Bombay High Court
Shamrao Rama Tikte vs Rama Ganpati Tikte Died Lrs & Ors on 14 July, 2016
Bench: T.V. Nalawade
1 SA 1688 of 2004
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No.1688 of 2004
* Shamrao Rama Tikte,
Age 64 years,
Occupation: Agriculture,
R/o Pathrud, Taluka Bhoom,
District Osmanabad. .. Appellant.
Versus
1)
Rama Ganpati Tikte,
Died through legal representatives.
1A) Rukminbai w/o Bhagwan Borade,
Age 64 years,
Occupation: Agriculture,
R/o Pathrud, Taluka Bhoom,
District Osmanabad.
1B) Prayagbai w/o Sahebrao Bhogil,
Age 59 years,
Occupation: Agriculture,
R/o Jejala, Taluka Paranda,
District Osmanabad.
2) Shevantabai w/o Rama Tikte,
Died, - legal representatives -
defendant Nos.1A, 1B,
plaintiff and respondent
Nos.3 and 4.
3) Digambar Rama Tikte,
Died through legal
representatives:
3.1) Shahaji s/o Digambar Tikte,
Age 45 years,
occupation: Agriculture.
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2 SA 1688 of 2004
3.2) Navnath s/o Digambar Tikte,
Age 43 years,
Occupation: Agriculture,
Both R/o Pathrud, Taluka Bhoom,
District Osmanabad.
3.3) Mandubai w/o Varshiketu Bhogil,
Age 50 years,
Occupation: Agriculture,
R/o Dandegaon, Post Ambi,
Taluka Bhoom, Dist Osmanabad.
3.4) Hukabai w/o Pandurang Sable,
Age 40 years, Occupation: Household,
R/o Tintraj, Post. Ambi,
Taluka Bhoom,District Osmanabad.
4) Dadasaheb Rama Tikte,
Age 54 years,
Occupation: Agriculture,
R/o Pathrud, Taluka Bhoom,
District Osmanabad. .. Respondents.
--------
Smt. M.A. Kulkarni, Advocate, for appellant.
Shri. S.D. Hiwarekar, Advocate, for respondent No.4.
--------
CORAM: T.V. NALAWADE, J.
DATE : 14 JULY 2016
JUDGMENT:
1) The appeal is filed against the judgment and
decree of Regular Civil Suit No.215/1990 which was
pending in the Court of the Civil Judge, Junior Division,
Bhoom and also to challenge the judgment and decree of
3 SA 1688 of 2004
Regular Civil Appeal No.109/1995 which was pending in
the Court of the Ad-hoc Additional District Judge,
Osmanabad. The suit filed by the present appellant for the
relief of partition and separate possession is dismissed by
the trial Court and the finding is confirmed by the first
appellate Court. Both the sides are heard.
2)
In short, the facts leading to the institution of
the appeal can be stated as follows :-
The suit was filed for partition of in all 27 agricultural
lands situated at village Pathrud, Tahsil Bhoom. The
plaintiff and defendant Nos.3 and 4 are real brothers inter
se and defendant Nos.1 and 2 were their parents. The
parents died during pendency of the suit.
3) It is the case of the plaintiff that the defendant
No.1, father was Karta of the Hindu joint family of plaintiff
and defendants and the suit properties are ancestral and
joint family properties of the plaintiff and defendants. The
plaintiff had contended that he has 7/25th share in the
properties and he had prayed for partition and separate
possession of this share.
4 SA 1688 of 2004
4) Defendant Nos.1,2 and 4 filed joint written
statement. They admitted relationship. They contended
that defendant No.1 Rama was Karta of the family and he
had partitioned the property of the joint family amongst
the plaintiff and the defendants and document was
prepared in that regard on 20-5-1984. They contended
that possession was given to the respective parties of the
share which had fallen to the share of that party. In the
written statement the shares which were given to the
plaintiff, defendant No.1 and defendant No.3 and 4 were
mentioned.
5) In the written statement six lands were shown
to be kept with defendant No.1 and it was contended that
those lands were self acquired property of defendant
No.1. After death of defendant No.1, legal representatives,
his daughters also filed written statement, which was
similar in nature. They had contended that they are
entitled to get share in the property of their father and
they had prayed for separation of their share.
5 SA 1688 of 2004
6) Issues were framed on the basis of the
aforesaid pleadings. Both sides gave evidence. The trial
Court held that the defendants have proved that the
partition was effected by the father and so suit cannot be
decreed. The first appellate Court has confirmed those
findings by holding that the so called document of
partition was only memorandum of partition and the
partition was made by father of the parties and so the
partition is binding on the parties. The first appellate
Court further held that it was not the case of the plaintiff
that partition effected by the father was not equitable and
as the said partition was not challenged, it was not
possible to decree the suit filed for partition.
7) This Court, other Hon'ble Judge, admitted the
appeal on 18-11-2008 by formulating following substantial
question of law :-
"(i) Whether the lower appellate Court failed to
appreciate that alleged partition deed dated 28th May,
1984 is not registered document and its registration is
compulsory under section 17 of the Indian Registration
Act and as such it cannot be exhibited and is not at all
admissible in evidence ?"
6 SA 1688 of 2004
8) The disputed document is given exhibit by the
trial Court as the party who executed the document has
admitted the execution. Exhibit 100 shows that the father
had already distributed the ancestral and joint family
property amongst his three sons and he prepared the
document as there was quarrel and the names of his sons
were not entered in the revenue record separately. The
land which was kept for himself was to be partitioned
amongst the three sons after the death of defendant No.1
as per this document. There is specific mention in Exhibit
100 that oral partition was already effected and everybody
was separately in possession of respective share. In view
of these contents of Exhibit 100, the first appellate Court
has held that the document is memorandum of partition
and not the partition deed. There is concurrent finding on
this point of the Courts below.
9) The plaintiff did not step in witness box and his
son Bharat gave evidence as power of attorney. In the
plaint there was no whisper about the aforesaid partition
and in the substantive evidence given in the examination
in chief also no reference is made about the partition
7 SA 1688 of 2004
which was allegedly effected and which was mentioned in
the written statement. In the cross examination he has
admitted that the house properties which are mentioned
in the suit are also partitioned and that partition took
place orally. He has admitted that the properties which
were purchased in the names of plaintiff and defendant
No.3 are not included in the plaint. There is mention of
such properties in Exhibit 100 and the father has mention
that these were also the joint Hindu family properties as
they were purchased from income of ancestral property.
The suit could have been dismissed for the reason of non
inclusion of those properties in the suit. In the revenue
record name of only defendant No.1, father, was entered
both in ownership and cultivation column on the date of
the suit but he has specifically contended that he had
effected partition and Exhibit 100 is the memorandum of
partition. The memorandum was prepared in the year
1984 when the suit was filed in the year 1990. In other
rights column of one 7/12 extract entries were made of
the shares of the sons of defendant No.1 and that can be
seen from Exhibit 9.
8 SA 1688 of 2004
10) The evidence given by the defendant No.4,
Dadasaheb is consistent with the pleadings in the written
statement. Suggestion that Exhibit 100 is forged
document is denied by him. The scribe of Exhibit 100,
Shankar Patil is examined by the defendants. One witness
Audumbar is examined as has signed on Exhibit 100. In
view of these circumstances burden was heavy on the
plaintiff to show that partition had not taken place. As the
document at Exhibit 100 was only memorandum of
partition and the partition was already effected orally,
there was no need of registration of this document. Such
finding is given by the District Court. In view of such
finding, this Court holds that there was no problem in
reading the contents of the document in evidence for
every purpose. This document could have been used for
collateral purpose also to ascertain the status of the
parties whether they were joint or separate even if this
document was treated as partition deed.
11) Learned counsel for the appellant placed
reliance on a case reported as AIR 1966 SC 1836 (Maturi
Pullaiah v. Maturi Narasimham). The facts of the reported
9 SA 1688 of 2004
case were altogether different. In that case, after death of
father one document was prepared as family
arrangement. Learned counsel for the appellant submitted
that Exhibit 100 was not signed by the three sons of
defendant No.1 and so that document cannot be given any
weightage. This submission is not acceptable as Hindu
father of joint family has special power and he can effect
partition amongst members of the joint Hindu family. So
the point is answered against the appellant. The appeal is
dismissed.
Sd/-
(T.V. NALAWADE, J. )
rsl
