Bombay High Court
Ashok Putalsa Hote & 3 Others vs Gajanan Deorao Mhaisne & 2 Others on 10 June, 2016
Bench: Ravi K. Deshpande
sa253.2000.J.odt 1/8
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.253 OF 2000
1] Ashok s/o Putalsa Hote,
Aged about 45 years,
Occ: Agriculturist.
2] Dilip s/o Putalsa Hote,
Aged about 31 years,
Occ: Agriculturist.
3] Smt. Gumphabai wd/o Putalsa
Hote, Aged about 72 years.
Appellant Nos.1 to 3
R/o Mahan, Tq. Barshitakli,
Dist. Akola.
4] Sou. Ratnamala w/o Dhanraj Rom,
Aged about 47 years,
Occ: Agriculturist,
R/o Yeota, Tq. Achalpur,
Dist. Amravati. ....... APPELLANTS
...V E R S U S...
1] Gajanan s/o Deorao Mhaisane
Aged about 39 years,
Occ: Agriculturist.
2] Digambar s/o Awadhut Mhaisane,
Aged about 39 years,
Occ: Agriculturist.
Both R/o Mahan, Tq. Barshitakli,
Dist. Akola.
3] Venutai wd/o Ambadas Hote (Jain)
(Dead).
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sa253.2000.J.odt 2/8
Amendment as LRs of Respondent No.3
per Court order
dated 14/11/14
Sau. Puspabai w/o Gulabrao Mahajan
(Jain), Aged about 55 years,
Occ: Household Work, R/o Kurha
(Panache), Tq. Bhusawal,
Dist. Jalgaon. ....... RESPONDENTS
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Shri R.L. Khapre, Advocate for Appellants.
Shri S.R. Deshpande, Advocate for Respondent Nos.1 and 2.
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CORAM: R.K. DESHPANDE, J.
th JUNE, 2016.
DATE: 10
ORAL JUDGMENT
1] In Regular Civil Suit No.691 of 1993 the trial Court has
passed a decree on 05.12.1996 granting a declaration that the defendant
No.3 - Venutai was the owner of only 4 acres of land, and therefore, she
had no right to transfer the land more than that to the defendant Nos.1
and 2 out of field Survey No.85. The trial Court further grants a
declaration that the defendants No.1 and 2 are not having the title or
interest in the land more than 4 acres from field Survey No.85.
The defendants are restrained from disturbing the possession of the
plaintiffs over the suit field.
2] In Regular Civil Appeal No.254 of 1996 the lower Appellate
Court has set aside the decree passed by the trial Court on 13.10.2000
and the Regular Civil Suit No.691 of 1993 has been dismissed.
sa253.2000.J.odt 3/8
The plaintiffs are therefore, before this Court challenging the judgment
and order passed by the lower Appellate Court and seeking restoration of
the decree passed by the trial Court.
3] On 20.11.2000 this Court admitted the matter on the
substantial questions of law framed in ground No.3 and 8 of the memo
of appeal, which are reproduced below:
ig.....
(2) .....
(3) Whether the Lower Appellate Court failed to take into
consideration that, so far as the suit field is concerned,
in view of the admitted position that, it was purchased
by 2 separate Sale Deeds dated 6.4.1965 to the extent
of 12 Acres 35 Gunthas and the defendants purchased
only 4 acres of land out of the said suit field ? It is thus
clear that, the said acquisition of the property is not by
the Joint Hindu Family and it was purchased by 2
separate individuals and as a consequence thereof, the
defendant No.3 had only right, title or interest to the
extent of 4 acres and she could not have alienated 5
acres 33 Gunthas of landing favour of the defendant
Nos. 1 and 2.
(4) .....
(5) .....
(6) .....
(7) .....
sa253.2000.J.odt 4/8
(8) Whether the Lower Appellate Court failed to take into
consideration basic principles of law that, the female
member of the Joint Hindu Family had no right of
alienation of specific portion of land and thus the
defendants cannot claim any right to possess the land to
the extent of 5 acres 33 Gunthas in addition to the land
owned by their predecessor in title ?
4] After hearing the learned counsels appearing for the parties
the aforesaid substantial questions of law are re-framed as under:
[i] Whether the lower Appellate Court was right in
holding that the land admeasuring 16 acres and
35 gunthas out of Survey No.85/2 situated at
village Mahan, Tq. Barshitakli, Dist. Akola was the
ancestral property in the hands of Putalsa the
father of the plaintiffs and Venutai the defendant
No.3 in Regular Civil Suit No.691 of 1998 ?
[ii] Whether the lower Appellate Court was right in
setting aside the declaration granted by the trial
Court that the defendant No.3 - Venutai was the
owner of the land only to the extent of 4 acres out
of field Survey No.85/2, and she had no authority
sa253.2000.J.odt 5/8
to sale the land over and above 4 acres ?
5] The undisputed position that can be gathered from the
judgment and order delivered by the lower Appellate Court needs to be
noticed. Survey No.85 consisted of total land of 22 Acres and 12
Gunthas. Sometime in the year 1985 there was a partition of the family
property between Putalsa and Ambadas the two brothers on the one
hand and Sunderabai, the widow of Sonasa the third brother; on the
other hand. Sunderabai got her share of 5 acres and 32 gunthas of land
out of Survey No.85, which was renumbered as Survey No.85/1,
whereas Putalsa and Ambadas together were given remaining land of 16
acres and 35 gunthas out of field Survey No.85, which was renumbered
as Survey No.85/2. The shares of Putalsa and Ambadas in the suit field,
were sold in Court auction in execution of decree against them in
Regular Civil Suit No.149 of 1960. One Narayan purchased this property
in auction and the sale certificate at Exhibit-73 dated 29.11.1960 is
placed on record. Narayan sold this property to one Atmaram by
registered sale-deed dated 10.12.1960 at Exhibit-75. Thus, Atmaram
became the owner of land Survey No.85/2 admeasuring total 16 acres
and 35 gunthas.
6] Putalsa, the father of the plaintiffs purchased land
admeasuring 12 acres and 35 gunthas out of Survey No.85/2 by
sa253.2000.J.odt 6/8
registered sale-deed dated 06.04.1965 at Exhibit-72 from Atmaram.
The defendant No.3 - Venutai purchased 4 acres of land out of Survey
No.85/2 on the very same day i.e. 06.04.1965 vide Exhibit-202 from
Atmaram. Thus, there are two separate sale-deeds at Exhibit-72 and
Exhibit-202 in the name of Putalsa and Venutai respectively.
7] The defendant No.3 - Venutai sold land admeasuring 3
acres out of Survey No.85/2 to the defendant No.2 Gajanan s/o Deorao
Mhaisane by registered sale-deed dated 16.04.1982 at Exhibit-135.
She also sold 2 acres and 35 gunthas of land out of Survey No.85/2 to
the defendant No.2 Digambar s/o Awadhut Mhaisane on 16.04.1982 at
Exhibit-136. Thus, the defendant Nos.1 and 2 are claiming ownership
over 5 acres and 33 guntahs of land out of Survey No.85/2 and they
were trying to disturb the possession of the plaintiffs over 1 acre and 33
gunthas of land, and therefore, the present civil suit was filed by the
plaintiffs.
8] I need not go into the aspect of dispute as to whether prior
to 1960 the suit property i.e. Survey No.85/2 admeasuring 16 acres and
35 gunthas was the ancestral joint family property of the Putalsa and the
defendant No.3 - Venutai. Assuming that it was an ancestral and joint
family property in their hands, it was sold to clear the family debts, in
execution of the decree passed in Regular Civil Suit No.149 of 1960
sa253.2000.J.odt 7/8
on 22.01.1960 and the sale certificate was issued in the name of Narayan
in respect of this entire property on 29.11.1960 at Exhibit-73 on the
record. This property has changed the hands by virtue of registered
sale-deed dated 10.12.1960 at Exhibit-75 when one Atmaram purchased
it from Narayan (the auction purchaser). Putalsa the father of the
plaintiffs and the defendant No.3 - Venutai have purchased the different
portion of this property by registered sale-deeds dated 06.04.1965 at
Exhibit-72 and Exhibit-202. The property, though initially had a status of
an ancestral property in the hands of Putalsa and Venutai prior to the
year 1960, it lost its character as an ancestral property, once it was sold
in public auction to clear the family debts. It cannot therefore, be said
that the acquisition of the same property either by Putalsa or by the
defendant No.3 - Venutai re-assumes the character of an ancestral
property upon re-purchase on 06.04.1965. The property remains in their
hand as their self-acquired property by virtue of sale-deeds at Exhibit 72
and 202. The substantial questions of law at Sr. No. [i] is answered
accordingly.
9] Except relying upon some mutation entries, there is nothing
on record to show that either, there existed a joint family of Putalsa and
Venutai, in the year 1965 when the property was repurchased or that
there existed any joint family property in their hands. It is not the case of
any of the parties that the property was purchased out of the nucleus of
sa253.2000.J.odt 8/8
the joint family funds. In the absence of there being any evidence either
of existence of the joint family or of the joint family property, the lower
Appellate Court has committed an error in reversing the finding of the
trial Court that the properties were self-acquired property of Putalsa and
Venutai. Once the finding of the lower Appellate Court about ancestral
nature of property ceases to exist, the question of defendant No.3
Venutai becoming owner of the land of more than 4 acres out of Survey
No.85/2 does not at all arise. The defendant Nos.1 and 2, who are the
purchasers of the land admeasuring 4 acres from the defendant
No.3 - Venutai on the basis of the registered sale-deeds at Exhibit-135
and 136 cannot claim ownership over and above 4 acres of land out of
Survey No.85/2. The lower Appellate Court committed an error in
reversing the finding of the trial Court on that aspect of the matter.
The substantial questions of law at Sr. No.[ii] is answered accordingly.
10] In view of above, the second appeal is allowed.
The judgment and order dated 13.10.2000 passed by the Second
Additional District Judge, Akola in Regular Civil Appeal No.254 of 1996,
is hereby quashed and set aside and the judgment and decree passed by
the trial Court in Regular Civil Suit 691 of 1993, is hereby restored.
No order as to costs.
JUDGE
NSN
