Bombay High Court
Saraswatibai Ramdas Ingle vs Pradeep Devidasrao Khandare And 2 ... on 27 October, 2021
Bench: S. M. Modak
::1:: SA.86.2007. Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
SECOND APPEAL NO.86 OF 2007
APPELLANT:- Saraswatibai w/o Ramdas Ingle,
Org. Plff Aged about 47 years, Occu: Household,
On R.A. R/o Urja Nagar, Chandrapur,
Tahsil & District Chandrapur.
... VERSUS ...
RESPONDENTS:- 1. Pradeep S/o Devidasrao Khandare,
Orig. defts Aged about 27 years, Occ-Nil,
On R.A.
2. Rajdeep s/o Devidasrao Khandare,
Aged about 24 years, Occ: Nil,
3. Devidas s/o Jagoji Khandare,
Aged about 63 years, Occ: Cultivator
All R/o Harsharaj Colony, VMV Road, Amravati.
*******************************************************************************************************
Shri P.R. Agrawal, Advocate for the Appellant.
Shri S.M. Vaishnav, Advocate for the Respondents.
*******************************************************************************************************
CORAM : S.M. MODAK, J.
RESERVED ON : 27th AUGUST, 2021
PRONOUNCED ON : 27th OCTOBER, 2021
JUDGMENT:-
This Court while admitting the appeal on 23rd March, 2007
has framed following substantial question of law--
::2:: SA.86.2007. Judgment
No. Substantial Question of Law Findings
1. "whether the Courts were justified in
holding that the suit property was the
self-acquired property of Jagoji, when
it was pleaded by the defendants in
paragraph no.2 of the written
statement that the property was Affirmative
purchased by late Jagoji and his
brother Champatrao out of the joint
family income, in the name of late
Jagoji?
Additional substantial questions of law See para 19
On reading it, one can very-well understand that there is a pleading in
the written statement filed by the defendants (para 2) to the effect that
"property was purchased by late Jagoji Khandare and his brother
Champatrao Khandare out of joint family income ". It also suggests that
the properties were purchased in the name of late Jagoji Khandare. The
substantial question of law further suggests " in spite of this admission,
both the Courts below have given a finding that suit property was self-
acquired property of Jagoji Khandare and not a joint family property" .
02] This substantial question of law was framed on the
background of filing suit for partition by plaintiff-Saraswatibai Ingle
::3:: SA.86.2007. Judgment
(present appellant). She was aggrieved by the decision of the trial
Court for two reasons--
a) She was not granted independent share in the suit properties
but was granted share in the share of her deceased father
Jagoji Khandare and
b) She was granted share only in respect of one land i.e. Survey
No.77/3 by excluding lands bearing Survey No.51 (Gat
Nos.280 & 286) forming suit properties.
That is how, plaintiff-Saraswatibai Ingle filed the first appeal. Her
appeal was dismissed. That is how, she had come to this Court by way
of second appeal.
03] I have heard learned Advocate Shri P.R. Agrawal for the
plaintiff/appellant and learned Advocate Shri S.M. Vaishnav for the
defendants/respondents. So it needs to be seen what was the evidence
adduced by both the sides about nature of suit properties, how they
were acquired and to what extent the evidence of admission is
considered by the Courts below.
Interference by the Second Appellate Court
04] To refute the contentions, learned Advocate Shri Vaishnav
submitted that the scope of second appeal is limited and the judgment
::4:: SA.86.2007. Judgment
can be interfered with only in limited situation. To buttress his
submission, he relied upon the following judgments--
1. Keshar Bai Vs. Chhunulal.1 Hon'ble Supreme Court has
emphasized on interference in the concurrent finding
recorded by the Courts below only when there is perversity
when question of title has been decided in the earlier suit, it
amounts to res-judicata. Hence, the decision of the High
Court in setting aside concurrent findings by the High Court
was set aside (para 20).
2. Shivaji Kashiram Jamdar through LRs. & Others Vs. Punja
Kashiram Jamdar & Others2. This Court has refused to
interfere in the concurrent findings recorded by the Courts
below. The Court exercising jurisdiction of second appeal
cannot re-open the entire case and appreciate the evidence,
converting itself to third Court of fact finding (para 12).
05] This Court while dealing with the arguments vis-a-vis the
findings given by the first Appellate Court, will definitely consider the
ratios laid down above.
Admission in Written Statement
06] Learned Advocate Shri Vaishnav also admits that in their
1 (2014) 11 SCC 438
2 2018 SCC OnLine Bom 1018
::5:: SA.86.2007. Judgment
written statement "they have pleaded that Jagoji Khandare and
Champrao Khandare purchased the area admeasuring 5 H. 94 R. from
Survey No.51 out of joint family income " (para 2) of the written
statement. However, he submitted that the entire averments in the
written statement need to be perused and this admission cannot be
read in isolation. He also invited my attention to the averment (in the
same para 2) of the written statement to the effect "it is denied that
this all properties are the ancestral properties" . According to him, joint
family income means the income of both the brothers Jagoji Khandare
and Champtarao Khandare.
07] So, this Court is required to consider whether the admission
given in the written statement as referred above relieves the plaintiff
Saraswatibai Ingle from the burden of proving the nature of suit
properties being joint family properties. So, whether plaintiff-
Saraswatibai Ingle can rely upon this admission given in the written
statement so as to persuade the Court to hold that the suit properties
are joint family properties. This Court is required to consider whether
the admission as referred above can be considered in isolation or
whether other averments in the written statement need to be
considered. Certain facts need to be stated in order to understand the
controversy. The genealogical tree in between the plaintiff and the
defendants is reproduced below--
::6:: SA.86.2007. Judgment
Jagoji Khandare Champatrao Khandare
(Brother)
Saraswatibai Devidas Khandare
Plaintiff Defendant No.3
(Daughter) (Son)
Pradeep Rajdeep
Defendant No.1 Defendant No.2
(Son) (Son)
08] Said Jagoji Khandare expired on 12 th December, 2001. There
is reference of two partitions in the pleadings of the defendants. They
are as follows--
a) One between Jagoji Khandare and his brother Champatrao
Khandare in the year 1958.
b) In between Jaogji Khandare, his son Devidas Khandare-
defendant No.3 and grandsons Pradeep Khandare-defendant
No.1 and Rajdeep Khandare-defendant No.2 - It was
registered partition deed dated 29th October, 2001.
The description of the lands is as follows:
Survey No. Gat No. Village
51/1 286 Wagholi, Tq. & Distt.
Amravati
51/3 280 Wagholi, Tq. & Distt.
Amravati
77/3 145 Kapus Talni, Tq. &
Distt. Amravati
::7:: SA.86.2007. Judgment
09] Before appreciating "the consequences of admission given in
the written statement", it will be material to consider the averments in
the plaint about nature of the suit properties. Saraswatibai has made
following averments--
"That from ancestral field Jagoji Khandare has purchased a
filed out of Gat No.286. Another field Gat No.280, Gat
No.145 were owned by Jagoji Khandare. All these lands were
mutated in the name of Jagoji Khandare and he was
cultivating those lands (para 2)".
10] The plaintiff has further pleaded that "plaintiff being
daughter having legal heirs and status and which was got by her by
way of birth in the above said property of Jagoji Khandare. The plaintiff
is claiming half share in the property of Jagoji Khandare. The document
is of partition deed which the defendant Nos.1 to 3 in collusion has
distributed amongst them. Plaintiff is having half share in the property
(para 7)".
11] The reply given by all the defendants in the written statement
is as follows--
"It is denied that all the properties are ancestral properties.
The field Survey No.51 previously was in the name of
Ramkisan Marwadi and it was purchased by Jagoji Khandare
::8:: SA.86.2007. Judgment
and Champatrao Khandare out of their joint family income in
the name of Jagoji Khandare as per Madhya Pradesh Act,
1958 Rule 24 Vidarbha Patte Bill (para 2 - as reply to para
No.2)".
12] The defendant has further denied contents of para Nos.7 to 9
of the plaint. The property is self-acquired property and plaintiff has
right to distribute as per his wish (para 6).
13] It will be material to consider how the trial Court has dealt
with this averment. The trial Court observed--
"11. Plaintiff also claim suit property as Joint family property.
Surprisingly, it is to be noticed that, defendants, in their
written statement Ex.19 have admitted that suit property as
described in para 2 and 8 of the plaint, came to be passed to
late Jagoji during his life time was purchased by Jogoji out of
the joint family income. This admissions of the defendant
support the contentions of the plaintiff that suit property is
the joint family property, as rightly pointed out by learned
counsel for the plaintiff."
14] So the trial Court had given more weightage to the admission
by defendants as referred above rather than failure of the plaintiff to
prove nature of suit property as ancestral property. Because in para
Nos.6 to 10, trial Court had given reasons for arriving at a conclusion
why the suit properties cannot be said to be ancestral properties.
::9:: SA.86.2007. Judgment
Appellate Court
15] It will be also material to consider the findings given by the
first Appellate Court on the aspect of admission. The first Appellate
Court concluded that the suit properties are the self-acquisitions of
deceased Jagoji Khandare. So, the first Appellate Court had confirmed
the reasoning given by the trial Court about failure of the plaintiff to
prove nature of suit properties as joint family properties. However,
nothing from Appellate Court's judgment is pointed out to me about
the finding given by the trial Court in respect of the admission.
16] learned advocate Shri Vaishnav relied upon the judgment in
case of Rakesh Wadhawan & Others Vs. Jagdamba Industrial
Corporation & Others3. It has been observed "admission is only a piece
of evidence and can be explained. It does not conclusively bind a party
unless it amounts to an estoppel. Value of an admission has to be
determined by keeping in view the circumstances in which it was made
and to whom (para 7)". In that case, Hon'ble Supreme Court came
across the admission given in a letter written by tenants to earlier
landlord. Whereas, learned advocate Shri Agrawal submitted that trial
Court has rightly considered this admission and the first Appellate
Court totally overlooked the admission as a piece of evidence.
3 (2002) 5 SCC 440
::10:: SA.86.2007. Judgment
17] It is true that as per the provisions of Section 17 of Indian
Evidence Act, 1872, admission is described as a statement which
suggests any inference as to fact in issue or relevant fact and made by
any of the persons and under prescribed circumstances. No doubt, the
admission is there in the written statement. But the said admission is
not sufficient enough to relieve the plaintiff from discharging the
burden to prove nature of the suit properties. There is one more reason
not to prevent the defendants from making grievance about nature of
suit properties. In the same paragraph i.e. para No.2 of the written
statement the defendants have denied the nature of suit properties as
ancestral properties. There is reason to believe that both the Courts
below committed mistake. Trial Court only considered the admission in
the written statement and overlooked the denial made by the
defendants.
18] Whereas, the first Appellate Court has overlooked and has
not commented anything about this admission. However, for the
reasons stated above, this Court is not inclined to consider that
admission sufficient enough to prevent the defendants from disputing
nature of suit properties as joint family properties. Hence, the
substantial question of law originally framed is answered in the
affirmative.
::11:: SA.86.2007. Judgment
Additional Substantial Questions of Law
19] Apart from laying emphasis on use of admission in the
written statement, learned Advocate Shri Agrawal also laid emphasis
on the following aspects--
a) The first Appellate Court reversing the findings as to nature
of properties as joint family properties given by the trial
Court- without cross-objection being filed by the
defendants/respondents.
b) The first Appellate Court coming to its own findings that suit
properties were self-acquisitions by deceased Jagoji
Khandare.
20] It is true that trial Court has accepted the suit properties as
joint family properties. It is also true that this finding is against the
defendants. It is also true that they have neither filed substantive
appeal nor cross-objection. It is also true that the first Appellate Court
has reversed those findings. About the scope of power of first Appellate
Court to interfere in the findings recorded by the trial Court, learned
Advocate Shri Agrawal relied upon the following judgments--
1. Bharti w/o Rameshlal Bajaj & Others Vs. Sultan Singh
Aparsingh & Another4.
4 2020(6) Mh.L.J. 181
::12:: SA.86.2007. Judgment
2. Biswajit Sukul Vs. Deo Chand Sarda & Others5.
21] Whereas, according to learned Advocate Shri Vaishnav, there
is no need to file substantive appeal or cross-objection. He relied upon
a judgment in the case of Ravinder Kumar Sharma Vs. State of Assam
& Others6. He also relied upon the provisions of Order XLI Rule 22 of
CPC. On the point of powers of the first Appellate Court under the
provisions of Order XLI Rule 33 of CPC, he relied upon the observations
in the case of Smt. Sindhutai Keshaorao Pachpohar Vs. Dinesh s/o.
Gulabsingh Chavan7
22] On hearing their arguments, this Court realised that point
canvassed by both of them are material points. But, unfortunately on
those points, no substantial question of law has been framed. If at all
this Court has to give a finding on any point raised before him, there
has to be a substantial question involved in that appeal. As per the
provisions of proviso 2 of Section 100(5) of CPC by giving reasons, this
Court can formulate a substantial question of law. This Court feels that
additional substantial questions of law needs to be formulated. It is for
the reason that (a) first Appellate Court has reversed the findings on
nature of properties and (b) though the original defendants have
neither filed substantive appeal nor cross-objection. Hence, following
5 (2018) 10 SCC 584
6 (1999) 7 SCC 435
7 2020(5) ALL MR 38
::13:: SA.86.2007. Judgment
additional substantial questions of law are formulated--
No. Substantial Question of Law Findings
2. Without filing cross-objection by
the defendants to the findings
given by the trial Court - whether
the first Appellate Court was Affirmative
right in reversing the findings
about nature of suit properties as
joint family properties?
3. Whether the first Appellate Court
was right in concluding that suit
properties were self-acquisitions
Affirmative
of deceased Jagoji (by reversing
the findings that suit properties
were joint family properties)?
Necessity of Filing Cross-objection
23] I have perused the observations in the judgments relied upon
by both the sides and also read over the provisions of Order XLI Rule
22 of CPC. Whenever any judgment is pronounced, there is
interpretation of the provisions of law and its application to the facts
involved. There cannot be any dispute as to proposition of law laid
down in all these judgments relating to necessity of filing a substantive
appeal only when there is a decree passed against one of the party, the
::14:: SA.86.2007. Judgment
manner of challenging a particular finding against you (when there is
no decree against you) and remedy when the decree is partly in your
favour and partly against you. On this background, when the
observations made in all above judgments are perused, we may find
that the law has been made applicable to the facts involved in those
cases.
24] This Court feels that there was no need for the defendants to
file cross-objection thereby challenging "the findings as to nature of
suit properties as joint family properties given by the trial Court". The
defendants were justified in challenging those findings of the trial
Court by advancing oral arguments (at the same time supporting the
findings given by the trial Court which are in their favour) the latter
part of the provisions of Order XLI Rule 22 of CPC will come into
picture only when the respondent feels that a decree ought to have
been passed in his favour. The latter part of that provision was added
by 1976 amendment.
The Facts of the Case
25] The trial Court gave following findings--
1. Nature of suit properties Joint family properties.
2. Partition being illegal In the negative
3. Operative order Plaintiff is granted share
::15:: SA.86.2007. Judgment
only in respect of Survey
No.77/3 (refusing share in
Survey No.51 Gat Nos.280
& 286).
26] If we consider the findings and the decree, we may find that
there is one finding in favour of the plaintiff and one finding in favour
of the defendants. When we perused the decree, we may find that
partly it is in favour of the plaintiff (because share is granted in Survey
No.77/3) and partly in favour of defendants (because share is not
granted in respect of Survey No.51 (Gat Nos.280 & 286). On these
background, only plaintiff has preferred substantive appeal because she
has not been granted share in one of the suit property. On these
background, when we apply the provisions of Order XLI Rule 22 of CPC
and consider remedy available to the defendants, we may find that--
a) defendants could have preferred a substantive appeal in
respect of granting of shares to the plaintiff in respect of one
of the suit land.
b) The defendants may challenge the findings about nature of
suit properties by arguing or by taking cross-objection.
27] This Court finds the explanation offered by learned Advocate
Shri Vaishnav as a proper explanation which fits in the scope laid down
by the provisions of Order XLI Rule 22 of CPC, because learned
::16:: SA.86.2007. Judgment
Advocate Shri Vaishnav submitted that they are not aggrieved for grant
of share to the plaintiff in respect of one of the suit property and that is
why, they have not preferred substantive appeal. Further he is right in
his submission that findings as to nature of property even can be
challenged by relying upon Part I of Order XLI Rule 22 of CPC (which
precedes the word 'and'). When the Part I is read, the following
proposition is culled out--
a) Respondent may support the decree.
b) He may also state that particular finding against him ought to
have been in his favour.
c) He may do so even though he has not preferred an appeal.
28] As said above, the defendants do not want to challenge the
decree for giving share in one of the suit property. The defendants
certainly could have preferred an appeal, if they want to challenge that
part of the decree. Why defendants should prefer an appeal in respect
of part of the decree thereby not granting share in respect of one of the
suit land to plaintiff? However, when the plaintiff prefers an appeal,
defendants are justified in challenging those findings which are against
them. As per second part, cross-objection is required only when he
wants a decree ought to have been passed in his favour. In this case,
defendants do not say that decree (in respect of not giving share to
::17:: SA.86.2007. Judgment
plaintiff) ought to have been in his favour. So the defendants are
justified as per the Part I-- (a) by supporting the findings (partition is
not illegal) and (b) by challenging the findings as to nature of property
which are against him.
29] The observations made in the case of Bharti Bajaj referred
above, are on the basis of facts of that case. First appeal had arisen at
the instance of the claimants. Their claim was decreed, but they were
interested in enhanced amount of compensation. That is why, first
appeal was preferred by them. Whereas, the Insurance Company took a
plea about breach of policy conditions and hence not liable to pay
compensation. There was an award against the insurance company
(though for insufficient amount as claimed by the claimant). This Court
(Aurangabad Bench) refused to accept the plea of Insurance Company
about breach of policy terms on account of not following the procedure
laid down as per Order XLII Rule 2 of CPC. The reason was, there was
not only an objection to the findings by the Claims Tribunal (breach of
policy terms not proved), but there was an award against Insurance
Company also.
30] In a particular contingency, it may happen that there is a
finding against you and there is also an award against you. In such
contingency, you cannot expect the Court to pass an award in your
favour by simply challenging the findings (by not preferring a
::18:: SA.86.2007. Judgment
substantive appeal or by not filing cross-objection as contemplated
under Part II of Order XLI Rule 22 of CPC). The observations are not
useful to the appellant/plaintiff.
31] In the case of Biswajit Sukul referred above, the Hon'ble
Supreme Court has remanded the matter to the first Appellate Court to
decide the first appeal. The trial Court dismissed the suit as defendant
No.1 was not proved to a defaulter. The plaintiff filed first appeal and
not challenged the findings about his relationship with the defendant
as tenant. The defendants did not file cross-objection against the
findings about relationship. The first Appellate Court cannot examine
the findings about relationship unless it is challenged by the defendants
by filing cross-objection. This Court feels that these observations
pertains to facts of that case. On reading the judgment, it does not find
that any earlier judgments are referred and any interpretation as to law
has been made.
32] As against this, there is elaborate discussion by the Hon'ble
Supreme Court in the case of Ravinder Kumar Sharma (supra), Hon'ble
Supreme Court has considered the law prior to 1976 and amendment
brought in 1976. Even the recommendations of Law Commission were
also considered. The effect of adding explanation to Rule 22 was also
considered. On facts, it was held that "filing of cross-objection after
1976 is purely optional and not mandatory (para 23)". It has also been
::19:: SA.86.2007. Judgment
held that 1976 amendment is merely clarificatory in nature and has not
changed the law. This Court in the case of Smt. Sindhutai Keshaorao
Pachpohar as referred above, has refused to accept the objection of
entertaining the discretion under Rule 33 on technical ground when
appeal or cross-objection has not been filed.
33] For the above discussion, this Court do not find merit in the
objection taken by learned Advocate Shri Agrawal about wrong
committed by the first Appellate Court in reversing the findings of the
trial Court without filing cross-objection. Hence, I answer the
substantial question No.2 in the affirmative.
Nature of Suit Properties as Joint Family Properties
34] Learned Advocate Shri Agrawal submitted that there was no
reason for the first Appellate Court to interfere in the findings recorded
by the trial Court about nature of suit properties as joint family
properties. To buttress his submission, his contention is two fold. One is
about evidence adduced by the parties about nature of properties and
second is the principles laid down in various judgments on the point of
appreciation of evidence adduced to show the nature of properties as
joint family properties.
35] Learned Advocate Shri Agrawal relied upon the following
judgments--
::20:: SA.86.2007. Judgment
1. Rohit Chauhan Vs. Surinder Singh & Others 8. Coparcenary
property means ancestral property. Coparcenary is a
narrower body than the joint Hindu family. It becomes a
separate property of a person after partition, but when son is
born, the property becomes coparcenary property and son
acquires interest as a coparcener (para 11).
2. Adiveppa & Ors. Vs. Bhimappa & Another9. There is
presumption that every Hindu family is joint in food, worship
and estate and in absence of proof of division, such legal
presumption continues to operate in the family. According to
learned Advocate Shri Agrawal, it has to be presumed that
suit property is the joint family property, because there
existed a joint family consisting of defendants and plaintiff. It
further says, burden lies on person who asserts that some of
the properties are his self-acquired property (para 24).
Whereas, according to learned Advocate Shri Vaishnav, these
observations are on the basis of the facts of that case and the
facts of the present appeal are different. In that case, a
declaration was sought that suit properties were self-
acquired properties of the plaintiff (para 7).
36] Learned Advocate Shri Vaishnav submitted that, in fact,
8 (2013) 9 SCC 419
9 AIR 2017 SC 4465
::21:: SA.86.2007. Judgment
burden to prove the suit properties as joint family properties rests on
the shoulder of the plaintiff and, in fact, the plaintiff has not
adduced any evidence. According to him, it is who, but they have
adduced the evidence. According to him, there is a presumption
about existence of joint family properties, but there is no
presumption that joint family possesses joint family property. He
relied upon the following judgments--
1. V.D. Dhanwatey Vs. The Commissioner of Income-tax,
Madhya Pradesh, Nagpur and Bhandara10. The property
acquired by coparcener with the aid of joint family assets is
impressed with the character of joint family property.
Corollary property acquired with the assistance of joint
family property becomes self-acquired property(para 4).
2. D.S. Lakshmaiah & Another Vs. Balasubramanyam &
Another11. There is no presumption that property is a joint
family property only on account of existence of Hindu family.
One who asserts that it is a joint family property acquired
property from the nucleus, he has to prove it.
3. Suman Vishnu Pathak & Others Vs. Usha w/o Prabhakarrao
Koparkar & Others12. If the property sands in the name of
10 AIR 1968 SC 683
11 (2003) 10 SCC 310
12 2013(2) Mh.L.J. 268
::22:: SA.86.2007. Judgment
coparcener of HUF, then presumption is that it is his self-
acquired property unless it is shown that it was acquired
with the aid of nucleus of joint family property. There has to
be some evidence that property is inherited or that property
is originally belonged to ancestor (para 40 and 41).
4. Gopal Bhagwandas Ahuja Vs. Jagdish Bhagwandas Ahuja &
Others13. If the property stands in the name of individual
member, there can be a presumption that it belongs to joint
family provided has to be proved that joint family had
sufficient nucleus at the time of acquisition. This
presumption is not applied to business (para 27(e)).
5. Jamarathbee w/o Ibrahim & Others Vs. Pralhad Dattatraya
Dadpe & Others14. As per ancient Hindu Law, the properties
are on to classes. One is joint family property (unobstructed
heritage) and second is separate property (obstructed
heritage). Joint family property is classified into (a) ancestral
property, (b) property acquired jointly with or without the
aid of ancestral property and (c) property acquired
separately but thrown into common stock (para 27).
13 2013 SCC OnLine Bom 1143
14 1978 Mh.L.J. 204
::23:: SA.86.2007. Judgment
Reversal of Finding about Nature of Properties
37] On this background, the findings given by the first Appellate
Court (thereby affirming part findings of the trial Court) about the
nature of suit properties as self-acquisition of deceased Jagoji Khandare
need to be looked into.
38] The first Appellate Court before arriving at the conclusion
that suit properties are self-acquired properties, gave following
reasonings--
(a) Under the Customary Hindu Law there is a presumption of
joint Hindu family, but there is no presumption of joint
Hindu family property.
(b) Consequently burden lies on the appellant to show that
deceased Jagoji Khandare acquired suit lands with joint
family funds or sufficient nucleus.
(c) The appellant is absolutely having no evidence.
(d) There is no evidence to show that deceased Jagoji Khandare
was having property left behind by his father.
(e) The appellant has no evidence to show that lands purchased
by the Jagoji Khandare and his brother Champatrao were in
their possession from the time of their father.
::24:: SA.86.2007. Judgment
(f) Suit lands acquired by Jagoji Khandare and his brother
Champatrao were their joint property and not joint family
property.
39] The findings given by the first Appellate Court on the basis of
above reasoning need to be assessed on the background of submission
made by learned Advocates Shri Agrawal and Shri Vishnav. It will be
material to consider the evidence adduced by both the sides and
findings given by the Courts below.
40] Plaintiff-Saraswatibai gave evidence, whereas defendant No.3
Devidas Khandare entered into witness-box. Both have relied upon
documentary evidence. There are three agricultural lands. They are Gat
Nos.286 & 280 (both situated at Mauza Wagholi, Tq. & Distt.
Amravati) and Gat No.145 situated at Mauza Kapus Talni Tq. & Distt.
Amravati. Earlier Survey numbers of these lands are Survey Nos.51 &
77/3. It will be material to consider how the above suit lands were
acquired by Jagoji Khandare and Champatrao Khandare. One can find
this from the averments in the plaint and written statement.
Survey No.51 (Gat Nos.280 & 286)
It was obtained from Ramkisan Ambadas Marwadi on Patta
as per the provisions of Madhya Pradesh Act, 1951 (No.24)
::25:: SA.86.2007. Judgment
Vidarbha Kshetki Patte Niyaman Kayada. Extract of mutation
entry at Exh.57 to that effect is filed. It was acquired from the
joint income. As per the partition of 1958, it was divided in
between Jagoji Khandare and Champatrao Khandare.
Survey No.77
It was purchased as per registered sale-deed dated 4 th
January, 1949. The registered sale-deed is at Exh.51. As per
1958 partition, this land was also distributed between Jagoji
Khandare and Champatrao Khandare. In respect of Survey
Nos.51/2 & 51/4, the appellant relied 7/12 extracts at
Exhs.27 & 28.
In respect of Survey No.51, the appellant relied upon following
documents:-
a) Exh. 48, 49 & 50 (consolidation statement).
b) Exh. 45 & 46 Challans of land revenue.
c) Exh. 47 extract of mutation entry.
In respect of Survey No.77, the appellant relied upon following
documents:-
a) Registered sale deed dated 4th January, 1949 at Exh.51.
b) 7/12 extract at Exh.29.
::26:: SA.86.2007. Judgment
41] As said above, the trial Court had given a finding in respect of
the nature of suit properties as joint family properties against the
plaintiff (paras 6 to 10). However, on the basis of admission given by
defendants in the written statement, the trial Court had given a finding
in favour of the plaintiff (para 13). As said above, the first Appellate
Court had given a finding that suit properties are self-acquisitions of
deceased Jagoji Khandare.
42] From the above evidence, it is clear that the plaintiff has
relied upon only 7/12 extracts. It will not show how the suit properties
were acquired. Whereas, the defendants have adduced documents to
show how the properties were acquired. From the above, one can say
that Survey Nos.51/1 & 51/3 were acquired by Jagoji Khandare and
Champatrao as per Patte Bill from then Government of Madhya
Pradesh. Whereas, Survey No.77/3 was acquired by Jagoji Khandare
and Champatrao by way of sale-deed at Exh.51. Even witness Devidas
defendant No.3 has explained how these properties were acquired from
the income of selling of cotton crop. It is very well clear that for the
first time both these brothers have acquired the suit properties. It was
not succeeded by them from their father.
43] Learned Advocate Shri Agrawal submitted that the Survey
Nos.51/1 & 51/3 wetr obtained on a Patte Bill and, as such, they were
holding that lands on behalf of the family. That is why, he laid
::27:: SA.86.2007. Judgment
emphasis on the judgments of Balagouda Alagouda Patil & Others Vs.
Babasahed Ramagouda Patil15 and Smt. Seetha Poojarthy & Another
Vs. Panju Poojary & Others16. It is true that High Court Karnataka in
both the above judgments, observed that "if tenancy rights are acquired
by a member of the family, it shall be held to be for the benefit of entire
family". It is true that the provisions of Section 48-A Karnataka Land
Reforms Act, 1961 were considered.
44] In the second judgment, occupancy right was confirmed
under Section 48-A of the Land Reforms Act by the Land Tribunal in
favour of one Manja Billava was for and on behalf of joint family. The
tenancy rights were framed from the time of ancestors of Manja Billava.
Accordingly, the plea about separate property was negatived. Whereas,
in first judgment, objection was taken on behalf of the defendant that
land bearing Survey No.62/1 is self-acquired tenanted land and hence
Civil Court cannot decide its nature. In para No.9, it was observed that
"when tenancy rights are acquired by member of the family, it shall be
held to be for the benefit of the entire family".
45] So, there are three important factors to be considered. They
are as follows:-
a) Manner of acquisition of suit lands by Jagoji Khandare and
his brother Champtarao Khandare.
15 (1999) AIHC 276
16 2013(1) KantLJ 43
::28:: SA.86.2007. Judgment
b) Partition of those lands by them in the year 1958.
c) Registered partition deed on 29th October, 2001.
Findings by the Trial Court
46] About the evidence adduced by the plaintiff in respect of the
suit lands, trial Court observed that "plaintiff has failed to prove that
they are ancestral properties" (para 8 to 10). However, finally the trial
Court concluded that suit properties were joint family properties (para
13). This finding is given on the basis of "admission given by the
defendants in the written statement" (para 11). However, when the
question of declaration of share by the parties have arisen, the trial
Court has considered the registered partition-deed in between Jagoji
Khandare and all the defendants (para 15). The trial Court negatived
the grievance of the plaintiff that the partition-deed was executed
fraudulently from deceased Jagoji Khandare. Finally, the Court held
that partition-deed is binding on plaintiff (para 16). So, being the
daughter of Jagoji Khandare, the trial Court gave her ½ share and
other half to defendant No.3-Devidas (brother). She was held entitled
to half share only from Survey No.77/3 which had come to the share of
Jagoji Khandare as per registered partition-deed.
First Appeal
47] First appeal was filed by the plaintiff. She was not given
::29:: SA.86.2007. Judgment
independent share (but given a share only in the share of father Jagoji
Khandare). So also, she was not given the share in other two lands. On
appreciation of the evidence, the first Appellate Court upset the
observations of the trial Court to the effect that "the nature of the suit
properties was joint family properties". First Appellate Court concluded
that properties were self-acquired properties of deceased Jagoji
Khandare (para 8).
48] The Appellate Court had given various reasons for arriving at
that conclusion. Though not expressly but impliedly, the Appellate
Court has reversed the observations of the trial Court about nature of
the suit properties as joint family property based on the admission in
the written statement. The first Appellate Court simply based his
findings on the basis of failure of the plaintiff to prove nature of suit
the properties at joint family property. Any observations of the first
Appellate Court "relating to admission given in the written statement"
are not pointed out to me. Even I do not find it.
Finding of this Court on Nature of Properties
49] As stated above, the trial Court as well as the first Appellate
Court has observed that all the suit lands were not proved to be joint
family properties. Both the Courts below have given several reasons
which are reproduced in earlier part of the judgment. There is a little
::30:: SA.86.2007. Judgment
scope to interfere in those findings. When the evidence and findings are
perused, there is a little scope to opine that those findings are perverse.
Survey Nos.51/1 & 51/3 were allotted to deceased Jagoji Khandare
and his brother Champatrao Khandare on patta basis.
50] These lands could have been considered as joint family
properties (thereby giving the plaintiff birth right and not a right
through her father) provided there could have been evidence to show
that those pattas were in existence in their family prior to both the
brothers. The patta granted can be considered for the benefit of the
family provided there should be evidence that both were holding the
pattas for the benefit of the family and not in individual capacity. The
provision similar to the provision of law referred by the High Court of
Karnataka were not pointed out from the law in existence for this part.
Hence, the objection cannot be considered.
Nature of Registered Deed Dated 29/10/2001 and Considering it as
Gift-Deed
51] On another aspect, the first Appellate Court differed with the
trial Court. The trial Court considered the deed dated 29 th October,
2001 as a partition-deed. Whereas, the first Appellate Court considered
it as a gift-deed. As the lands were belonging to Jagoji Khandare, the
defendant Nos.1 and 2 being the sons (during lifetime of Jagoji) were
held disentitled to claim share therein. Hence, the partition-deed was
::31:: SA.86.2007. Judgment
considered as a gift-deed within the meaning of Section 122 of the
Transfer of Property Act, 1882 (paras 8 & 9). Before arriving at this
finding, the first Appellate Court confirmed the findings of the trial
Court "about not applying coercion or fraud on deceased Jagoji
Khandare while executing the partition-deed" and, in fact, it was
executed in sound state of mind (paras 9 to 12).
52] Learned Advocate Shri Agrawal supported the observations of
the first Appellate Court that "registered partition-deed cannot be
considered as partition deed". It is for the reason that defendant Nos.1
and 2 were not the sharers and they claim through their father
defendant No.3. In support of that, he relied upon the observations in
the cases of Ramesh Arya Vs. Pawan Arya & Others17 and Shub Karan
Bubna @ Shub Karan Prasad Bubna Vs. Sita Saran Bubna & Others 18.
There is no need to elaborate on the observations in the
abovementioned two cases. There cannot be any dispute about the
proposition enunciated in those two judgments. There can be a
partition in between only those parties who are already having a share
in the property. Because, the legal effect of partition is only division of
property and demarcation of shares. The person who is not having a
share in the property cannot be given a share by executing a partition
deed with him. It can be given by executing a document titled
17 2019(3) HLR 472
18 2009(6) ALL MR 502 (S.C.)
::32:: SA.86.2007. Judgment
differently. Even learned Advocate Shri Vaishnav has not disputed this
proposition of law.
Considering the Document as Gift-Deed
53] According to learned Advocate Shri Agrawal, the first
Appellate Court was wrong in considering the registered partition-deed
as a gift-deed as per the provisions of Sections 122 and 123 of the
Transfer of Property Act, 1882. According to him, the witnesses to gift-
deed are necessary to be examined. He relied upon the provisions of
Section 67 of the Indian Evidence Act, 1872.
54] To buttress his submission, he relied upon the judgment in
the case of K. Laxmanan Vs. Thekkayil Padmini & Others19. In that case,
defendant No.5 pleaded about execution of gift deed. Its execution is
denied by the plaintiff. One attesting witness has expired and another
attesting witness though alive was not examined. In that case, the
execution was specifically denied by the plaintiff. Apart from gift deed,
there was also a Will-Deed executed on same day.
55] This Court does not feel that it was necessary to examine the
attesting witnesses to the registered deed. Section 68 of Evidence Act
lays down the manner of proof of document required to be attested. It
is by examining at least one attesting witness. However, if the
19 (2009) 1 SCC 354
::33:: SA.86.2007. Judgment
document is registered one, there is no need to examine even one
attesting witness. There are two exceptions to this rule. When such
document is Will, examination of at least one attesting witness is
mandatory. So also, examination of one attesting witness is mandatory
when the document is specifically denied by the person by whom it
purports to have been executed.
56] In this case, even though it is true that the plaintiff has
challenged the registered deed titled as partition deed, she is not the
person who purports to have executed that document. Hence, the
proviso will not be applicable. Defendant No.3 is one of the executant
to that registered deed. He has entered into witness-box. He has also
been cross-examined. Hence, the registered document in question need
not be proved in the manner laid down under Section 68 of Indian
Evidence Act. I am fortified in taking this view on the basis of
observations by Hon'ble Supreme Court in the case of Surendra Kumar
Vs. Nathulal & Another20. They were followed by High Court of Punjab
and Haryana in the case of Giano Vs. Puran & Ors.21 The observations
in two judgments relied upon by the appellant are on the basis of facts
of those cases. The objection taken on behalf of the appellant is not
entertained. The findings given by the first Appellate Court that the
registered deed is considered as gift deed are upheld.
20 (2001) 5 SCC 46
21 AIR 2006 P & H 160
::34:: SA.86.2007. Judgment
Absence of Declaration about Legality of Partition-Deed
57] Learned Advocate Shri Vaishnav emphasized on the conduct
of the plaintiff in not seeking declaration that registered partition-deed
is not binding on the plaintiff. In support of this, he relied upon a
judgment in the case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead)
by L.Rs.22
58] Whereas, according to learned Advocate Shri Agrawal, there
was no need to seek declaration to that effect. For that purpose, he
relied upon a judgment in the case of Venigalla Koteshwaramma Vs.
Malampati Suryamba & Ors.23. The Hon'ble Supreme Court reiterated
the main issues required to be considered while dealing with the
partition suit. They are--
a) whether the plaintiff is having share or interest in the suit
property?
b) whether he can ask for division?
c) the manner in which properties will be divided.
59] When we talk about declaration in a partition suit, it relates
to declaration of plaintiff's share in the suit properties (para 38). The
defendant pleaded in the written statement about execution of the
agreement for sale and Will. It is for the defendant to prove those
22 AIR 2008 SC 2033
23 (2021) 4 SCC 246
::35:: SA.86.2007. Judgment
documents. The plaintiff can ignore those documents and there was no
necessity for the plaintiff to seek relief of declaration against the
agreement set up by the defendant (para 39).
60] The trial Court (issue No.2) and the first Appellate Court
(point No.2) have framed issue on the aspect of " execution of the
registered partition-deed by applying coercion, fraud and undue
influence on deceased Jagoji Khandare, sound state of mind of Jagoji
Khandare at that time" (point Nos.2 and 3 by the Appellate Court) and
the partition-deed executed by Jagoji Khandare, illegality (issue No.2)
by the trial Court.
61] I have read the reasoning given by the trial Court on that
issue (para 14 & 19). Whereas, reasoning finds place in the Appellate
Court's judgment in para 9 to 12. Both the Courts have discussed and
appreciated the evidence adduced by the plaintiff on that aspect and
negatived the grievance of the plaintiff to that effect. It is true that
declaration about partition deed is not sought by the plaintiff. At the
same time, it is true that grievance about partition deed is made in the
plaint and both the Courts below gave its observation. In a partition
suit, Court has to declare shares of the sharers as per the personal law.
62] So, main issue is who are the sharers and what are their
shares. In doing that exercise if any of the parties relied upon any
::36:: SA.86.2007. Judgment
document and if it comes in the way of declaration of shares, Court is
bound to express its opinion about that document. Both the courts
below proceeded on the background that specific declaration about
partition-deed was not sought. I do not find the findings perverse and
given after non-consideration of any material on facts. On the above
background, I do not find any merit in the submission of learned
Advocate Shri Vaishnav. I reject it.
63] For the above discussion, I do not find any perversity in the
findings given by the first Appellate Court that suit properties were the
self-acquisitions of deceased Jagoji. The finding on that issue cannot be
said to be a concurrent finding. Because the trial Court has concluded
that suit properties were joint family properties. Whereas the first
Appellate Court concluded that they were not the joint family
properties. Hence, this Court has undertaken the exercise of
ascertaining the correctness of the findings recorded by first Appellate
Court. In that exercise, this Court do not find any reason to interfere in
those findings. Hence, substantial question No.3 is answered in the
affirmative.
Final Conclusion
64] So far as the findings on the point of partition deed being
illegal is recorded in the negative by both the Courts below. This can be
said to be a concurrent finding (first Appellate Court considered the
::37:: SA.86.2007. Judgment
registered deed as a gift-deed). These findings are not interfered as
there is no perversity in it. So, the judgment giving share to the plaintiff
only in one suit land as held by the trial Court needs to be confirmed.
Appeal in respect of claim for partition in respect of other suit property
needs to be dismissed. Hence, the following order is passed--
ORDER
1. The appeal is dismissed.
2. Rejection of claim of plaintiff for partition in respect of land
bearing Survey Nos.51/1 & 51/3 (Gat Nos.280 & 286) by
both the Courts below is confirmed.
3. Rejection of claim by both the Courts below about share in the
suit properties independently and not as one of the heir of
father Jagoji Khandare is also confirmed.
4. Parties to bear their own costs.
(S.M. MODAK, J.)
Vijay
