Bombay High Court
Shamgonda Shidgonda Patil And Anr vs Shivgondaa Babgonda Patil And Ors on 14 August, 2025
Digitally signed
2025:BHC-AS:35350
RAJESHWARI by
RAMESH
RAJESHWARI
RAMESH PILLAI
Date:
PILLAI 2025.08.14
10:16:07 +0200
1-SA-374-1995.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
rrpillai
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 374 OF 1995
WITH
CIVIL APPLICATION NO. 1383 OF 2013
1. Shamgonda Shidgonda Patil
(Since Deceased through Legal Heirs)
1A) Sumitra Shamgonda Patil
Age: Adult, Occu: Household
1B) Anil Shamgonda Patil
Age: Adult, Occu: Agri.
1C) Sunil Shamgonda Patil
Age: Adult, Occu: Agri.
1D) Mahesh Shamgonda Patil
Age: Adult, Occu: Agri.
All R/o. Dhulgaon, Tal. Tasgaon
Dist. Sangli.
2. Smt. Tarabai w/o Shidgonda Patil
Age: 58 Occu: Household work
Both residing at Dhulgaon Taluka
Tasgaon, District Sangli. ... Appellants
Vs.
1. Shivgonda Babgonda Patil
(Since Deceased through Legal Heirs)
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(1A) Shri. Raygonda Shivgonda Patil
[Deceased]
(1B) Shri. Pirgonda Shivgonda Patil
R/o. Dhulgaon, Tal. Tasgaon,
District. Sangli
(1C) Smt. Rajakka Madhukar Desai
[Deceased ]
R/o. At post Kavathepiran
Tal. Miraj, Dist. Sangli
(1D) Smt. Savitribai Chandragonda Patil
R/o. 1292 Dhere Galli, Miraj
Tal. Miraj, Dist. Sangli.
2. Raygonda Shivgonda Patil
(Since Deceased through Legal Heirs)
2A) Krushnabai Raygonda Patil
(Since Deceased through Legal Heirs)
2B) Smt. Sulochana Raosaheb Patil
Age: 64 Occu: Housewife
R/o. 5/397, Shivganga Nivas
Near Dr. Dangare Hospital
Date Mala, Ichalkaranji
Tal. Hatkanagale, Dist. Kolhapur
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2C) Smt. Ranjana Suryakant
Herwade-Patil
Age: 60, Occu: Housewife
R/o. Post-Sulkud, Tal. Kagal
Dist. Kolhapur
2D) Sou. Pramila Tatyasaheb Patil
Age: 56,Occu: Housewife
R/o. Near Bhomaji Hospital
Jugul road, Shirguppi
Tal. Kagwad, Dist. Belgaum
2E) Smt. Manisha Devgonda Patil
Age: 54,Occu: Housewife
R/o. Mangawati, Tal-Kagwad
Dist. Belgaum
2F) Sou. Shobha Shivling Tardale
Age:51,Occu: Housewife
R/o. at Post Jugul
Tal. Kagvad, Dist. Belgaum
2G) Kum. Vaishali Raygonda Patil
Age : 46,Occu: Service
2H) Shri. Santosh Raigonda Patil
(Since Deceased through Legal Heirs)
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2H1) Smt. Vijaya Santosh Patil
Age: 41, Occu: Housewife
2H2) Kum. Omkar Santosh Patil
Age: 20,Occu: Education/Agri.
2H3) Kum. Avadhut Santosh Patil
Age:18,Occu: Education/Agri.
Resp. 2G to 2H3 all are resident
Of Chaugule Galli, (dhulgaokar)
Ankalkhop, Tal. Palus, District Sangli
3. Pirgonda Shivgonda Patil
Age: 42,Occu: Agriculture
Resident of Dhulgaon, Tal. Tasgaon
Dist. Sangli.
4. Parvatibai Shankarrao Patil
(Since Deceased through Legal Heirs)
4A) Annasaheb Shankarrao Patil
(Since Deceased through Legal Heirs)
4A1) Smt. Sharda Annasaheb Patil
[Deleted]
4A2) Shashikant Annasaheb Patil
Age: Adult, Occu: Agri.
Both R/o Nimani. Tal. Tasgoan, Sangli
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4A3) Sou. Akkatai Tatyasaheb Patil
Age: Adult
R/0. Shintre Bol, Opp. Nagarpalika
Nipani, Tal. Chikodi, Dist. Belgaum.
4A4) Sou. Mangal Dadasaheb Desai
Age: Adult
Shankeshwar Tal. Hukeri, Belgaum
4A5) Sou. Ashatai Changonda Patil
Age: Adult
R/o. Narwad, Tal. Miraz, Dist. Sangli.
4A6) Sou. Shobha Prakash Patil
Age: Adult
R/o. Kanangale, Tal. Gadhingalaj,
Dist. Kolhapur.
4B) Appasaheb Shankarrao Patil
Age: 55,Occu: Agriculture
R/o Gotkhindi, Tal. Walwa, Dist. Sangli
5. Shivubai W/0 Ramchandra Desai
(Since Deceased through Legal Heirs)
5A) Annasaheb Ramchandra Desai
(Since Deceased through Legal Heirs)
5A1) Champabai Annasaheb Desai
Age: Adult
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5A2) Avinash Annasaheb Desai
(Since Deceased through Legal Heirs)
5A2a) Smt. Sunita Avinash Desai
(Since Deceased through Legal Heirs)
5A2b) Vishal Avinash Desai
5A2c) Vaibhav Avinash Desai
(Both being minor through natural
Guardian 5A2a)
All R/o. Kavathepiran, Tal. Miraj,
Dist. Sangli.
5A3) Kamal Gangadhar Vasagade
R/o. Bagani, Tal. Walva, Dist. Sangli
5A4) Sou. Kavita Shamgonda Patil
R/o. Takawade, Tal. Shirol, Kolhapur
5B) Madhukar Ramchandra Desai
(Since Deceased through Legal Heirs)
5B1) Rajakka Madhukar Desai
(Since Deceased through Legal Heirs)
5B1a) Pralhad Madhukar Desai
5B1b) Arun Madhukar Desai
5B1c) Ashok Madhukar Desai
(Since Deceased through Legal Heirs)
5B1c1) Shobha Ashok Desai
Age: Adult.
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5B1c2) Pooja Ashok Desai
Age: Adult.
5B1c3) Shivdata Ashok Desai
Minor through Respondent No. 5b1c
All R/o. Kavathe Piran, Dist. Sangli.
5B2) Pralhad Madhukar Desai
5B3) Arun Madhukar Desai
(Since Deceased through Legal Heirs)
5B3a) Rekha Arun Desai
Age: 50 yrs.
5B3b) Amol Arun Desai
Age: 30 yrs.
All R/o. Kavathe Piran Tal. Miraj
Dist. Sangli.
5B3c) Aparna Rajesh Nagrale
Age: 26 yrs.
R/o. Pooja-Sayali Apartment, 2nd Lane
Vidya Nagar, Warnali. Sangli,
Tal. Miraj, Dist. Sangli.
5B4) Ashok Madhukar Desai [Deceased]
5B4a) Shobha Desai
Age: Occu.
5B4b) Pooja Desai
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5B4c) Shivdatta Desai
5C) Ramchandra Tatoba Desai [Deleted]
5D) Smt. Tarabai Shidgonda Patil
Age: Adult Occu: Household
R/o. Dhulegaon, Tal. Tasgaon, Sangli
6. Sou. Akkubai Raygonda Patil
(Since Deceased through Legal Heirs)
6A) Rudragonda Raygonda Patil
(Since Deceased through Legal Heirs)
6A1) Sushila Rudragonda Patil
[Deceased ]
6A2) Suresh Rudragonda Patil
Age: 62 years,Occu: Agriculture
R/at. Chandur tek, Tal. Chikodi,
Belgaum
6A3) Vina Gundappa Hukkeri
Age: 59 years,Occu: Household
R/at. Ankali, Tal. Chikodi, Belgaum
6B) Chandragonda Raygonda Patil
(Since Deceased through Legal Heirs)
6B1) Savitri Chandragonda Patil
Age: Adult.
6B2) Ravindra Chandragonda Patil
Age: Adult.
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Both 6B1 and 6B2 R/0. 1252,
Kamanves, Dhere Galli,
Miraj, Dist. Sangli.
6B3) Vandana Tammana Aminbhavi
Age: Adult
R/o. Ayodhya Apartments, Opp. Joshi
Hospital, Kulgaon, Badlapur,
Tal. Ulhasnagar, Dist. Thane.
6B4) Pushpa Annasaheb Patil
Age: Adult.
R/o. Savalja Tal. Tasgaon, Sangli
6B5) Sou. Nisha Mohan Gadge
Age: Adult
R/o. Lokur, Tal. Athani, Dist. Belgaum
6B6) Suvarna Anil Vethare
Age: Adult
R/o. Plot No.5, Vidyanagar, Miraj.
6C) Hongonda Raygonda Patil
Age: Adult Occu: Agri.
6D) Shri. Satgonda Raygonda Patil
Age: Adult
Both 6C and 6D R/0 Chandur,
Tal. Chandur, Dist. Belgaum
6E) Shri. Changonda Raygonda Patil
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(Since Deceased through Legal Heirs)
6E1) Sunanda Changonda Patil (Deleted)
6E2) Lata Ramgonda Patil
R/o. at Post Nej, Tal. Chikodi, Belgaum
Dist. Belgaum
6E3) Vimal Sadashiv Bedkaile
R/o. At Post, Chandur tek Tal. Chikodi
Dist. Belgaum.
6F) Shankargouda Raygonda Patil
(Since Deceased through Legal Heirs)
6F1) Krushnabai Shankargouda Patil
(Since Deceased through Legal Heirs)
6F2) Shivanand Shankargouda Patil
Age: 34,Occu: Agriculture
A/p: Chandur, Tal. Chikkodi,
Dist. Belgaum.
6F3) Sandip Shankargonda Patil
(Since Deceased through Legal Heirs)
6F3A) Smt. Smita Sandip Patil
Age: 30 yrs,Occu: Household
A/p. Shanshikant Anand Joshi,
Ganesh Colony, Sambhaji Nagar,
2nd Cross, Vadgaon, Belgavi 590005
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6F3B) Kum. Yash Sandip Patil
Age: Minor, Occu: Education
Through legal guardian Mother-
Smt. Smita Sandip Patil
6F3C) Kum. Ved Sandip Patil
Age: Minor, Occu: Education
Through legal guardian Mother-
Smt. Smita Sandip Patil
6F4) Sou. Sangita Chandrashekhar
Patil
Age: 36,Occu: Household
A/p. Basaveshwarwadi, Savalaj,
Tal. Tasgaon, Dist. Sangli.
6G) Jaygonda Raygonda Patil
Age: Adult
6D to 6G all R/o. Chandar,
Tal. Chikodi, District Belgaum
6H) Sau. Sumitra Shamgonda Patil
Age: Adult
R/0. Dhulegaon, Tal. Tasgaon,
Dist. Sangli
6I) Malagonda Raygonda Patil
Age: Adult
R/o. Chandur, Chikodi, Belgaum
7. Smt. Saubai w/o Chandragonda Patil
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Age: 45,Occu: Household
Resident of 1252, Kamanwes,
Dhere Galli, Miraj, Sangli
8. Sushila Raygonda Patil
A/p. Dhulgaon, Tal. Tasgaon,
Dist. Sangli. ... Respondents
Mr. Drupad Patil a/w. Mr. Rugwed R. Kinkar, Ms. Srushti Chalke,
Mr. Namit Pansare and Mr. Ajay Jaybhay for the Appellants.
Mr. Umesh Mankapure a/w. Ms. Rati S. Sinhasane and Mr. Nilesh
Wable for respondent nos. 1 to 3 and 8.
Mr. Mrinal Shelar for Respondent nos. 5A1 to 5B4C, 6C to 6I and
6A1 and 6A2.
Mr. Dheeraj Patil for Respondent nos. 4A2 to 4A6 and 4B.
CORAM : GAURI GODSE, J.
RESERVED ON: 24th APRIL 2025
PRONOUNCED ON: 14th AUGUST 2025
JUDGMENT:
1. This second appeal is on behalf of the original plaintiffs to
challenge the concurrent judgments and decrees dismissing the
suit for partition and separate possession. They prayed for effecting
partition and separate possession as per the agreement for partial
partition dated 16th December 1974, and for a decree for partition in
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respect of the remaining joint family properties. The plaintiffs in the
alternative prayed that if the partial partition is not accepted, a
decree for partition of all the suit properties be granted for ½ share
to the plaintiffs.
2. The second appeal is admitted vide order dated 27 th July
1995 on the following substantial questions of law :
"e. Both the courts below erred in holding that the
genealogy was incorrect. On the contentions raised by the
respondent nos. 1 to 3, the female members of both the
branches were brought on record by amendment granted by
the court. Thus, when the female members were brought on
record with the leave of the court, the court cannot go behind
its own order and hold that the genealogy was incorrect. The
appellants submit that all the members of both the branches
were brought on record and none remained to be added and
as such the genealogy as amended ought to have been
accepted as correct. The finding given by the trial court at
issue no.6 is therefore wrong;
f. The impugned judgment and decree by the trial court
contained full of mistakes and misstatements of facts which
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the lower appellate court failed to consider. For instance, in
para 9 of the impugned judgment and decree of the trial
court, it is mentioned that Malgonda had 3 sons (i) Dada (ii)
Babgonda and (iii) Ramgonda which is not the case of
anyone. Dada and Babgonda were the only two sons of
Malgonda. This is a wrong theory introduced by the trial
court without any pleading or evidence;
h. Both the courts below erred in treating the document (at
Exhibit-151 below) as a legal and complete partition deed
between the two branches. This document shows that Dada
alone separated from the joint family by taking 2 annas share
towards his share with a direction that Shamgonda should be
given 1/3rd in place of his ½ share and 2/3 rd share to
Shivgonda's branch. There is no reason propounded as to
why Shamgonda's share be reduced to 1/3 rd from his ½
share to which he is legally entitled;
k. Both the courts failed to appreciate the contentions of
the appellants that the said document at Exhibit-151 below
was illegal, inter alia for the following reasons:
i. It is a sham and bogus document got executed by
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an unauthorized person and without any considera-
tion;
ii. The said document was never acted upon.
Raygonda in his deposition (at Exhibit 270) states that
the land mentioned in the said document was never
given to Dada that Dada was never managing or culti-
vating the said land; that he entirely was dependent on
the second branch in his old age and after the death
of Dada, the said land or any part thereof was never
given as sharer or successor in Dada's branch.
These facts will go to show that the said document (at
Exhibit-151 below) or the arrangement arrived at
thereunder was never acted upon in any manner."
3. In view of the proviso to sub-section (5) of Section 100 of the
Code of Civil Procedure, the following additional substantial
questions of law are framed vide order dated 2 nd January 2025 :
(I) In view of the cause of action pleaded by the plaintiffs
and the prayers with regard to the claim of partition and
separate possession as per the document dated 16 th
December 1974 and the prayer for claiming half share in
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the suit properties, whether both the courts erred in
holding that the suit is barred by limitation by referring to
the execution of the document dated 2 nd February 1957?
(II) Since, there is no prayer to challenge the document
dated 2nd February 1957, whether the suit could have
been held as barred by limitation, on the ground that the
plaintiff no. 1, was a minor at the time of execution of the
said document, hence, the period of limitation was to be
computed from the date of attaining majority by plaintiff
no.1?
(III) In view of the prayers for partition and separate
possession based on the document dated 16 th December
1974, whether the suit for partition and separate
possession is within limitation?
(IV) Whether the suit properties acquired in the name
of Shivgonda and Pirgonda can be accepted as joint
family properties, on the ground that Shivgonda and
Pirgonda have no independent source of income and that
the said properties were purchased by using funds of
Hindu Undivided Family?
1-SA-374-1995.doc
Facts in brief :
4. The appellants filed Civil Application No. 1383 of 2013 for
producing copies of mutation entries and copies of certified copies
of registered documents in this appeal under Order 41 Rule 27 of
the Code of Civil Procedure, 1908. This application was directed to
be heard along with the second appeal. There is no reply filed
opposing this application. Only the copies of mutation entries that
were referred to and relied upon by the parties relevant to deciding
the substantial questions of law framed in the second appeal are
permitted to be relied upon by way of additional evidence. Hence,
the application for additional evidence is allowed to the extent of
the mutation entries as referred to in this judgment. Before
examining the rival submissions on behalf of the parties, it is
necessary to refer to the following relevant dates and events and
the evidence as referred to and relied upon by the learned counsel
for the appellants:
a) The plaintiffs described the suit properties in Schedule A
and Schedule B. Some of the properties were in the name
of Malgonda Patil, some were in the name of Dada and
some in the name of Babgonda Patil. The following family
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tree describing the relationship between the parties is not
in dispute.
b) 27th November 1942: Dada adopted Shidgonda, by
executing a document registered on 27 th January 1943
(Exhibit-152).
c) 1st June 1949 : Shamgonda was born. He studied till 1957
at Dhulgaon, and thereafter, at Kavathe Piran from 1957 to
1963. Thereafter, from 1963 to 1966, at Sangli. Performed
marriage with the daughter of Akkubai in 1969.
d) 1951 : Shidgonda died.
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e) 10th April 1956 : Dada and Babgonda submitted a joint
application before Talathi for giving effect to the mutual
partition effected by them in March 1956. Accordingly,
mutation entry No. 790 dated 1st June 1956 was recorded.
As per the said Mutation Entry, S. No. 129/1 was allotted
to the share of Dada. Whereas S. No. 129/2 was allotted
to the share of Babgonda. Furthermore, in the remaining
lands, ½ share was given to each of them (Anewari) in the
lands mentioned at Sr. No. 1 and 2, except S. No. 64/1.
The said Mutation Entry was certified on 21 st January
1958. Copy of said Mutation Entry is produced in this
appeal pursuant to the application allowed under Order 41
Rule 27 of the Code of Civil Procedure, 1908.
f) 3rd December 1956 : Babgonda Died.
g) 2nd February 1957 : Dada and Shivgonda executed a
Conditional Sale deed bearing Registration No. 191/1957
in favour of Parvatibai in respect of 6 acres from Survey
No. 129/1 for consideration of Rs.5000/- (Exhibit-138). On
15th January 1962, reconveyance executed by Parvati in
favour of Shivgonda and Shamgonda (Exhibit-218).
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h) 2nd February 1957 : Dada and Shivgonda executed a
Registered Partition Deed. Dada executed said document
for himself and as the natural guardian of Shamgonda
(Exhibit -151). Land admeasuring 2 Acres from the old
survey No. 129/1 (Gat No. 477) was allotted to the share
of Dada. 1/3rd share was allotted to Shamgonda and 2/3 rd
share to Shivgonda in the following properties:- Survey
No. 64/1, 68/3, 67/7, 61/7, 61/4, 91/7, 129/1, 129/2,
131/1B, 130/12, 130/2, 130/6, 73/9, 68/4, 131/4 [S.No.
130/11, 130/17, which are not the suit properties, because
of well]. House Property bearing C.S.No. 20 and 27
allotted to the share of Shivgonda.
i) 21st January 1958 : The Mutation Entry No. 790 was
certified. M.E. 962 and 963 were made on the basis of
M.E.790. These documents are produced in this appeal
pursuant to the application allowed under Order 41 Rule
27 of the Code of Civil Procedure, 1908.
j) 1st April 1958 : Dada Died.
k) 15th April 1958 : Mutation Entry Nos. 962 and 963 were
recorded. Vide Mutation Entry No. 962, the name of
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Shivgonda was recorded as heir of Babgonda. Mutation
Entry was effected on an application of Shivgonda.
Perusal of the Mutation Entry would show that Shivgonda
accepted 1/2 share of Babgonda. Vide Mutation Entry No.
963, the name of Shamgonda was recorded as heir of
Dada. Shivgonda recorded his name as the guardian of
Shamgonda. These documents are produced in this
appeal pursuant to the application allowed under Order 41
Rule 27 of the Code of Civil Procedure, 1908.
l) 15th April 1958 : Vide Mutation Entry No. 964, the effect of
the registered partition deed dated 2 nd February 1957 was
allegedly given in the revenue record. This mutation entry
was also as per the application of Shivgonda. However, it
is contrary to Mutation Entry No. 790. This document is
produced in this appeal pursuant to the application allowed
under Order 41 Rule 27 of the Code of Civil Procedure,
1908.
m) 5th November 1958 : Consent Deed by Shivgonda for
sharing properties as 50:50 shares [Exhibit-258].
Execution was duly proved by examining attesting witness
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Shivling Jangam(P.W.2), and even Raygonda has
admitted the signature of Shivgonda.
n) 3rd December 1959 : Shivgonda purchased 2/3rd share of
S. No. 130/6 for consideration of Rs.1000/- by using HUF
funds. This land is occupied by Shamgonda.
o) 4th April 1960 : Shamgonda purchased S.No. 68/9 and
68/10 for Rs.1000/- by using HUF funds.
p) 14th June 1960 : Shivgonda purchased S. No. 13/1 and
13/3 for Rs.5000/- in the name of Pirgonda by using HUF
funds. On this date, Pirgonda was 17 years old as per his
School leaving certificate.
q) 18th May 1967 : Shivgonda purchased S. No. 76/2 in the
name of Pirgonda for Rs.17,000/- by using HUF funds.
r) 19th January 1970 : Shivgonda purchased residential
property no. 1248, 1249 and 1252 for Rs.20,000/- by using
HUF funds.
s) Up to 1970 : The Family was a joint family, Shivgonda was
the manager, Shamgonda was studying till 1967.
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Submissions on behalf of appellants:
5. Learned counsel for the appellants submitted that defendant
nos. 5 and 6 had agreed to release their shares only if the
document of 1974 was executed and implemented, and
Shamgonda was given a half share. With reference to the
independent accounts in the names of the parties, learned
counsel for the appellants submitted that for the purpose of the
sale of sugarcane, the shares of the sugar factory were required
in the individual names and therefore separate accounts were
maintained by the parties. He submitted that the statements
recorded before the Talathi at the time of effecting Mutation
Entry No. 199 would support the plaintiffs' contention that,
irrespective of the separate accounts, the suit properties always
remained joint family properties. Documents of release were not
executed by defendant nos. 5 and 6, as objections were raised
to the document executed in 1974.
6. Learned counsel for the appellants relied upon cross-
examination of Shamgonda to support their submissions that
defendant nos. 5 and 6 had agreed to release their share only if
the partition document of 1974 was acted upon. With reference
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to the submissions made on the document of 1974, learned
counsel for the appellants relied upon the trial court's findings,
which recorded that the document would not be admissible as it
was not registered. He submits that the trial court's findings are
not in accordance with the contents of the agreement. He
submitted that the agreement of 1974 pertained to the family
arrangement for the division of the property. However, the same
was never acted upon. Hence, non-registration of the document
could not have been considered as a ground not to rely upon the
document in evidence.
7. With reference to the release of shares by defendant nos. 5
and 6, learned counsel for the appellants relied upon the
application filed by them for releasing their share; however, they
refused to execute any deed of release, as the 1974 document
was not acted upon by defendant nos. 1 to 3. With regard to the
ground of suit being within limitation, learned counsel for the
appellants submitted that the plaintiffs did not challenge the
document of 1957. Since 1957, all the lands were commonly
enjoyed, and the division of 1/3rd and 2/3rd shares as recorded in
the 1957 document was never given effect to. Hence, the
property was given to the plaintiffs in 1972 on an application filed
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by defendant no.1. Thus, there was no act of exclusion on the
part of defendant nos. 1 to 3. Thus, in the year 1962, when the
deed of reconveyance was executed regarding Parvatibai,
defendant no. 1 signed as guardian of the plaintiffs.
8. Learned counsel for the appellants submitted that in 1971, an
application was filed by defendant no. 1 to enter the names of
his sons; therefore, the 1974 document was not implemented
and based on the application by defendant no. 1, Mutation Entry
No. 199 was effected. In 1976, Mutation Entry No. 362,
recording a regrant in the joint name, was given effect to. The
statements of defendant nos. 2 and 3 were recorded before the
learned Talathi objecting to the 1974 document on the ground
that there was no release deed executed by defendant nos. 2 to
6. Hence, in view of the objection raised by defendant nos. 2
and 3, the statements were recorded by the learned Talathi. He
submitted that, since there was an attempt to alienate the family
property, the suit was filed in 1977. Learned counsel for the
appellants, therefore, submitted that there was no substance in
the objection raised that the suit was barred by limitation.
9. Learned counsel for the appellants further submitted that
the document of 1957 executed by Dada as guardian of the
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plaintiff no. 1 made an unjust partition as a larger share was
given to the branch of Babgonda. Even otherwise, when plaintiff
no.1's mother was alive, Dada had no authority to sign the
document as his guardian. Hence, on a grievance made by
plaintiff no. 2, i.e. the mother of plaintiff no. 1, Dada and
Shivgonda executed the document in 1958. Thus, the 1957
document was not given effect to, and in the document of 1958,
defendant no. 1 agreed to give an equal share to the plaintiffs.
Thus, on the ground of reopening of the partition, the objection
raised to the suit being barred by limitation would not be
sustainable.
10. Learned counsel for the appellants submitted that once
the 1957 document was not accepted and implemented, the joint
family nucleus continues. Hence, the properties claimed to have
been self-acquired properties of defendant nos. 2 and 3 cannot
be accepted as their independent property, as there is no
evidence on record to support their contention that the
properties were purchased from their independent source of
income. He submitted that the revenue entries and the receipts
towards payment of land revenue relied upon by the plaintiffs
support their contention that, from 1975, the plaintiffs started
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paying land revenue. Hence, the properties purchased in the
name of defendant nos. 2 and 3 are also purchased from the
joint family nucleus, and defendant nos. 1 to 3 cannot claim
exclusive right over the said property.
11. To support his submissions, that when a partition
effected between the members of the Hindu undivided family
which consists of minor, it is proved to be unjust and unfair and
is detrimental to the interests of the minor the partition can
certainly be reopened irrespective of the length of time when the
partition took place, learned counsel for the appellants relied
upon the decision of the Hon'ble Apex Court in the case of
Ratnam Chettiar & Ors vs S. M. Kuppuswami Chettiar & Ors 1.
12. Learned counsel for the appellants relied upon the
decisions of the Hon'ble Apex Court in the case of Ganayya and
another Vs Radhabai and others 2 and in the case of
Madhegowda Vs Ankegowda3 to support his submissions that
Dada could not have acted as natural or defacto guardian of
plaintiff no.1 (Shamgonda) when his mother and natural
guardian was alive.
1 (1976) 1 SCC 214
2 (1997) 11 SCC 332
3 (2002) 1 SCC 178
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13. Learned counsel for the appellants, therefore, submitted
that all the questions of law be answered in favour of the
appellants.
Submissions on behalf of the respondents:
14. Learned counsel for the respondents (defendant nos. 1
to 3) supported the impugned judgments and decrees. He
referred to the pleadings in paragraph 3 of the plaint, where the
plaintiffs alleged misrepresentation with reference to the
document of 1958. He submitted that, according to the plaintiffs,
the document was never acted upon; however, there is no
pleading and prayer for the reopening of the partition. Though
the document of 1957 is pleaded as executed on
misrepresentation, there are no material particulars pleaded on
fraud and misrepresentation. Admittedly, Dada was the Karta of
the joint family; hence, he signed the document of 1957 on
behalf of the plaintiffs. Thus, even if Dada is not accepted as the
natural guardian of plaintiff no. 1, he was entitled to sign the
document as Karta of the joint family, and he had the right to
sign the document on behalf of plaintiff no.1 as he was a minor
at the relevant time.
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15. Learned counsel for the respondents submitted that
under no circumstances could plaintiff no. 2, i.e., the mother of
plaintiff no. 1, be appointed as legal guardian or natural guardian
with respect to the undivided interest in the Hindu joint family
property. Learned counsel for the respondents submitted that in
the Hindu Law, severance of status is an important aspect while
considering the nature of the property in dispute. He submits
that the actual division of the properties by metes and bounds
would not be relevant for deciding the severance of the status of
the joint family. In the present case, the partition of the joint
family property by metes and bounds would be irrelevant, as
there is severance of the status of the joint family. He further
submitted that the documents of 1974 relied upon by the
plaintiffs to support their claim of partition and separate
possession cannot be accepted in evidence as the document is
an unregistered document.
16. Learned counsel for the respondents submitted that so
far as the first document of 1957 is concerned, it is a registered
document and therefore subsequent documents of 1974 cannot
be read in evidence as the registered document of 1957 would
prevail upon the unregistered document. He submitted that the
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partition document of 1974 relied upon by the plaintiffs was
admitted subject to an objection raised on the non-registration of
the document. Hence, merely exhibiting the document would not
make it admissible in evidence.
17. Learned counsel for the respondents relied upon the
particulars pleaded in paragraph 4 of the written statement of
defendant nos. 1 to 3 and he submitted that in view of the
specific pleading raising objection on the execution of the 1974
document, the plaintiffs failed to discharge their burden to
support that the 1974 document would have been acted upon in
the absence of defendant nos. 5 and 6 executing relinquishment
deed.
18. Learned counsel for the respondents further relied upon
the specific pleading regarding the sale of the flour mill
belonging to the joint family after the document of 1957 was
registered. He therefore submitted that there was a severance of
the joint family status after registration of the 1957 document. He
submitted that the order of regrant in the name of plaintiff no. 1
based on his independent share as per the 1957 document is
sufficient to hold that there was severance in the joint family
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status and the partition was also effected by metes and bounds.
He thus submits that the properties purchased subsequently by
defendant nos. 1 to 3 cannot be termed as purchased from the
joint family nucleus. He submitted that the entire claim of the
plaintiffs is based on the unregistered document, which cannot
substitute the registered document of 1957, which was never
under challenge and was acted upon by the parties.
19. Learned counsel for the respondents further submitted
that the plaintiff no. 1 became a major in 1967. Hence, if he
intended to raise any dispute on the 1957 document executed
by Dada on his behalf, the suit could have been within limitation
only within three years of the plaintiff no. 1 attaining majority.
Hence, the suit was hopelessly barred by limitation. Learned
counsel for the respondents, therefore, submitted that dismissal
of the suit as barred by limitation is required to be confirmed in
this second appeal by answering all the questions of law in
favour of defendant nos. 1 to 3.
20. Learned counsel for the respondents relied upon the
decisions of the Hon'ble Apex Court in the cases of Bishundeo
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Narain Vs Seogeni 4, Kale Vs Deputy Director of Consolidation 5
Ranganayakamma Vs K.S. Prakash6 M. R. Vinoda Vs M. S.
Susheelamma7 Thamma Subbamma Vs thamma Tatamma8 ,
and Sri Narayan Bal Vs Shridhar Sutar 9.
Submissions on behalf of respondent no. 4a2 to 4b :
21. Learned counsel for respondent nos. 4a2 to 4b
(Parvatibai - daughter of Dada) supported the submissions on
behalf of the plaintiffs. He submitted that even Parvatibai would
be entitled to her separate share in the suit properties.
Analysis and Conclusions :
22. The relationships between the parties are not in dispute.
It is also not in dispute that the suit properties are ancestral joint
family properties. The plaintiff no. 1 is the son of plaintiff no.2
4 1951 SCC 447
5 (1976) 3 SCC 119,
6 (2008) 15 SCC 673,
7 (2021) 20 SCC 180,
8 (1987) 3 SCC 294
9 (1996) 8 SCC 54
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and Sidgonda, who was the adopted son of Dada. Sidgonda
was the biological son of Babgonda, i.e. Dada's brother.
Sidgonda died on 27th November 1942. Hence, Dada, the
paternal grandfather of plaintiff no. 1 and father-in-law of plaintiff
no. 2, claims to have acted as guardian of plaintiff no. 1. Thus,
based on a registered document dated 2 nd February 1957, the
respondents claim that there was a partition. Dada signed this
document as the guardian of plaintiff no. 1, who was a minor at
the relevant time. However, plaintiff no. 2, the mother and
natural guardian of plaintiff no. 1, disputes the same and claims
that she made a grievance about the document. Execution of the
consent deed dated 5th November 1958 (Exhibit 258) by
Defendant no. 1 supports the theory of the plaintiffs that the
1957 document was never acted upon and defendant nos. 1 to 3
accepted the half share of the plaintiffs. The 1958 document is
proved by examining the attesting witness and is also admitted
by defendant no. 2. Hence, I do not find any substance in the
argument raised on behalf of the respondents that the 1957
document would prevail over the 1958 document only because
the 1957 document is registered.
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23. Defendant no. 5 (Shiubai) is the daughter of Babgonda,
and her daughter is married to plaintiff no. 1. Defendant no. 6 is
also the daughter of Babgonda. Thus, it is the case of appellants
and defendants nos. 5 and 6 that, since as agreed in 1958, an
equal share was not given to plaintiff no. 1, they did not execute
the release deed. Hence, they even claimed that there was no
partition. Defendant no. 5, i.e. Shivubai, and Defendant no. 6,
Akkubai, filed their respective written statements and claimed
1/3rd share in the share of Babgonda.
24. Defendant no. 4, i.e. Parvatibai, is the biological
daughter of Dada; thus, she claims an equal share along with
Sidgonda (father of plaintiff no. 1) through Dada. Defendant no.
4 filed her written statement and disputed the adoption of
Sidgonda. However, she has not led any evidence to object to
the adoption deed. In this second appeal, her heirs have
supported the arguments made on behalf of the plaintiffs. She
also disputed the partition deed dated 2 nd February 1957. She
contended that the document dated 2nd February 1957, executed
without any consideration, is void and would not be binding upon
her. Hence, Parvatibai claimed partition of her independent
share.
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25. The suit claim was opposed by defendant nos. 1, 2 and
3. They admitted execution of the MOU dated 25 th May 1974
and 16th December 1974. According to them, Akkubai and
Shivubai had never relinquished their share, and therefore, the
MOU executed in 1974 automatically stood cancelled. They
further pleaded that Dada had voluntarily executed the
registered partition deed dated 2 nd May 1957. In view of the
registered partition deed, 1/3rd share was given to plaintiff no. 1
(Shamgonda) and 2/3rd share was given to Defendant no. 1
(Shivgonda). They further pleaded that the agreement executed
between the plaintiffs and defendant no. 1, on 5 th November
1958, the plaintiffs failed to comply with the terms and conditions
in the agreement. Hence, the agreement did not subsist. They
further pleaded that the agreement was not registered and thus
the plaintiffs would not be entitled to claim any right based on
the document of 1958. Defendant nos. 1, 2 and 3 further
pleaded that the plaintiffs' prayer for partition and separate
possession filed by way of the present suit in the year 1977 was
therefore barred by limitation.
26. Defendant nos. 1 to 3 contended that, as per the
partition deed, the plaintiffs never objected to the separate
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occupation of defendant nos. 1 to 3. Thus, they have
constructed water well and also laid pipe line in the land bearing
Survey No. 130 and thus the suit property cannot be made
subject matter of the dispute. With regard to the land bearing
Gat No. 270A, they contended that it was inam land and when
inam was abolished, plaintiff no. 1 was regranted 5 Anas 4 pai
share. In regard to Gat No. 59 of village Dhulgaon and Survey
No. 76/2 of village Miraj, they contended that the properties were
self-acquired properties of defendant no.3. The land bearing Gat
No. 245 and properties described at Sr. Nos. 8, 10, 11, 15 and
17 were claimed to be self-acquired properties of defendant
no.1. Thus, defendant nos. 1 to 3 denied the suit claim of the
plaintiffs for partition and separate possession of the suit
properties.
27. The trial court accepted the contention on behalf of the
respondents regarding the partition document of 1957 produced
at Exhibit-151 and held that the same was not acted upon. Thus,
the trial court held that in view of the agreement dated 25 th May
1974 and the deed dated 16 th December 1974, the earlier
document stood cancelled. It was held by the trial court that as
per the evidence of Shamgonda he has been enjoying income
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from the suit properties and being entitled to half share and the
document at Exhibit 244 not being a registered document could
not have been claimed by the plaintiffs to seek partition. The trial
court therefore held that the property admeasuring 2 Acres
which remained with Dada in view of the document of 1957 the
evidence revealed that the same remained in possession of
Shivgonda and the plaintiffs could not claim any right in the said
property.
28. The trial court held that it cannot be concluded that the
plaintiffs constructed the water well and the pipelines as a
portion was in occupation of defendant no. 1. The trial court
refused to rely upon the document at Exhibit 224, i.e. the
agreement dated 16th December 1974, on the ground that it was
not a registered document. Thus, the trial court concluded that
there was ample evidence to show that the document dated 2 nd
May 1957 had been given effect to, and separate accounts and
occupations were continued. Hence, the trial court held that the
sale deed executed with regard to Survey Nos. 13/3 and 13/1 in
favour of defendant no. 3 could not have been made part of the
suit for partition and separate possession. The appeal court
confirmed the findings recorded by the trial court on the separate
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possession and cultivation of the parties and thus confirmed the
dismissal of the suit.
29. The appellants relied upon the documentary evidence
to show that all the joint family properties were never partitioned.
The Consent Deed of 5 th November 1958 is relied upon to
support that defendant no. 1 to divide the properties 50:50 with
plaintiff no.1. The shares of the sugarcane factory were in the
name of Shivgonda, though the cultivation was done jointly.
Marriage expense of Shamgonda was done by Shivgonda. In
the consolidation scheme, lands were not separately shown, and
separate 7/12 extracts were not prepared by marking division.
Plaintiff no. 1 (Shamgonda) was a minor till 1967. In M.E. No.
963, the name of Shivgonda is recorded as the guardian of
Shamgonda, which shows that the family was always joint. The
two Acres land allotted to Dada continued to be in possession of
the heirs of Shivgonda. The Conditional sale deed of 1968 for
S.No. 1050 was in the name of Shamgonda. In the re-
conveyance of 1962 of Parvati, Shivgonda is shown as the
guardian of Shamgonda. In the sale deed of 1962 of Hasan
Magdum, Shivgonda is shown as the guardian of Shamgonda.
S.No. 130/6 purchased in the name of Shivgonda.
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30. The evidence reveals that Raygonda has admitted that
till the death of Dada in 1958, Dada and Shivgonda were
managing the properties. The 7/12 extracts (Exhibit 131-135)
would make it clear that until 1970, Shivgonda alone was
cultivating the lands at Sr. No. 1. Shivgonda submitted an
application on 5th November 1971, to record the Anewari
(shares) by deleting his name, which was recorded for 10 Ana 8
Pai (M.E. 199 - Pencil entry). On 20th November 1971,
Shamgonda submitted an objection to the application dated 5 th
November 1971. On 14th December 1972, an application was
filed by Shivgonda to the Sarpanch to record the name of
Shamgonda to House No. 198. In 1973, Talathi made an entry
of ½ share of the plaintiff no. 1 in the cultivation column. On 25th
May 1974, Shivgonda, Shamgonda and Pirgonda executed an
MOU at Exhibit-221 in the presence of Panch witnesses wherein
½ share of Shamgonda was admitted.
31. Thereafter, on 16th December 1974, Shivgonda,
Shamgonda, Raygonda, Pirgonda, Shivubai and Akkubai
executed an MOU in the presence of panch witness and
accepted ½ share of Shamgonda [Exhibit-224]. The MOU
records that the lands are in use and in occupation of the parties
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as per the shares provided therein. The MOU further records
that Shivgonda has reduced his 2 Annas and 8 pai share and
has allotted the same to Shamgonda (Plaintiff), and Shamgonda
is cultivating the said lands. On 17th December 1974,
Shamgonda submitted statements to record names as per the
MOU dated 16th December 1974 before Awalkarkun, Tasgaon. A
similar statement was given by Shivgonda, Raygonda and
Pirgonda. Statement by Shivubai and Akkubai was also
recorded, releasing their share.
32. On 3rd September 1975, Pirgonda (Defendant No. 3)
executed a sale deed in favour of Smt. Savitribai Patil
(Defendant No. 7) for the Survey No. 76/2. On 26th September
1975, (Exhibit-171), an application was made by Shivgonda to
the Sarpanch to record the name of Shamgonda to House No.
152. Thus, all these facts and evidence also support the
plaintiffs' case about the execution of the document dated 16 th
December 1974. Only because it is not registered, it cannot be
discarded. The contents of the document only record the
agreement between the parties about the division of the shares;
there is nothing in the document that would make it compulsorily
registrable.
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33. The relationship between the parties is not in dispute;
hence, both courts erred in holding that the genealogy was
incorrect. Even in this second appeal, none of the parties has
disputed the genealogy pleaded by the plaintiffs. The pleadings
and the facts admitted by the parties regarding the relationships
between the parties are completely misappreciated by both
courts. Thus, both courts failed to adjudicate the dispute
between the parties correctly. Hence, the questions of law
framed in grounds (e) and (f) are answered accordingly.
34. The original holder was Malgonda, who was survived by
two sons, that is, Dada and Babgonda. Thus, Dada and
Babgonda were entitled to a half share each. Dada died on 1 st
April 1958, and Babgonda died on 3rd December 1956. Dada
had one biological daughter, Parvati (defendant no. 4) and
Babgonda's son Ramgonda was adopted by Dada and was
named Sidgonda. Shiubai (defendant no. 5), Akkubai (defendant
no. 6) and Shivgonda (defendant no. 1) are children of
Babgonda. Defendant nos. 2, 3 and 7 are children of Shivgonda.
Plaintiff No. 1 is the son of Sidgonda and Plaintiff No. 2. Thus,
on the death of Babgonda, defendant nos. 1, 5 and 6 would be
entitled to his half share and on the death of Dada, defendant
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no. 4 and plaintiffs would be entitled to his half share as
Sidgonda had predeceased Dada. Plaintiff no. 1, being the son
and plaintiff no. 2, being the widow, would be entitled to the
share of Sidgonda. Therefore, the respective branches of Dada
and Babgonda would be entitled to a half share each. Thus, the
document dated 2nd February 1957 (Exhibit 151), styled as a
partition deed signed only by Dada and Shivgonda, thereby
dividing some of the ancestral properties only amongst Dada,
Shamgonda (plaintiff no. 1) and Shivgonda (defendant no.1),
cannot be treated as a legal and complete partition between the
two branches, that is, the respective branches of Dada and
Babgonda.
35. In the decision of Ratnam Chettiar, the Hon'ble Apex
Court held that, when, a partition effected between the members
of the Hindu undivided family, which consists of minors is proved
to be unjust and unfair and is detrimental to the interests of the
minors the partition can certainly be reopened after whatever
length of time when the partition took place. It is also held that in
such cases it is the duty of the Court to protect and safeguard
the interests of the minors, and the onus of proof that the
partition was just and fair is on the party supporting the partition.
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36. In the case of Madhegowda, the Hon'ble Apex court
held that Section 11 of the Hindu Minority and Guardianship Act,
1956 brings about a material change in the law relating to de
facto guardians or de facto managers of a Hindu minor's estate
by enacting in express terms that after the commencement of
the Act, no person has the right or authority to do any act as a
de facto guardian of such minor. It is further held that although
the expression "de facto guardian" is often used in judgments,
there is in law nothing like a de facto guardian and that the
statute recognises a natural guardian or a testamentary
guardian or a guardian appointed by the court.
37. In the decision of Ganayya, the Hon'ble Apex court held
that Section 11 of the Hindu Minority and Guardianship Act,
1956 explicitly provides that after the commencement of the Act,
no person is entitled to deal with the minor's property on the
ground of acting as de facto guardian. As per Section 6(a) of
the Hindu Minority and Guardianship Act 1956, the father and,
after him, the mother of a minor is the natural guardian. Hence,
under no circumstances could Dada, who was the paternal
grandfather, act as a natural guardian of plaintiff no. 1. The
mother of plaintiff no. 1 was alive; hence, she was the only
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natural guardian of plaintiff no.1, as his father had expired.
Hence, the legal principles discussed above, supports the case
of the plaintiffs that the document of 1957 signed by Dada as
guardian of plaintiff no.1 cannot be accepted as a valid
document on behalf of the plaintiffs.
38. The decisions in the case of Bishundeo Narain and in
the case of Kale are on the point of necessity of giving full
particulars on allegations of fraud and undue influence while
challenging a partition. In the decision of Ranganayakamma,
the legal principles settled are on the issue of fraud and
misrepresentation, rendering a consent deed for settlement of
partition to be voidable.
39. In the decision of M. R. Vinoda, the concept of Karta
and relinquishment of a minor's share by a Karta or the minor's
mother as natural guardian were the issues decided. In the
decision of Thamma Subbamma, the controversy involved was
regarding the alienation of the coparcenary property without the
consent of other coparceners to be void. In the decision of Sri
Narayan Bal, the point decided was whether section 8 of the
Hindu minority and Guardianship Act 1956, was attracted while
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disposing the minor's share by a karta or adult member of the
joint family.
40. However, in the facts of the present case, there are no
such controversies to be decided; hence, the said decisions
relied upon by the learned counsel for the appellants would not
be relevant for deciding the questions of law framed in this
appeal.
41. Apart from the document not being a legal and
complete partition, it is also challenged on the ground that it is
sham and bogus, as Dada had no authority to sign it as the
natural guardian of Shamgonda (plaintiff no. 1), when his mother
was the natural guardian. I do not find any substance in the
argument on behalf of the respondents that the document would
be binding upon the plaintiffs as Dada, in the capacity of the
karta of the joint family, was authorised to take a decision on
behalf of Shamgonda, who was a minor at the relevant time.
Dada did not sign the document in the capacity of Karta, but he
signed as the natural guardian of Shamgonda. When
Shamgonda's mother, who is his natural guardian, was alive,
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there was no reason for Dada, who is the paternal grandfather,
to act as natural guardian.
42. The material on record does not show that the 1957
document was acted upon. Defendant no. 2 (Raygonda) in his
deposition admitted that the land mentioned in the said
document was never given to Dada, and he was not managing
or cultivating the said land, and that even after his death, the
land or any part thereof was never given to the branch of Dada.
Hence, the questions of law framed in grounds (h) and (i) are
answered accordingly by holding that the document at Exhibit
151 cannot be accepted as a legal document to conclude that
there was a valid and complete partition by metes and bounds
amongst all the sharers in respect of all the joint family
properties. Therefore, the document at Exhibit 151 cannot be a
ground to refuse the plaintiffs' right to seek partition and
separate possession.
43. The plaintiffs pleaded and proved by supporting
evidence that in 1971, an application was filed by defendant no.
1 to enter the names of his sons; therefore, the 1974 document
was not implemented and based on the application by defendant
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no. 1, Mutation Entry No. 199 was effected but not certified as
objection was raised by plaintiff no. 1. The document dated 25 th
May 1974 (Exhibit 221) was executed between Shivgonda
(defendant no. 1), Pirgonda (defendant no. 3) and Shamgonda
(plaintiff no. 1), admitting a half share of Shamgonda. By a
document dated 16th December 1974 (Exhibit 224) signed by
Shivgonda (defendant no. 1), Pirgonda (defendant no. 3),
Raygonda (defendant no. 2), Shiubai (defendant no. 5), Akkubai
(defendant no. 6) and Shamgonda (plaintiff no. 1), also a half
share of Shamgonda was admitted. The statements of
defendant nos. 2 and 3 were recorded before the learned Talathi
objecting to the 1974 document on the ground that there was no
release deed executed by defendant nos. 2 to 6. The prayers for
partition and separate possession based on the document dated
16th December 1974 and the subsequent events, would
therefore be the relevant factors to be considered for deciding
the issue of whether the suit was within limitation. These facts
show that there was a joint family nucleus and there was no
separation by metes and bounds, although the parties had made
some arrangements regarding dividing the properties. However,
in view of the objections and the disputes between the parties as
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discussed above, there was never any partition effected by
metes and bounds.
44. There was an attempt to alienate the family property by
executing a sale deed dated 3 rd September 1975 by defendant
no. 3 in favour of defendant no. 7(daughter of defendant no. 1).
Hence, the suit was filed in 1977. Despite this cause of action
pleaded and proved to seek partition and separate possession,
both the courts erred in holding that, in view of the 1957
document purportedly executed for partition, the suit was barred
by limitation.
45. The suit was not filed to challenge the document dated
2nd February 1957. There is no material on record to show that
this document was ever acted upon. The joint family nucleus
was not disturbed. Therefore, there never arose any reason for
the plaintiffs to challenge the document. The parties adopted
corrective measures after the 1957 document. In 1958, various
revenue mutations were effected that show that the parties
accepted a half share of plaintiff no. 1. After Dada died in 1958,
Shivgonda (defendant no. 1) even signed as guardian for
plaintiff no. 1. Another important document is on record at
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Exhibit 258. It is a consent deed dated 5 th November 1958,
signed by defendant no. 1, accepting half share of plaintiff no. 1.
Execution of this document is duly proved by examining
attesting witness as PW 2, and defendant no. 2 admitted that it
was signed by defendant no. 1. Thus, for deciding the issue of
limitation, the date when plaintiff no. 1 attained majority was
irrelevant. Hence, the first, second and third additional questions
of law are answered in favour of the plaintiffs by holding that the
suit is well within the limitation in view of Article 110 of the
Schedule to the Limitation Act 1963.
46. The theory of partition and separate possession based
on the document of 2nd February 1957 (Exhibit 151) pleaded by
defendants nos. 1 to 3 is not proved. I have recorded reasons to
accept the plaintiffs' contentions that the joint family nucleus
existed and there was no partition and separate possession by
metes and bounds. There is no material on record to indicate
any separate source of income of defendant nos.1 and 3.
Defendant Nos. 1 and 3 have failed to prove that the properties
purchased in their name are from their separate income and not
from the joint family nucleus. Hence, the suit properties
acquired in the name of Shivgonda (defendant no. 1) and
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Pirgonda (defendant no. 3) are accepted as joint family
properties, purchased using the funds of the Hindu Undivided
Family. Hence, the fourth additional question of law is answered
accordingly in favour of the appellants (plaintiffs).
47. The Hon'ble Apex Court in the case of Ratnam Chettiar,
relied upon by the learned counsel for the appellants, dealt with
the legal principles on reopening of partition. In the present
case, the first prayer of the plaintiffs is for effecting partition as
per the document dated 16th December 1974 (Exhibit 224) for
partial partition and for effecting equal partition in the remaining
properties. This document is executed by defendant nos. 1, 2, 3,
5 and 6 and plaintiff no. 1. I have recorded reasons to hold that
even defendant no. 4 (Parvatibai - daughter of Dada) is entitled
to the half share of Dada. This document ignores the share of
defendant no. 4 and plaintiff no. 2. Plaintiff no. 2, who is the
widow of Sidgonda (son of Dada who predeceased Dada), is a
Class-I heir, and thus will also be entitled to a share in Dada's
half share. Hence, in the facts of the present case, the theory of
partial partition as per the 1974 document or reopening of
partition based on the 1957 document would not arise. Hence,
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the legal principles settled in the decision of Ratnam Chettiar
would not apply.
48. In the above paragraphs, I have held that the 1957
document was never acted upon, and would not be binding upon
the other co-sharers and thus the parties are held entitled to
partition and separate possession in respect of all the suit
properties as prayed in the suit as an alternative relief.
49. Thus, the aforesaid dates and events coupled with the
supporting evidence reveal that there was never any partition
effected by metes and bounds. Both courts got carried away
with the document dated 2 nd February 1957, by ignoring the
subsequent major events as discussed in the preceding
paragraphs, which shows that the parties accepted plaintiff
no.1's half share in the suit properties. Hence, all the questions
of law are answered accordingly in favour of the appellants
(plaintiffs).
50. For the reasons recorded above, the second appeal is
allowed by passing the following order:
a) The judgment and decree dated 30th April 1985, passed
by the Joint Civil Judge (SD) Sangli in Special Civil Suit
1-SA-374-1995.doc
No. 78 of 1977, and the judgment and decree dated 3 rd
December 1994, passed by the III Additional District
Judge Sangli in Regular Civil Appeal No. 219 of 1988,
are quashed and set aside.
b) Special Civil Suit No. 78 of 1977 is decreed for partition
and separate possession for the suit properties
described in the Schedules 'A' and 'B' of the plaint in
the following terms:
(i) The respective heirs and legal representatives of
Plaintiff No. 1 and Defendant No. 4 brought on
record, and Plaintiff No. 2 are jointly entitled to 1/2
share and separate possession.
(ii) The respective heirs and legal representatives of
Defendants Nos. 1, 5 and 6 brought on record are
jointly entitled to 1/2 share and separate
possession.
(iii) The decree shall be drawn accordingly.
(iv) The decree for partition and separate possession
for the suit properties, assessed to the payment of
revenue, shall be executed by the Collector or
1-SA-374-1995.doc
any gazetted subordinate of the Collector deputed
by him in this behalf, as per Section 54 of the
Code of Civil Procedure 1908, in accordance with
law.
(v) The suit properties, except the lands assessed for
the payment of revenue, shall be executed by the
concerned civil court by drawing a final decree.
(vi) There shall be no order as to costs.
51. The Civil Application No. 1383 of 2013 is partly allowed.
52. The second appeal is allowed in the aforesaid terms.
53. Any other civil application or interim applications are
disposed of as infructuous.
[GAURI GODSE, J.]
