Shamrao Ramaji Chavan And Others vs Maroti Ramaji Chavan And Another
2016 Latest Caselaw 734 Bom

                                                        1                         sa173.01.odt

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH AT NAGPUR




                                                                                        
                            SECOND APPEAL NO.173/2001




                                                                
     1. Shamrao s/o Ramaji Chavan,
        aged about 52 years.

     2. Gunwant s/o shamrao Chavan,




                                                               
        aged about 29 years.

     3. Sagriv s/o Shamrao Chavan,
        aged 25 years.




                                                
        All cultivators, r/o Ajangaon,
        Tq. Arvi, Dist. Wardha.
                              ig                                 .....APPELLANTS

                                   ...V E R S U S...
                            
     1. Maroti s/o Ramaji Chavan,
        aged 43 years, Occ. Cultivator,
        R/o Ajangaon, Tq. Arvi, Dist. Wardha.
      

     2. Shevantabai w/o Namdeorao Dongre
        (Appeal dismissed against respondent no.2
   



        as per Court's order dtd.02.02.2005)   ...RESPONDENTS

     -------------------------------------------------------------------------------------------
     Mr. R. L. Khapre, Advocate for appellants.





     Mr. D. S. Dharaskar, Advocate for respondent no.1.
     -------------------------------------------------------------------------------------------

      CORAM:- A. B. CHAUDHARI, J.
      Date of Reserving the Judgment         
                                             : 25.02.2016





      Date of Pronouncing the Judgment     
                                            : 18.03.2016


     J U D G M E N T

1. Being aggrieved by judgment and decree dated

09.12.1996 passed by Additional District Judge, Wardha in

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Regular Civil appeal No.59/1993, dismissing the appeal filed by

the appellants and confirming the judgment and decree passed by

Civil Judge Junior Division, Arvi in Regular Civil Suit No.72/1979,

the present second appeal was filed by the unsuccessful

defendants.

FACTS:

2. The respondent-plaintiff has filed suit against the

appellants-defendants, who constitute a Hindu Joint Family,

having movable and immovable properties in Schedule-A of the

plaint. The properties in the Schedule were shown as ancestral

properties and it was claimed that the plaintiff was entitled to

1/3rd share in the property shown in Schedule-A of the suit. The

defendant nos.1 and 2 contested the suit by filing written

statement and admitted the relationship. But they denied the

existence of Hindu Joint Family and any right of the respondent-

plaintiff described in Schedule-A. The appellants contended that

the field survey no.84 admeasures about 17.31 Acres and that was

was deliberately not shown in the Schedule-A of the suit for

partition. It was then stated in the written statement that as a

matter of fact, there was a registered partition on 21.04.1976 in

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which all properties, including survey no.84 were the subject

matter of registered partition deed and in the absence of any

reason to set aside that partition, the question of reopening

partition through Court did not arise. The suit was, therefore,

clearly barred and was liable to be dismissed. The learned trial

Judge heard the evidence tendered by the respective parties and

decreed the same. In the appeal preferred by the appellants, the

decree was confirmed. Hence, this second appeal.

SUBMISSIONS:

3. In support of the appeal, Mr. Khapre, learned counsel

for the appellant, vehemently argued inviting my attention to

Exh.-88, the registered partition deed, that the document Exh.-88

has been treated by the Courts below in most casual manner when

between the parties there was a registered partition already made

including all properties so also Survey no.84. He submitted that

the suit was not tenable for the simple reason that there was no

prayer in the suit for assailing the partition Exh.-88 on any ground

whatsoever nor the partition Exh.-88 was at all challenged nor

there has been any prayer for reopening the partition on any legal

and valid ground. The reopening of partition is a serous issue and

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it is the settled law that the reopening cannot be made at the mere

askance. But in the present case, the reopening was not sought for

and in the wake of existence of partition already made between

the parties, the suit was filed suppressing that there was already

partition Exh.-88, registered in accordance with law and never

challenged nor objected to by anybody. There was no even remote

challenge to the partition Exh.-88 in the suit and, therefore, the

suit itself was not maintainable and the suit ought to have been

dismissed on that count.

4. Per contra, Mr. Dharaskar, learned counsel for the

respondent, submitted that there are concurrent finding of fact

recorded by the two courts below that the suit was liable to be

dismissed and it was accordingly dismissed. The Courts below

found that the partition Exh.-88 about which there was hue and

cry made by the appellants was found to be not fair and, therefore,

the Courts were within their power to declare it to be not binding

on the parties. He submitted that the said finding of fact cannot

be disturbed in the second appellate jurisdiction. He submitted

that there are pleadings on record to challenge the validity of

partition Exh.-88 and that is why the suit itself was for partition

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since the plaintiff was not satisfied with the partition Exh.-88. He,

therefore, submitted that no substantial question of law is involved

in this second appeal, which deserves to be dismissed.

CONSIDERATION:

5. I have heard learned counsel for the rival parties at

length. I have perused the entire record and oral as well as

documentary evidence. I have seen the reasons recorded by the

two courts below. Following are the substantial questions of law

framed by this Court while admitting the appeal.

(i) Whether under Section 43 sub section 8 of the Bombay Tenancy and Agricultural Land Act, sale certificate

is conclusive proof of purchase and evidence that the

purchaser named in that certificate is a statutory purchaser thereof and no evidence can be admitted contradictory or supplementary contents of said certificates as such as

allowing the parties to adduce such evidence amounts to allowing the party to defeat the conclusiveness given to such certificate? ...Question does not arise.

(ii) Whether the suit as filed is maintainable in absence of prayer of reopening of partition as the said prayer is intentionally not made by the plaintiff in suit as he is aware that suit for reopening of partition is barred by time being filed beyond the period of three years after

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partition dated 21.04.1976 and as there was no fraud which can be shown to have been committed at the time of

original partition which constitutes the cause of action for

filing the suit for partition? ...Yes

(iii) Suit is bad for partial partition as Survey No.84

is not included by the plaintiff in the plaint? ...Yes

(iv) What order? ...As per final order

6.

Upon hearing learned counsel for the rival parties as

regards question No.5, in the memo of appeal, I find from the

careful reading of the pleadings that there is no prayer for

reopening of partition Exh.-88 nor any grounds or reasons to show

that partition Exh.-88 is a registered partition. The submission

that the plaintiff has not signed the said partition has been

rejected by the Courts below and in my opinion rightly and,

therefore, the appellate Court also did not find any substance in

the contention raised that prima facie for want of signature of the

plaintiff, the partition could be bad. The appellate Court has given

this reasons in paragraph 17 of his judgment with which I agree

that even without consent of the sons, the partition could be

made. However, the learned lower appellate Court as well as the

7 sa173.01.odt

trial Court both rejected the registered partition Exh.-88 on the

ground that it was not a fair partition or was not equitable

partition. I am sure, such a course of action was not at all

permissible for the Courts below in the absence of plaintiff setting

up a challenge to the partition deed Exh.88 in the plaint as well as

in the evidence and in the prayer in the suit. It is not for the Court

on its own to hold that partition was not fair, proper or equitable.

It is only for the parties to challenge the partition, if at all they are

aggrieved on any ground including unfairness and/or other legal

and valid ground. What is strange in this case is that without

there being any pleading or prayer about Exh.-88 to reopen the

partition by setting aside Exh.-88, the Courts below have

endeavoured to hold that the partition Exh.-88 was not fair. This

is wholly impermissible in law. The registered partition Exh.-88

could not be reopened in the manner done by the Courts below.

The settled rights between the parties by virtue of partition Exh.-

88 could only be disturbed upon the legal and appropriate

challenge set up in the plaint and in the prayer and not merely

because the trial Court or the appellate Court in its own finds so.

The reopening of the partition is a serious issue as observed by

the apex Court. Following is the dicta, in the Case of Ratnam

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Chettiar and others.vs.S.M.Kuppuswami Chettiar & others; AIR

1976 SC 1, wherein, in paragraph 19, it is held thus:

"19. Thus on a consideration of the authorities discussed above and the law on the subject, the following propositions emerge:

(1) A partition effected between the members of the Hindu Undivided Family by their own volition and with their consent cannot be reopened, unless it is shown that

the same is obtained by fraud, coercion, misrepresentation

or undue influence. In such a case the Court should require a strict proof of facts because an act inter vivos cannot be

lightly set aside.

(2) When the partition is effected between the members of the Hindu Undivided Family which consists of

minor coparceners it is binding on the minors also if it is done in good faith and in bona fide manner keeping into

account the interests of the minors.

(3) Where, however a partition effected between the

members of the Hindu Undivided Family which consists of minors is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can certainly be

reopened whatever the length of time when the partition took place. In such a case it is the duty of the Court to protect and safeguard the interests of the minors and the onus of proof that the partition was just and fair is on the party supporting the partition.

         (4)            Where   there   is   a   partition   of   immovable   and





                                                        9                       sa173.01.odt

movable properties but the two transactions are distinct and separable or have taken place at different times. If it is

found that only one of these transactions is unjust and

unfair it is open to the Court to maintain the transaction which is just and fair and to reopen the partition that is unjust and unfair."

7. It is, thus, clear from the above decision and in the light

of the facts in the present case that there was no pleading at all

regarding partition being unfair. Added to all this, it is important

to note that the plaintiff did not include survey no.84 in his

partition suit and that appears to be deliberate but then that is

fatal to the suit as held in Kenchengowda (since deceased) by

Legal Representatives..vs..Siddegowda alias Motegowda; (1994)

4 SCC 294. Para 16 if the said judgment reads thus:

"16. ..Even otherwise, a suit for partial partition

in the absence of the inclusion of other joint family properties and the impleadment of the other co-sharers was not warranted in law. Thus, we find no difficult in

allowing these appeals which are accordingly allowed."

8. In that view of the matter, both the questions will have

to be answered in the affirmative and following order is required

to be passed.

                                                  10                    sa173.01.odt

                                   ORDER




                                                                              
         (i)            Second Appeal No. 173/2001 is allowed.




                                                      
         (ii)           Judgment and decree dated 09.12.1996 passed

by Additional District Judge, Wardha in Regular Civil appeal No.59/1993 and judgment and decree dated

29.03.1993 passed by Civil Judge Junior Division, Arvi in Regular Civil Suit No.72/1979 are set aside.

(iii) Regular Civil Suit No. 72/1979 is dismissed.

No order as to costs.

JUDGE

kahale