos.308, 223 and 283. In Exhibit 76 which is a 7 x 12 extract in respect of Survey Nos.151 and 152, the name of Ratanbai Laxman is specifically recorded. She has sold these two fields. In other field, share of Laxman is shown to be 1/4th. Thus name of Laxman in respect of 1/4th share in respect of other properties. Accordingly Ratanbai the wife of Laxman and son of Laxman had sole three fields i.e. Survey Nos.223, 151 and 152. The fact that they sold those fields clearly indicates that they were treating the same as their own properties and they sold them. Nobody has objected to such sale. If it was not their separate property and under their separate cultivation, they would not have been able to sell specific portion. The Pleadings of the Plaintiff as stated earlier would go to show that there was family arrangement in 1945. The pleadings in vernacular are as follows :

uoebe Ëc~klr¢e beJheyeyl Èehtbâ beor b ^Ëlbeor Èexèf Dehmelrn ¥jeb^ce²f HsjHej vx.1510 b 1511 ^ce²f vfxor kj²Èel De½Èe |fÓÈe. mojèÈe vfxor Èe búlgËúÙelr ËvoÑe_k |fÓÈe.

oebe Ëc~kl hËjËÑeÔJ 1(y) b 1(k) |r beor ^Ëlbeorx¢r bË[nedpl cenkr bË|beJr¢r pcrv Dmtv moj pËcvrèf SkËÌkj²eehtbâèf mbs_ vx.86/1D, 86/1y DËEek 2(D), 64/4 D DËEek 5 D, 87/1, 87/2 biñjs Ëc~klrx¢r SkËÌkj²eevs yvnsnr De|s. moj pËcvrcEÈs beor b ^Ëlbeor vx.1 b ^Ëlbeor vx.2, 3 b ^Ëlbeor 4 b 5 Èex¢e ^ÓÈskr 0-4-0 De²f Ë|úme |fle b De|s. |½nr keñJgxËyk NÈbúÙf^ce²f beor b ^Ëlbeor |s moj Ëc~klr úblxÌh²f bË|beJrl De|sl.¿

The Plaintiff certainly cannot go beyond these pleadings. The pleadings are not ambiguous at all. They specifically refer to family arrangement and separate cultivation according to that arrangement. D.W. Nana states that in 1945 his grand father had effected partition. He in fact thus admits the case put up by the Plaintiff. In fact if one looks into the written statement of Defendant Nos.1 and 6, particularly para 12(b) which reads as follows, it be clear that parties in fact are not at issue as to the partition of 1945 :

u12-y yekr mb_ pËcvr b #js Èexèf beor b ^. beor vx.1 ls 4 Èexèf ojµÈev mv 1945 èf mgcejem beJh üensns Dmtv pf lf DehDeh½Èe pËcvr úblxÌËjÓÈe bË|beJrl Dmtv GÓhÞv Isl De|s. ^. beor vx.1 |e SkÌ kgJgxye¢e c®Þfpj kEer|r vN|le b ve|r. Ijel Ùefjne mºf_jeb |fle b lf¢ c®vspj |fle. Hs. vf. vx.868 |r cg~el¢ ¢gkr¢r Dmtv yskeÈos.erj|r De|s. oebe Ëc~kl hËjË.eÔ¥ 1(D) cEern pËcvrl ^. beor vx.1 |e mv 1947-48 hemtv úblxÌËjÓÈe kg~ |fle b l.er Hs. vfx. vx.817 üensnr De|s. ÓÈe pËcvrl ^. beor vx.1 vs nsN|nrxi ksns. yexEe yxorúlr ksnr b úbkÔJevs Ëb|rj ×e²etv 50 ls 60 |pej zhÈs ×e¢_ kzv pËcvrl Hej cf¥r mgEeej²ee ksnr. mv 1961 cEÈs hgjecg~s pgvs Ij h[½Èecg~s ^. beor vx.1 vs hx¢eÈl mËclrk[tv kp_ ke{tv vËbv Ij yexEens De|s. oebe Ëc~klrlrn 1(k) |r lr Ëc~klr Dmtv beor Ëkxbe Flj ^. beor¢e ÓÈe¢s.er kf²ele|r mxyxEe ve|r.¿

14. The learned Additional District Judge therefore ought to have held that there was no partition. With regard to the family arrangement, the Supreme Court in the case of Maturi Pullaiah Vs. Maturi Narsimham reported in AIR 1966 SC 1836 observed in para 17 as follows :

"Briefly stated, though conflict of legal claims in praesenti or in future is generally a condition for the validity of a family arrangement, it is not necessarily so. Even bona fide disputes, present or possible, which may not involve legal claims will suffice, members of a joint Hindu family may, to maintain peace or to bring about harmony in the family, enter into such a family arrangement. If such an arrangement is entered into bona fide and the terms thereof are fair in the circumstances of a particular case, Courts will more readily give assent to such arrangement than to avoid it."

Now if the ratio is to be applied, it will have to be seen if the parties have been cultivating the lands separately, and partition was equal. The 7 x 12 extracts, as are filed on record, clearly show that they were cultivating their shares in the fields separately and to the extent of their 1/4th share each. We have seen that Defendant Nos.2 and 3 have sold the lands falling to their share. Therefore this arrangement was actually acted upon. We may usefully refer to 7 x 12 extracts on page 289 and 295 in (C) file of the trial Court. The entry in other rights column shows Tagai loan of Rs.100 on the share of Defendant No.1 Sarjerao. In 7 x 12 extract on page 295 there is an entry of loan of Rs.10,000/- each on the share of Sarjerao and Ramrao s/o. Sahebrao i.e. Defendant No.4. This is enough to hold that the sharers have actually obtained loans on their separate share in the field. In the circumstances, it must be held that the family arrangement was in fact acted upon.

In view of my finding that there was already partition, the decisions cited by the learned counsel for the Respondent No.1 in (2003)10 SCC 310 - D. S. Lakshmaiah and anr. Vs. Balasubramanyam and anr.; (2007)1 SCC 521 - Appasaheb Peerappa Chamddgade Vs. Devendra Peerappa Chamdgade; 1989 Supp. (2) SCC 162 - Shankarrao Dejisaheb Shinde Vs. Vithalrao Ganpatrao Shinde & ors; and AIR 1969 SC 1076 - Mudigowda Gowdappa Sankh Vs. Ramchandra Revgowda Sankh, have no bearing on the case at hand.

15. This now takes me to the question as to the exclusive ownership of Gat No.155. Following undisputed facts need to be noted first. Gat No.155 is formed on consolidation of Survey Nos.189 and 47. These two survey Nos. formerly belonged to one Shri. Deodhar. Maruti the father of the Plaintiff and the defendants was the tenant of both these lands from 1929. Maruti died in March, 1947. After Maruti's death, the name of Sarjerao was recorded as an ordinary tenant. Proceedings under Section 32-G of the Bombay Tenancy Act were held in the name of Sarjerao - Defendant No.1 and certificate is issued in his name in respect of Survey No.189. However, Survey No.47 was purchased by the Defendant No.1 Sarjerao by a registered sale-deed dated 14/4/1960 from landlord Shri. Deodhar. With these admitted facts let us proceed to decide the questions. I have concluded that the parties have acted upon family arrangement as partition. Therefore it is clear that there is no joint family after 1945 at all. Survey No.189 was purchased from landlord by Sarjerao by a registered sale-deed Exhibit 57. It shows that he paid consideration of Rs.2,000/-. Transfer is inter vivos and not under the provisions of Bombay Tenancy Act. Thus this is a private transfer and not statutory transfer. Sarjerao having paid the price and having purchased the property by sale-deed becomes exclusive owner of Survey No.189 and neither the Plaintiff nor other defendants have any share in the property Survey No.189.

16. Let us look into the purchase of property under Section 32-G of the Bombay Tenancy Act. Tenancy is a right which is heritable. In the context we will have to refer to Section 40 of the Bombay Tenancy and Agricultural Lands Act :

"40. Continuance to tenancy on death of tenant.- (1) where a tenant (other than a permanent tenant) dies, the landlord shall be deemed to have continued the tenancy on the same terms and conditions on which such tenant was holding at the time of his death, to such heir or heirs of the deceased tenant as may be willing to continue the tenancy.

(2) where the tenancy is inherited by heirs other than the widow of the deceased tenant, such widow shall have a charge for maintenance on the profits of such land."

17. The tenancy right devolves upon such of the heir or heirs who are willing to continue the tenancy. It was contended on behalf of the Respondents that the Plaintiff or Laxman could not give any consent when their father died and when the right devolved as they were then minors. The evidence of DW-1 Hansabai - the mother of the Plaintiff and Defendant No.1 goes to show that at the time of death of Maruti, Laxman was 12 months old and the Plaintiff Arjun was 4 to 5 years old, while defendant Sarjerao was 20 years old. Naturally neither Arjun nor Laxman had a capacity to assert their rights or to give their consent. Naturally therefore the name of Defendant No.1 Sarjerao who was then 20 years old and major came to be substituted in place of his father. Maruti died in 1947. If Arjun was 4 to 5 years old in 1945, he could be said to have attained majority in 1960. Sub-section 4 of Section 32-G contemplates giving of notice to the interested persons and all others. A notice therefore to these two persons i.e. the Plaintiff and Laxman was necessary. It was so necessary because the name of Sarjerao was recorded as tenant and in the capacity of manager of joint family. Section 40 merely says that the landlord shall continue the tenancy in favour of those willing. This is, therefore, a question between the landlord and the tenant which can be resolved even by an agreement. In the case at hand, the landlord had no option but to continue the tenancy only in the name of Sarjerao Defendant No.1 as other brothers were minor. To my mind, that did not give right to Sarjerao alone to purchase the property under Section 32-G. The said section says that notice to interested persons is to be given. There is no evidence on record that Laxman and Plaintiff had given any consent nor there is any evidence to show that any notice was given to them when the 32-G proceedings were decided. Thus upon the death of Maruti, the tenancy right devolved upon the Plaintiff, Defendant No.1 and Laxman who were joint with him. Sahebrao his eldest son had already separated from him after taking his share. Sahebrao's wife and son, therefore cannot have any interest in these two properties. Simply because the certificate is issued in the name of Sarjerao, he had not become exclusive owner. Such purchase by Sarjerao must enure for the benefit of the other sharers of joint family. Although Sarjerao Defendant No.1 may have paid price, that too would not make him the exclusive owner. At the most he may say that if the plaintiff wants to assert his right he should pay price of his share. The Plaintiff, Defendant No.1 and Defendant Nos.2 & 3 being heirs of Laxman will have a share which come to 1/3rd each in Survey No.47 only. In the circumstances, the question of law are answered accordingly. Hence the following order :

: ORDER :

Both the Appeals are partly allowed.

The judgment and decree passed by the First Appellate Court is set aside.

It is held and declared that the Plaintiff, Defendant No.1 Sarjerao and Defendant Nos.2 and 3 each have 1/3rd share in Survey No.47.

A precept be sent to the Collector for effecting partition of Survey No.47 and for putting each of party in separate possession thereof.

Enquiry into future mesne profit be held from the date of the suit, till realisation of possession.

In the circumstances of the case, the parties are left to bear their own costs.

Rest of the claim of the Plaintiff is dismissed.

The Civil Applications Nos.1363 of 2006 and 41 of 2005 stand disposed of.

The judgment and Decree passed by this Court is stayed for a period of four weeks from today.

Appeals partly allowed.