1 sa173.01.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO.173/2001
1. Shamrao s/o Ramaji Chavan,
aged about 52 years.
2. Gunwant s/o shamrao Chavan,
aged about 29 years.
3. Sagriv s/o Shamrao Chavan,
aged 25 years.
All cultivators, r/o Ajangaon,
Tq. Arvi, Dist. Wardha.
ig .....APPELLANTS
...V E R S U S...
1. Maroti s/o Ramaji Chavan,
aged 43 years, Occ. Cultivator,
R/o Ajangaon, Tq. Arvi, Dist. Wardha.
2. Shevantabai w/o Namdeorao Dongre
(Appeal dismissed against respondent no.2
as per Court's order dtd.02.02.2005) ...RESPONDENTS
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Mr. R. L. Khapre, Advocate for appellants.
Mr. D. S. Dharaskar, Advocate for respondent no.1.
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CORAM:- A. B. CHAUDHARI, J.
Date of Reserving the Judgment
: 25.02.2016
Date of Pronouncing the Judgment
: 18.03.2016
J U D G M E N T
1. Being aggrieved by judgment and decree dated 09.12.1996 passed by Additional District Judge, Wardha in ::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 09:27:20 ::: 2 sa173.01.odt Regular Civil appeal No.59/1993, dismissing the appeal filed by the appellants and confirming the judgment and decree passed by Civil Judge Junior Division, Arvi in Regular Civil Suit No.72/1979, the present second appeal was filed by the unsuccessful defendants.
FACTS:
2. The respondent-plaintiff has filed suit against the appellants-defendants, who constitute a Hindu Joint Family, having movable and immovable properties in Schedule-A of the plaint. The properties in the Schedule were shown as ancestral properties and it was claimed that the plaintiff was entitled to 1/3rd share in the property shown in Schedule-A of the suit. The defendant nos.1 and 2 contested the suit by filing written statement and admitted the relationship. But they denied the existence of Hindu Joint Family and any right of the respondent-
plaintiff described in Schedule-A. The appellants contended that the field survey no.84 admeasures about 17.31 Acres and that was was deliberately not shown in the Schedule-A of the suit for partition. It was then stated in the written statement that as a matter of fact, there was a registered partition on 21.04.1976 in ::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 09:27:20 ::: 3 sa173.01.odt which all properties, including survey no.84 were the subject matter of registered partition deed and in the absence of any reason to set aside that partition, the question of reopening partition through Court did not arise. The suit was, therefore, clearly barred and was liable to be dismissed. The learned trial Judge heard the evidence tendered by the respective parties and decreed the same. In the appeal preferred by the appellants, the decree was confirmed. Hence, this second appeal.
SUBMISSIONS:
3. In support of the appeal, Mr. Khapre, learned counsel for the appellant, vehemently argued inviting my attention to Exh.-88, the registered partition deed, that the document Exh.-88 has been treated by the Courts below in most casual manner when between the parties there was a registered partition already made including all properties so also Survey no.84. He submitted that the suit was not tenable for the simple reason that there was no prayer in the suit for assailing the partition Exh.-88 on any ground whatsoever nor the partition Exh.-88 was at all challenged nor there has been any prayer for reopening the partition on any legal and valid ground. The reopening of partition is a serous issue and ::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 09:27:21 ::: 4 sa173.01.odt it is the settled law that the reopening cannot be made at the mere askance. But in the present case, the reopening was not sought for and in the wake of existence of partition already made between the parties, the suit was filed suppressing that there was already partition Exh.-88, registered in accordance with law and never challenged nor objected to by anybody. There was no even remote challenge to the partition Exh.-88 in the suit and, therefore, the suit itself was not maintainable and the suit ought to have been dismissed on that count.
4. Per contra, Mr. Dharaskar, learned counsel for the respondent, submitted that there are concurrent finding of fact recorded by the two courts below that the suit was liable to be dismissed and it was accordingly dismissed. The Courts below found that the partition Exh.-88 about which there was hue and cry made by the appellants was found to be not fair and, therefore, the Courts were within their power to declare it to be not binding on the parties. He submitted that the said finding of fact cannot be disturbed in the second appellate jurisdiction. He submitted that there are pleadings on record to challenge the validity of partition Exh.-88 and that is why the suit itself was for partition ::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 09:27:21 ::: 5 sa173.01.odt since the plaintiff was not satisfied with the partition Exh.-88. He, therefore, submitted that no substantial question of law is involved in this second appeal, which deserves to be dismissed.
CONSIDERATION:
5. I have heard learned counsel for the rival parties at length. I have perused the entire record and oral as well as documentary evidence. I have seen the reasons recorded by the two courts below. Following are the substantial questions of law framed by this Court while admitting the appeal.
(i) Whether under Section 43 sub section 8 of the Bombay Tenancy and Agricultural Land Act, sale certificate is conclusive proof of purchase and evidence that the purchaser named in that certificate is a statutory purchaser thereof and no evidence can be admitted contradictory or supplementary contents of said certificates as such as allowing the parties to adduce such evidence amounts to allowing the party to defeat the conclusiveness given to such certificate? ...Question does not arise.
(ii) Whether the suit as filed is maintainable in absence of prayer of reopening of partition as the said prayer is intentionally not made by the plaintiff in suit as he is aware that suit for reopening of partition is barred by time being filed beyond the period of three years after ::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 09:27:21 ::: 6 sa173.01.odt partition dated 21.04.1976 and as there was no fraud which can be shown to have been committed at the time of original partition which constitutes the cause of action for filing the suit for partition? ...Yes
(iii) Suit is bad for partial partition as Survey No.84 is not included by the plaintiff in the plaint? ...Yes
(iv) What order? ...As per final order
6. Upon hearing learned counsel for the rival parties as regards question No.5, in the memo of appeal, I find from the careful reading of the pleadings that there is no prayer for reopening of partition Exh.-88 nor any grounds or reasons to show that partition Exh.-88 is a registered partition. The submission that the plaintiff has not signed the said partition has been rejected by the Courts below and in my opinion rightly and, therefore, the appellate Court also did not find any substance in the contention raised that prima facie for want of signature of the plaintiff, the partition could be bad. The appellate Court has given this reasons in paragraph 17 of his judgment with which I agree that even without consent of the sons, the partition could be made. However, the learned lower appellate Court as well as the ::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 09:27:21 ::: 7 sa173.01.odt trial Court both rejected the registered partition Exh.-88 on the ground that it was not a fair partition or was not equitable partition. I am sure, such a course of action was not at all permissible for the Courts below in the absence of plaintiff setting up a challenge to the partition deed Exh.88 in the plaint as well as in the evidence and in the prayer in the suit. It is not for the Court on its own to hold that partition was not fair, proper or equitable.
It is only for the parties to challenge the partition, if at all they are aggrieved on any ground including unfairness and/or other legal and valid ground. What is strange in this case is that without there being any pleading or prayer about Exh.-88 to reopen the partition by setting aside Exh.-88, the Courts below have endeavoured to hold that the partition Exh.-88 was not fair. This is wholly impermissible in law. The registered partition Exh.-88 could not be reopened in the manner done by the Courts below.
The settled rights between the parties by virtue of partition Exh.-
88 could only be disturbed upon the legal and appropriate challenge set up in the plaint and in the prayer and not merely because the trial Court or the appellate Court in its own finds so.
The reopening of the partition is a serious issue as observed by the apex Court. Following is the dicta, in the Case of Ratnam ::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 09:27:21 ::: 8 sa173.01.odt Chettiar and others.vs.S.M.Kuppuswami Chettiar & others; AIR 1976 SC 1, wherein, in paragraph 19, it is held thus:
"19. Thus on a consideration of the authorities discussed above and the law on the subject, the following propositions emerge:
(1) A partition effected between the members of the Hindu Undivided Family by their own volition and with their consent cannot be reopened, unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. In such a case the Court should require a strict proof of facts because an act inter vivos cannot be lightly set aside.
(2) When the partition is effected between the members of the Hindu Undivided Family which consists of minor coparceners it is binding on the minors also if it is done in good faith and in bona fide manner keeping into account the interests of the minors.
(3) Where, however a partition effected between the members of the Hindu Undivided Family which consists of minors is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can certainly be reopened whatever the length of time when the partition took place. In such a case it is the duty of the Court to protect and safeguard the interests of the minors and the onus of proof that the partition was just and fair is on the party supporting the partition.
(4) Where there is a partition of immovable and
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movable properties but the two transactions are distinct and separable or have taken place at different times. If it is found that only one of these transactions is unjust and unfair it is open to the Court to maintain the transaction which is just and fair and to reopen the partition that is unjust and unfair."
7. It is, thus, clear from the above decision and in the light of the facts in the present case that there was no pleading at all regarding partition being unfair. Added to all this, it is important to note that the plaintiff did not include survey no.84 in his partition suit and that appears to be deliberate but then that is fatal to the suit as held in Kenchengowda (since deceased) by Legal Representatives..vs..Siddegowda alias Motegowda; (1994) 4 SCC 294. Para 16 if the said judgment reads thus:
"16. ..Even otherwise, a suit for partial partition in the absence of the inclusion of other joint family properties and the impleadment of the other co-sharers was not warranted in law. Thus, we find no difficult in allowing these appeals which are accordingly allowed."
8. In that view of the matter, both the questions will have to be answered in the affirmative and following order is required to be passed.
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ORDER
(i) Second Appeal No. 173/2001 is allowed.
(ii) Judgment and decree dated 09.12.1996 passed
by Additional District Judge, Wardha in Regular Civil appeal No.59/1993 and judgment and decree dated 29.03.1993 passed by Civil Judge Junior Division, Arvi in Regular Civil Suit No.72/1979 are set aside.
(iii) Regular Civil Suit No. 72/1979 is dismissed.
No order as to costs.
JUDGE kahale ::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 09:27:21 :::