Anil Sayaji Waje vs Sandeep Haribhau Waje
2022 Latest Caselaw 7832 Bom

                                                       Second Appeal No.372/2018
                                         :: 1 ::


           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


                  SECOND APPEAL NO.372 OF 2018 WITH
                   CIVIL APPLICATION NO.6810 OF 2018


 Anil s/o Sayaji Waje                                   ... APPELLANT

          VERSUS

 Sandeep s/o Haribhau Waje                              ... RESPONDENT

                              .......
 Shri V.D. Hon, Senior Counsel with
 Shri A.V. Hon, Advocate for appellant
 Shri Y.V. Kakade, Advocate for respondent
                              .......

                                   CORAM :         R. G. AVACHAT, J.

                  Date of reserving order : 3rd August, 2022
                  Date of pronouncing order : 11h August, 2022

 ORDER:

This is original defendant's Second Appeal, from

the judgment and decree dated 17/11/2011, passed by 3 rd Jt.

Civil Judge, Junior Division, Shrigonda in Regular Civil Suit

No.221/2007 and confirmed by the Court of District Judge-9

Ahmednagar in Regular Civil Appeal No.480/2011, by

judgment and order dated 1/1/2018. For the sake of

convenience, parties to this Second Appeal are referred to as

per their ranking in the suit.

Second Appeal No.372/2018 :: 2 ::

2. The plaintiff and defendant are cousins. Their

fathers are real brothers inter-se. The plaintiff filed the suit

(Regular Civil Suit No.221/2007) for partition and separate

possession of the agricultural land Gut No.685/1. It is the

case of the plaintiff that, the suit land came to the share of

him and the defendant in a partition that took place way back

in 1996. Since the plaintiff wanted to have his share in the

suit land partitioned, the suit was filed.

3. The defendant (appellant herein) resisted the suit,

contending that, no partition of the family property took place

in 1996. It was a family arrangement that was effected

pursuant to the Mutation Entry No.3416. According to him,

the partition of the family properties took place on 19/7/2001,

wherein the suit land has been allotted to the share of his

father. The dismissal of the suit was, therefore, urged for.

The trial Court decreed the suit, holding the plaintiff to have

proved his case of partition of the family properties to have

been effected way back in 1996. The first appellate Court has

affirmed the said decree.

4. Mr. Hon, learned Senior Counsel appearing for the

appellant/ defendant would submit that, following two

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substantial questions of law arise in this Second Appeal

namely :-

(I) The grandfather did not have authority to effect partition of the joint family properties between him and his grandsons and, therefore, whatever mutation entry (No.3416) was effected in the revenue record does not constitution partition of the family properties.

(II) The suit was bad for non-joinder of necessary parties and non-compliance of principle of hotch-potch.

5. According to learned Senior Counsel, it was a

family arrangement made between Hausrao (grandfather of

the plaintiff and defendant) and his brothers. Hauarao then

effected partition of property that came to his share. He

executed a document of partition in 2001, wherein the suit

land came to the share of father of the defendant. Learned

Senior Counsel invited attention of this Court to the cross-

examination of the plaintiff to contend that the plaintiff

admitted that the sugarcane in the suit land was sent to the

sugar factory in the name of the defendant. It was the

defendant who had raised wheat crop in the suit land.

According to learned Senior Counsel, this falsifies the case of

partition propounded by the defendant. He would further

submit that, it being a suit for partition, all the persons who

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are entitled to share in the family properties are necessary

parties. It is a suit between two cousins only. Same is,

therefore, bad for non-joinder of necessary parties. He would

further submit that, all the family properties are not the

subject matter of the suit. The suit, therefore, suffers for

non-compliance of principle of hotch-potch.

6. Mr. Kakade, learned counsel for the respondent/

plaintiff would, on the other hand, submit that, the factum of

partition is an issue of facts. Both the Courts have

concurrently held the suit land to have fallen to the share of

the plaintiff and the defendant equally. The defendant did not

lead any evidence in the suit. The document of alleged

partition was not proved. The written statement is silent to

raise the issue of non-joinder of necessary parties and

principle of hotch-potch. The learned counsel relies on Order

I Rule 13 of the Code of Civil Procedure which reads thus :-

"13. Objections as to non-joinder or mis-joinder:- All objections on the ground of non-joinder or mis- joinder of parties shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived."

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According to learned counsel for the respondent,

no substantial question of law does arise in this Second

Appeal. He, therefore, urged for dismissal of the Second

Appeal.

7. Considered the submissions. Perused the

pleadings, evidence relied on and the judgment of the trial

Court and that of the first appellate Court. The plaintiff and

defendant are cousins. Way back in 1996, a Mutation Entry

(No.3416) came into being. A close reading thereof would

indicate Hausrao (grandfather of the plaintiff and defendant)

and his three brothers had moved an application to the

revenue authorities to record the family lands in the name of

respective family member/s who are in possession of specific

portion thereof. The said Mutation Entry was effected in

August 1996. The effect thereof appears to have remained

undisturbed. From the recitals of the Mutation Entry, it does

not appear that Hausrao had alone moved such application for

effecting mutation Entry. In the written statement, the

defendant did not raise any issue about the grandfather

Hausrao to have no authority to effect partition of the family

properties between him on one hand and his grandsons

(plaintiff and defendant) on the other. The learned Senior

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Counsel although may be right in contending the same,

relying on the authorities in case of M.S.M.M. Meyyappa

Chettiar Vs. Commissioner of Income Tax, Madras [AIR 1951

Mad 506] and P.N. Venkatasubramania Iyer & ors. Vs. P.N.

Easwara Iyer & ors. [AIR 1966 Mad 266], the fact remains

that the Mutation Entry No.3416 does not indicate the

partition of the family properties to have been effected by the

grandfather alone. By virtue of the change in the revenue

record pursuant to Mutation Entry No.3416, the suit land is

shown to have been possessed by the plaintiff and defendant

in equal share.

8. In case of M.S.M.M. Meyyappa Chettiar (supra),

the Madras High Court observed in paragraph No.4 as under:-

"4. The first question is entirely one which arises under Hindu Law. Under the Mitakshara Law the father has the undoubted right and privilege of effecting a partition between himself and his sons, whether they are majors or minors, without their consent. He may divide the properties physically or may only bring about a division in status. This division may be between himself and his sons or even between the sons inter se. The partition so made, however, must be fair and equal. See Kandaswami V. Doraiswami Aiyar, 2 Mad. 317 and Venkatapathi Raju V. Venkatanarasimha Raju, I.L.R. (1937) Mad. 1 : (A.I.R. (23) 1936 P.C. 264), (Mayne's Hindu Law, 11th Edn. 1950 pp. 547 and 548). This power of the father is exercisable also by the grandfather

Second Appeal No.372/2018 :: 7 ::

but with the qualification that he can only separate himself from his grandsons and not make a division between the grandsons inter se. (See Subbarami Reddi V. Chenchu Raghava Reddi, I.L.R. (1945) Mad. 714 : (A.I.R. 32) 1945 Mad.

327) and Mayne, 11th Edn. p. 548). If the partition is unequal and unfair it is open to the sons if they are majors to repudiate the partition; but if they are minors, it is open to them to avoid that partition by appropriate proceedings after they attain majority. The partition, therefore, will be good until it is set aside. It is not void and is not without effect. This right of avoidance based on the inequality of the shares is a personal right of the minors and cannot be exercised by others. The power is not a conditional power in the sense that if the condition of the partition being fair and equal is not satisfied, the power ceases to have operative force. The partition will be valid in such circumstances until it is avoided by the minors, and until it is repudiated by the major sons.

9. In case of P.N. Venkatasubramania Iyer (supra),

the Madras High Court held in paragraph No.129 as under:-

129. This power of the father is exercisable also by the grandfather but with the qualification that he can only separate himself from his grandsons and not make a division between the grandsons inter se. (See Subbarami Reddy Vs. Ghenchu Raghava Reddi, 1945-1 Mad. L.J. 151 : (A.I.R. 1945 Mad. 327) and Mayne 11th Edn. page 548). If the partition is unequal and unfair it is open to the sons if they are majors, to repudiate the partition; but if they are minors, it is open to them to avoid that partition by appropriate proceedings after they attain majority. The partition therefore, will be good until it is set aside, it is not void and it is not without effect."

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10. It is true that, in a suit for partition, all the

persons who are entitled to share in the family properties

need to be made parties to the suit. In the case in hand, the

appellant/ defendant did not raise any objection on this score

in the written statement. It is his case that, the partition of

the family properties that came to the share of grandfather

Hausrao was effected by Hausrao himself on 19/7/2001. The

said document was placed on record before the trial Court.

The respondent/ plaintiff was confronted therewith. He

denied the existence thereof. The defendant admittedly did

not lead any evidence in proof of his case of partition. True,

in the cross-examination the plaintiff had admitted that

sugarcane in the suit land was sent in the name of the

defendant to the sugar factory for crushing. He also admitted

that the defendant had raised wheat crop therein for some

time. The fact that the plaintiff and defendant are cousins

cannot be lost sight of. When the defendant himself came

with a case of partition of the family properties to have been

effected in July 2001, he cannot be heard for the first time to

say in this Second Appeal that the suit was bad for non-

joinder of necessary parties.

11. The finding that the partition of the family

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properties took place way back in 1996 and the suit land

came to the share of the plaintiff and defendant therein, is a

finding of fact recorded by the trial Court, based on the

evidence in the case. The same has been confirmed by the

first appellate Court. Close reading of the memo of appeal

indicates that the appellant/ defendant contends the

document of partition dated 19/7/2001 to be a Will, executed

by Hausrao.

12. For the aforesaid reasons, this Court finds no

substantial questions of law, as have been formulated by the

learned Senior Counsel for the appellant, do arise in this

Second Appeal. The Second Appeal, therefore, fails. It is

dismissed. Consequently, Civil Application stands dismissed.

( R. G. AVACHAT ) JUDGE

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