Bombay High Court
Ganesh Vasantrao Deshmukh & ... vs Raosaheb Santukrao Deshmukh & ... on 16 June, 2016
Bench: T.V. Nalawade
1 SA 26 of 2991
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No.26 of 1991
1) Ganesh Venkatrao Deshmukh.
2) Pradeep Venkatrao Deshmukh.
3) Venkatrao Santukrao Deshmukh.
4) Kusum w/o Fakirrao Gadhe. .. Appellants.
Versus
1) Raosaheb Santukrao Deshmukh,
Died, through legal
representatives :
1-A) Baban s/o Raosaheb Deshmukh.
1-B) Balu s/o Raosaheb Deshmukh.
1-C) Sakharabai Raosaheb Deshmukh.
1-D) Pratibha Raosaheb Deshmukh.
1-E) Babi d/o Raosaheb Deshmukh.
All r/o Ganpati Galli, Bhokardan,
Taluka Bhokardan, Dist. Jalna.
2) Vinayakrao S/o. Santukrao Deshmukh
dead, through his legal representatives
2-A) Dwarakabai w/o Vinayakrao Deshmukh,
Occupation : Household,
R/o Bhokardan, Taluka Bhokardan,
District Jalna.
2-B) Sushilabai w/o Gumanrao Shinde,
Age 60 years,
Occupation : Household,
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2 SA 26 of 2991
R/o Boregon, Taluka Sillod,
District Jalna.
2-C) Arun s/o. Vinayakrao Deshmukh,
Age 56 years,
Occupation: Agriculture,
R/o. Deshmukh Galli, Bhokardan,
Taluka Bhokardan, District Jalna.
2-D) Sulochanabai w/o. Shivajirao Pawar,
Age 50 years,
Occupation: Household,
R/o. Pangri, Taluka Badnapur,
District Jalna.
2-E) Dattatray s/o. Vinayakrao Deshmukh,
Age 45 years,
Occupation: Agriculture
R/o Bhokardan, Taluka Bhokardan,
District Jalna.
2-F) Latabai w/o Devidasrao Bhosle,
Age 42 years,
Occupation: Household,
R/o. Garkheda Parisar,
Near Radha Krishna Mangal
Karyalaya, Besides Gajanan Mandir,
Aurangabad,
Taluka & District Aurangabad.
2-G) Digambarrao s/o. Vinayakrao Deshmukh,
Age 40 years,
Occupation: Agriculture
R/o. Deshmukh Galli, Bhokardan,
Taluka Bhokardan, District Jalna.
3) Sheshrao Santukrao Deshmukh
(3-i) Zabubai w/o Sheshrao Deshmukh.
(3-ii) Rajendra Sheshrao Deshmukh.
(3-iii)Leelabai wd/o Venkatrao Pawar.
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3 SA 26 of 2991
(3-iv) Malanbai w/o Bhausaheb Pawar.
(3-v) Shobhabai w/o Haridas Mokashi.
(3-vi) Usha w/o Diliprao Deshmukh. .. Respondents.
--------
Shri. V.D. Salunke, Advocate, for appellants.
Shri. V.D. Patnoorkar, Advocate, for respondent Nos.1 to
1E and 2A to 2G.
--------
ig CORAM: T.V. NALAWADE, J.
DATE : 16th JUNE 2016.
JUDGMENT:
1) The appeal is filed against the judgment and
decree of Regular Civil Suit No.75/1978 which was
pending in the Court of the Civil Judge, Junior Division,
Bhokardan, District Jalna and also against the judgment
and decree of Regular Civil Appeal No.56/1984 which was
pending in the Court of the 2nd Additional District Judge,
Jalna. The suit filed by respondent Raosaheb for relief of
partition and separate possession of his share from two
agricultural lands is decided in his favour and so the
original defendants have challenged the said decision.
Both the sides are heard.
4 SA 26 of 2991
2) In short the facts leading to institution of the
proceeding can be stated as under:
3) Plaintiff is real brother of defendant Nos.3 to 5.
Defendant Nos.1 and 2 are sons of defendant No.5 and
defendant No.6 is the sister of plaintiff. The suit was filed
in respect of agricultural lands bearing Survey No.125
and 126 situated in village Bhokardan. The total area of
these two lands is around 50 acres.
4) It is the case of the plaintiff that the suit lands
were inam lands in which father of the plaintiff and
defendant Nos.3 to 6 was the tenant and the lands were
being cultivated by the joint family consisting of his father.
It is the case of the plaintiff that under the provisions of
the Inam Abolition Act, the inam was abolished but
occupancy rights were given to his father Santukrao and
the price was paid in respect of the occupancy rights. It is
contended that the price was paid in the year 1969 and so
the property became available to the family in the year
1969 for consideration of partition.
5 SA 26 of 2991
5) It is the case of the plaintiff that under the
provisions of the Hyderabad Abolition of Inam and Cash
Grants Act rights were given and certificate was issued in
favour of his father but under the said Act, there are
restrictions on the transfer in any way including by way of
gift. It is contended that in contravention of the provisions
of the said Act, Santukrao executed gift deed in favour of
defendant No.1 in collusion with defendant No.5. It is
contended that gift was not executed for pious purpose
and under the Hindu law said gift cannot be recognised in
law. This gift was executed on 27-12-1968. It is contended
that as the document of gift was executed in the year
1968, before the payment of occupancy rights there is no
question of treating the gift deed as a valid.
6) It is the case of the plaintiff that the ancestral
property of the joint family of Santukrao and his sons was
partitioned by mutual consent about 20 years prior to the
date of suit but the suit properties were not considered for
partition due to aforesaid circumstances. It is contended
that in view of this circumstance, the plaintiff is entitled to
get share in the property and even if it is presumed that
6 SA 26 of 2991
his father had gifted his share, the plaintiff is entitled to
get at least 1/5th share in the suit property. The suit was
filed in the year 1978.
7) Defendant Nos.1,2 and 4 to 6 filed joint written
statement and contested the matter. They admitted that
the partition of the ancestral property had taken place
long back. They also admitted that Santukrao was tenant
in the suit properties and occupancy rights were granted
in favour of Santukrao under the Inam Abolition Act. They
contended that the suit property was self acquired
property of Santukrao and so he could gift this property to
anybody and out of love and affection he gifted the
property to defendant No.1. It is contended that the sons
of Santukrao have no concern with the property as the
property is gifted to defendant No.1. They contended that
partition had taken place in the year 1954.
8) Issues were framed on the basis of aforesaid
pleadings. Both the sides gave evidence. The trial court
held that the gift was not valid for many reasons including
the bar of provisions of the Inam Abolition Act. The trial
7 SA 26 of 2991
Court set aside the gift in respect of the share of the
plaintiff, 1/5th share, and decree of possession of this
share was given. This decision was challenged by the
defendants. In the appeal the plaintiff filed cross-
objection. The first appellate Court has held that the
entire gift was void. However, 1/5th share given by the
trial Court is maintained.
9) This Court admitted the appeal by order dated
21-1-1991 by observing that substantial questions of law
can be formulated on the basis of the grounds raised in
paragraphs 2 to 9 of the appeal memo. The sum and
substance of the grounds and the substantial questions of
law which need to be decided are as under :
(1) whether the provisions of the Hyderabad
Inam Abolition and Cash Grants Act, 1952 are
applicable to the suit property ?
(2) whether civil court has jurisdiction to
entertain the suit for partition in respect of the
properties acquired under the aforesaid Act ?
8 SA 26 of 2991
(3) whether the Courts below have committed
error in holding that there was restriction on the
holders of occupancy rights to transfer the
ownership in the land due to provision of the
aforesaid Act ?
(4) whether such transfer could have been
approved by the authority even subsequently ?
(5) whether it was necessary to challenge the
gift deed for getting share in the property.
10) The defendants have contended that the
partition had taken place amongst Santukrao and his sons
in the year 1954. This year is chosen to see that it is
proved that joint family was not in existence in the year
1954 when Inam Abolition Act came in force. There is
record like mutation and 7/12 extracts showing that the
mutation of partition was sanctioned on 20-3-1960. This
record needs to be given due importance as the plaintiff
can show that the property was received by Santukrao for
cultivation even as tenant when he and his sons were
living in joint family. He could have shown that they all
were cultivating the land though the occupancy certificate
was granted in favour of Santukrao. Further he could have
9 SA 26 of 2991
shown that there was sufficient nucleus and income from
the nucleus was sufficient to undertake the activity of
cultivation of the land admeasuring around 50 acres.
11) The ancestral lands were Survey No.144/4
admeasuring 2 acres 24 gunthas; Survey No.146/3
admeasuring 2 acres 39 gunthas; Survey No.130/1
admeasuring 16 acres 24 gunthas.
12) The revenue record and the mutations show
that at least till the year 1960 the family was joint. Only
after the year 1959-60 the lands were shown to be
separately cultivated by the sons of Santukrao (Exhibits
34 to 48).
13) The record in respect of Survey Nos.125 and
126 show that in the year 1954 Gulam Shaikh was shown
as Inamdar. Though inam was shown as madad-mas, there
is a mention of Shaban Dargah Sharif and it shows that
the land was given for rendering service to this institution.
Name of Santukrao was entered as protected tenant
(Exhibits 49 and 50). Record of Pik Pahani Patrak,
10 SA 26 of 2991
cultivation record, shows that not only name of Santukrao
but name of Venkatrao, son of Santukrao was also
separately entered for two years in cultivation column and
the name of Venkatrao was there for 1956-57 and 1957-58
(Exhibits 51 and 52). Exhibit 5, 7/12 extract in respect of
Survey No.125 shows that in the year 1956 Venkatrao, son
of Santukrao, agreed to purchase this property for
consideration of Rs.3000/-. Thus, on one hand the land
was shown as madad-mas inam though the purpose
behind this was to render service to religious institution
and on the other hand, Venkatrao, father of defendant
No.1 had given consideration for purchasing the rights. It
can be said that this consideration was paid to the
previous Inamdar. This record cannot be ignored. The
defendants have not come with any specific case in
respect of this entry and this entry of 1956 has
presumptive value and it was necessary for the defendants
to explain this entry. If Santukrao and his sons were living
in joint family till 1960 and some consideration was paid
for getting the rights in respect of the property, inference
was easy that the consideration was paid by joint Hindu
family and the transaction was made for all the members
11 SA 26 of 2991
of the joint Hindu family. It is already observed that there
was sufficient ancestral property with the family from
which such transaction could have been made. This
circumstance goes to the root of everything including the
gift deed executed by Santukrao in favour of defendant
No.1.
14)
There is force in the case of the plaintiff that
the suit property was not partitioned as necessary rights,
occupancy rights, were not given by the authority under
the Inam Abolition Act. Admittedly these rights were given
in the year 1969. Further the conduct of Santukrao of
executing the gift deed in favour of son of only Venkatrao
shows that he wanted to deprive the plaintiff of his rights
in respect of the suit properties. At that time Santukrao
had no right to gift the property as he was not the owner
and further it was the property of the joint Hindu family.
15) The restrictions imposed by the provisions of
the Inam Abolition Act were there and the permission of
the authority was necessary before making such
transactions. Such permission was not taken, further
12 SA 26 of 2991
transaction cannot bind the plaintiff and so it is open to
person like the plaintiff to say that the transaction was
void. He was not party to the transaction. Learned
counsel for the appellants placed reliance on this point on
a case reported as 1981 Bom. C.R. 32 (Vithal Kondhalkar
v. State of Maharashtra) (Bombay High Court) and
submitted that in view of provisions of Section 59 of the
Maharashtra Land Revenue Code such permission could
have been given by the authority even after the date of
transaction. These observations were made in different
circumstances. The facts of the present case are totally
different and it was not possible for Santukrao to alienate
the property.
16) In view of the aforesaid record and the
provisions of law, the oral evidence cannot make much
difference. The Courts below have held that the plaintiff is
entitled to get share in the property though different
reasons were given. So the aforesaid points are answered
against the appellants and the appeal is dismissed.
Sd/-
(T.V. NALAWADE, J. )
rsl
