Bombay High Court
Kaushlyabai Apparao Patil vs Apparao Ramchandra Patil & Others on 29 April, 2016
Bench: T.V. Nalawade
1 S.A. 245.1993 - [J]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 245 OF 1993
Sow. Kaushalyabai w/o Apparao Patil
Age : 45 Yrs., Occ. Household & Agri.,
R/o : Ravi, Tq. Mukhed, District : ..... APPELLANT/
Nanded. [ORI. PLAINTIFF]
ig V E R S U S
1. Apparao s/o Ramchandra Patil
[since deceased Thr. L.Rs. : ]
1-A Sunita w/o Shankarrao Patil
Age : 35 Yrs., Occ. Household,
R/o : Ravi, Tq. Mukhed, District :
Nanded.
2. Govind s/o Hullappa Gaud
[since deceased Thr. L.Rs. : ]
2/1. Tanabai w/o Govind Gaud
Age : 70 Yrs., Occ. Household,
R/o : Ravi, Tq. Mukhed, District :
Nanded.
2/2. Hullappa s/o Govind
[since deceased Thr. L.Rs. : ]
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2 S.A. 245.1993 - [J]
2/2 (a) Arun Hullappa Zugande
Age : 40 Yrs., Occ. Agri.,
R/o : Ravi, Tq. Mukhed,
District : Nanded.
2/2 (b) Sanjay Hullappa Zugande
Age : 38 Yrs., Occ. Agri.,
R/o : Ravi, Tq. Mukhed,
District : Nanded.
2/2 (c)
ig Ramesh Hullappa Zugande
Age : 35 Yrs., Occ. Agri.,
R/o : Ravi, Tq. Mukhed,
District : Nanded.
2/2 (d) Narayan Hullappa Zugande
Age : 32 Yrs., Occ. Agri.,
R/o : Ravi, Tq. Mukhed,
District : Nanded.
2/3. Ausabai Tulshiram Surnar
Age : 35 Yrs., Occ. Household,
R/o : Ravi, Tq. Mukhed,
District : Nanded.
2/4. Dhondubai w/o Shrirang
Age : 30 Yrs., Occ. Household,
R/o : Sawali, Tq. Mukhed,
District : Nanded.
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3 S.A. 245.1993 - [J]
3. Gyanoba Subhanrao Godaji
[since deceased Thr. L.Rs. : ]
3 (a) Smt. Padminibai Gyanoba
Age : 71 Yrs., Occ. Agri.
R/o : Ravi, Tq. Mukhed,
District : Nanded.
3 (b) Smt. Vimal Kishan Deokate
Age : 45 Yrs., Occ. Household,
igR/o : Tamlur, Tq. Degloor,
District : Nanded.
3 (c) Sakharam Gyanoba
Age : 40 Yrs., Occ. Agri.
R/o : Ravi, Tq. Mukhed,
District : Nanded.
3 (d) Narayan s/o Gyanoba
Age : 35 Yrs., Occ. Agri.
R/o : Ravi, Tq. Mukhed,
District : Nanded.
4. Ramchandra s/o Tofa
[since deceased Thr. L.Rs. : ]
4 (a) Venkat s/o Ramchandra Biradar
Age : Major, Occ. Agri.,
R/o : Ravi, Tq. Mukhed,
District : Nanded.
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4 S.A. 245.1993 - [J]
4 (b) Ashok s/o Ramchandra Biradar
Age : Major, Occ. Agri.,
R/o : Ravi, Tq. Mukhed,
District : Nanded.
4 (c) Lakshmibai w/o Baburao Dhulgude
Age : Major, Occ. Agri.,
R/o : Ravi, Tq. Mukhed,
District : Nanded.
4 (d) Narsabai w/o Ramchandra Biradar
Age : Major, Occ. Agri.,
R/o : Ravi, Tq. Mukhed,
District : Nanded.
5. Chandrakalabai w/o Shivaji
Age : 40 Yrs., Occ. Household,
R/o : Risagaon, Tq. Kandhar,
District : Nanded.
6. Prabhubai w/o Ganpatrao Naik
Age : 38 Yrs., Occ. Household &
Agri.,R/o : Risagaon, Tq. Kandhar,
District : Nanded.
7. Rukhminibai w/o Nivartirao Patil
Age : 45 Yrs.,, Occ. Household &
Agri., R/o : Ravi, Tq. Mukhed,... RESPONDENTS/
District : Nanded. [ORI. DEFENDANTS]
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5 S.A. 245.1993 - [J]
.....
Mr. N.P.Patil - Jamalpurkar, Advocate for Appellants.
Mr. G.J.Karne, Advocate for R.Nos. 3-A to 3-D.
Mr. R.D.Biradar, Advocate for R.Nos. 5 & 6.
.....
CORAM : T.V.NALAWADE, J.
DATE OF JUDGMENT : 29/04/2016
JUDGMENT :
1. The Appeal is filed to challenge the
Judgment and Decree of R.C.S. No. 52/1977 which was
pending in the Court of the Civil Judge [Jr.Division],
Mukhed and also against the Judgment and Decree of
R.C.A. No. 112/1981 which was pending in the Court of
the 4th Additional District Judge, Nanded. Both sides are
heard.
2. R.C.S. No. 52/1977 was filed for relief of
partition of joint Hindu family property by one Dnyanoba,
son of present appellant Kaushalyabai born from
respondent Apparao. The Suit was filed against Apparao,
2 wives of Apparao including the present appellant and
step sister of Dnyanoba. The suit was filed also against
6 S.A. 245.1993 - [J]
the purchasers of the suit properties from Apparao. At
the relevant time, age of Dnyanoba was 9 years and so he
was allowed to be represented by his grand-father from
maternal side by the trial Court as next friend. Now
Dnyanoba is dead and the next friend is also dead. In
view of these circumstances and as the L.R. of Dnyanoba ,
as the real mother of Dnyanoba, the Appeal is filed by the
appellant though she was defendant in the Suit. Initially,
the Suit was filed by her for Dnyaboba as next friend, but
as she was defendant also, the Court had directed to see
that some other person represents Dnyanoba as next
friend.
3. The Suit was filed in respect of agricultural
lands bearing S.No. 24 [to the extent of 8 Acres], S.No.
24 [to the extent of 8 Acres 17 G.], S.No. 22 [to the
extent of 6 Acres 4 G.], S.No. 22 [to the extent of 2
Acres] and S.No. 15 [to the extent of 2 Acres]. The Suit
was filed also in respect of one house property and open
space. The plaintiff had contended that he has 1/3rd
share in all these properties and he had prayed for
partition and separation of his share. He had claimed
relief of declaration that the sale deeds executed by
7 S.A. 245.1993 - [J]
Apparao, defendant No. 1, to the other defendants, the
purchasers, are not binding on him. The sale deeds and
transactions as follows were challenged in the Suit.
[i] Sale deed in favour of defendant No. 3, other
wife of defendant No. 1 dated 14/12/1972.
[ii] Sale deed in favour of defendant No. 4 dated
22/02/1969.
[iii] Sale deed in favour of defendant No. 5 dated
03/01/1970.
[iv] Sale deed in favour of defendant No. 6 dated
04/04/1970.
[v] Sale deed in favour of defendant Nos. 7 and
8 dated 14/12/1972.
[vi] Sale deed in favour of defendant No. 9 in
respect of some portion of Gadhi, open space
and house property dated 12/05/1975.
4. Defendant No. 3 is step mother of Dnyanoba
and defendant Nos. 7 and 8 are step sisters. Defendant
Nos. 7 and 8 were however born to the first wife of
defendant No. 1, who died and after her death, defendant
8 S.A. 245.1993 - [J]
No. 1 had married with defendant Nos. 2 and 3. Plaintiff
Dnyanoba has one real sister, but she was not made party
to the Suit.
5. It is the case of plaintiff that in the past there
was ancestral and joint Hindu family property, 250 Acres
of agricultural land and one Gadhi with open space. It is
contended that the defendant No. 1 was addicted to bad
vices and to satisfy them, before the birth of the plaintiff,
defendant No. 1 had disposed of more than 200 Acres of
agricultural land. It is contended that after the birth of
plaintiff, land as mentioned above, was disposed of by
defendant No. 1 in favour of defendant Nos. 3 to 9 and
that was also done to satisfy his bad vices. Dnyanoba had
contended that defendant No. 1 was not ready to
partition the suit property and give his share and so the
Suit was required to be filed.
6. Defendant No. 1 Apparao filed Written
Statement and contested the Suit. He contended that he
had effected the partition between himself and plaintiff
and the share of plaintiff was given to him. He
contended that prior to the birth of plaintiff, he had sold
9 S.A. 245.1993 - [J]
some land, but those transactions were made for medical
expenses on the treatment given to first wife. It is his
case that the first wife did not survive even after the
treatment and then he married other wife. He denied
that he was addicted to bad vices and he had disposed of
said properties for satisfaction of bad vices. He
contended that the health condition of defendant No. 2,
real mother of plaintiff, was also not good and for giving
treatment to her also, he was required to sell around 50
Acres of agricultural land. He contended that for many
years, no issue was born to defendant No. 2 and so with
her consent, he married defendant No. 3. He contended
that he was required to spend for marriages of defendant
Nos. 7 and 8 and for that also he was required to sell
some agricultural lands.
7. It is the case of defendant No. 1 that
defendant No. 2, mother of the plaintiff, was taking side
of Amrut, who has rivalry against defendant No. 1 and
due to that, many litigations were started. He contended
that to defend the said proceedings, he was required to
spend huge amount and for that he was required to sell
land after the birth of the plaintiff. He contended that in
10 S.A. 245.1993 - [J]
the partition, he gave 6 Acres of land from S.No. 22 to
defendant No. 3, though the document of gift was
executed in her favour. Defendant No. 1 contended that
the property which was given to the plaintiff, defendant
No. 3 and the property which was sold to Amrut and
others is not included in the Suit and so the Suit is bad
for non inclusion of those properties. He also contended
that the Suit is bad for non-joinder of necessary parties.
He mentioned some properties which were not included
in the Suit viz. 4 Acres 22 gunthas out of S.No. 22 shown
to be given to defendant No. 3, properties sold under
sale deed dated 13/05/1974, sale deed in favour of
Yadav from S.No. 15 dated 14/12/1974, property sold to
Amrut under sale deed dated 31/07/1974 admeasuring 3
Acres 30 gunthas out of S.No. 24 and property sold to
one Dhondiba s/o Maruti under sale deed dated
13/05/1974 and the land sold to Maruti and Nivrati sons
of Vishwanath out of S.No. 24 to the extent of 3 Acres 10
gunthas. He contended that he has sold open space to
other persons viz. Gundappa and that property is also not
included in the Suit. All the properties are situated at
Ravi.
11 S.A. 245.1993 - [J]
8. Defendant No. 1 specifically contended that
on 23/04/1974 he had effected partition and he has
given 6 Acres 7 gunthas out of S.No. 22 to plaintiff and
some space of Gadhi was also given. He contended that
he has given some portion of Gadhi to defendant No. 3.
He contended that 3 families are living separate and they
started living separate from the date of partition. He
contended that some property given to defendant No. 3 is
sold to one Shivaji and he is not made party to the Suit.
He contended that the property was sold to Maruti and
Nivrutti, but they are not made parties to the Suit.
Similar Written Statement was filed by defendant Nos.
3,6 and 9. Defendant Nos. 4,5,7 and 8 adopted the
Written Statement. Thus, only plaintiff and defendant
No. 2, real mother of plaintiff, were interested in getting
the relief.
9. On the basis of aforesaid pleadings, issues
were framed. Both sides gave evidence. The trial Court
held that there was no partition. The trial Court further
held that suit properties were sold for legal necessity. The
trial Court held that many other properties were sold
after birth of the plaintiff, but they are not included in the
12 S.A. 245.1993 - [J]
Suit and Suit is bad for non inclusion of those properties.
The trial Court has observed that when some properties
are given to the plaintiff and defendant No. 3 also and as
they are not included in the Suit and as the real sister of
plaintiff is not made party to the Suit, the Suit is not
tenable.
10. The learned counsel for the
appellant/original defendant No. 1 submitted that when
burden of proof of the ground of legal necessity was on
the defendant, the vendor or the purchasers, the trial
Court had held that such burden was on plaintiff and so
the error is committed in deciding the matter. It is true
that such issue was framed by the trial Court. However,
the Suit is decided not only on the basis of the finding
given on this issue but the Suit is dismissed due to
grounds of non inclusion of some properties and non-
joinder of necessary parties to the Suit.
11. Defendant No. 1 was karta of the joint
family and he had the power to alienate the joint family
property, though for legal necessity. It needs to be kept
in mind that the Suit was filed for relief of partition and
13 S.A. 245.1993 - [J]
in partition, defendant No. 1 was entitled to get share in
the property. The evidence on record shows that more
than 50 Acres land was there with the family after the
birth of plaintiff and in the Suit, partition is claimed only
in respect of the area of 26 Acres. Thus, other properties
are not included and the transactions made in respect of
other properties are not challenged in the Suit. It can be
said that there could have been equitable partition if all
the properties were included in the Suit and during
partition, the lands already sold by defendant No. 1 could
have been given to his share if there was evidence to
show that the purchasers need to be protected. All these
circumstances need to be considered while appreciating
the evidence given and while considering the claims
made by the plaintiff.
has mentioned that he has transferred some properties to
Amrut and Yadav after the birth of the plaintiff. Similarly,
area of 6 Acres 7 gunthas is given to the plaintiff himself.
These properties and some other properties are not
included in the Suit. Defendant No. 2, mother of the
plaintiff did not contest the Suit and now she is appellant.
14 S.A. 245.1993 - [J]
13. In the substantive evidence, in Examination-
in-Chief, the grand-father of the plaintiff had admitted
that around 26 Acres portion was sold by defendant No. 1
and evidence shows that there was more area which
could have been included in the Suit. He has however
given evidence that the property was sold by defendant
No. 1 for his own enjoyment and not for the needs of the
family.
14. In the cross examination, the next friend of
the plaintiff has admitted that defendant No. 1 had spent
on the marriages of defendant Nos. 7 and 8. His evidence
shows that these marriages were solemnized after the
birth of plaintiff. He admits that area of 6 Acres 7
gunthas was given to the plaintiff though under the gift
deed and it was joint family property. This property is
not included in the Suit. He admits that some property
was sold to Yadav, Amrut and that property is also not
included in the Suit. He has shown ignorance about the
sale transactions made in respect of portion of Gadhi in
favour of Amrut and Vyankat. He could not say as to why
other properties which could have been included in the
Suit for partition, were not included. The witness of
15 S.A. 245.1993 - [J]
plaintiff [P.W. 2] has admitted that till the date of Suit,
plaintiff was living with defendant No. 1 and only after
filing of the Suit, he started living separate from
defendant No. 1. His evidence also shows that after the
birth of plaintiff, defendant No. 1 had sold lands to
Yadav, Amrut, Maruti and portion of Gadhi was sold to
Vyankat and Gundappa. Similar evidence is given by
P.W. 3. He admits that plaintiff and defendant Nos. 1
and 2 are living separate in separate portions of Gadhi.
15. There is revenue record and it shows that out
of 2 H. 9 R. from S.No. 22/1, 1 H. 6 R. is standing in the
name of defendant No. 3 and S.No. 22/4 admeasuring 88
R. is shown to be owned by the plaintiff. These
properties are joint family properties. Copies of some
sale deeds are produced on record and it can be said that
the transactions made under sale deed dated
13/05/1974, 03/07/1970 and 22/08/1968 are not
challenged in the Suit. It is the specific case of defendant
No. 1 that one Amrut is behind this litigation. In view of
these circumstances, such probability can not be ruled
out.
16 S.A. 245.1993 - [J]
16. The aforesaid discussion shows that around
40 - 50% property, which ought to have been included in
the Suit for partition, is not included in the Suit. Some
sale transactions are not mentioned in the Suit. Thus,
there was no possibility of having equitable partition.
Some property is already in possession of the plaintiff and
he has not contended that the said property is also
available for partition. It is already observed that
defendant No. 1 had at least 1/3 rd share in the suit
property and he could have dispose of this share even
when there was no legal necessity and so the Suit is bad
for non inclusion of the properties in the Suit.
17. When Appeal was admitted on 31/10/2007,
this Court had formulated following substantial questions
of law.
[i] Whether in the facts and circumstances of
the present case, the first appellate Court and
the trial Court committed patent error and
rendered perverse findings by improper
framing of issues and misdirecting itself in
the process of the trial on the question of
legal necessity for the alienations which the
plaintiff challenged ?
17 S.A. 245.1993 - [J]
[ii] Whether in the facts and circumstances of
the present case, the first appellate Court and
the trial Court committed patent illegality
while dismissing the suit when the evidence
on record did not go to bear out the
existence of pressure on the property nor
there was benefit derived by the joint family
of the defendant No. 1 and the plaintiff ?
18. The aforesaid points were only in respect of
legal necessity. It is already observed that there is
specific admission that till the date of Suit, plaintiff was
living with defendant No. 1 in joint Hindu family. The
next friend of plaintiff did not have personal knowledge
regarding the transactions and he admits that defendant
No. 1 had sold some properties for marriages of
defendant Nos. 7 and 8. Evidence is given to show that
some property was given to plaintiff and mutation was
also effected in respect of that property. Due to these
circumstances, there was some burden on plaintiff, but
those circumstances are not explained. As defendant No.
2, real mother of plaintiff did not dare to step in witness
box, adverse inference can be drawn. It is already
admitted that plaintiffs and defendant No. 2 are on one
side. As the Suit was dismissed mainly on the ground of
18 S.A. 245.1993 - [J]
non inclusion of many properties in the Suit and non-
joinder of necessary parties, there was no necessity of
considering the point of legal necessity. Thus, the
aforesaid substantial questions of law were not really
involved in the matter. This Court holds that it is not
possible to interfere in the decision given by the Courts
below.
ig Learned counsel for the appellant placed
reliance on following reported cases.
[i] 2013 (5) Supreme - 666
[Rohit Chauhan Vs. Surinder Singh &
Ors.]
[ii] 2015 (5) Mh.L.J. - 853
[Basheer s/o Amir Patel
[since deceased Thr. L.Rs.
Madina Bee Bashir Patel & Ors. Vs.
Dnyaneshwar s/o Bhikarchand
Thr. its L.Rs. Dattu Dnyaneshwar
Sonawane & Ors.]
[iii] AIR 1964 Supreme Court - 510
[Guramma Bhratar Chanbasappa
Deshmukh & Ors. (in C.A. No. 334 of
1960) 2. Nagamma Bhartar Chanbasappa
19 S.A. 245.1993 - [J]
Deshmukh & Anr. (in C.A. No. 335 of
1960). Vs. 1. Mallappa Chanbasappa &
Anr. (in C.A. No. 334 of 1960) 2.
Guramma Bhratar Chanbasappa & Ors.
(in C.A. No. 335 of 1960). ]
[iv] AIR 1953 Supreme Court - 495
[C.N.Arunachala Mudaliar Vs.
Muruganatha Mudaliar & Anr.]
[v]
ig Laws (SC) - 2009-7-91
M.Yogendra Vs. Leelamma N.
[vi] (1986) 3 Supreme Court Cases - 567
Commissioner of Wealth Tax
Kanpur & Ors. Vs. Chander Sen & Ors.
20. There can not be any dispute over the
proposition made in aforesaid reported cases. In the
peculiar facts and circumstances of the case, this Court
holds that the ratios of aforesaid reported cases are of no
help to the appellant.
21. In the result, Second appeal stands
dismissed.
[T.V.NALAWADE, J.]
KNP/S.A. 245.1993 - [J]
20 S.A. 245.1993 - [J]
