Bombay High Court
Popat Khanderao Malode Since ... vs Ganpat Khanderao Malode Since ... on 17 June, 2016
Bench: N.M. Jamdar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
SECOND APPEAL NO.229 OF 1993
Shri Popat Khanderao Malode
Since deceased through his
legal heirs ... Appellants.
1a) Yamunabai Popat Malode
(Deleted as per Court's order
dated 21/6/2010)
1b) Kailas Popat Malode
1c) Vilas Popat Malode
1a to 1c residing at and post
Adgaon Taluka and Dist. Nashik
1d) Jijabai Maruti Date
Gondegaon Post Chandovi
Taluka: Niphad, Dist. Nashik
1e) Sangeeta Vithal Nisal
Residing at Shingre Bahula,
Post: Devlali Camp, Dist. Nashik
V/s.
Ganpat Khanderao Malode
Since deceased through his
legal heirs ... Respondents.
1a) Smt. Chandrabai Ganpat Malode
1b) Shri Bhalchandra Ganpat Malode
Both residing at - Adgaon,
Tal: Nashik, Dist. Nashik.
2 Nivrutti Khanderao Malode
Since deceased by legal heirs
2a) Parvatibai Nivruti Malode
Aged about 75 years,
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2b) Meghanath Nivruti Malode
Aged about 40 years
Residing at 2a to 2b R/o-
Post: Adgaon, Tal & Dist-Nashik
2c) Mandabai Nivruti Malode
Aged about 52 years
At & Post: Dhondegaon,
Taluka & District: Nashik
2d) Sulochanda Ratan Jagale
R/o-Panchavati Kavaji, Malvi
Chowk,
Residing at Shingre Bahula
Post: Devlali Camp,
Dist: Nashik
2e) Anjana Baban More
R/o-Dhondegaon, Tal
& District: Nashik
2f) Kalpana Manik Gore
R/o-Sangamner Post
Mandi, Tal: Dongari
District-Nashik
3 Shri Gopinath Khanderao Malode
4 Sou. Chandrabai Ganpat Malode,
5 Shri Bhalchandra Ganpat Kalode
6 Shri Yashwant Trimbak Shinde
Since deceased through legal heirs
6a) Jankabai Yashwant Shinde
Aged about 70 years,
6b) Bajirao Yeshwant Shinde,
Aged about 50 years,
6c) Kisan Yeshwant Shinde,
Aged about 46 years,
6d) Namdev Yeshwant Shinde,
Aged about 43 years,
Nos.6a to 6d, residents of
At & Post:Adgaon Pir Mandir
Taluka & District-Nashik
(Panchvati)
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6e) Tulsabai Ramdas Thete
Aged about 48 years,
R/0-At & Post: Girnare
Taluka & District: Nashik
7 Smt. Chandrabhagabai Shankar Divate
(Deleted)
8 Shri Shankar Keshav Divate
Since deceased by legal heirs
8a) Shri Prabhakar Shankar Divate
8b) Shri Yashwant Shankar Divate
8c) Shri Uttam Shankar Divate
8d) Shri Pandit Shankar Divate
8e) Smt. Jijabai Shankar Divate
8f) Smt. Meerabai Shankar Divate
8g) Shri Ramdas Shankar Divate, (Minor)
8h) Shri Babaji Shankar Divate (Minor)
Nos.8g and 8h minor through
Their Guardian Mother No.7.
9 Shri Deoram Khanderao Malode
Since deceased through heirs
9a) Manjulabai Deoram Malode
Aged about 63 years
9b) Rajaram Deoram Malode
Aged about 42 years,
9c) Dinkar Deoram Malode
Aged about 39 years,
9d) Krishna Deoram Malode,
Aged about 35 years,
9e) Savitrabai Bhanudas Deoram Malode
Aged about 37 years,
All Nos.9a to 9e residing at
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Adgaon Tal & District-Nashik.
10 Shri Gopinath Khanderao Malode
All Nos.1 to 10 residing at
Adgaon, Tal & District-Nashik
11 Sou. Gangabai Laxman Ugale
Since deceased to legal heirs
11a) Yemunabai Tukaram Ugale
Aged about 62 years,
11b) Rakhamabai Dattatraya More
Aged about 55 years,
11c) Madhukar Laxman Ugale
Aged about 55 years,
11d) Ramdas Laxman Ugale,
Aged about 53 years
All residing at Lokhande Wadi
Post: Kopal, Tal: Dindori,
Dist-Nashik ...Respondents
(Orig. Defendants)
Mr. S.A.Sawant with Ms. Ruchita Kadam i/by S.M.Railkar,
Advocates for the Appellants and Applicants.
Mr. R.A.Thorat, Senior Advocate with Mr. P.J.Thorat and
S.P.Chavan, Advocates for the Respondent Nos.1-a to 1-b, 2a to 2f,
3 to 5, 7, 8-a to 8-h, 10, 11-a to 11-d.
Ms. Nazia Shaikh, Advocates for Respondent Nos.9-a, 9-b, 9-d, 9-e.
CORAM : N.M. Jamdar, J.
Friday 17 June, 2016.
Oral Judgment:
1. The appellants have challenged the judgment and
order passed by the District Judge, Nashik dated 2 nd April, 1993
allowing appeal filed by the respondents and setting aside
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judgment and decree passed by the Civil Judge Senior Division,
Nashik dated 27.2.1987. The learned Civil Judge decreed the suit
filed by the appellants declaring that the appellants and the
respondents are entitled to 7/36th share in the suit property and
the respondent no.5 is entitled to 1/36th share in the suit property.
2. The parties are related. Original plaintiff and the
defendant nos.1 to 4 are brothers. Defendant no.5 is their sister.
The present appeal is being prosecuted by the heirs of the original
plaintiff.
3. The appellants filed Regular Civil Suit bearing no.184
of 1983 in the Court of Civil Judge Senior Division, Nashik for
partition of the properties mentioned in the schedule of the plaint.
The case of the appellants was: the properties mentioned in the
plaint, which are situated at village:Adgaon, Taluka: Nashik, were
joint family properties of the appellants and the respondents.
There were frequent quarrels amongst the family members. Some
loans taken by the family members had to be repaid. A deed was
executed on 13th July, 1979, for temporary partition which was not
to be acted upon. Taking advantage of this temporary partition,
the respondent no.1, who was Karta of the joint family started
mismanaging the properties and started claiming that some of the
properties were his self acquired properties. Therefore, it was
necessary that the partition is effected, properties are divided and
members should be given their respective share.
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4. The respondents filed Written Statement and
contended: On 13th July, 1979, a deed of family arrangement was
executed and there was severance in the joint family. The
appellants and the respondent nos.1 to 4 were given their
respective shares and there was no question of re-opening the
partition. Certain properties were self acquired by the respondent
no.1. Parties led their oral evidence. Two persons, who attended
the signing of the deed dated 13th July, 1979 were examined. The
learned Civil Judge, after hearing both the sides, concluded that
the document dated 13th July, 1979 was a temporary arrangement
for the convenience of the family; and respondent no.1 had shown
certain bogus debts and fraudulently purchased the properties in
the name of wife and son. The learned Civil Judge held that the
appellants proved that the properties in paragraph 3a and 3c of
the plaint were ancestral properties and the properties in
paragraph 3b and 3d were purchased from nucleus of the joint
Hindu family. Accordingly, the learned Civil Judge decreed the suit
by the judgment and decree dated 27.2.1987.
5. The respondents filed an appeal bearing no.602 of
1987 in the District Court, Nashik. The learned District Judge after
considering the evidence concluded that the deed dated 13 th July,
1979 was a family arrangement and it was not for a temporary
purpose and, therefore, partition having already been effected,
could not be re-opened. As regards whether the respondent no.1
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purchased property in the name of his wife and son, the learned
District Judge held that the issue did not survive. The learned
District Judge held that prior to execution of deed of 13 th July,
1979, there were various talks and incidents took place, which
were recorded in the family arrangement dated 13 th July, 1979
and such document did not require registration under the Indian
Registration Act, 1908. The learned District Judge, after taking
into consideration, various factual aspect arising from the
evidence of the parties and from the language of the deed, held
that the family arrangement was not temporary as alleged by the
appellants. The learned District Judge also held that the fact that
the mother of the appellants and the defendants did not sign the
deed was not of much relevance as from the record it was clear
that she consented to the arrangement. Accordingly, the learned
Judge by the judgment and order dated 2.4.1993 allowed the
appeal.
6. Thereafter the present second appeal is filed. The
second appeal was admitted on 29.4.1993. Grounds at Serial
Numbers 4,6,9,14,16,17 and 20 as taken in the Appeal Memo,
were framed as substantial questions of law. The questions of law
framed were whether the lands in paras.3A,3B, 3C and 3D are
joint family properties; on whom the burden of proof that said
properties were not purchased from the joint family funds lay;
whether the learned Judge has erred in law in fixing the burden of
proof; the implications of the registration of the document dated
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13.07.1979 Exh.53; whether it was rightly concluded that
Gangubai had relinquished her share in the Joint Family; whether
since the partition effected by Exh.53 and is inadmissible
document. The partition can be reopened by a separate suit;
whether The Learned Appellate Judge wrongly applied the
principles of estoppels against the Appellants since the document
Exh.53 was not acted upon.
7. I have heard Mr. Sawant learned counsel for the Appellants
and Mr. R.A.Thorat, Senior Advocate for the Respondents.
8. Two main submissions of Mr. S.A.Sawant are that the deed
dated 13th July, 1979 was temporary in nature and it required
registration. Mr. Sawant submitted that though the Deed did not
mention that it is for temporary purpose, the fact that there were
no entries made in revenue record and the properties were not
divided by metes and bounds clearly indicated that it was only
treated as temporary arrangement. He submitted that two
witnesses who were present at the time of execution of the deed
and were examined also deposed to that effect. Mr. R.A.Thorat,
the learned Senior Advocate for the respondents submitted that in
view of Section 91 of the Indian Evidence Act, 1872 deed will have
to be read as it is and even otherwise, there is sufficient evidence
to show that it was not for temporary basis.
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9. I have gone through the copy of the deed dated 13 th
July, 1979. The deed is signed by the appellants and the
respondents. The deed states that all the brothers through their
consent and voluntary basis had partitioned their properties and
taken possession. All the properties are listed, including the
properties bearing gat nos.2050 and 1147. It is also mentioned
that loan will have to be repaid by the respondents. It is stated in
the deed that the properties will be enjoyed on ownership basis by
all concerned, none will be entitled to raise any objection to this
position and if anyone obstructs the other from enjoyment of the
property, affected parties is entitled to launch a prosecution. It is
also admitted by the appellants that there were long standing
quarrels between the parties. It was also admitted that there were
various meetings between the parties. This fact is specifically
stated by the Respondents in their Written Statement and
evidence, to which there is no serious contradiction. It was clear
that there was distrust amongst the siblings. It is nobody's case
that there were cordial relations between the parties. In this
background, deed which specifically stated that none was entitled
to raise objection to distribution specified in the deed and if one
does is liable to face prosecution, would not have been accepted if
it was only temporary arrangement. The appellant-plaintiff in the
cross-examination clearly admitted that there was severance in
status of family after the deed was executed and each party was in
possession in their own right.
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10. The deed of 13th July, 1979, which is in writing, is
admittedly signed by all the parties. It does not mention that it
was for temporary purpose. The surrounding facts, which have
been appreciated by the learned District Judge, also show that the
said deed was not for temporary basis. Appreciation of oral
evidence in this Second Appeal is to find out what was the
intention of parties, in spite of clear language of the deed, itself is
of limited nature. In this assessment of evidence, which is the
domain of the fact finding Courts interference is not possible
unless perversity is shown. As a matter of general principle, the
Family arrangement has to be given due importance, as it brings
peace within the family and if allowed to be re-opened casually, it
will disrupt the peace, bring discord and give rise to further
litigation, which in this case unfortunately has taken place. The
factual finding that family settlement was not for temporary basis
and the conclusion that it could not be re-opened, can not be
faulted with.
11. Next ground of challenge to this deed by the appellants
is, that it is not registered. Mr. Sawant relied upon the decision of
the learned Single Judge of this Court in Rajaram Gopal Govekar
v. Arjun Gopal Govekar 2015 (5) Mh.L.J. 771 and Narendra
Kante v. Anuradha Kante and Others 2010 (2) SCC 77 of the
Apex Court. I have considered this submission. Issue in this case
is whether partition of the properties is brought out by deed in
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question or it merely records an earlier partition. The second
category does not require registration. This is the position laid
down by the Apex Court in the decision in the case of Roshan
Singh and Others v. Zile Singh AIR 1988 Supreme Court 881
relied upon by Mr. Thorat. Therefore, it will have to be seen
whether the deed dated 13th July, 1979 creates right of partition of
the property or it records the factum of earlier partition. The
learned District Judge has dealt with this issue. The learned
District Judge held that the deed itself mentions that the partition
was already made and delivery of possession was already done
with consent and without influence of all parties. If deed dated
13th July, 1979 is perused, it does state that partition had taken
place and certain house properties had come to the share of the
defendant no.1. The defendant no.1 had deposed that there were
various meetings and in these meetings, it was decided to partition
the properties and separate the shares so that there is quietus to
long standing disputes between the parties. It was decided to
record the same before the panchas. If this position is accepted,
then document dated 13th July, 1979 becomes family arrangement
regarding the past partition. That, if the evidence is re-
appreciated, this Court can come to another conclusion that the
deed is partition deed, is not a ground to interfere with the factual
finding that it was only a document recording past partition. The
view taken by the learned District Judge by reading recitals in
deed as well as the evidence of the parties regarding the meetings
held in past, cannot be said to be a perverse view.
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12. As regards the evidence of the witnesses, who were
present at the time of signing the deed, these witnesses have only
stated that they had attended when the parties signed the deed of
13th July, 1979. These witnesses being strangers to the family,
called only as witnesses at the time of signing of the deed, did not
depose anything further than the fact that the deed was signed in
their presence. Considering these factors, the contention raised by
Mr. Sawant as regards the registration of this document, cannot be
accepted.
13. Next challenge by Mr. Sawant to the deed of 1979 is
that the sister and mother have not signed family arrangement
and, therefore, such family arrangement cannot be acted upon
unless signed by all the concerned. Mr. Sawant relied upon the
decision in the case of Narendra Kante (Supra) in furtherance of
his submission. This decision of the Apex Court arose from an
interlocutory order where the Apex Court was considering the
prima-facie case and the balance of convenience. The principle of
law that is expounded by the Apex Court is that the family
settlement must be acceptable to all. The best way of
demonstrating this could be to show that the deed is signed by all.
However, it is open to the parties to show that, even though the
family settlement is not signed by one or two members, it was
acceptable to all the concerned including those who have not
signed it. Such evidence is not shut out. In the present case,
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mother has not signed family arrangement of 1979, but she was
present when the family arrangement took place, which fact is not
disputed. It is proved that she was fully aware of the family
arrangement. She was given monetary share and her livelihood
was taken care of by the respondent no.1. She was alive thereafter
for several years and never took any objection. Therefore, in this
case, merely because mother had not signed family
arrangement ,when there was ample evidence that it was with her
consent, this family arrangement cannot be set aside on that
ground alone. As regards the finding of the fact recorded by the
learned District Judge that sister had relinquished her right,
nothing has been argued by Mr. Sawant as to how this finding is
incorrect.
14. Once the conclusion is reached that the family
arrangement of 1979 was permanent and all parties were bound
by it, the learned District Judge rightly did not go into the issue as
to whether some of the land were rightly claimed as self-acquired
or joint by the respondent no.1, as all these properties were part of
deed of 1979. It is not the case of the appellants that some of the
lands were left out of deed of 1979 which require to be
partitioned. Therefore, the contention of Mr. Sawant that the
properties gat no.2050 and 1147 were acquired from nucleus or
joint family will not take the case of the appellants any further.
Even assuming that they were joint family properties, they have
been dealt with in the deed of 1979. The contention that mutation
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entries have not taken place or the partition has not been done by
metes and bounds is concerned, the learned District Judge had
held that parties have not done so in view of the fragmentation
that may occur. Even otherwise once the appellants had admitted
that after the deed of 1979, there was severance in the joint family
status, not making an entry in the revenue record will not be of
much importance.
15. In the circumstances, the conclusion of the learned
District Judge that the family arrangement of 1979 is binding, is in
consonance with legal position that primacy be given to a family
arrangement designed to bring peace within the family. The
questions of law as framed cannot be answered in favour of the
Appellants. Second appeal is dismissed. No order as to costs.
(N.M. Jamdar, J.)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
CIVIL APPLICATION NO.2396 OF 1993
IN
SECOND APPEAL NO.229 OF 1993
1 Nivrutti Khanderao Malode
Since deceased by legal heirs
2a) Parvatibai Nivruti Malode
Aged about 75 years & Ors. ...Applicants
Vs.
Shri Popat Khanderao Malode
Since deceased through his
legal heirs ... Respondents.
1a) Yamunabai Popat Malode
(Deleted as per Court's order
dated 21/6/2010) & Ors.
Mr. R.A.Thorat, Senior Advocate with Mr. P.J.Thorat and
S.P.Chavan, Advocates for the Applicant Nos.1-a to 1-b, 2a to 2f, 3
to 5, 7, 8-a to 8-h, 10, 11-a to 11-d.
Ms. Nazia Shaikh, Advocates for Applicant Nos.9-a, 9-b, 9-d, 9-e.
Mr. S.A.Sawant with Ms. Ruchita Kadam i/by S.M.Railkar,
Advocates for the Respondents.
CORAM : N.M. Jamdar, J.
Friday 17 June, 2016.
P.C.:
In view of the dismissal of the Appeal, the application is
disposed of.
(N.M. Jamdar, J.)
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