Bombay High Court
Rajabhau Ranuji Jagtap And Ors vs Kadubai Radhakishan Kanade And ... on 29 June, 2016
Bench: T.V. Nalawade
SA No. 625/12 & Anr.
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
SECOND APPEAL NO. 625 OF 2012
WITH
CIVIL APPLICATION NO. 10740 OF 2012
1) Rajabhau S/o Ranuji Jagtap
Age : 53 years, Occ : Agriculture
2) Annasaheb S/o Rajabhau Jagtap
Age : 25 years, Occ : Agriculture
3) Manjabai @ Bhausaheb Rajabhau Jagtap
Age : 23 years, Occ : Agriculture
4) Chandrakalabai W/o Rajabhau Jagtap
Age : 46 years, Occ : Household.
All R/o Sawargaon, Tq. Majalgaon,
District : Beed.
....Appellants
(Orig. Defendants)
Versus
1) Kadubai W/o Radhakishan Kanade,
Age : 63 years, Occ : Household
R/o Majalgaon Tq. Majalgaon,
Dist. Beed.
2) Shushilabai W/o Babasaheb Shinde,
Age : 56 years, Occ : Household,
R/o Shevgaon, Tq. Shevgaon,
Dist. Ahmednagar at present
R/o Savergaon, Tq. Majalgaon,
Dist. Beed.
3) Kamalbai W/o Janardhan Late,
Age : 38 years, Occ : Household
R/o Murumgaon, Tq. Sailu,
Dist. Parbhani.
4) Suresh S/o Uddhav Jagtap,
Age : 35 years, Occ : Agriculture,
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SA No. 625/12 & Anr.
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R/o Sawargaon, Tq. Majalgaon,
Dist. Beed.
5) Balkishan S/o Shivdayal Zanwar
Age : 49 years, Occ : Agriculture & Business
6) Surekha W/o Balkishan Zanwar
Age : 43 years, Occ : Household.
7) Shivdayal W/o Mangilal Zanwar
Age : 70 years, Occ : Agriculture & Business
R-5 to 7 R/o Near Old Bus Stand,
Majalgaon, Tq. Majalgaon,
Dist. Beed.
8) Sitaram S/o Bapurao Padgham,
Age 42 years, Occ : Agriculture
9) Kundlik S/o Bapurao Padgham,
Age : 40 years, Occ : Agriculture
R-8 to 9 R/o Sawargaon
Tq. Majalgaon, Dist. Beed.
....Respondents
Mr. V.D. Salunke , Advocate for appellants.
Mr. B.S. Kudale, Advocate for respondent Nos.1 & 2.
Mr. Vivek Bhavhtankar, Advocate for respondent No.3.
WITH
SECOND APPEAL NO. 09 OF 2013
WITH
CIVIL APPLICATION NO. 174 OF 2013
1) Balkishan S/o Shivdayal Zanwar
Age : 49 years, Occ : Agriculture & Business
R/o : Near Old Bus Stand,
Majalgaon, Tq. Majalgaon,
Dist. Beed.
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SA No. 625/12 & Anr.
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2) Surekha W/o Balkishan Zanwar
Age : 43 years, Occ : Household.
R/o : Near Old Bus Stand,
Majalgaon, Tq. Majalgaon,
Dist. Beed.
3) Shivdayal S/o Mangilal Zanwar
Age : 70 years, Occ : Agriculture & Business
R/o : Near Old Bus Stand,
Majalgaon, Tq. Majalgaon,
Dist. Beed. ...Appellants
Versus
1)
Rajabhau S/o Ranuji Jagtap
Age : 53 years, Occ : Agriculture
2) Annasaheb S/o Rajabhau Jagtap
Age : 25 years, Occ : Agriculture
3) Manjabai @ Bhausaheb Rajabhau Jagtap
Age : 23 years, Occ : Agriculture
4) Chandrakalabai W/o Rajabhau Jagtap
Age : 46 years, Occ : Household.
5) Kadubai w/o Radhakishan Kanade,
Age : 63 years, Occ : Household,
All R/o : Majalgaon, Tq. Majalgaon,
District : Beed.
6) Shushilabai W/o Babasaheb Shinde,
Age : 56 years, Occ : Household,
R/o Shevgaon, Tq. Shevgaon,
Dist. Ahmednagar at present
R/o Savergaon, Tq. Majalgaon,
Dist. Beed.
7) Kamalbai W/o Janardhan Late,
Age : 38 years, Occ : Household
R/o Murumgaon, Tq. Sailu,
Dist. Parbhani.
8) Suresh S/o Uddhav Jagtap,
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SA No. 625/12 & Anr.
4
Age : 35 years, Occ : Agriculture,
R/o Sawargaon, Tq. Majalgaon,
Dist. Beed.
9) Sitaram S/o Bapurao Padgham,
Age : 42 years, Occ : Agriculture,
R/o : Sawargaon, Tq. Majalgaon,
Dist. Beed.
10) Kundlik S/o Bapurao Padgham,
Age : 40 years, Occ : Agriculture
R/o : As above.
R-8 to 10 R/o Sawargaon,
Tq. Majalgaon, Dist. Beed.
ig ...Respondents
Mr. A.S. Bajaj, Advocate for appellants.
Mr. B.S. Kudale, Advocate for respondent Nos.5 & 6.
Mr. Vivek Bhavhtankar, Advocate for respondent No.8.
CORAM : T.V. NALAWADE, J.
DATED : 29TH June, 2016.
JUDGMENT :
1) Both the appeals are admitted. Notice after
admission is made returnable forthwith. By consent, heard both
the sides for final hearing.
2) The appeals are filed against judgment and decree of
Regular Civil Appeal No. 66/2005, which was pending in the
Court of District Judge-1, Majalgaon, District Beed. The suit filed
by present respondent Nos. 1 to 3 for relief of partition and
separate possession bearing Special Civil Suit No. 32/2004 (old
SA No. 625/12 & Anr.
Special Civil Suit No. 54/1999) which was pending in the Court of
Civil Judge, Senior Division, Majalgaon was dismissed by the Trial
Court. This decision is set aside by the First Appellate Court and
the First Appellate Court has decreed the suit. Both the sides are
heard.
3) In short, the facts leading to the institution of the
present appeals can be stated as follows :-
Plaintiffs, defendant Nos. 1 to 3 and some other
defendants are successors of one Ranuji. It is contended that
suit land bearing Survey No. 58/1, admeasuring 11 Acres 16
Gunta, Survey No. 59/1 admeasuring 16 Acres 31 Gunta, Survey
No. 187/1, admeasuring 2 Acres 24 Gunta, Survey No. 188/1,
admeasuring 5 Acres 14 Gunta, one plot having No. 111 in the
record of Village Panchayat, other plot having No. 105, having
size of 80 x 50 ft. are the properties left behind by Ranuji and so
they are ancestral and joint family properties of plaintiffs and
some of the defendants. It is their case that Ranuji had married
two wive viz. Gangabai and Sitabai. They have contended that
plaintiff Nos. 1, 2 and defendant No. 1 are the issues of Ranuji
born from Sitabai. It is contended that Gangubai died prior to
Ranuji, leaving behind one Jankabai. Plaintiff No. 3 Kamalabai is
daughter of Jankabai and three other issues of Jankabai are
SA No. 625/12 & Anr.
made defendants. It is contended that all the plaintiffs are
entitled to have share as per the principle of inheritance of
Hindu Law in the properties left behind by Ranuji and Sitabai.
4) It is the case of plaintiffs that after the death of
Ranuji, for some time plaintiffs and defendant No. 1 cultivated
the lands jointly. It is contended that some land was acquired for
Majalgaon project and one house property was acquired for the
same project. It is contended that after the acquisition, alternate
place was given under the State Act made for rehabilitation of
displaced persons.
5) Defendant No. 4 is wife of defendant No. 1. It is
contended that to deprive the plaintiffs of their share in the suit
properties, defendant Nos. 1 to 4 created some revenue record
and then executed sale deed in favour of defendant No. 5 in
respect of land Survey No. 58/1 to the extent of 4 Acres. It is
contended that plaintiffs did not realize the mischief as till the
year 1996, defendant Nos. 1 to 4, members of the family of
defendant No. 1 were giving the crop share. It is contended that
when in 1996, the defendants refused to give crop share,
plaintiffs searched the record and they realized that some false
record was created by the defendants and some lands were also
SA No. 625/12 & Anr.
shown to be sold to defendant Nos. 5, 6 and 8.
6) Defendant Nos. 1 to 4 filed written statement and
contested the matter. They admitted the relationship. They also
admitted that the suit properties were left behind by Ranuji.
They contended that they had never given crop share to
plaintiffs. They contended that Ranuji was owner of Survey Nos.
55/1, admeasuring 8 Acres 17 Gunta and
ig 55/3 and those
properties are not included in the suit and the suit is bad for non
inclusion of those properties. It is contended that the land
Survey No. 55/1, admeasuring 8 Acres 17 Gunta was mortgaged
by defendant No. 1 to one Laxman Shinde and then the property
was got redeemed in the name of plaintiff No. 2. It is contended
that defendant No. 1 had paid mortgage money to Laxman
Shinde and so, the sale deed was executed in favour of plaintiff
No. 2 and so, their property needs to be considered for partition
purpose. It is contended that land Survey No. 55/3 admeasuring
4 Acres 8 Gunta of village Sawargaon was given to father of
plaintiff No. 3 and defendant Nos. 9 and 10 by name Baburao
Padgham and Baburao sold the said property.
7) It is the case of defendant Nos. 1 to 4 that plaintiffs
caused defendant Nos. 1 to 6 to sell the land Survey No. 189/1
SA No. 625/12 & Anr.
to the extent of 5 Acres 14 Gunta of village Sawargaon to
persons like Shaikh Khayyum, Shaikh Kalumiya and Shaikh Kadar
in the year 1987 and the sale proceeds were collected by
plaintiffs of their share and no money was given to defendant
No. 1 from the sale proceeds. It is contended that land
admeasuring 1 Hector was sold from Survey No. 55 by plaintiff
No. 2 to one Radhakishan in the year 1994 and this
consideration was also received by plaintiff No. 2. It is contended
that due to these circumstances, plaintiffs have received their
share in ancestral and joint family properties and so, they are
not entitled to get share in the remaining properties.
8) It is the case of defendant Nos. 1 to 4 that Jankabai,
daughter of Ranuji was having 5 Acres land in Survey No. 187/1,
but she sold the land to one Ghatol. It is contended that the
remaining portion was with defendant No. 1 and he has given
this portion to defendant Nos. 2 to 4.
9) It is the case of defendant Nos. 1 to 4 that defendant
No. 1 had given area of 25 x 40 ft. out of the property bearing
Village Panchayat No. 105 to father of defendant No. 9, 10 and
plaintiff No. 3 and this property is in possession of defendant
Nos. 9 and 10 and they are living there.
SA No. 625/12 & Anr.
10) Defendant Nos. 6 to 8, purchasers from defendant
No. 1 filed written statement and contested the matter. They
contended that after the death of Ranuji, defendant No. 1 had
become full owner of the properties and as his name was
entered in the revenue record, they purchased the property from
him. It is contended that the possession of defendant No. 1 was
for the period of more than 12 years and he had become owner
due to adverse possession against the plaintiffs of the property
sold to defendant Nos. 6 to 8.
11) It is the case of defendant No. 6 that he has
purchased 2 Acres 34 Gunta land from Survey No. 58/1 under
registered sale deed in 1996 from defendant Nos. 2 to 4 for
consideration of Rs. 33,000/-. Defendant No. 7 has contended
that he had purchased portion of Survey No. 58/1 under the sale
deed of 1996 for consideration of Rs. 41,000/- from the
defendant Nos. 2 to 5. Thus, the defendant Nos. 2 to 6
contended that they have bonafide purchasers for valuable
consideration without notice. They requested the Court to
protect their right and possession.
12) Issues were framed on the basis of aforesaid
SA No. 625/12 & Anr.
pleadings. The Trial Court has held that some properties which
are mentioned in written statement by defendant Nos. 1 to 4 are
not included in the suit and for that suit is bad. It is also
observed that some heirs of Ranuji are not made parties to the
suit like sisters of defendant Nos. 9 and 10 and the suit is bad for
non joinder of necessary parties. The circumstance that some
sale proceeds were paid to plaintiff when land was sold to
persons like Shaikh
ig Khayyum, Shaikh Kalumiya is also
considered against plaintiffs. It is held that there was entry of
name of defendant No. 1 in the revenue record and so,
defendant Nos. 6 to 8 are bonafide purchasers. It is held that it
was necessary for plaintiffs to challenge the transactions made
in favour of defendant Nos. 6 to 8 within three years. With these
observations, the suit was dismissed by the Trial Court.
13) The First Appellate Court has held that the
transactions made in the year 1996 in favour of defendant Nos.
6 to 8 were not binding on plaintiffs to the extent of their share
in the joint family properties and as the suit was filed in the year
1999, it was within limitation. The First Appellate Court
calculated the shares to which plaintiffs and defendants are
entitled as per the principles of Hindu Law. Share of 4/15 is given
to plaintiff Nos. 1, 2 and defendant No. 1. Plaintiff No. 3,
SA No. 625/12 & Anr.
defendant Nos. 9 and 10 are given share of 1/15 each. The First
Appellate Court has directed to make equitable partition and
permission is given to give share which may fall to the share of
defendant No. 1 to the purchasers, defendant Nos. 6 to 8.
14) The learned counsel for appellants, original
defendant Nos. 1 to 4 in one matter and defendant Nos. 6 to 8
drew attention of this Court to some admissions given by
plaintiff in the evidence. It is brought on the record that one
property which was sold by defendant No. 1 is purchased by
plaintiff, but that property came under sale deed and so, it
cannot be said that the property was given by defendant No. 1
to the plaintiff. Admittedly, some proceeds of sale of one
property was also given to plaintiff, but that does not mean that
entire proceeds were given to plaintiff and in view of that
amount, plaintiff had relinquished the right in the suit properties.
Some properties which were sold more than 33 years back are
not mentioned in the suit and due to this single circumstance, it
cannot be said that plaintiffs ought to have included those
properties also. One property was shown to be sold with the
consent of plaintiff, but that does not mean that the sale
proceeds were given to plaintiff. In any case, it was necessary for
defendant Nos. 1 to 5 to prove that plaintiffs had relinquished
SA No. 625/12 & Anr.
their right in the suit properties. In view of the nature of
pleadings in plaint and written statement filed by defendant Nos.
1 to 5 and even by defendant Nos. 6 to 8 inference was easy
that the properties had come to the parties from Ranuji and they
were their joint family properties. Strange defence is taken that
defendant No. 1 had become owner due to adverse possession
as his name was entered after the death of Ranuji in the revenue
record. If aforesaid circumstances which are pleaded in the
written statement are considered, it can be said that defendant
No. 1 was not disputing that plaintiffs had share in the suit
properties that is why he was taking consent of plaintiffs and he
was giving them share in the sale proceeds. In view of these
circumstances and the dates of the transactions made in respect
of the suit properties, there was nothing with the defendants to
prove that defendant No. 1 had become owner due to adverse
possession.
15) In respect of one daughter of Janakabai, who is
entitled to around 1/60th share it was submitted that the
whereabouts of that lady were not known. In any case, share can
be carved out in respect of that lady though she was not made
party and further that lady was to get share in the property of
Jankabai, one branch which was entitled to get 1/15 share. Due
SA No. 625/12 & Anr.
to absence of said daughter of Jankabai on record, the shares of
parties could not have changed in view of the principles of Hindu
Law governing inheritance of the property by succession in such
cases.
16) The learned counsel for appellants placed reliance on
one case reported as 2016 (1) Mh.L.J. 1 [Prakash and Ors.
Vs. Phulavati and Ors.]. In this case, the Apex Court has done
the interpretation of amended provision of section 6 of Hindu
Succession Act, 1956 as amended in the year 2005. This
interpretation or even the provisions made by the Amendment of
2005 need not be used in the present case as admittedly, Ranuji
died before coming in to force of this amendment, in the year
1988 and it needs to be presumed that partition opened in the
year 1988 for successors of Ranuji.
17) Ranuji had one widow, one son and two daughters.
He had four daughters of his deceased daughter Jankabai also
his heirs. In view of these circumstances, notional partition
needs to be done first amongst Ranuji, his widow Sitabai and his
son Rajabhau. In the first notional partition each would get 1/3rd
share in the suit properties. Sitabai died after Ranuji and so, she
was entitled to succeed to property which was allotted to Ranuji
SA No. 625/12 & Anr.
in notional partition. Thus, 1/3rd share which could have been
allotted to Ranuji in the first partition needs to be divided
amongst his successors like widow Sitabai, two daughters one
son and one branch of Jankabai. Thus, there were five successors
who succeeded to the 1/3rd share allotted to Ranuji and so,
these five successors of Ranuji would get equal share, each
1/5th share in 1/3rd share allotted to Ranuji. Thus, Sitabai, widow
of Ranuji would get 6/15th share (1/3 +1/15). After the death of
Sitabai, this 6/15 share will go to her three issues (two daughters
and one son) equally. In the share of Ranuji which was 1/3rd,
these three issues had equal share along with Sitabai and so, in
the second partition they would also get 1/15 share. After the
death of Sitabai they would again get equal share in the property
of Sitabai, which was 6/15th share. It will be divided amongst
three issues of Sitabai equally. Thus, the two daughters of
Sitabai (plaintiff Nos. 1 and 2) will get 3/15th share each.
Rajabhau, defendant No. 1 will get 8/15th share. As plaintiff No.
3 is successor of Jankabai and Jankabai left behind four issues,
1/15th share will be required to be divided amongst four issues
and so, each successor of Jankabai will get 1/60th share.
18) In view of the aforesaid entitlement of the successors
of Ranuji, partition needs to be made. Accordingly, judgment and
SA No. 625/12 & Anr.
decree of First Appeal needs to be modified. This modification
will be for the benefit of not only defendant Nos. 1 to 5, but it
will be for the benefit of defendant Nos. 6 to 8, purchasers also
as share of defendant No. 1 will increase and share of plaintiffs
will decrease. So, the following order is made.
ORDER
Both the Appeals are partly allowed. The judgment
and decree of first appellate court is modified to make the
shares of the parties as follows.
The share of Rajabhau will be 8/15th. The share of
Kadubai will be 3/15th. The share of Sushila will be 3/15th. The
share of 4 successors of Jankabai will be 1/60th each.
So far as the rights of the purchasers are concerned,
the observations made by the first appellate Court in para No. 40
are to be used and it is left to the concerned authority to see
that equitable partition is made as observed by the first
appellate Court.
Other part of the Judgment and decree of the first
appellate Court is maintained.
Decree is to be prepared in aforesaid terms.
[ T.V. NALAWADE, J. ]
ssc/
