Jaywant S/O. Baliramji Panchbhai vs Anusuyabai W/O. Vasantrao ...
2017 Latest Caselaw 3215 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR
                        Second Appeal No. 175 of 2001

 Jayawant son of Baliramji Panchbhai
 since dead, through his
 legal heirs :

 1.      Suresh Jaywant Panchbhai,
         aged major,

 2.      Kishor Jaywant Panchbhai,
         aged major,

 3.      Vinod Jaywant Panchbhai,
         aged major,

 4.      Sanjay Jaywant Panchbhai,
         aged major,

         all residents of Jawala,
         Tq. Arni, Distt. Yavatmal.          .....           Appellant.


                                   Versus


 Anusuyabai son of Vasantrao Deshmukh
 aged about 33 years,
 occupation - Household work,
 resident of Borgaon [Meghe],
 Tq. & Distt. Wardha.             .....                   Respondent.


                               *****
 Mr. M. M. Sudame, Adv., for the appellant.

 Mr. S.A. Bramhe, Adv., for respondent.




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                                           *****


                                      CORAM :        A.S. CHANDURKAR, J.

                                      Date       :   15th June, 2017

 ORAL JUDGMENT:

01. This appeal filed under Section 100 of the Code of Civil

Procedure, 1908 is by the original defendant who is aggrieved by the

decree for possession passed by the trial Court and confirmed by the

appellate Court.

02. Facts relevant for adjudication of the appeal are that the suit

property is agricultural land bearing Gat No. 447, admeasuring 4

hectares 22 Are along with a well. One Baliram had two wives. The

plaintiff - Anusuyabai and defendant - Jaywant are the issues from the

second wife. On 2nd September, 1954, a partition took place between

Baliram and his issues from the first wife. Thereafter, on 8 th May,

1969, another partition took place between Baliram and his issues

from his second wife. In that partition, the suit property was allotted

to Baliram. On 17th June, 1991, said Baliram executed a Will and

bequeathed the property in favour of Anusuyabai. Baliram expired on

13th May, 1993. As Jaywant took forcible possession of the suit

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property, the plaintiff filed suit for possession with a further declaration

that she had become owner of the said property by virtue of Will dated

17th June, 1991. It was her case that said Will being last Will of

Baliram, she was entitled to possession of the suit property.

03. Jaywant filed his Written Statement and took the stand that

though in the partition of 1969, the suit property was allotted to

Baliram, in the said Partition-Deed itself it had been stated that

Baliram had life interest in the suit property and after his death, the

two sons - Jaywant and Anant would become owners of the same. By

filing a counter-claim, the Will dated 17th June, 1991 was also

challenged.

04. The parties led evidence before the trial Court. The trial

Court held that the plaintiff had proved the Will dated 17 th June, 1991

and that she became owner of the suit property. It further held that

the clause in the Partition-Deed dated 8 th May, 1969 conferring limited

interest on Baliram did not have legal effect, inasmuch as said

document of partition required registration. The trial Court, therefore,

decreed the suit.

The appellate Court on re-consideration of the evidence on

record confirmed the finding recorded by the trial Court with regard to

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genuineness of the Will dated 17th June, 1991. It further held that the

Partition-Deed did not require any registration and that the clause

conferring further interest on the two sons of Baliram after his death

did not have any legal effect. The appeal accordingly came to be

dismissed.

05. The following substantial question of law has been framed

while admitting the Second Appeal:-

"Whether having made a family arrangement in the year 1969 and having put the appellant in possession of his share the effect thereof only having been made contingent to his demise, whether said Shri Baliramji could have made will in respect of appellant's share of 10 acres of land."

06. Shri M.M. Sudame, learned counsel for the appellant,

submitted that the appellate Court committed an error by not giving

full effect to the Partition-Deed at Exh.50. Though it was held by the

appellate Court that the Deed did not require registration, it ignored

the legal effect of the clause in the Partition-Deed by which life interest

was created in the said property in favour of Baliram and his wife -

Yashodabai and after their death, their sons were to have equal share

therein. He submitted that the parties to the Partition-Deed had

consciously incorporated said term in the Partition-Deed and Baliram

had received his share with that condition. According to him, full effect

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was required to be given to that condition and by not doing so, the

appellate Court committed an error. In aforesaid backdrop, it was

submitted that Baliram had no legal right to dispose of the property by

executing a Will. He was, in fact, estopped from doing so after having

conditionally executed and thereafter having accepted the Partition-

Deed dated 8th May, 1979. Relying upon the judgment of the

Honourable Supreme Court in Namburi Basava Subrahmanyam Vs.

Alapati Hymavathi & others [AIR 1996 SC 2220], it was submitted

that incorporation of such a term in the Partition-Deed was permissible

and, therefore, the plaintiff did not get any title in the suit property.

He also relied upon the observations of the Honourable Supreme Court

in Hari Shankar Singhania & others Vs. Gau Hari Singhania &

others [ (2006) 4 SCC 658] to urge that the Court should uphold

family settlements or family arrangements, especially when they were

entered into amicably. He, therefore, submitted that the suit filed by

the respondent was liable to be dismissed.

He further supported the finding of the appellate Court that

the Partition-Deed did not require registration as, in fact, it was only a

list of properties which the parties had agreed to enjoy as owners.

07. Per contra, Shri S. A. Bramhe, learned counsel for the

respondent, supported the impugned judgment. According to him, the

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clause in the partition-Deed dated 8th May, 1969 conferring life interest

on Baliram had no legal effect. He submitted that by virtue of said

Partition-Deed, Baliram had become absolute owner of the suit

property and, therefore, he had legal right to execute a Will with

regard to said property. According to him, said clause could not be

treated to be a valid clause in the Partition-Deed and hence same had

to be excluded from consideration. He then submitted that one of the

sons, Anant, was the attesting witness to the Will dated 17 th June, 1991

which further indicated that the said clause was not intended to be

acted upon. According to him, there was no question of estoppel as

the plaintiff had not derived any interest, whatsoever, in the partition.

She became owner of the suit property by virtue of the Will executed

by Baliram. Relying upon the judgment of learned Single Judge in

Prabhakar Rajaramji Lambat Vs. Shantaram Rajaramji Lambat

& others [2009 (6) Mh. L.J. 71], it was submitted that such a condition

in the Partition-Deed was held to be void and that by virtue of such

partition, the co-parcener had become full owner of his share. He also

submitted that the Partition-Deed required registration as shares were

determined by the said document and in absence of registration, the

Partition-Deed could not have been acted upon. He, therefore,

submitted that the appeal was liable to be dismissed.

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08. I have heard the learned counsel for the parties at length

and after perusing the records, I have given due consideration to their

respective submissions.

09. It is not in dispute that on 8th May, 1969, partition took

place between Baliram and Jaywant - the appellant herein. After

dividing various properties amongst them, at the end of Partition-Deed,

the following clause was incorporated:-

"पार्टी नं.१ बळीरार्मजी सदुजी पंचभार्ई यांचे िहिस्स्यार्वर जो स्थार्वर मार्ल असेल तो

त्यांची पत्नी सौ. यशोदार्बार्ई ज. बळीरार्मजी यार् उभयतांचे पश्च्यार्त पार्टी नं. २ व ३

यांचार् समार्न हिक रार्हिील."

As per this clause, the property allotted to Baliram was to be enjoyed

by Baliram and his wife and after their death, it was to be equally

divided between Jaywant and Anant. The property received by Baliram

was subsequently bequeathed by him by executing a registered Will

dated 17th June, 1991 in favour of the respondent. The question,

therefore, is with regard to validity of the aforesaid clause in the Deed

of Partition and consequently, therefore, whether Baliram had interest

in the suit property to bequeath the same. The incidental question is

with regard to the requirement of registration of the Partition-Deed.

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10. The Partition-Deed dated 8th May, 1969 was between the

co-parceners - Baliram, Jaywant and Anant. By virtue of this Partition-

Deed, each co-parcener was granted his respective share in various

properties. Prior to such partition, each co-parcener had a pre-existing

right in the suit property, which right came to be determined by the

act of partition. As held by the Honourable Supreme Court in Sk.

Sattar Sk. A Mohd. Choudhari Vs. Gundappa Ambadas Bukate

[ (1996) 6 SCC 373], on a share of a co-parcener being separated by

metes and bounds, he would become a full owner of his share.

It would at this stage be necessary to refer to the provisions

of Section 11 of the Transfer of Property Act, 1882, which reads thus:-

"11. Restriction repugnant to interest created.- Where, on a transfer of property, an interest therein is created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interest as if there were no such direction.

Where any such direction has been made in respect of one piece of immovable property for the purpose of securing the beneficial enjoyment of another piece of such property, nothing in this section shall be deemed to affect any right which the transferor may have to enforce such direction or any remedy which he may have in respect of a breach thereof."

From the aforesaid provision, it can be seen that once an absolute

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interest is created in favour of any person, then there cannot be any

restriction in the manner in which such interest has to be applied or

enjoyed.

11. In Prabhakar Rajaramji Lambat [supra], a similar recital in

the Partition-Deed conferring life interest on a co-parcener was the

subject-matter of consideration. It was held that there was no concept

in Hindu Law of a co-parcener becoming a limited owner after getting

his share in the partition. It was held that such condition in the

Partition-Deed restricting the manner of enjoyment was void. In that

case also, the subsequent disposition by a Will was upheld. In my

view, the ratio of aforesaid judgment applies on all fours to the case in

hand.

12. In Namburi Basava Subrahmanyam [supra], a recital in the

Settlement-Deed in respect of self-acquired property creating life

interest in the suit property fell for consideration. It was held that

while executing the Settlement-Deed the executant had immediately

divested herself of the property by creating life interest in herself and,

therefore, had no right to bequeath the same. The ratio of the

aforesaid decision cannot be applied to the case in hand, inasmuch as

in the present case, the co-parcener by virtue of the Partition-Deed for

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the first time received absolute share in the ancestral property as full

owner, while in the aforesaid decision, such recital was contained in a

Settlement-Deed with regard to self-acquired property which was

already in possession of the settlor and in which life interest was

created by the executant in herself. It cannot be disputed, as held in

Hari Shankar Singhania & others [supra], that family settlements

should be given full benefit and the Court should make an attempt to

uphold the same. By construing the Partition-Deed at Exh.50 in a legal

manner and upholding its validity, only the void clause limiting interest

of a co-parcener is being excluded.

13. Thus, from the aforesaid consideration, both the Courts were

justified in holding the said clause in question to be void. Giving legal

effect to said clause would limit the full interest of a co-parcener which

he had received by virtue of partition. This would violate the provisions

of Section 11 of the Transfer of Property Act, 1882. In that view of the

matter, he was legally competent to execute the Will dated 17th June,

1991.

14. In so far as the need for registration of the Partition-Deed

dated 8th May, 1969 is concerned, the finding recorded by the first

appellate Court in that regard after excluding the clause in question

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deserves to be upheld. This aspect, however, would not assist the

case of the appellant once it is held that the last clause therein

conferring life interest on Baliram had no legal effect. Though the

learned counsel for the appellant placed reliance upon the decisions in

Kale and others Vs. Deputy Director of Consolidation & others

[AIR 1976 SC 807] and Smt. P. N. Wankudre Vs. C.S. Wankudre &

others [AIR 2002 Bombay 129], it is not necessary to go into that

aspect once the clause in question is found to be void.

15. Accordingly, the substantial question of law is answered by

holding that Baliram was not precluded from executing a Will for

bequeathing his absolute share of property that he received in the

partition.

16. As a result of aforesaid discussion, the judgment of the

appellate Court stands confirmed. Second Appeal stands dismissed

with no order as to costs.

Judge

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