Bombay High Court
Pundlik Ukha Kankhare vs Thagubai Laxman Kankhare And ... on 11 April, 2017
Bench: S.P. Deshmukh
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drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.448 OF 2015
Pundlik Ukha Kankhare APPELLANT
Age - 74 years, Occ - Agriculture
R/o Kanalda, Taluka and District - Jalgaon
VERSUS
1. Thagubai Laxman Kankhare RESPONDENTS
Age - 77 years, Occ - Labourer
2. Anjanabai Sukdeo Sultan
Age - 52 years, Occ - Housewife
3. Meerabai Sharad Bacchav,
Age - 47 years, Occ - Housewife
4. Sakubai Ankush Borse,
Age - 45 years, Occ - Housewife
5. Mangalabai Sunil Nile (Deceased)
Through her legal heirs
5.1 Sunil Vasant Nile
Age - 48 years, Occ - Labourer
5.2 Punam Sunil Nile
Age - Minor, Occ - Nil
u/g her father i.e. respondent No.5.1
6. Kavita Laxman Kankhare
Age - 26 years, Occ - Household
All R/o Kanalda,
Taluka & District - Jalgaon (Ori. Plaintiffs)
7. Devkabai Damodar Bhalerao (Deceased)
Through her legal heirs
7.1 Pandharinath Damodar Bhalerao
Age - Major, Occ - Driver
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7.2 Sudhakar Damodar Bhalerao
Age - Major, Occ - Labourer
7.3 Madhukar Damodar Bhalerao
Age - Major, OCc - Agriculture
7.4 Shiva Damodar Bhalerao,
Age - Major, Occ - AGriculture
No.7.1 to 7.4 R/o Dhamangaon,
Taluka and District - Jalgaon
8. Revkabai Dhondu Dhamane
Age - Major, Occ - Household
R/o Tade Bamhane, Taluka - Erandol
District - Jalgaon
.......
Mr. Vijay B. Patil, Advocate for the appellant
Mr. Vinod P. Patil, Advocate for respondents No.1 to 6
.......
[CORAM : SUNIL P. DESHMUKH, J.]
DATE : 11th APRIL, 2017
ORAL JUDGMENT :
1. Heard learned advocates for the appellant and
respondents No.1 to 6.
2. Question that emerges for consideration in this second
appeal is -
" Whether the two courts hitherto have erred in granting decree
of partition of half of suit property in favour of the plaintiffs ? "
3. Briefly stated, the emanating facts are, suit property
bearing Gut No.91, admeasuring about 2 hectare, 5 aar situated
at Fupnagari, Taluka and District - Jalgaon had been purchased
under a registered sale deed dated 26 th April, 1947 (Exhibit-66)
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by Ukha in his name and in the name of Pundlik. Pundlik was
then minor, eleven year old son of Ukha. Plaintiff No. 1 is widow
of Laxman, another son of Ukha. Plaintiffs No. 2 to 6 are married
daughters of plaintiff No. 1 and deceased Laxman, who expired
in 1991. It is the case of the plaintiffs that suit property is their
ancestral property and during lifetime of Laxman, he had been
cultivating half of the suit property. After his death, since
Laxman had not left behind any male progeny and he had only
daughters, in order to deprive the plaintiffs of their legitimate
share in the ancestral property, they were driven away by
Pundlik. Names of plaintiffs came to be recorded in revenue
record as legal heirs of deceased Laxman in respect of the suit
property. The position continued till 2002, however, around
2002, revenue entries in their favour were tried to be disturbed
by making an application before revenue authorities by
defendant No. 1 - Pundlik. An order came to be passed, against
the interest of the plaintiffs. Thereafter, a notice, through
advocate had been issued by the plaintiffs to defendant No. 1
seeking partition and separate possession of suit property.
Before that on several occasions, request with defendant No. 1
to partition suit property had not been heeded and, as such,
Regular Civil Suit No.72 of 2005 ensued.
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4. Plaintiffs' claim was resisted by defendant No. 1 contending
that suit property had been purchased in the name of Ukha and
Pundlik - defendant No. 1 and as such, complete half share was
owned by defendant No. 1 with which the plaintiffs had no
concern. It is further contended that the claim of the plaintiffs is
not proper. Half the property all along had been owned by
defendant No. 1 and after death of Laxman, he had been
cultivating entire suit land. It had been denied that either
plaintiffs or for that matter Laxman had half share in suit
property. While notice was issued in 2004 by the plaintiffs, the
same had been replied, however, the reply had not been
accepted, and the same had come back to defendant No. 1. It
had, however, been broadly accepted that revenue entries in
favour of the plaintiffs had been effected after death of Manjabai
- wife of Ukha, after 1981 and the same continued to be shown
as such. It had further been contended that for want of certified
copy of sale deed on record, suit is liable to be dismissed.
Alternatively, it has been claimed that defendant No.1 pursuant
to sale deed is owner of half of suit property and the balance half
belonging to Ukha - father of defendant No. 1 upon his death,
would get divided into three shares viz., Manjabai, defendant No.
1 and his brother Laxman and as such, the plaintiffs would not
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be entitled to in any case half share as claimed by them in suit
property.
5. Trial court, in relation to aforesaid pleadings, framed issues
as to whether the plaintiffs prove that the property is ancestral;
whether defendant No. 1 proves that he is legally owner of suit
property; whether the plaintiffs are entitled to partition and
whether they have half share in the same and answered that the
property is ancestral, plaintiffs are entitled to partition and they
have half share in suit property, whereas defendant No. 1 could
not prove that he is owner of entire suit property.
6. The trial court noted that revenue record depicts, till death
of Ukha, suit property had been shown in the name of Ukha and
after his death, the same started to be shown in the name of
Manjabai - wife of Ukha, defendant No. 1 - Pundlik and Laxman.
After death of Manjabai, names of defendant No. 1 and the
plaintiffs started to be shown in the revenue record. The entries
were duly approved by the Additional Collector. Trial court
adjudged looking at the background that defendant No. 1 was
minor and he had no separate source of income, the property in
the hands of legal heirs of Ukha is ancestral property. Suit, as
such, was decreed.
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7. The matter was taken in regular civil appeal No. 1073 of
2012 by defendant No. 1, wherein similar points as were the
issues before trial court, were framed for determination. The
appellate court as well held suit property to be ancestral
property, defendant No. 1 could not prove his exclusive
ownership over half of suit property and further the plaintiffs
were held to be entitled to partition and separate possession of
half of suit property.
8. Mr. Vijay B. Patil, learned advocate, appearing on behalf of
the appellant - defendant No. 1 vehemently submits that in the
first place title deed is in favour of defendant No. 1 to the extent
of half of the suit property and in such a case in absence of
challenge to the title deed, suit to the extent of half of suit
property ought to have failed. He submits, without admission,
even if it is considered that for half of suit property that would
legitimately be held in the name of deceased Ukha, the plaintiffs
would not have half share in the same, as the same would be
liable for division in accordance with prevailing position of law.
Suit property, according to him, would be divided into three
shares - one third going to Ukha and remaining two third would
be equally divided among defendant No. 1 and his brother
Laxman. In the share of deceased Ukha, partition would once
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again will have to be effected among all the members of progeny
viz., brothers and sisters. In the circumstances, decision
rendered about plaintiffs being entitled to half share in suit
property is not tenable. He additionally submits that the suit is
outside the period of limitation, which question ought to have
been looked into by the courts, as Laxman died in 1991 and the
suit has been filed in 2005. He submits that issuance of notice
would not extend the period of limitation or cause of action.
9. Mr. Vinod P. Patil, learned advocate for respondent -
plaintiffs at the outset submits, so far as question that is sought
to be posed in respect of absence of challenge to sale deed is
concerned, the same is not necessary, as the nature and
character of the property being ancestral has been found by the
two courts with reference to the evidence on record and that
question being a question of fact, stands concurrently decided. It
is not the case that said finding given and inference drawn is not
borne out from the facts and evidence on record. He submits
that it emerges on record that while purchase had been made in
1947, defendant No. 1 had been minor and had no independent
source of income and the family, that is to say, defendant No. 1
and his brother Laxman and father Ukha were joint. In the
circumstances, it clearly emerges that property was in fact
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purchased by father and had shown the same in his own name
and in the name of defendant No. 1, who was the eldest son.
The burden which has slided on to defendant No. 1 to prove that
the property had been purchased by defendant No. 1 has not
been discharged absolutely. On the contrary, simply for the sale
deed bears his name it cannot be said that property in fact had
been purchased by defendant No. 1 and had fallen to his
ownership alone while family continued to be joint. He submits
that when the nature of the property has been determined to be
ancestral property, challenge to the sale deed is absolutely not
necessary and no fault can be found on that count. Nor in the
written statement, such a defence had ever been taken. He
submits that so far as ground of limitation is concerned, at the
outset, it will have to be drawn attention to that no such defence
had ever been taken in written statement by defendant No. 1.
Secondly, he submits that since the property had been ancestral
property, in the natural course, property being purchased by
father, upon his death, as per prevailing law, the same stood
devolved on his two sons, who are male members of the family
and as such, since the plaintiffs are successors of brother of
defendant No. 1, half of his share would devolve on the plaintiffs.
Thus, the contention of defendant No. 1 on this count as well is
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unsustainable. As far as limitation is concerned, he submits that
after death of Ukha the property came to be recorded in the
name of Manjabai, mother of Pundlik and Laxman and after
death of Laxman, the property of his share came to be recorded
in the names of plaintiffs. The position continued till 2002. There
had been no disturbance so far as title derived by the plaintiffs
till 2002 and in 2002 while some proceedings were initiated
before revenue authorities, a notice came to be issued seeking
partition in 2004 and in 2005 the suit came to be filed. As such,
it is not a case wherein it can be said that the suit is barred by
law of limitation or it is outside the period of limitation. The suit
is based on title, and in such a case, the suit as would emerge, is
filed within the period of limitation prescribed therefor under the
Limitation Act.
10. After hearing learned advocates, it appears that there is a
considerable force in the submissions advanced on behalf of the
respondent - plaintiffs, so far as their entitlement to partition
and the nature of property to be ancestral in their hands, so
also, limitation is concerned. It cannot be gainsaid that
defendant No. 1 had been minor while purchase was made by
Ukha in his own name and in the name of defendant No. 1.
Record does not bear anything which would indicate that
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defendant No. 1 had any source worth the name to earn income
and invest in purchase of land. It emerges that suit property had
in fact been purchased by Ukha and as such, after purchase of
property, the property stood in the revenue record in Ukha's
name.
11. Name of defendant No. 1 started figuring in only after
death of Ukha along with Manjabai and Laxman. Till death of
Laxman in 1991 or for that matter even upto 2002 defendant
No. 1 had not taken any objection to revenue entries so
appearing. In the circumstances, two things clearly emerge that
the property had been treated as Ukha's property and that title
of the plaintiffs had not been tried to be disturbed until 2002.
12. In the circumstances, so far as ancestral nature of property
in Ukha's legal heirs hands and the suit being within limitation
from cause of action therefor is concerned, would not be a
matter of debate. However, so far as division of shares upon
partition is concerned, two courts hitherto do not appear to have
appreciated the matter pursuant to prevailing position of law.
Neither claim of defendant No. 1 appears to be in consonance
with said position. Looking at that it was property of Ukha, after
his death, him having died intestate would be governed by
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statutory law finding codification under Hindu Succession Act,
1956, wherein property of deceased male Hindu dying intestate
would devolve on wife and the children. Here it is a case that
while Ukha died, Manjabai his wife was alive. His two sons and
two daughters also survived. In such a case, Ukha's property is
liable to five equal divisions. Further, upon death of Manjabai,
her share would equally devolve on four children left behind by
her.
13. Sharing pattern as has been directed by the courts is not
compatible with the statutory provisions in Hindu Succession Act.
Second appeal to that extent thus is required to be considered
and stands accordingly considered. Parties will be entitled to the
respective shares in accordance with division of property as
referred to above. The question so formulated in the second
appeal, as such, stands answered. Decree be modified
accordingly.
14. With aforesaid, second appeal stands disposed of.
15. In view of disposal of second appeal, pending civil
application as well stands disposed of.
[SUNIL P. DESHMUKH, J.]
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