Jankiram Vithu Kukade R/O ... vs Smt.Sakhubai Wd/O Rushi Naitam & 3 ...
2016 Latest Caselaw 580 Bom

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                                         1




                                                                        
                                                
                                               
              IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                      
                        NAGPUR BENCH : NAGPUR
                            Second Appeal No.419 of 2001
                             
     Jankiram son of Vithu Kukde,
                            
     aged about 53 years,
     occupation - cultivation,
     resident of Bandhona,
     Tq. Chamorshi,
     Distt. Gadchiroli.                            .....           Appellant.
      

                                                                 Org. Plff.
   



                                      Versus

     1.     Sakhubai widow of Rushi
            Naitam,





            aged about 57 years,
            resident of Bandhona,
            Tq. Chamorshi,
            Distt. Gadchiroli.





     2.     Ganpat son of Vithu Kukde,
            aged about 52 years,
            occupation - cultivation,
            resident of Mallerchak,
            Tq. Chamorshi,
            Distt. Gadchiroli.

     3.     Dago son of Vithu Kukde [Dead].




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                                          2




                                                                          
                                                  
     4.     Maroti son of Rushi Naitam,
            aged about 35 years,
            occupation cultivation,




                                                 
            resident of Bandhona,
            Tq. Chamorshi,
            Distt. Gadchiroli.

            [Note : Org. Deft. No.1,




                                      
            Janabai wd/o Vithu Kukde,
            died on 16th Sept., 1993].             .....        Respondents.
                              ig                                Org. Defts.
                            
                                    *****
     Mr. V. N. Morande, Adv., for the appellant.

     Mr. N.R. Bhishikar, Adv., for respondent nos. 1 and 4.
      


                                       *****
   



                                   CORAM :        A.B. CHAUDHARI, J.

                                   Date       :   14th March, 2016





     ORAL JUDGMENT:

01. Being aggrieved by the Judgment and Decree dated 15th

February, 1993 passed by learned Civil Judge [Junior Division],

Gadchiroli, in Regular Civil Suit No. 4 of 1991, confirmed by Judgment

and Decree dated 3rd August, 2001 passed by learned Additional

District Judge, Gadchiroli, in Regular Civil Appeal No. 25 of 1993, the

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instant appeal was preferred by the unsuccessful plaintiff.

02. The following were the Substantial Questions of Law framed

by this Court at the time of admission on 26th July, 2007:-

"1. Whether the Courts were justified in holding that the gift was a valid one when there was no

evidence whatsoever about the acceptance of the gift by the donee?

2. Whether the Courts could have modified the

terms of the gift deed whereby the donor had gifted the property admeasuring 0.69 HR to the donee after it was held by both the Courts that the donor was not the owner of the entire property which was gifted and was the owner of

0.54 HR of the property?

3. Whether a gift could be made by the donee of his

undivided unspecified share in the joint family property?

03. Mr. Morande, the learned counsel for the appellant,

vehemently argued that the donor under the registered Gift-Deed was

holding the property as a joint owner along with the plaintiff, appellant,

and, therefore, was not competent to make a gift of the property

admeasuring 0.64 HR in favour of defendant nos. 2 and 5. The

plaintiff, the son of donor, was a joint owner, though 0.10 HR was sold

by him for the benefit of the joint family and as a member of the joint

family, the courts below could not have endeavoured to convert the

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suit for cancellation of the Gift-Deed into the one for partition when,

admittedly, the joint family property was never put to partition and,

therefore, the Judgments and Decree deserve to be set aside. Mr.

Morande then argued that there was acceptance of the gift and that is

also a finding of fact recorded by the Lower Appellate Court and since

acceptance of the gift is a sine qua non for the operation of the Gift-

Deed, it must be held that the Gift-Deed [Exh.51] was not valid in law.

04. Per contra, Mr. Bhishikar, learned counsel for respondent

nos. 1 and 4, supported the impugned judgments and decree, and

submitted that concurrently both the courts have found against the

appellant and dismissed the suit filed by the appellant. The Gift-Deed

shows the gift of suit property as a delivery of possession thereof; but

still the Lower Appellate Court has adopted the course to hold that the

relief of only injunction could be granted and hence there is no need to

interfere with the judgments and decree impugned. He, therefore,

prayed for dismissal of the appeal.

05. Heard learned counsel for the rival parties. Perused the

reasons recorded by the courts below.

06. The suit for cancellation of the Gift-Deed [Exh.51] was partly

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decreed by the Trial Court. Both the courts below found that the

appellant, plaintiff, could have, at the most, 0.10 HR share in the suit

property, which was sold out by him and even if the property was a

joint family property, the plaintiff had already sold his share and,

therefore, reducing the area for the Gift-Deed from 0.64 HR to 0.54 HR,

the court ultimately found that justice could be done between the

parties by said method method of apportionment in the shares. In so

far as the submission regarding acceptance of property gifted is

concerned, I find that the Trial Court has found in answer to Issue Nos.

3 and 4 that there was a partition in the family, though not in writing

and, therefore, believing the oral partition, the Court proceeded to hold

that there was a need to interfere with the Gift-Deed. I quote answer

to Issue Nos. 3 and 4, which reads as follows:-

"Issue no. 3 & 4 :

While going through the evidence of plaintiffs witness we have already seen though there is no partition of the joint family property every member has right to do away with his such undivided share in the joint stock. Accordingly PW 4 the brother of the plaintiff Jankiram Ganpati deposed in his statement while cross examining that though the partition was not in writing it

was in the oral one and that all the three brothers sold out their respective share in the property and his version is not corroborated to the plaintiffs himself as he deposed in his cross-examination that other brothers sold their respective share in the property and he did not oppose them to do so and when he gave suggestions he stated that the partition were not effected when the two other brothers sold their shares and separated, again if we go through the plaintiffs

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pleading in exhibit no.1, second para that "however, each brother and the mother mutually agreed to sale out their proportionate share without any objection from the remaining cosharers. It was how barring 0.67 decimals the rest was sold by three brothers. If this

pleading takes cumulatively along with the above evidence it becomes crystal clear that being remained portion of share which is only belongs to the fourth member one and that is if the defendant no.1 Janabai share though if is 0.67 Hector or 0.54 for technical point

of view if taken for granted and thus, almost all the shareholders disposed of their respective share from

the joint holding apart from admission of PW 4 Ganpati positively it is inferred that she is their women only 4th share belongs to the mother, defendant no.1 the question of partition become fubile and share deemed

to be partition of the joint stock also because if the two shares of disputed 0.67 Hector partitioned between the two in between Jankiram and Janabai it would be unjustified share in their hand of original total joint family property admeasuring 5.17 acres of land and in

the background of evidence of sold share of all the three brothers it is simply not acceptable hence it can be easily inferred from foregoing discussion that there

was partition between the parties and hence, it is become clear that the 4th share which remained behind was that of belongs to the defendant no.1 Janabai in other words Janabai was entitled to the exclusive

possession and absolute owner of 0.54 Hector is only thus I answered the issues accordingly."

07. Perusal of the Appellate Court Judgment also shows that the

Appellate Court found that ultimately plaintiff was entitled to 0.10 HR

area and, therefore, restricted relief of injunction and held that area to

that extent could be worked out in favour of the plaintiff, but not more

than than. The Appellate Court, therefore, found that there was no

point favourably considering the plea of cancellation of Gift-Deed itself;

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otherwise that would wash out the family arrangement or partition

made amongst the members of the family. Though it is true that the

donor, Janabai, was not held to be an exclusive owner of the property

gifted, the courts below found existence of oral partition and carving

out of the shares. In my opinion, both the courts below committed no

error in confirming the shares which the family members would have

received and accordingly proceeded to pass the decree. In that view

of the matter, Question no.1 framed by this Court will have to be

answered in the affirmative, so also Question no.2, about which

discussion has already been made by me.

08. Coming to the third question, I find that the courts below

have made an arrangement having found that each of the members of

the family was entitled to share and the plaintiff having been entitled

to 0.10 HR share which is already sold out by him, the question of

interfering with the instrument of Gift-Deed did not arise.

09. Taking overall view of the matter, I think, looking to the

small areas held by the parties, that too in the district of Gadchiroli, it

would be impracticable also, apart from the answer given by me on

merits of the matter, to interfere. In that view of the matter, I make

the following order:-

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ORDER

[a] Second Appeal No. 419 of 2001 is dismissed.

     [b]            No costs.




                                        
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