Bombay High Court
Smt. Kusum Baban Raskar And Ors vs Meerabai Maruti Chede And Ors on 16 October, 2024
2024:BHC-AUG:25333
1
Second Appeal No.669 of 2016.odt
THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
SECOND APPEAL NO. 669 OF 2016
1] Smt. Kusum w/o Baban Raskar,
Age - 66 years, Occu. Household,
R/o. 18 Park Road, Behind Post Office,
Vallabh Nagar, Indor, Madhya Pradesh.
2] Vivek s/o Baban Raskar,
Age: 44 years, Occu. Service,
R/o. 18 Park Road, Behind Post Office,
Vallabh Nagar, Indor, Madhya Pradesh.
3] Vikas S/o. Baban Raskar,
Age 38 Years, Occu. Education,
R/o. 18 Park Road, Behind Post Office,
Vallabh Nagar, Indor, Madhya Pradesh,
4] Rakhi w/o Anil Gaikwad,
Age 41 Years, Occu. Household,
R/o. Nityaseva, Nirmal Nagar,
Ahmednagar Dist: Ahmednagar.
5] Baliram Bhaurao @ Khandu Raskar,
Age 63 Years, Occu. Agril,
R/o. 18 Park Road, Behind Post Office,
Vallabh Nagar, Indor, Madhya Pradesh.
6] Ganesh s/o Baliram Raskar,
Age 41 Years, Occu. Agril,
R/o. 18 Park Road, Behind Post Office,
Vallabh Nagar, Indor, Madhya Pradesh.
6] Dinesh s/o Baliram Raskar,
Age 35 Years, Occu. Agril,
R/o. 18 Park Road, Behind Post Office,
Vallabh Nagar, Indor, Madhya Pradesh. ... Appellants
(Orig. Defendants)
2
Second Appeal No.669 of 2016.odt
VERSUS
1] Meerabai W/o. Maruti Chede,
Age-60 Yrs. Occu. Household,
R/o. 18 Park Road, Behind Post Office,
Vallabh Nagar, Indor, Madhya Pradesh.
(Since deceased through her legal heirs)
1-A) Sangita W/o Sanjay Bhujbal,
Age: 40 years, Occ. Household,
R/o 120/D15/5, Sch. No. 78,
Indore, Madhya Pradesh.
1-B) Suresh S/o Marutirao Chede,
Age: 46 years, Occ. Service,
R/o Behind Malava Mill,
31, Nav-Jivan Ki Fail,
Indore, Madhya Pradesh.
1-C) Sunita W/o Santosh Chede,
Age: 44 years, Occ. Household,
R/o Behind Malava Mill,
31, Nav-Jivan Ki Fail,
Indore, Madhya Pradesh.
1-D) Aman S/o Santosh Chede,
Age :22 years, Occ. Education,
R/o Behind Malava Mill,
31, Nav-Jivan Ki Fail,
Indore, Madhya Pradesh.
1-E) Mayank S/o Santosh Chede,
Age: 19 years, Occ. Education,
R/o Behind Malava Mill,
31, Nav-Jivan Ki Fail,
Indore, Madhya Pradesh.
2] Kusum w/o Gangadhar Padole,
Age: 58 years, Occu. Household,
R/o. Tilak Road, Ahmednagar,
Tal:Ahmednagar Dist:Ahmednagar.
3
Second Appeal No.669 of 2016.odt
3] Suman w/o Ramesh Bhujbal,
Age- 56 Yrs. Occu. House hold,
R/o Bhingar, Tal:Ahmednagar,
Dist:Ahmednagar.
4] Latabai w/o Asaram Chipade,
Age- 53 Yrs. Occu. House hold,
R/o. Chipade Mala, Kedgaon Devi Road,
Ahmednagar, Tal: & Dist: Ahmednagar. ... Respondents
(Orig. Plaintiffs)
...
Mr. V. J. Dixit, Senior Counsel, i/b Mr. Satyajit S. Dixit, Advocate for
Appellants.
Smt. M. A. Kulkarni, Advocate for Respondents.
...
AND
CIVIL APPLICATION NO. 9994 OF 2023
IN SA/669/2016
AND
CIVIL APPLICATION NO. 11444 OF 2021
IN SA/669/2016
CORAM : KISHORE C. SANT, J.
RESERVED ON : 24th July, 2024.
PRONOUNCED ON : 16th October, 2024.
JUDGMENT:
. This second appeal arises out of judgment and order
dated 22nd January, 2016 passed by the learned District Judge - 03,
Second Appeal No.669 of 2016.odt
Ahmednagar in Regular Civil Appeal No.235 of 2007 arising out of
judgment and order dated 9th October, 2007 passed by the learned 6 th
Joint Civil Judge (Senior Division), Ahmednagar in Regular Civil Suit
No.64 of 2000. The suit was decreed declaring plaintiff Nos.1 to 4
have 1/18th share each in the properties. Defendant No.5 is held
entitled to get 7/18th share and defendant No.1's husband has 7/18th
share. The share was to be devolved upon their legal representatives
in the suit properties.
2 By way of impugned judgment, the decree was modified.
The appeal was partly allowed. The Cross-Objection Exh.19A came
to be allowed. Plaintiffs Nos.1 to 4 were held entitled to get 1/12 th
share each in the suit properties. Defendant Nos.1 to 4 were held
entitled to get 1/3rd share in joint amongst them. Defendant No.5 was
held entitled to get 1/3rd share in the suit properties. Defendants Nos.
6 and 7 were not given separate share holding that they were claiming
their share through defendant No.5 and they will be entitled to get the
share from defendant No.5.
3 The present appellants are original defendant Nos.1 to 7.
The present respondents are original plaintiffs. The parties are
referred to as per their original status in the suit. The relations
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between the parties in genealogy are produced hereinbelow:-
4 The properties, subject matter of the suit, are situated at
Chas, Taluka and District Ahmednagar as below:-
Area Assist
Sr.No. Gat No. Village
H. R. Rs. Ps.
--------- ------------------- ---------------- ----------------- ---------------
1)
173 1=03 2=06 Chas.
4=60
190 0=11
2) 6=19 Cash.
K ---------
4=71
3)
283 0=16 1=50 Chas.
7=27
4) 1018 1=46 4=64 Chas.
K ---------
8=73
Second Appeal No.669 of 2016.odt
0=01
5) 0=02 0=09 Chas.
K
---------
0=03
3=96
6) 168 0=02 7=44 Chas.
K ---------
3=98
5 The suit was filed in respect of property Gut No.173, 1
Hectare 3 R of village Chas. The property at serial No.4 was deleted
in appeal. Thus, as per the genealogy, the relations are that
defendant No.1 is wife of deceased brother of plaintiffs. Defendant
Nos.2 to 4 are sons of defendant No.1. Defendant No.5 is another
brother of the plaintiffs. Defendant Nos.6 and 7 are sons of defendant
No.5. The plaintiffs, defendant No.5 and husband of defendant No.1
are the daughters and sons of one Bhaurao Khandu, who died on 8th
January, 1991 at Indore. He was the original owner and possessor of
the suit properties. Property No.168 was purchased by him from the
joint family income and thus, the said property is also a joint family
property. After the death of Bhaurao, plaintiffs' names were mutated
in the possession column in revenue record vide mutation entry
No.1525. Defendant No.5 and the husband of defendant No.1
deceased/Baban, however, obtained signatures of the plaintiffs on an
Second Appeal No.669 of 2016.odt
application on 22nd March, 1991, under the pretext that the application
was for recording their names as legal heirs of deceased father. The
plaintiffs, under the said belief, signed the application. Later on, they
found that their names came to be deleted from the revenue entries by
the Talathi. Defendant Nos.1 and 5 added the names of their sons in
the revenue record on 16th April, 1992, vide mutation entry No.1646.
After the death of husband of defendant No.1, entry was taken in the
names of defendant No.1 and defendant Nos.2 to 4 vide mutation
entry No.1647. The mother Laxmibai died on 28th August, 1999.
There was an amount of Rs.21,000/- in the account of deceased
Laxmibai in bank in fixed deposit. When the plaintiffs tried to withdraw
the amount, the bank asked for succession certificate, as defendant
No.5 had recorded his objection in the bank. At that time, the plaintiffs
came to know that defendant No.5 has got even their names deleted
from the properties as well. That plaintiffs, therefore, went to Talathi
for recording their names. It was to their shock they found that their
names and the name of their mother Laxmibai were deleted from the
revenue record on 16th April, 1992.
6 It is the case of the plaintiffs that they never relinquished
their rights in the suit properties. The suit properties being joint family
Second Appeal No.669 of 2016.odt
property, they have undivided share in the properties. The plaintiffs
then asked for partition of the suit properties, however, the defendant
avoided. The suit was, therefore, filed for partition and separate
possession and for injunction.
7 All the defendants appeared and resisted the suit by filing
their respective written statements. It is case of defendants that block
No.168 was purchased by Baban in his own name. Defendant No.1
and defendant No.5 purchased the said property from their own
income. The plaintiffs do not have any share in block No.168. It is
their case that the plaintiffs and deceased Laxmibai have relinquished
their shares in land block Nos.173, 190, 283, 1018 and 281 i.e.
ancestral properties by giving an application in writing to Talathi.
Deceased Laxmibai had also written that she is maintained by the
defendants and therefore, she relinquished her share in the property.
The Talathi after recording the statements of the plaintiffs and
deceased Laxmibai, has deleted their names by following proper
procedure, calling for objections. There-again, the plaintiffs gave in
writing that they are relinquishing their rights in the share. It is only
thereafter, the entries were taken bearing mutation entry Nos.1446
and 1447. It is denied that the defendants ever obtained signatures of
Second Appeal No.669 of 2016.odt
the plaintiffs under the false pretext. They raised objection as to the
limitation as the alleged letter relinquishing right was given sixteen
years back. Plaintiff No.2 was not residing with the husband and had
come to reside with defendant Nos.1 to 4. She stayed with them for 8
to 10 years. The defendants took her care. They prayed for dismissal
of the suit.
8 Thus, at these rival pleadings, the matter proceeded. The
learned Trial Judge framed the issues and answered the issues
holding that the plaintiffs have proved that they are having undivided
share in the lands, except block No.168. The suit was within
limitation. The plaintiffs are held entitled to get partition and separate
possession. The injunction was refused holding that the plaintiffs
failed to prove that the defendants were trying to alienate the suit
properties and passed a judgment and decree declaring plaintiff Nos.1
to 4 have 1/18th share each in the properties. Defendant No.5 is held
entitled to 7/18th share and defendant No.1's husband is held entitled
to 7/18th share. The share was to be devolved upon his legal
representatives in the suit properties.
9 Against this judgment and decree, the defendants filed
appeal bearing Regular Civil Appeal No.235 of 2007. The plaintiffs
Second Appeal No.669 of 2016.odt
also filed cross-objection. So far as ascertainment of shares is
concerned, it is agitated that they are entitled to get 1/12 th share
instead of 1/18th. It is on the ground that after the death of Baban i.e.
father of the plaintiffs, their mother namely deceased Laxmibai also
inherited the share in the suit property, which would devolve upon her
legal heirs. The cross-objection was thus, only to that extent.
10 The learned appellate Court held that the plaintiffs are
entitled to get 1/12th instead of 1/18th. It also held that the plaintiffs
have right even in property block No.168. Thus, the original
defendants now have come to this Court challenging the judgment
and order under appeal. This Court while admitting the second
appeal, framed the following substantial questions of law:-
"1) Whether mutation entry No.1525 would amount
to relinquishment of their shares from the suit
properties by the plaintiffs ?
2) Whether relinquishment of right in property
requires registration under Section 17 of the Indian
Registration Act taking into consideration the provisions
under Section 17 (2) (viii) of the said Act?
3) Whether the first appellate Court was justified in
exercising powers under Order XLI Rule 33 of Code of
Civil Procedure in respect of Gut No.168 ?
Second Appeal No.669 of 2016.odt
4) Whether the suit was within limitation ?
5) Whether plaintiffs had share in the suit
properties? If yes, to what extent ?
6) Whether interference is required in the Judgment
and decree of both the Courts below ?"
11 In view of the substantial questions of law framed, the
learned counsel for the parties addressed this Court.
12 In addition to oral submissions, the learned counsels for
the parties have also placed on record written notes of arguments.
The learned Senior Counsel Mr. Dixit submits that the plaintiffs have
already relinquished their share by filing application before Talathi.
The Talathi by issuing notices had deleted the names of the plaintiffs.
In view of relinquishment of right, plaintiffs have no right in properties.
The land block No.168 was never part of the joint family property.
While filing cross-objection, the plaintiffs did not claim any right in the
property block No.168. Still, the learned lower appellate Court has
declared that the plaintiffs have share in the said land as well. The
learned appellate Court has committed error in granting 1/12th share to
the parties when that was never joint family property. Exhibit-75 i.e.
Second Appeal No.669 of 2016.odt
letter given to Talathi is admitted by the plaintiffs in the evidence. It is
also further admitted that no appeal was preferred against mutation
entries No.1446 and 1447. In the plaint itself there is reference that
land block No.168 is purchased by Bhaurao and Baban. The
signatures on the letter to Talathi are not disputed. Though the
daughters can claim right in the joint family property, however, in view
of letter of relinquishment, the daughters are not entitled to partition.
13 He further submits that mutation entry No.1525 shows that
rights are relinquished, even by mother Laxmibai and therefore, there
is no question of the plaintiffs getting share even in the property of
deceased Laxmibai. Looking at the prayer in the suit, it is for partition
and injunction. Once the shares are voluntarily given up, such prayer
could not have been made. In view of Order VI Rule VII, the details of
fraud are required to be specifically stated. In the plaint, no such
details are given. Section 85 of the Maharashtra Land Revenue Code
(MLRC) recognizes this mode of partition and relinquishment in the
share in the joint family property. No such relief of declaration that the
said writing is not binding, is sought for. When the trial Court has
specifically held that no partition be made of land block No.168, the
appellate Court without any justifiable reason has disturbed the said
Second Appeal No.669 of 2016.odt
finding. The learned appellate Court has wrongly framed the points.
He further submits that in view of Section 17 of the Registration Act, it
was not necessary to get the relinquishment deed registered as the
document was only in the nature of memorandum of settlement.
Section 17 of the Registration Act is not applicable. The reasoning
given by the appellate Court as regards fraud is not correct. The
cross-objection was only in respect of extent of share in the property.
The appellate Court by granting partition even in respect of land block
No.168 has exercised jurisdiction beyond its power.
14 In support of his arguments, the learned Senior Counsel
placed reliance on the following judgments:-
a) Ravinder Kaur Grewal and others Vs. Manjit Kaur
and others,
(2020) 9 Supreme Court Cases 706, to submit that no
registration is required.
b) Digambar Adhar Patil Vs. Devram Girdhar Patil
(Died) and another,
1995 Supp (2) Supreme Court Cases 428, in respect
of Section 32-G of the Bombay Tenancy and
Agricultural Lands Act.
Second Appeal No.669 of 2016.odt
15 Mrs. Kulkarni, learned counsel for the respondents
vehemently opposed the second appeal. She submits that no
substantial question of law is involved in the present appeal. Exhibit-
75 is on simple paper and cannot be considered to be relinquishment
deed. Reference to Section 85 of the MLRC is not material. In any
case, this ground was not raised in the trial Court as well as in the
appellate Court. Assuming that Section 85 of the MLRC is an
application, still the procedure provided under Section 85 is not
followed. Once the Court has come to a conclusion that the plaintiffs
have right in joint family property, the appellate Court has rightly held
that plaintiffs have right even in land block No.168. There is nothing
on record to show that land block No.168 is purchased from the
income of deceased Baban. The sale-deed of land block No.168 is
not on record. The prayer in the suit was in respect of suit properties,
which includes land block No.168. She further argued that the
learned appellate Court has rightly exercised the power vested in it.
So far as share is concerned, she submits that the learned appellate
Court has rightly considered that deceased Laxmibai was also entitled
to receive the share and after her death, all the parties will get share
even in the property of deceased Laxmibai. The share can be
modified at any stage.
Second Appeal No.669 of 2016.odt
16 In support of her arguments, the learned counsel for
respondents relied upon the following judgments.
a) Gangaram Sakharam Dhuri since deceased
through L.R. Vishnu and others Vs. Gangubai
Raghunath Ayare and others,
2007(5) Mh.L.J. 136.
b) Mahadev Govind Gharge and others Vs. Special
Land Acquisition Officer, Upper Krishna Project,
Jamkhandi, Karnataka,
2011(5) Mh.L.J. 532.
c) Ganduri Koteshwaramma and another Vs. Chakiri
Yanadi and another,
2012(1) Mh.L.J. 613.
d) Ravinder Kumar Sharma Vs. State of Assam and
others,
AIR 1999 Supreme Court 3571.
e) Baikuntha Nath Paramanik (dead) by his L. Rs.
and heirs Vs. Sashi Bhusan Paramanik (dead) by
his L. Rs. and others,
AIR 1972 Supreme Court 2531.
f) Vineeta Sharma Vs. Rakesh Sharma and others,
(2020) 9 Supreme Court Cases 1.
Second Appeal No.669 of 2016.odt
17 In rebuttal, the learned Senior Counsel submits that in the
evidence of the plaintiffs it is accepted that all the plaintiffs got married
prior to 1984. He invited attention to the evidence of Talathi, who was
examined by defendant No.2. The Talathi in his evidence has clearly
stated about letter of relinquishment and the entries taken on the
basis of the said letter.
18 So far as the first question about mutation entry No.1525,
this Court has to examine as to weather the letter Exhibit-75 can be
treated to be a relinquishment deed. The signatures on the said letter
are not disputed. What is disputed is only that the brothers under the
pretext of filing an application for mutation took signatures of the
plaintiffs. Except this, there is nothing to show any fraud. Therefore,
the main question is as to whether even assuming that this letter is
given voluntarily would amount to relinquishment. Section 17 of the
Registration Act requires a document to be registered when the rights
in respect of the immovable property are conveyed. In the present
case, admittedly, there is no other document to show that the plaintiffs
have conveyed their property or relinquished their share in the joint
family property. This Court finds that though it is submitted by the
Second Appeal No.669 of 2016.odt
appellants, the Talathi had issued notice to the sisters and thereafter,
had taken mutation entry No.1525. However, from the evidence of
Talathi the same is not brought on record. From the said evidence,
there is nothing to indicate that notices were issued to the plaintiffs.
On the contrary, in the cross-examination, he accepted that he does
not have document to show that the notices were issued to the
plaintiffs. It is clear from the evidence that while taking mutation entry
no procedure was followed. This Court therefore, holds that the
mutation entry No.1525 would not amount to relinquishment of the
shares of the plaintiffs in the suit property.
19 The second question is about Section 17 (2)(viii) of the
Registration Act. This section clearly requires that whenever
immovable property is conveyed or the right is relinquished,
registration is compulsory. In the case of Ravinder Kumar Sharma
(supra), the question was in respect of family settlement, which was
reduced into writing and memorandum was prepared. The
Honourable Apex Court in the said judgment held that such document
need not be registered. The Court considered that the question would
depend upon as to weather the document in dispute creates or
transfers right in immovable property or whether it is only
Second Appeal No.669 of 2016.odt
memorandum which only recorded pre-existing rights in the
immovable property or arrangements or terms already settled
between the party in respect of immovable property. It is held that
when the document creates or transfers rights for the first time in
immovable property, registration would be necessary.
20 Considering above aspect, the nature of the present so-
called relinquishment deed needs to be considered. Taking the case
of the appellants as it is, the appellants have also stated that the
mutation entry was taken on the basis of document of relinquishment
deed. So it is clear that even the defendants accepted that the
document Exhibit-75 was not a memorandum of settlement, but was a
document by which the plaintiffs relinquished their share. This Court
finds that the judgment in the case of Ravinder Kumar Sharma (supra)
is not of any avail to the defendants in this case. The second question
of law is thus answered that the documents Exhibit-75 cannot be
accepted in the evidence as it is not registered.
21 So far as third question, as to whether the first appellate
Court was justified in exercising power under Order XLI Rule 33 of the
Code of Civil Procedure is concerned, this question needs to be
Second Appeal No.669 of 2016.odt
tested not only in view of Order XLI Rule 33, but also to be tested in
the light of cross-examination of the plaintiffs.
22 It is seen in the present case that the findings recorded by
the trial Court as regard land block No.168 is accepted by the
plaintiffs. Even in the cross-objection, there is nothing to indicate that
the said finding is challenged by raising ground. In view of this fact, it
was not proper for the first appellate Court to pass any decree in
respect of land block No.168. The decree to that extent passed by the
appellate Court needs to be set aside.
23 So far as limitation is concerned, the point is not seriously
agitated by any of the parties. Therefore, this Court holds that the
finding does not require any interference.
24 So far as extent of share of plaintiffs in the share of the
suit properties is concerned, this Court finds that the father of the
plaintiffs and defendants died on 8th January 1991. Naturally after his
death, the property went to four plaintiffs, husband of defendant No.1,
deceased Baban, other son i.e. defendant No.5 and Laxmibai, mother
of plaintiffs and defendant Nos.1 & 5. Thus, there were seven shares.
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After Laxmibai, the share of Laxmibai would further devolve upon the
four plaintiffs, husband of defendant No.1 and defendant No.5. Thus,
six shares. This Court finds that the learned appellate Court has
rightly therefore, demarcated the shares. Defendant Nos.1, 2 and 3
will get share in the share of deceased Baban. Defendant Nos.5, 6
and 7 altogether will get one share and the plaintiffs will get one share
each by making six shares out of share to which Laxmibai was
entitled.
25 The fifth question is about entitlement of the plaintiffs to
the share in the suit properties. The law is now settled by the
Honourable Apex Court in the case of Vineeta Sharma (supra). Thus,
all the plaintiffs have the shares in the property to the extent as held
by the learned District judge in the appeal.
26 As regards the last question, this Court holds that no
interference is required so far as first four questions are concerned.
The interference is required only in respect of granting share to the
plaintiffs even from land block No.168. This Court thus, holds that the
decree passed by the learned first appellate Court needs to be
maintained, except clause No.3(a) i.e. in respect of land block No.168.
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Thus, only modification to the decree in respect of clause 3(a), which
reads as under:
"3 (a) It is hereby ordered and decreed that plaintiffs
No.1 to 4 have got 1/12th share each in the suit properties
described in para 1(1) to (3) and (5)."
27 Decree be drawn up accordingly. The appeal is allowed to
above extent. No order as to costs.
28 Pending civil applications also stand disposed of.
[ KISHORE C. SANT, J ]
. At this stage, learned Senior Counsel for appellants prays
for continuation of interim relief, which is running since admission of
the appeal.
2 This request is heavily opposed by the learned counsel for
respondents. However, looking to the fact that the interim relief is
continued for long time, the same be continued for further six weeks
from today, with a condition that the appellants shall not alienate the
properties or shall not create any third party interest in the suit
properties.
[ KISHORE C. SANT, J ]
nga
