Shardaben D/O Ghelabhai Patel Wd/O ... vs Renukaben Dasrathbhai Patel Wd/O Patel ...

Gujarat High Court

Shardaben D/O Ghelabhai Patel Wd/O ... vs Renukaben Dasrathbhai Patel Wd/O Patel ... on 10 September, 2025

                                                                                                              NEUTRAL CITATION




                             C/SA/313/2025                                   JUDGMENT DATED: 10/09/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                R/SECOND APPEAL NO. 313 of 2025

                                                            With
                                         CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
                                             In R/SECOND APPEAL NO. 313 of 2025

                       FOR APPROVAL AND SIGNATURE:

                        HONOURABLE MR.JUSTICE SANJEEV J.THAKER                       Sd/-
                        ==========================================================
                                    Approved for Reporting                   Yes            No
                                                                                            No
                       ==========================================================
                            SHARDABEN D/O GHELABHAI PATEL WD/O RATILAL CHAGANLAL
                                          PATEL THROUGH LHR & ORS.
                                                   Versus
                            RENUKABEN DASRATHBHAI PATEL WD/O PATEL DASRATHBHAI
                                              GHELABHAI & ORS.
                       ==========================================================
                       Appearance:
                       MR HRIDAY BUCH(2372) for the Appellant(s) No.
                       1,1.1,1.2,1.3,1.4,2,2.1,2.2,2.3,2.4
                       ==========================================================

                          CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER

                                                         Date : 10/09/2025

                                                         ORAL JUDGMENT

1. The present Second Appeal has been filed challenging the judgment and decree, dated 29.04.2025, passed in Regular Civil Appeal No.65 of 2018, by Principal District Judge, Patan confirming the judgment and decree passed by Principal Senior Civil Judge, Patan in Regular Civil Suit No.73 of 2012 dated 25.10.2018.

2. For the sake of convenience, the parties are referred to as their original status referred in the suit.

NEUTRAL CITATION C/SA/313/2025 JUDGMENT DATED: 10/09/2025 undefined FACTS :

3.1 It is the case of the plaintiffs that suit property originally was in the name of Ghelabhai Patel, who was the father of plaintiff no.1 and grandfather of defendant no.2/1 to 2/4, and even though the plaintiffs have not released their rights in the suit property, defendant's father and defendant no.1's husband instead of mutating the suit property in the name of plaintiffs, have mutated the suit property in the name of defendant nos.3 and 4 and, therefore, the suit is filed to declare that the plaintiffs have ½ share in the suit property.

3.2 The summons and notice of the suit were served on the defendant and defendants filed their written statement vide Exh.9 and took a defense that the suit property belonged to Ghelabhai Haribhai who expired on 27.01.1961 and his wife Chandanben expired before the death of Ghelabhai Haribhai and as Shardaben i.e. plaintiff no.1 and Kanchanben i.e. plaintiff no.2 had relinquished their rights in the suit property in favour of Dashrathbhai i.e. son of Ghelabhai and brother of plaintiff nos.1 and 2 and revenue entry to that effect was entered in the revenue record by Entry No.914 on 18.09.1963 and, therefore, defendant no.1 Dashrathbhai Ghelabhai had become owner of the property, in view of the fact that, plaintiff Shardaben and Kanchanben had relinquished their right in favour of defendant no.1 and notice under Section 135(D) of the Land Revenue Code was also issued wherein plaintiffs put their thumb impression and agreed that the plaintiffs do not have right in the Page 2 of 13 Uploaded by MISHRA AMIT V.(HC00187) on Thu Sep 11 2025 Downloaded on : Thu Sep 11 23:20:02 IST 2025 NEUTRAL CITATION C/SA/313/2025 JUDGMENT DATED: 10/09/2025 undefined property and thereafter before the death of Dashrathbhai Ghelabhai on 26.11.2006, by way of registered Will dated 07.11.2006 bearing Entry No.3138, the suit property was bequeath to defendant nos. 3 and 4 jointly. Thereafter suit property was purchased by registered sale-deed by defendant nos.6 to 10 on 01.07.2012 and revenue entry to that effect being No.13955 was mutated 21.07.2012 and thereafter the competent authority had also passed an order whereby converting the suit property to non-agricultural land. Therefore, it was the case of the defendant that plaintiff does not have any right or interest in the suit property, in view of the fact that plaintiffs have already relinquished their right in the suit property.

3.3 It was the case of the plaintiff that the plaintiff and the defendants are members of joint hindu family and suit property was of the ownership of joint hindu family and that plaintiff has ½ share in the suit property.

3.4 The trial Court framed issues vide Exh.43, which read as under:

" (1) Whether the plaintiff proves that they and the defendants are the members of the Joint Hindu Family ?

(2) Whether the plaintiff proves that the suit properties are the ownership of Joint Hindu Family ?

(3) Whether the plaintiff proves that he has 1/2th share in the suit property ?

NEUTRAL CITATION C/SA/313/2025 JUDGMENT DATED: 10/09/2025 undefined (4) Whether the defendant proves that defendants No.3 & 4 are the joint owners of the suit property as per the registered will dated 07/11/2006 executed by the deceased Patel Dashrathbhai Ghelabhai ?

(5) Whether the defendant proves that the suit is bed for non-

joinder of necessary parties ?

(6) Whether the defendant proves that the plaintiff has already relinquished his right / share in favour of the defendant's by executing a writing ?

(7) Whether plaintiff's suit is barred by Law of Limitation ? (8) Whether plaintiff's suit is barred by Bombay Revenue Jurisdiction Act ?

(9) Whether defendants proves that entry No.914, entry dated 18-09-1936 was carried out by following provision of Land Revenue Code ?

(10) Whether the plaintiff proves that the suit properties are liable to be partitioned ?

(11) What is the share of each party ?

(12) What Order and Decree ?"

3.5 The plaintiff examined himself vide Exh.67 and the plaintiff's witness vide Exh.112. The defendant examined himself vide Exh.132 and 139 and after taking into consideration the oral evidence and documentary evidence and giving findings on all the issues, the trial Court dismissed the suit by order dated 25.10.2018. The said judgment and decree passed by the trial Court was challenged by the plaintiff by filing Regular Civil Appeal No.65 of 2018 and after reappreciating the evidence, the first appellate Court dismissed the said appeal and hence the present Second Appeal.

NEUTRAL CITATION C/SA/313/2025 JUDGMENT DATED: 10/09/2025 undefined 4.1 Learned advocate for the plaintiff has mainly argued that the trial Court and the first appellate Court have failed to appreciate the clear admission of the title of Ghelabhai Haribhai Patel i.e. father of plaintiff and defendant no.1.

4.2 It has also been argued by learned advocate for the plaintiff that there was no formal partition of the land in question and the said continued to remain undivided and without any registered released deed co-sharer could not transfer the suit property to third party.

4.3 Learned advocate for the plaintiff has also argued that subsequent purchaser i.e. defendant nos.5 to 10 neither led any independent evidence nor discharged the burden of proof of their stand as bona fide purchaser for value without notice and despite the said fact, the Court did not draw adverse inference and therefore also the judgment and decree passed by the trial Court and confirmed by the appellate Court is required to be quashed and set aside.

4.4 It has also been argued that the trial Court and the appellate Court have erred in placing reliance on mutation entry no.914, in view of the fact that the Court has not properly examined whether the plaintiff had voluntarily and lawfully relinquished their rights in the suit property. It has also been argued that trial Court has not taken into consideration that there is no registered document by which plaintiff had relinquished their share in the suit property and Page 5 of 13 Uploaded by MISHRA AMIT V.(HC00187) on Thu Sep 11 2025 Downloaded on : Thu Sep 11 23:20:02 IST 2025 NEUTRAL CITATION C/SA/313/2025 JUDGMENT DATED: 10/09/2025 undefined in view of the said fact, the appellate Court has failed to appreciate Section 17 of the Indian Registration Act wherein it is mandatory to register relinquishment of right. Therefore, it has been argued that there are substantial questions of law which are formulated in the Second Appeal. Therefore, present Second Appeal is required to be admitted on following substantial question of law as suggested in memo of appeal.

" (i) Whether the Courts below erred in law in failing to apply the settled presumption that ancestral property is presumed to be joint family property, thereby wrongly placing the burden of proof on the Plaintiff- Appellant instead of the Defendants ?

(ii) Whether both the Trial Court and the Appellate Court committed a substantial error of law in holding that the suit land was not ancestral property despite the admitted ownership of the land by the forefather and absence of any evidence of partition or relinquishment ?

(iii) Whether the Courts below erred in law in disregarding the equal coparcenary rights of daughters in the ancestral property under the amended provisions of the Hindu Succession Act, 1956, particularly in light of the Defendant's own admission regarding the joint family nature of the suit land ?

(iv) Whether the Courts below erred in law in not granting declaratory relief of co-ownership in favour of the Appellants despite undisputed succession and lack of partition by metes and bounds, thereby failing to appreciate the true nature fo the relief claimed ?

(v) Whether the concurrent findings of the Courts below are vitiated by non-consideration of material documentary evidence, including Exhibit 82 (Revenue Entry No.1662), which supports the joint family character of the suit land ?

NEUTRAL CITATION C/SA/313/2025 JUDGMENT DATED: 10/09/2025 undefined

(vi) Whether the findings of the Courts below that the Appellants had relinquished their rights in the ancestral property are legally sustainable in the absence of any registered relinquishment deed or consideration, contrary to the mandate of Section 17 of the Indian Registration Act, 1908 ?

(vii) Whether the Courts below erred in law in treating Mutation Entry No.914 dated 18.09.1963 - being merely a revenue record - as conclusive proof of relinquishment of rights and title, contrary to the settled legal position that revenue entries do not create or extinguish title ?

(viii) Whether the findings of the Courts below, which are premised on an alleged Will executed by one coparcener in respect of undivided ancestral property, are contrary to the settled legal position that a coparcener cannot unilaterally bequeath joint family property by way of Will ?

(ix) Whether the Courts below failed to examine and appreciate the legal requirements of due execution, attestation, and the presence or absence of suspicious circumstances surrounding the registered Will dated 07.11.2006 ?

(x) Whether the finding of the Trial Court that the suit is barred by limitation is sustainable in absence of any specific pleadings and findings regarding the date of accrual of the cause of action and knowledge thereof?

(xi) Whether the Trial Court committed a substantial procedural error in clubbing and deciding multiple material issues together - such as title, limitation, will and co- ownership - thereby depriving the Plaintiffs of independent adjudication on each issue ?

(xii) Whether the Courts below misinterpreted the nature of the suit by treating it as one for partition and framing issues accordingly, despite the suit being for declaration and injunction in respect of ancestral rights, and not for partition per se ?

NEUTRAL CITATION C/SA/313/2025 JUDGMENT DATED: 10/09/2025 undefined

(xiii) Whether the Courts below failed to correctly apply the doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882, while considering transfers made by Defendant Nos.3 and 4 to Defendant Nos.5 to 10 during the pendency of the suit, particularly when the transferees neither led evidence nor established their bona fides ?

(xiv) Whether the learned First Appellate Court failed to discharge its statutory duty under Section 96 read with Order XLI Rule 31 of the Code of Civil Procedure by not independently appreciating the pleadings, evidence, and grounds raised in the First Appeal, and by mechanically affirming the Trial Court's findings without assigning proper and reasoned findings of its own, thereby rendering its judgment vulnerable to interference in Second Appeal ?

(xv) Whether the Courts below committed an error in law in holding against the Plaintiffs without recording any valid or reasoned findings on the issues framed ?"

5.1 Having heard learned advocate for the plaintiff and having considered the judgment and decree passed by the trial Court and confirmed by the first appellate Court, that by revenue Entry No.914, the plaintiffs have relinquished their rights in the suit property in favour of defendant no.1 after the death of their father Ghelabhai Haribhai Patel. After the said relinquishment, the suit property cannot be said to be a property of joint Hindu family and plaintiff cannot claim share of ½ share in the suit property. The fact also remains that after the relinquishment and after mutation entry no.914 dated 18.09.1963, the plaintiffs cannot claim any right in the property, in view of the fact that they have already relinquished their rights by way of making statement before the Revenue Department and pursuant to the said statement by revenue entry no.914 name of Page 8 of 13 Uploaded by MISHRA AMIT V.(HC00187) on Thu Sep 11 2025 Downloaded on : Thu Sep 11 23:20:02 IST 2025 NEUTRAL CITATION C/SA/313/2025 JUDGMENT DATED: 10/09/2025 undefined defendant no.1 has been mutated in the revenue record and, therefore, after the said mutation entry and after the said relinquishment-deed, the defendant no.1 Dashrathbhai became exclusive owner of the property and in view of the said fact as per the release-deed by which the sister of defendant no.1 Dashrathbhai having released their rights in the property, it had become the property which was owned by Dashrathbhai Ghelabhai and, therefore, said Dashrathbhai Ghelabhai had executed registered Will dated 07.11.2006 in favour of defendant nos.3 and 4, the fact remains that present plaintiffs are trying to challenge the release- deed that has been executed in the year 1963 by filing suit in the year 2012 and in view of the fact that by way of partition the suit property has come in the hands of defendant no1 Dashrathbhai Ghelabhai. Therefore, it cannot be said that Dashrathbhai Ghelabhai did not have any authority to execute Will with respect to the suit property.

5.2 In view of the above, at least, the said statement made by the plaintiff before the revenue authority relinquishing their rights in respect of suit property is admitted by the plaintiffs, and therefore, the plaintiffs are estopped from contending the contrary to the statement made by the appellant before the revenue authority in the year 1963. The fact also remains that the properties were distributed amongst family members i.e. brothers and sisters by way of family arrangement and the same is bona fidely made and the said Page 9 of 13 Uploaded by MISHRA AMIT V.(HC00187) on Thu Sep 11 2025 Downloaded on : Thu Sep 11 23:20:02 IST 2025 NEUTRAL CITATION C/SA/313/2025 JUDGMENT DATED: 10/09/2025 undefined statements by the sisters were made before the revenue authority voluntarily by plaintiffs and the entry in the record of rights regarding the factum of relinquishment of the rights of the parties is a relevant piece of document to prove the factum of relinquishment.

5.3 Moreover, the statement of relinquishment/partition with respect to the properties was evidenced by entries in the record of rights which was maintained in official course of business. The correctness thereof is not questioned and the same corroborates the oral evidence given by the parties in the suit, and therefore, the same is required to be accepted.

5.4 In the present case, the plaintiffs themselves acted upon the said statement made in the year 1963 whereby accepting the said revenue entries and as per the statement made before the revenue department way back in the year 1963 that their brother Dashrathbhai has become exclusive owner of suit property the plaintiffs cannot now take a ground that there is no registered document and it was not open for the plaintiffs to resile from the same. The plaintiffs are estopped from contending to the contrary whereby the plaintiffs have released their rights with respect to suit property and, therefore, after the statement made in 1963 and on the basis of which mutation entry being done in revenue record the plaintiffs now cannot say that the said property belong to the plaintiffs.

NEUTRAL CITATION C/SA/313/2025 JUDGMENT DATED: 10/09/2025 undefined 5.5 Moreover, the plaintiffs having gone before the revenue authorities and made a statement in the year 1963 and thereafter, after notice under Section 135(D) of the Bombay Land Revenue Code having been served by the plaintiffs and having not objected by the plaintiffs to the said statement whereby, by way of family arrangement, there was division between the plaintiffs and defendant no.1, who were real brothers and sisters and the said statement was made to sink with itself and disputes were settled and resolved with the claimants of the properties in question once and for all in order to buy a peace of mind.

5.6 Therefore, as the application is made by the plaintiffs before the revenue department and the same on proper verification has been made before the revenue department, the Court may presume existence of the said fact as the plaintiffs have gone before the revenue department and made a statement whereby the plaintiffs have relinquished/released his right with respect to suit property.

5.7 The plaintiffs are party to the said statement made before the revenue department and are not trying to seek to unsettle the settled dispute and claims to revoke the said statement. The said statement which has been made by the plaintiffs before the revenue department seems to have been made bonafide to resolve the family dispute. The said settlement was made voluntarily.

NEUTRAL CITATION C/SA/313/2025 JUDGMENT DATED: 10/09/2025 undefined 5.8 The voluntarily statement made by the plaintiffs before the revenue department after the family arrangement, is mere statement made by the parties before the revenue department after the family arrangement, for the purpose of making mutation entry and the same does not fall within the mischief of Registration Act and is therefore not compulsorily registrable and the said statement is nothing but a memorandum of family settlement whereby the plaintiffs and the defendant no.1 bonafide resolved their family dispute and rival claims by a fair equitable division of allotment of properties.

5.9 In that view of the matter, the trial Court and the appellate Court have rightly concluded that as by way of family arrangement in the year 1963 the properties in question have been distributed in view of the statements made by the plaintiffs and defendant no.1 before the revenue department, the question of the plaintiffs demanding the right in the said property without seeking nullity of the earlier said statement made before the revenue authority properties cannot be permitted.

5.10 In view of the facts that the said statement has voluntarily been made by plaintiffs, the plaintiffs cannot claim any right in suit property.

5.11 The observations and conclusion made in the judgment and decree passed by the trial Court and confirmed by the first Page 12 of 13 Uploaded by MISHRA AMIT V.(HC00187) on Thu Sep 11 2025 Downloaded on : Thu Sep 11 23:20:02 IST 2025 NEUTRAL CITATION C/SA/313/2025 JUDGMENT DATED: 10/09/2025 undefined appellate Court are not perverse and arbitrary so as to warrant interference in the Second Appeal.

5.12. Moreover, as per the well settled decisions of this Court as well as the Hon'ble Apex Court, the Court ordinary will not interfere with findings of fact except in exceptional cases where the findings are such that it shocks the conscious of the Court or may disrespect to the forms of legal process or some violation or some principle of natural justice or otherwise substantial and great injustice has been done.

6. For the discussions and reasons recorded above, the Second Appeal is hereby dismissed. In view of the order passed in main matter, connected Civil Application does not survive and stands disposed of accordingly.

(SANJEEV J.THAKER,J) MISHRA AMIT V. Page 13 of 13 Uploaded by MISHRA AMIT V.(HC00187) on Thu Sep 11 2025 Downloaded on : Thu Sep 11 23:20:02 IST 2025