Bombay High Court
Shri Shripati Sitaram Gahin (Deceased ... vs Venubai Sayaji Gahin on 31 January, 2025
2025:BHC-AS:4815
901-243.12 sa.docx
Iresh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 243 OF 2012
Shri. Shripati Sitaram Gahin
(Deceased) by his heirs
1. Appa Shripati Gahin
Age 50 yrs. Occ: Agriculture
2. Maruti Shripati Gahin
Age 45 yrs. Occ: Agriculture
3. Sayaji Shripati Gahin
Age 31 yrs, Occ: Agriculture
4. Shivaji Shripati Gahin
Age 35 yrs, Occ: Agriculture
5. Lilabai Kisan Gopnar
Age 52 yrs, Occ: Household
6. Sulabai Shankar Gopnar
Age 47 yrs, Occ: Household
7. Malan Shrirang Kachare
Age: 30 yrs, Occ: Household
Nos. 1 to 4 and 7
R/o Bavdhan, Taluka -Wai,
Dist. Satara.
No. 5 R/o Sherechi Wadi,
Taluka. Phaltan, Dist. Satara
8. Girjabai Tukaram Gopnar
Age 72 yrs, Occ: Household
Resident of Sherechi Wadi,
Taluka Phaltan, Dist. Satara
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9. Appasaheb Shripati Gahin
Age 47 yrs, Occ: Agriculture,
R/o Bavdhan, Taluka -Wai,
Dist. Satara.
Through their duly constituted
power of attorney
Maruti Shripati Gahin
Age Adult, Occu: Agriculture,
R/o Bavdhan, Taluka -Wai,
Dist. Satara. ....Appellants
Vs.
1. Venubai Sayaji Gahin,
Age 72 yrs, Occ: Household,
R/o Bavdhan, Taluka -Wai,
Dist. Satara.
2. Phulabai Ananda Thombare
Age 52 yrs, Occ: Household,
R/o Bavdhan, Taluka -Wai,
Dist. Satara.
3. Pratap Gopalrao Pawar
Age 72 yrs, Occ: Agriculture
Chairman, Wai Taluka Sutgirni
Bavdhan, Taluka -Wai,
Dist. Satara. ....Respondents
Mr. Sushil A. Inamdar Advocate for the Appellants
Mr. Pradeep S. Gole for respondent nos. 1 and 2
CORAM : GAURI GODSE, J.
RESERVED ON: 17th OCTOBER 2024
PRONOUNCED ON: 31st JANUARY 2025
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901-243.12 sa.docx
JUDGMENT:
BRIEF FACTS:
1. This second appeal is preferred by original defendant nos. 1 to 3
to challenge the concurrent judgments and decrees granting partition
and separate possession in a suit filed by respondent nos. 1 and 2.
The trial Court decreed the suit determining the shares of plaintiffs and
defendants nos. 1 and 2. In the first appeal preferred by defendant
nos. 1 to 3, the trial Court's decree is modified, redetermining the
shares.
2. The parties are claiming through the original holder, Sitaram,
who died in 1974. His wife, Dhondabai, died in the year 1990. Sitaram
and Dhondabai had two sons, Shripati (Defendant No. 1), and Sayaji
and one daughter, Girijabai (Defendant No. 2). Plaintiff no. 1 is the
widow of Sayaji, and plaintiff no. 2 is their daughter. Defendant no. 3 is
Shripati's son. Defendant no. 4 is the purchaser through defendant
no. 3.
3. The second appeal was admitted vide Order dated 27 th July
2015, on the following substantial questions of law.
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"(i) Whether the Courts below have rightly holding that
Gat No. 324 and 373 were the ancestral property in the
hands of Sitaram?
(ii) Whether the Courts below were rightly including Gat
No. 44/3B for partition and separate possession?"
SUBMISSIONS ON BEHALF OF THE APPELLANTS:
4. Learned counsel for the appellants submitted that out of the suit
properties described in the plaint, admittedly, Gat No. 1165 was the
only ancestral property. He submits that the plaintiffs have admitted in
their oral evidence that Sitaram and Shripati purchased Gat No.
44/3B/2 from their goat business. He thus submits that the plaintiffs
cannot seek any partition in respect of Gat No. 44/3B/2. Learned
counsel for the appellants further submitted that the oral admissions
given by the plaintiffs clearly indicate that the plaintiffs have not proved
Sayaji's independent income to support their case that Sayaji had
contributed to purchasing the suit properties.
5. Learned counsel for the appellants submitted that defendant no.
1 had examined his son as a power of attorney holder. He submitted
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that defendant no. 1's witness has clearly stated about the
independent source of income of Sitaram and Shripati from the goat
business. He submitted that defendant no. 2's witness, i.e. DW 2, was
an independent witness examined on behalf of defendants nos. 1 to 3,
who supported that Sitaram and Shripati carried out the goat business
and the suit lands were purchased from their independent income from
the goat business.
6. Learned counsel for the appellants submitted that the plaintiffs
have not challenged the sale deeds or the gift deeds relied upon by
defendant nos. 1 to 3 to indicate that the suit properties are
independent properties of Sitaram and Shripati and the plaintiffs are
not entitled to seek any partition and separate possession. Learned
counsel for the appellants submitted that out of the suit properties, Gat
No. 324 and 373 were purchased in the name of Sitaram along with
two other purchasers, and Sitaram had 1/3 rd share in these lands.
Thus, said lands are self-acquired properties of Sitaram. Learned
counsel for the appellants further submitted that Gat No. 44/3B/2 was
purchased in the name of Shripati along with three other purchasers,
and thus, Shripati had a 1/4th share in the said land. So far as Gat No.
324 and 373 are concerned, according to the learned counsel for the
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appellants, the same were independent properties of Sitaram, and he
had executed the gift deed in favour of defendant no. 3. Hence, those
suit properties were independent properties of defendant no. 3.
Learned counsel for the appellants thus submitted that in the absence
of any challenge to the sale deeds in the name of Sitaram and Shripati
and the gift deed in the name of defendant no. 3, the plaintiffs were not
entitled to seek any partition and separate possession with respect to
the said properties.
7. Learned counsel for the appellants submitted that defendant no.
1, i.e. Shripati, had executed a settlement deed with plaintiff no. 1, and
OH-20R out of Gat No. 1165 was given to plaintiff no. 1 towards her
maintenance in 1983. Learned counsel for the appellants thus
submitted that the suit properties were independent properties of
Sitaram and Shripati, and the plaintiffs were not entitled to seek any
partition and separate possession. Learned counsel for the appellants
thus submitted that in view of the aforesaid facts regarding the sale
deeds in the name of Sitaram and Shripati, the first question of law be
answered in favour of the defendants by holding that Gat No. 324 and
373 were independent properties of Sitaram.
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8. With reference to the second question of law, learned counsel for
the appellants submitted that Gat No. 44/3B/2 was purchased in the
name of Shripati out of his independent source of income with Sitaram
from the goat business. Hence, the said Gat number also could not
have been included for partition by both the Courts. Hence, even the
second question of law be answered in favour of the defendants.
SUBMISSIONS ON BEHALF OF RESPONDENTS:
9. Learned counsel for the respondents (plaintiffs) submitted that
defendants nos. 1 to 3 had pleaded prior partition to oppose the
plaintiffs' prayer for partition and separate possession. He further
submits that the defendants failed to lead any oral evidence by
entering into the witness box; however, they relied upon the evidence
of Shripatis's son, who deposed as the power of attorney holder of
Shripati. He submits that Shripati's power of attorney holder had no
personal knowledge of the pleadings of prior partition.
10. Learned counsel for the respondents submitted that the
settlement deed produced at Exhibit 90 is signed by plaintiff no. 1 and
defendant no. 1. He submits that the settlement deed clearly indicates
that the suit properties were ancestral, and as plaintiff no. 1's husband
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Sayaji was no more; the defendants had agreed to allow plaintiff no. 1
to cultivate Gat No. 1165 for her maintenance. Learned counsel for the
respondents submits that execution of the settlement deed that
permitted plaintiff no. 1 to cultivate Gat No. 1165 itself is sufficient
proof to accept that there was never any prior partition. He submits
that if there was any prior partition, there was no reason for permitting
plaintiff no. 1 to cultivate Gat No. 1165 for her maintenance.
11. Learned counsel for the respondents submitted that evidence of
DW 2 relied upon by the learned counsel for the appellants cannot be
accepted as reliable and trustworthy evidence as he is an interested
witness. Learned counsel for the respondents submits that DW 2 is the
brother-in-law of defendant no. 1, and thus, he is interested in securing
the interest of his sister; therefore, his evidence cannot be accepted as
trustworthy and reliable evidence. Learned counsel for the
respondents points out the admissions given by DW 2, where he
admits that he had no knowledge about prior partition or had no
knowledge about any independent source or separate income
received by Sitaram and Shripati from the goat business. According to
learned counsel for the respondents, DW 2 admitted that the joint
family property, i.e. Gat No. 1165, was used as grazing lands for the
901-243.12 sa.docx
goats. Thus, learned counsel for respondents submitted that no oral
evidence can be accepted as supporting evidence to the defendants'
case of prior partition.
12. Learned counsel for the respondents submits that the settlement
deed was executed on 4th July 1983. Hence, the contents of the
settlement deed show that at least on the date of execution of the
settlement deed, the family was a joint Hindu undivided family. He thus
submits that suit properties must be assumed as joint family property
once jointness is admitted. Thus, though the sale deeds are in the
name of Sitaram and Shripati, lands are purchased from the income of
the joint Hindu family property. Hence, the plaintiffs claiming through
Sayaji, i.e. son of Sitaram, are entitled to claim partition and separate
possession.
13. Learned counsel for the respondents relied upon the pleadings in
the written statement in paragraph 6, where defendants nos. 1 to 3
admitted that the suit properties at serial nos. 3 to 5 were tenanted
joint family property. Learned counsel for the respondents also relied
upon the admissions given in the written statement regarding Sayaji's
independent income and Sayaji sending certain amounts to Sitaram
from his independent income as he admittedly worked in Mumbai.
901-243.12 sa.docx
Learned counsel for the respondents thus submits that evidence on
record clearly supports the plaintiffs' case that there was jointness and
thus suit properties, though standing in the name of Sitaram and
Shripati are rightly accepted by both the Courts as joint family
properties. To support the contention of jointness of the Hindu
undivided family, learned counsel for the respondents also relied upon
the admissions given by DW 1 in his oral evidence regarding income
from the ancestral property.
14. With reference to the gift deed executed by Sitaram in the name
of defendant no. 3 is concerned, learned counsel for the respondents
submitted that when the gift deed was executed, defendant no. 3 was
only two years old. He submits that once it is proved that the suit
properties were joint family properties purchased from the joint family
income, the execution of the sale deed by one of the family members
in favour of a third party or execution of the gift deed in favour of
defendant no. 3 would not take away the plaintiffs' right to claim
partition and separate possession. He thus submits that even if the gift
deed in favour of defendant no. 3 is accepted as a valid document; the
same would, at the most, bind Sitaram's share.
15. Learned counsel for the respondents thus submits that once, the
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plaintiffs prove the presumption of jointness, the burden was upon the
defendants to show separation. He submits that in the absence of any
evidence to show the division of the joint family property, the suit
properties are rightly accepted by both the Courts as joint family
property, and rightly, plaintiffs are held entitled to claim partition and
separate possession. To support his submissions, learned counsel for
the respondents relied upon the decision of this Court in the case of
Shamkalabai W/o Bharatsing Chouvan (Since deceased) through LRs
Bharatsingh Kishansing Chavan and others Vs. Bhikamsingh s/o
Kishansing Chouvan1 and the decision of the Hon'ble Apex Court in
the case of Chinthamani Ammal Vs. Nandagopal Gounder and
another2.
16. Learned counsel for the respondents submitted that in the
aforesaid decisions, it is held that the evidence of the property being
purchased in the name of one of the persons belonging to the joint
family would not render the property as his separate property. Learned
counsel for the respondents submits that in view of the similar facts of
the present case, the legal principles settled in the aforesaid decisions
squarely apply to the present case. Learned counsel for the
1 [2015(1) Mh.L.J. 78]
2 (2007) 4 Supreme Court Cases 163
901-243.12 sa.docx
respondents thus submits that the questions of law framed by this
Court regarding Gat No. 324, 373, and 44/3B/2 being joint family
property must be answered in favour of the plaintiffs.
CONSIDERATION OF SUBMISSIONS AND ANALYSIS:
17. I have considered the submissions made by both the parties. I
have perused the impugned judgments, pleadings and evidence on
record. Both the Courts, after a thorough examination of the evidence
on record, have accepted that the suit properties are Hindu joint family
properties. The plaintiffs contended that the settlement deed was
executed by playing fraud. However, neither party has disputed the
execution of the settlement deed and its contents. Hence, execution
of the settlement deed indicates that on the date of execution of the
settlement deed, defendant no. 1 had admitted jointness of the Hindu
undivided family and thus, plaintiff no. 1, being part of the Hindu
undivided family, was permitted to cultivate Gat No. 1165 for the
purpose of plaintiffs' maintenance.
18. The registered sale deed in favour of defendant no. 1 in respect
of Gat No. 1165 is accepted as purchased from joint family income and
thus belonging to the joint family. The objection raised on behalf of the
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plaintiffs to the gift deed is also dealt with by the trial Court with
reference to the objections that it was executed by playing fraud. It is
not in dispute that the gift deed is not challenged in the suit by making
a prayer for declaration. Thus, even if the gift deed is accepted as a
valid document, it would, at the most, bind Sitaram's share. Hence, the
validity of the gift deed would affect only the determination of the
shares as defendant no. 3 would be entitled to claim Sitaram's share in
addition to his own share. While determining the shares of the parties,
the trial Court has considered the gift deed. The trial Court held that by
way of the sale deed in the name of Sitaram, he had purchased 1/3 rd
share in respect of the property subject matter of the sale deed, and
Shripati had purchased 1/4th share by way of the sale deed in his
name in respect of the property subject matter of the said sale deed.
The plaintiffs have claimed partition and separate possession in the
1/3rd share purchased in the name of Sitaram and the 1/4 th share
purchased in the name of Shripati. The trial Court held that plaintiff no.
1 is entitled to 2 annas share, plaintiff no. 2 is entitled to 4 annas 8
paise share, defendant no. 1is held entitled to 6 annas 8 paise share
and defendant no. 2 is held entitled to 2 annas 8 paise share.
19. The first Appellate Court has confirmed the findings of facts
901-243.12 sa.docx
recorded by the trial Court on accepting the said properties as joint
family properties. The first appellate court held that the property at
serial no. 1, i.e. Gat no. 1165(old 1154) was ancestral property and
properties at serial nos. 2 to 5 were tenanted lands of Shripati and
lands at serial nos. 6 and 7, i.e. Gat Nos. 324 and 373 were purchased
from the joint family nucleus. Sitaram's wife, Dhondabai's share in Gat
No. 1165 (Old 1154) and house property is accepted as validly
bequeathed to Maruti, i.e. Shripati's son. Hence, it was held that
excluding Dhondabai's share, the rest was to be divided equally
amongst Shripati, Girijabai (daughter) and Sayaji (plaintiff no.1's
husband and plaintiff no.2's father). So far as the determination of
shares is concerned, the first Appellate Court has thus, modified the
plaintiffs' share and held jointly entitled to 41 Paise shares in the suit
properties Gat nos. 427, 184/1, 180, 172, 324 and 373 and 31 paise
share in Gat No. 44/3B/2 and suit house. So far as Gat No. 1165 (old
1154) is concerned, admittedly, by way of settlement deed, 20 gunthas
land was given to plaintiff no. 1. The first appellate court, thus, held
that plaintiff no. 1 is in possession of 20 gunthas of Gat No. 1165 (old
1154). There is no grievance made by the parties in this second appeal
about this determination of shares recorded by the first appellate court.
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The arguments were restricted only to the two questions of law
regarding whether Gat Nos. 324 and 373 were ancestral property in
the hands of Sitaram, and whether Gat No. 44/3B/2 could have been
included for partition.
20. A perusal of the oral evidence indicates that the defendants'
witness had no personal knowledge regarding any independent source
of income of Sitaram and Shripati. The oral evidence on record
indicates that the joint family property, i.e. Gat No. 1165, was used for
grazing purposes. Except for oral evidence stating that Sitaram and
Shripati had their independent source of income through the goat
business, there is no documentary evidence or any independent oral
evidence to prove the same. The independent income of Sayaji and
his contribution towards the joint family income is also admitted by the
defendant's witness. Sayaji i.e. plaintiff no. 1's husband and plaintiff
no. 2's father expired sometime in 1957. The oral evidence further
indicates that plaintiffs nos. 1 and 2 always resided in the same village
along with the defendants. The execution of the settlement deed at
Exhibit 90 indicates the jointness of the family and Gat No. 1165 given
to plaintiff no. 1 for her maintenance in view of the internal dispute
between the family. Though the settlement deed is challenged by the
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plaintiffs on the ground of fraud, the execution and its contents are not
in dispute; thus, the settlement deed supports the plaintiffs' case that
the suit properties belong to the joint family.
21. The defendants have sought to argue regarding prior partition;
however, they failed to produce any supporting document to show that
there was partition by metes and bounds. Thus, once the Hindu
undivided family's jointness is accepted, both Courts rightly hold the
suit properties as joint family properties in the absence of any proof of
separation. Once the suit properties are held to be joint family
properties, Sayaji would be entitled to his independent shares in the
said property. Hence, the plaintiffs claiming through Sayaji are rightly
held entitled to partition and separate possession in respect of the suit
properties.
22. Both the Courts have concurrently held that Gat Nos. 324, 373
and 44/3B/2 are joint family properties. On perusal of the evidence on
record and the reasons recorded by both Courts, I do not find any
illegality or perversity in the concurrent findings recorded by both
Courts. Though the defendants raised a plea of prior partition, it was
not proved by any supporting evidence. The evidence on record, as
discussed above, shows the jointness of the family and the existence
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of joint family properties. Hon'ble Apex Court, in the decision of
Chintamani Ammal, held that there exists a presumption in regard to
the continuance of a joint family, and even separate possession of the
co-sharers would not lead to a presumption of partition. Thus, in the
present case, in the absence of any proof of partition, the plaintiffs are
rightly held entitled to partition. This Court, in the decision of
Shamkalabai Chouvan, held that mere evidence that property was
purchased in the name of one person does not render the property his
separate property when the presumption of the existence of joint family
nucleus and joint family property is not rebutted. Thus, in the present
case, in view of concurrent findings of facts recorded by both the
Courts, the legal principles settled by the Hon'ble Apex Court in the
decision of Chinthamani Ammal and this court in the decision of
Shamkalabai, relied upon by the learned counsel for the respondents
squarely apply to the present case.
23. Thus, both the questions of law are answered accordingly in
favour of the plaintiffs.
24. Either of the parties does not dispute the determination of the
shares as modified by the first Appellate Court. Hence, for the reasons
recorded above, both questions of law are answered to confirm the
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impugned judgments and decrees.
25. Hence, the second appeal is dismissed, and the impugned
judgments and decrees are confirmed.
[GAURI GODSE, J.]
Digitally
signed by
IRESH
IRESH MASHAL
MASHAL Date:
2025.01.31
17:49:58
+0530
