Bombay High Court
Balu Waman Kakade(Deceased) vs Anna Waman Kkakade(Deceased) on 3 March, 2025
2025:BHC-AS:10730
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rrpillai IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 405 OF 2015
1. Sunil Anna Kakade
Age : Adult, Occ: Agriculturist
2. Sou. Kamal @Sitabai Parshuram Pawar
Age : Adult, Occ: Housewife
Both residing at: Sibwadi, Tal: Daund, Dist:
Pune
3. Sou. Suman Bajirao Jagtap
Age : Adult, Occ : Housewife
Residing at Ambale
Tal. Purandar, Dist. Pune
4. Kanta Kundlik Hinge
Age : Adult, Occ: Housewife
Residing at Hingne Vathar Appellants
Tal. Purandar, Dist. Pune (Org. Defendants)
Versus
1. Laxmi Balu Kakade
Age: Adult, Occ: Housewife
2. Sachin Balu Kakade
Age : Adult, Occ: Agriculturist
Note :This is the corrected judgment pursuant to speaking to minutes order dated 6 th March 2025.
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3. Vishal Balu Kakade
Age : Adult, Occ : Agriculturist
4. Ujjwala Sundam Bhoite
Age : Adult, Occ : Agriculturist
5. Sujata Santosh Kale
Age : Adult, Occ: Housewife
All residing at Sonwadi
Tal. Daund, Dist. Pune
6. Deepak Nana Kakade
Age : 26 years, Occ:Agriculturist/Service
7. Pravin Nana Kakade
Age : 18 years, Occ : Agriculturist/Service
All residing at Sonawadi, Tal. Daund,Dist:
Pune
8. Smt. Usha Balasaheb Bhoite
Age : 30 years, Occ : Housewife
Residing at Sonwadi
Tal. Daund, Dist : Pune
9. Smt. Krishnabai Jotiram Sapkal
Age : 48 years, Occ : Housewife
Residing at Jotiram Dayaram Sapkal,
Nityanand Road, Sharifbhai Chawl
In front of Society shop Respondents
Ghatkopar, Mumbai-86 (Original Plaintiffs)
Note :This is the corrected judgment pursuant to speaking to minutes order dated 6 th March 2025.
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WITH
CROSS OBJECTION (ST) NO. 24888 OF 2024
IN
SECOND APPEAL NO. 405 OF 2015
1. Shri Balu Waman Kakade
Since deceased through his Legal heirs
1A. Laxmi Balu Kakade
Age: Adult, Occ: Housewife
1B. Sachin Balu Kakade
Age : Adult, Occ: Agriculturist
1C. Vishal Balu Kakade
Age : Adult, Occ : Agriculturist
1D. Ujjwala Sundam Bhoite
Age : Adult, Occ : Agriculturist
1E. Sujata Santosh Kale
Age : Adult, Occ: Housewife
All residing at Sonawadi
Tal. Daund, Dist. Pune
2. Smt. Sushila Nana Kakade
Since deceased through her legal heirs
3. Deepak Nana Kakade
Age : 26 years, Occ:Agriculturist/Service
Note :This is the corrected judgment pursuant to speaking to minutes order dated 6 th March 2025.
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4. Pravin Nana Kakade
Age : 18 years, Occ :
Agriculturist/Service
All residing at Sonawadi, Tal.
Daund,Dist: Pune
5. Smt. Usha Balasaheb Bhoite
Age : 30 years, Occ : Housewife
Residing at Sonwadi
Tal. Daund, Dist : Pune Appellants
Versus
1. Shri Anna Waman Kakade
Since deceased through Legal heirs
1A. Sunil Anna Kakade
Age : Adult, Occ: Agriculturist
1B. Sou. Kamal@Sitabai Parshuram Pawar
Age : Adult, Occ: Housewife
Both residing at: Sibwadi, Tal: Daund,
Dist: Pune
1C. Sou. Suman Bajirao Jagtap
Age : Adult, Occ : Housewife
Residing at Ambale
Tal. Purandar, Dist. Pune
Note :This is the corrected judgment pursuant to speaking to minutes order dated 6 th March 2025.
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1D. Kanta Kundlik Hinge
Age : Adult, Occ: Housewife
Residing at Hingne Vathar
Tal. Purandar, Dist. Pune
2. Smt. Krishnabai Jotiram Sapkal
Age : 48 years, Occ : Housewife
Residing at Jotiram Dayaram Sapkal,
Nityanand Road, Sharifbhai Chawl
In front of Society shop
Ghatkopar, Mumbai-86 Respondents
Mr. J. S. Kini a/w. Mr. Arun Kini i/b. Mr. Suresh Dubey for
Appellants/Applicants.
Mr. Balasaheb Deshmukh for Respondent Nos. 1 to 8.
Mr. Vilas Tapkir for Respondent No. 9
CORAM: GAURI GODSE, J.
RESERVED ON: 24th OCTOBER 2024
PRONOUNCED ON: 3 rd MARCH 2025
JUDGMENT:
1. This Second Appeal is preferred by the original defendants to
challenge the judgments and decrees passed by the First Appellate
Court granting partition and separate possession to the plaintiffs.
Respondents had filed a suit for partition and separate possession,
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claiming one-fourth share in the suit property. The suit was dismissed.
The first appeal preferred by the plaintiffs is allowed, and the suit is
decreed granting one-third share to plaintiff no.1, legal heirs of
deceased Nana and defendant no. 1 each excluding the land already
sold by defendant no. 1 to defendant no. 2 to the extent of 2 anas 4
paise out of suit land bearing Gat No. 70A. Being aggrieved by the
decree for partition and separate possession the defendants filed the
present Second Appeal. Being aggrieved by the determination of
shares and exclusion of the land given to defendant no. 2, plaintiffs
have filed cross-objections.
2. By order dated 22nd March 2024, the Second Appeal is admitted
on the following substantial questions of law:
(I) Whether it was permissible for the Appellate Court to
disregard the partition between the parties for the reason that
the partition was an unequal partition?
(II) Whether the Appellate Court committed an error in law by
ignoring the subsequent conduct of the parties dealing with
their individual shares and alienating the same in favour of the
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third parties which indicated the clear intention of severance of
joint status?
(III) Whether the alienation of the properties as individual
properties subsequent to the Mutation Entry- Exh."37"supports
the theory of previous partition ?
3. By order dated 26th September 2024 following substantial
questions of law were framed in the cross objection:
(I) Whether defendant no. 2 would be entitled to get any
share in the suit property?
(II) Whether the First Appellate Court erred in excluding the
area from Gat No. 70A to an extent of 2 annas 4 paise on the
ground that it was sold by defendant no.1 to defendant no.2 in
as much as it was never the case of defendants that the said
area sold to defendant no.2?
(III) Whether the area to an extent of 2 annas and 4 paise
out of Gat No. 70A can be excluded on the ground as pleaded
by defendant no.1, stating that by consent the said share was
given to defendant no.2, as she had contributed towards
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amount of purchase price paid at the time of issuing 32M
certificate in the name of defendant no.1?
Facts in brief:
4. The suit was filed for partition and separate possession with
respect to Gat No. 46 (old Survey No. 14) and half share of Gat No.
70A (old Survey No. 24, 30 and 31). The plaintiffs are claiming partition
and separate possession through Waman. Waman had two wives,
both by the name of Hausabai. After the demise of the first wife,
Waman married Hausabai (plaintiff no.2). Waman had one son, Anna
(Defendant no. 1), from his first wife. Waman had two sons from his
second wife, Nana and Balu (Plaintiff no.1). Nana expired in 1984.
Nana's wife, Sushilabhai (Plaintiff no.3) and their sons are plaintiff nos.
4 and 5. Plaintiffs claimed that the suit properties were ancestral joint
family properties of Waman, and thus, plaintiffs claimed one-fourth
share in the suit properties. Plaintiff no. 2, i.e. Waman's second wife,
expired during the pendency of the suit. Since her heirs and legal
representatives were already on record, her name was deleted in the
trial court.
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5. There is no dispute that the common ancestor of the parties was
Waman, who had two wives. The relationship between the parties is
not in dispute. The dispute between the parties is whether the suit
properties are self-acquired properties of defendant no. 1- Anna, or is it
the ancestral property through the common ancestor Waman?
Submissions on behalf of the Appellants (Original defendants)
6. Learned counsel for the appellants submitted that;
a) Waman died sometime in the year 1942. Gat No. 70A was the
self-acquired property of Anna. There was a partition between
the parties, and plaintiffs were given a share even in Gat No.
70A. The pleadings of the plaintiffs indicate that 6 acres of land
out of Gat no. 70A was sold by Nana, i.e. predecessor in title of
plaintiff nos. 3 to 5. After acting upon the earlier partition and
alienating their share received in the earlier partition, the
plaintiffs were not entitled to seek partition and separate
possession.
b) To support the appellant's contention regarding prior partition,
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learned counsel for the appellants relied upon the admission
given by plaintiff no.1 in his cross-examination, thereby admitting
that there was a settlement between three brothers and
accordingly, shares were allotted to plaintiff no.1.
c) Learned counsel for the appellants further relied upon the oral
evidence of defendant no. 1, thereby stating that defendant no.1-
Anna and father of plaintiff nos. 4 and 5, i.e. Nana, had borrowed
money from defendant no. 2 for payment of purchase price
under The Maharashtra Tenancy and Agricultural Lands Act,
1948 ("Tenancy Act") for Gat no. 70A. Hence, by consent of all
the parties, an area to the extent of 2 anas and 4 paise out of
Gat No. 70A was given to defendant no.2. Defendant no. 2 is the
maternal sister of defendant no.1. In view of prior partition and
the parties acting upon prior partition the plaintiffs were not
entitled to seek partition and separate possession by reopening
earlier partition.
d) The pleadings and evidence on record clearly indicated that prior
partition had taken place and that it had been acted upon.
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Hence, there is no joint family property, and thus, there was no
question of any partition. The First Appellate Court completely
disregarded the earlier partition between the parties on the
ground that the partition was an unequal partition and, therefore,
the plaintiffs were entitled to partition.
e) Once partition takes place and the same is admitted and proved,
the joint family property does not exist, and thus, it is not open to
partition. To support his submissions learned counsel for the
appellants relied upon the decision of the Hon'ble Apex Court in
the case of Kesharbai alias Pushpabai Eknathrao Nalawade
(Dead) By Lrs and Another vs. Tarabai Prabhakarrao Nalawade
and Others1.
f) Pursuant to the prior partition, an application was filed by
defendant no. 1, i.e. Anna, to record the partition in the revenue
record. Accordingly, Mutation Entry No. 112 was affected, and
the same was certified, which shows that Gat No. 70A was also
partitioned. In view of Section 150 of the Maharashtra Land
(2014) 4 SCC 707
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Revenue Code,1966 ("MLRC"), once the mutation entry
recording partition was certified and the same was not disputed,
the First Appellate Court erred in granting partition and separate
possession by ignoring the prior partition.
g) To support the submissions of the appellants regarding prior
partition and that the reasons recorded by the First Appellate
Court would amount to a perverse appreciation of the evidence,
learned counsel for the appellants relied upon the decision of this
court in the case of Shekoji Bhimrao and Others vs. Motiram
Maruti Maratha and Others2. Learned counsel for the appellants
thus submitted that the prior partition recorded by way of
mutation entry could not have been ignored by the First
Appellate Court.
h) With reference to Mutation Entry No. 112, learned counsel for the
appellants relied upon the oral evidence of plaintiff no. 1,
admitting that he has been in possession of his share since 1974
in view of the settlement between the three brothers. Thus, on
2007(1) Mh.L.J 747
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receiving a share in the partition that took place in the year 1974,
Nana, i.e. predecessor in title of plaintiff nos. 3 to 5 executed the
sale deed dated 21st January 1983, alienating 6 acres area out of
the total area of 16H 45 R. The heirs of plaintiff no. 1 alienated
his share of 6 acres out of the total land of 16 H 45 R by sale
deed dated 3rd March 2015. Thus, the plaintiffs not only accepted
the shares allotted to them at the time of partition but also acted
upon the partition by alienating their respective shares. The
learned counsel for the appellants relied upon the decision of this
court in the case of Rajaram Patil Vs Nitin Patil 3 to contend that
the mutation entry and the admission of plaintiff no.1 would
support the theory of partition.
i) Waman expired sometime in 1942, i.e. prior to the Tenancy Act
coming into force. Defendant no. 1, i.e. Anna, was cultivating the
suit property as an independent tenant. The landlord had failed
to pay the occupancy price towards nazrana; hence, the suit
land, i.e. Gat No. 46, was regranted in the name of Anna by
order dated 6th June 1961. He submitted that Anna paid the
2024 SCC Online Bom 1742
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entire occupancy price, and the challan was produced on record
at Exhibit 49. There was no evidence on record to show that any
joint family funds were used to pay the occupancy price. The
payment challan also stands in the name of defendant no.1.
j) Learned counsel for the appellants relied upon the certificate
issued under Section 32M of the Tenancy Act received in the
name of defendant no. 1 in respect of Gat No. 70A. He thus
submits that all the documents on record clearly support the
defendants' case that suit properties were a self-acquired
property of defendant no. 1 and thus plaintiffs were not entitled to
seek any partition in respect of the same.
k) If the partition of the year 1974 is accepted as a valid partition,
the remaining questions of law would be redundant. However,
regarding the determination of shares, according to the learned
counsel for the appellants, the plaintiffs would not be entitled to
three-fourth share. Plaintiff no. 2, being a female heir, would
have no rights regarding the tenanted property. To support his
submissions regarding the applicability of Section 40 of the
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Tenancy Act, learned counsel for the appellants relied upon the
decision of the Hon'ble Apex Court in the case of Vithal
Dattatraya Kulkarni and Others vs. Smt. Shamrao Tukaram
Power and Others4.
l) The admissions on record support the defendants' case that at
the time of payment of the purchase price for Gat No. 70A,
money was taken by plaintiff no. 1 along with deceased Nana
and Anna from defendant no. 2. Hence, defendant no. 2 was
given a share in Gat No. 70A with the consent of all the parties.
Hence, defendant no. 1, being in cultivation, as a tenant of Gat
No. 70A, the suit property Gat NO. 70A was purchased by
defendant no. 1.
m) Though Anna, the other two brothers, Nana and Balu, were not
entitled to any share in Gat no. 70A, in view of the settlement
between the parties, they were granted a share in the year 1974.
Thus, the plaintiffs were not entitled to seek partition in both the
suit properties. So far as Gat no. 46 is concerned, plaintiffs were
already given a share in the year 1974. In Gat No. 70A, the
(1979) 3 SCC 212
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plaintiffs had no right in the said property as it is Anna's self-
acquired property. However, in view of the settlement between
the brothers in Gat No. 70A, the plaintiffs were given a share.
n) Thus, the First Appellate Court completely ignored the prior
partition, which was affected in the year 1974 and granted a
decree for partition and separate possession on the erroneous
ground that the earlier partition was unequal. It is not the
plaintiffs' case that since the earlier partition was unequal, they
had prayed to reopen it. He thus submits that the reasons
recorded by the First Appellate Court for granting a decree for
partition and separate possession amounts to disregarding the
earlier partition and the plaintiffs' admission of alienating their
individual shares. Learned counsel for the appellants thus
submitted that all the questions of law framed in the Second
Appeal and the cross objection must be answered in favour of
the appellants.
Submission on behalf of respondents nos. 1 to 8 (original plaintiffs)
7. Learned counsel for respondents nos. 1 to 8, i.e. original
plaintiffs, supports the impugned judgment and decree to the extent of
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granting partition and separate possession; however, the plaintiffs filed
cross-objection and raised a dispute on the determination of the
shares and exclusion of the shares to the extent of the area given to
the defendant. 2. Learned counsel for the plaintiffs submitted that;
a) The proceeding under the Tenancy Act was initiated in the name
of defendant no. 1 on behalf of the joint family, and the certificate
under Section 32M was issued in the name of defendant no. 1
on behalf of the joint family. The suit properties originally
belonged to Waman, and thus, defendant no. 1 is not entitled to
seek any exclusive rights over the suit property.
b) The occupancy price and the purchase price under the Tenancy
Act were paid from the income of the joint Hindu Undivided
Family properties. Thus, defendant no. 1 is not entitled to seek
any exclusive right in respect of the suit properties. The
defendants had brought in a theory of prior partition; hence, the
burden was upon them to prove that there was a partition by
metes and bounds. In the absence of any evidence regarding
partition by metes and bounds either by way of registered deed
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or by way of partition by following provisions under Section 85 of
the MLRC, the settlement between the parties cannot be
accepted as partition by metes and bounds. If there is no
partition of the suit properties by metes and bounds, the same
has to be presumed as joint family property, and the plaintiffs
would be entitled to seek partition and separate possession.
c) There is no evidence brought on record to support the
defendant's case that defendant no. 1 was an independent
tenant in respect of the suit property, and therefore, the
proceeding under the Tenancy Act was initiated in his name in an
individual capacity. The admission given by defendant no. 1 in
his cross-examination clearly indicates that Waman was a
protected tenant of the suit property, and after his death, the
name of defendant no. 1 was recorded as Karta or Manager of
the ancestral property. Learned counsel for the plaintiffs referred
to the suit notice calling upon defendant no. 1 to partition the suit
properties. However, it was a reply on behalf of defendant no. 1,
refusing to grant partition when defendant no. 1 had admitted in
the reply that Waman was a tenant in respect of both the suit
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properties.
d) In the absence of any evidence of the independent right of
defendant no. 1, he would not be entitled to seek exclusive rights
in respect of the suit properties and deny the plaintiffs' right to
get their shares separated. Learned counsel for the plaintiffs
supports the First Appellate Court's judgment and decree to the
extent of granting partition and separate possession to the
plaintiffs. However, he opposes the determination of the shares
made by the First Appellate Court and the exclusion of 2 anas 4
paise area given to defendant no. 2 on the ground that it was
sold to defendant no. 2.
e) The defendants have not pleaded that area of 2 anas 4 paise
share from Gat no. 70A was anytime sold to defendant no. 2.
The reasons recorded by the First Appellate Court excluding an
area of 2 anas 4 paise on the ground that it was sold to
defendant no. 2 is a perverse finding, and thus, the judgment
and decree is liable to be interfered with to that extent.
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f) Admittedly, defendant no. 2 had not filed any counter-claim
seeking any declaration of her right regarding the area that was
excluded on the ground that it was sold to defendant no. 2.
There was no foundation to the submissions made on behalf of
the defendants that the area of 2 anas 4 paise share in Gat no.
70A was given to defendant no. 2 by consent of the parties. The
pleadings have no clarification regarding the particulars of the
alleged consent. Even otherwise, without any documentary
evidence of a valid transfer of the share to defendant no. 2, the
area could not have been segregated or excluded by the First
Appellate Court.
g) There was no evidence on record to show that defendant no. 2
had contributed towards payment of the purchase price for Gat
no. 70A in the proceeding under the Tenancy Act. Even
otherwise, a mere contribution for payment of purchase price
under the Tenancy Act would not create any right in favour of
defendant no. 2. Thus, the question of law framed in the Second
Appeal, as well as cross objections, are required to be answered
in favour of the plaintiffs.
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h) Plaintiff no. 1 and deceased Nana are sons of Waman through
his second wife, who was plaintiff no. 2. Anna, defendant no. 1,
is the son of Waman from his first wife. Thus, plaintiff no. 1,
deceased Nana, plaintiff no. 2 and defendant no.1 are Class I
heirs of Waman who would get one-fourth share each and not
one-third as held by the First Appellate Court. After the death of
plaintiff no. 2, the plaintiffs are entitled to receive the share of
plaintiff no. 2, i.e. one-fourth share of plaintiff no.2 needs to be
divided amongst her two sons, i.e. Nana and Balu. Hence,
according to the learned counsel for the plaintiffs (respondent
nos. 1 to 8), the plaintiffs are entitled to receive plaintiff no.2,
Hausabai's one-fourth share. Hence, according to the learned
counsel for the appellants, deceased Nana and Balu, i.e. plaintiff
no. 2's sons both are entitled to receive a three-eighth share,
and the three-eighth share of Nana would be further divided
amongst heirs of Nana, which would be one-eight share. Thus,
the judgment and decree passed by the First Appellate Court
deserve to be modified to set aside the exclusion of the area
given to defendant no. 2 and redetermination of the share of the
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parties.
i) Defendant no. 1 - Anna, being step-son of Hausabai-plaintiff no.
2 would not be entitled to receive any share in plaintiff no. 2's
undivided share. To support his submissions that defendant no.
1 would not be entitled to receive any share in plaintiff no. 2's
share, learned counsel for the plaintiffs relied upon the decision
of the Hon'ble Apex Court in the case of Lachman Singh vs
Kirpa Singh and Others5.
j) In the absence of any evidence of partition by metes and
bounds, the First Appellate Court rightly disregarded the theory
of prior partition brought in by defendant no.1. The conduct of the
plaintiffs by executing the sale deed is concerned, learned
counsel submits that the plaintiffs executed the sale deeds in
respect of their undivided share. Hence, according to the learned
counsel for the plaintiffs, at the most, the area already sold by
them would be excluded from the area allotted to the plaintiffs
pursuant to the partition decree. He thus submits that the
[1987] 2 SCR 933
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questions of law be answered in favour of the plaintiffs.
k) Defendant no. 2 is not entitled to seek any share in the suit
properties through Waman as she is the maternal sister of
defendant no. 1. The only reason for excluding the area given to
defendant no. 2 is on the ground that the area was sold to
defendant no. 2. However, it is nobody's case that any part of the
area is sold to defendant no. 2 by way of a valid transfer
document. The theory of giving away area to defendant no. 2 by
consent of parties is not supported by any evidence. Even
otherwise, the area cannot be validly transferred only by
consent. Thus, the impugned judgment and decree deserve to
be modified by setting aside the exclusion of the area of 2 anas 4
paise given to defendant no. 2.
l) The impugned judgment and decree also require modification so
far as the determination of shares is concerned. He thus submits
that the question of law framed in the cross objections must also
be answered in favour of the plaintiffs.
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Submissions on behalf of Respondent no. 9 (Defendant No.2)
8. Learned counsel for defendant no. 2, i.e. respondent no. 9 in the
Second Appeal, adopted the submissions made on behalf of defendant
no. 1, i.e. appellants. Learned counsel for defendant no. 2 submits that
by way of Mutation Entry no. 112, the name of defendant no. 2 was
recorded in the revenue record to the extent of 6 acres of land, an area
of about 1 A 23.5 R was acquired by the railway department by private
negotiation and area to the extent of 4 Acres, and 8.5. gunthas was
given to defendant no. 2's daughter by a registered gift deed. He
submits that an area of 8R is recorded in the name of defendant no.
2's son. He thus submits that in view of the prior partition between the
parties and the allocation of shares to the plaintiffs and defendant no.
1, an area was transferred to defendant no. 2 in view of the
contribution made by her for payment of purchase price in respect of
Gat no. 70A. He thus submits that pursuant to the valid allotment in
favour of defendant no. 2, further alienation is done by executing valid
documents. He thus submits that the area of 6 acres allotted to
defendant no. 2 is presently not available with defendant no. 2, and the
same is transferred and acquired as stated hereinabove. He thus
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submits that at this stage, no adverse order can be passed in respect
of 6 acres of land allotted to defendant no. 2.
9. Learned counsel for defendant no. 2 thus submits that plaintiffs
are not entitled to seek any partition or separate possession, and thus,
the impugned judgment and decree deserve to be quashed and set
aside.
Consideration of the submissions:
10. I have considered the submissions made on behalf of the
parties. I have carefully perused both the judgments, pleadings and
evidence on record. The relationship between the parties is not in
dispute. Defendant no. 1 claims exclusive right in respect of Gat No.
70/A on the ground that he is an independent tenant purchaser of Gat
No. 70/A. So far as Gat No. 46 is concerned, defendant no. 1 claims
that it was an Inam land, he paid the occupancy price, and it was
regranted in his name to the extent of 14 Ana shares, and 2 Ana
shares were regranted in the name of the landlord. Defendant No. 1
also contended that though both the suit properties were his
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exclusively owned properties, a share was given to plaintiff No.1 and
deceased Nana in 1974 in respect of Gat No. 70A. Thus, prayer for
partition was opposed claiming that there was partition in 1974 and
accordingly Mutation Entry No. 112 was effected to record partition.
Defendant No. 2 is the maternal sister of defendant no. 1. Defendants
claim that defendant no. 2 contributed to the payment of purchase
price under the Tenancy Act for Gat No. 70A; hence, an area to the
extent of 2 Ana 4 paise was given to defendant no. 2, with the consent
of all the parties.
11. The trial court held that Waman expired prior to the Tenancy Act
coming into force. Hence, at the most Waman was a cultivator or
possessor of the suit properties. However, the trial court accepted
defendant no.1's contention regarding his independent right in the suit
properties and the theory of prior partition. The trial court held that the
plaintiffs were unable to show that the three brothers jointly cultivated
the suit lands. The trial court held that the plaintiffs admitted the
settlement between the three brothers and the allotment of shares in
the oral evidence. Hence, the trial court held that once the parties
accepted the partition and the parties had acted upon the partition, it
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was not open for the plaintiffs to seek partition and separate
possession. The trial court thus refused to grant partition and separate
possession by accepting that there was a prior partition in the year
1974.
12. The First Appellate Court allowed the parties to place on record
documents by way of additional evidence. The plaintiffs produced
Mutation Entries 211, 923 and 499. The defendant no. 1 produced
registered sale deeds executed by plaintiffs, the certificate under
section 32M of the Tenancy Act issued in the name of defendant no. 1
and the payment challans.
13. The first appellate court held that Waman died in 1942 before the
Tenancy Act came into force. It is held that Gat No. 46 was an Inam
land and Gat No. 70A was governed under the Tenancy Act. The first
appellate court referred to the provisions of Section 40 of the Tenancy
Act and relied upon the decision of this court in the case of Sarjerao
Maruti Sathe vs. Pralhad Laxman Sathe 6. Based on the evidence and
admissions given by defendant no. 1, the first appellate court held that
2010 (2) MhLJ 970
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at the time of the death of Waman, plaintiff no. 1 was 3 to 4 years old,
Nana was 5 to 6 years old, and defendant no. 1 was 20 to 15 years
old. Thus, it was rightly held that plaintiff no. 1 and Nana, being minors,
could not consent for defendant no.1 to claim tenancy rights or assert
their tenancy rights through Waman. It is further held that the name of
defendant no. 1 was thus, substituted in place of Waman in the
capacity as manager of the joint family. Thus, the First Appellate Court
accepted the plaintiffs' contention that the suit property belonged to the
joint family.
14. However, the First Appellate Court accepted the case of
defendant no. 1 regarding the contribution made by defendant no. 2 for
payment of the purchase price for Gat No 70A. The First Appellate
Court referred to the oral evidence of the parties to believe the
allotment of 2 anas 4 paise share to defendant no. 2. Mutation Entry
No. 112, relied upon by defendant no. 1 to contend that he had been
cultivating land since 1942, was examined by the First Appellate Court.
However, the First Appellate Court held that the name of defendant no.
1 was entered in respect of the suit land as Manager of the Joint
Family. The first appellate court held that plaintiff no. 1 and Nana were
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not parties to the partition of 1974. The theory of settlement between
three brothers, as pleaded by defendant no. 1 was disbelieved by the
First Appellate Court. The subsequent conduct of the plaintiffs
regarding alienating shares is also taken into consideration by the First
Appellate Court. The First Appellate Court held that the sale deeds
executed by plaintiffs were with regard to their undivided share.
15. The First Appellate Court, thus, after verifying the record, held
that both the suit lands were seen to be in possession of Waman
during his lifetime and thus refused to accept defendant no. 1's case
that the suit properties were his self-acquired property. The First
Appellate Court accepts the theory of joint family nucleus based on the
evidence on record. The First Appellate Court, being the last fact-
finding court, has thoroughly examined the pleadings and evidence on
record and disbelieved defendant no. 1's case that he was an
independent tenant with respect to the suit property Gat No. 70A. The
First Appellate Court held that Waman was a tenant in respect of both
the suit lands and after his death, the name of defendant no. 1 was
entered into the revenue record as Karta or Manager to the joint family.
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16. I have perused the record and proceedings. The defendant no. 1
has relied upon Mutation Entry 112 to support his theory of partition.
The observations by the first appellate court about unequal partition
are with reference to the Mutation Entry 112, which records the name
of plaintiff no. 1 and Nana. On an application made by defendant no. 1
in 1974, the names of plaintiff no. 1 and Nana were recorded in Gat
No. 70A to the extent of 2 Ana and 4 paise share in Gat No. 70A.
Hence, the observation made by the first appellate court would only
mean that by referring to the record it was observed that the partition
as alleged by defendant no. 1 was unequal. Thus, the reasons
recorded by the First Appellate Court do not indicate that the First
Appellate Court disregarded the prior partition on the ground of
unequal partition. Hence, individual allotment as recorded in mutation
entry is not accepted in support of the theory for prior partition.
17. A perusal of the record indicates that 32M certificate was issued
in 1972, and the Mutation Entry 112 was effected on an application
made by defendant no. 1 in 1974. On an application made by
defendant no. 1, the names of plaintiff no. 1 and Nana were recorded
in respect of Gat No. 70A to the extent of 2 Ana and 4 paise each.
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Defendant No.1 admitted that the application was made by him and it
was not signed by plaintiff no. 1 and Nana. For recording partition in
revenue records by metes and bounds, either procedure prescribed
under section 85 of the Maharashtra Land Revenue Code 1966
("MLRC") is to be followed, or the entry in the revenue record is made
based on some valid document as contemplated under section 150 of
MLRC. Nothing is seen on record to indicate that either of the
procedures is followed for recording Mutation Entry 112. Thus, a stray
admission by plaintiff no. 1 that he and Nana were cultivating their
share cannot be relied upon to conclude that there was partition by
metes and bounds. Other substantial material on record is sufficient to
hold that Waman was the original holder of the suit properties, and
after his death, the name of defendant no. 1 who was major, was
substituted, being eldest in the family and more particularly when
admittedly plaintiff no.1 and Nana were minors at the time of death of
Waman.
18. Nothing is brought on record to show that defendant no.1 had
any independent source of income, and he acquired the suit properties
out of his independent income by paying the occupancy price and the
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purchase price from his independent source of income. There is no
evidence that after following due procedure, as contemplated under
the unamended or amended Section 40 of the Tenancy Act, after the
death of Waman, the tenancy was continued only in the name of
defendant no.1. The first appellate court, therefore, rightly held that
tenancy proceedings were decided in the name of defendant no. 1 as
manager or Karta of the joint family. The joint family of Waman is not in
dispute. Both the courts held that Waman was the cultivator and
possessor of the suit properties. Thus, unless it is pleaded and proved
by cogent evidence that there was severance of the joint family and
the properties were partitioned by metes and bounds by following the
due procedure as recognized by law, the plaintiffs cannot be denied
their due share.
19. The first appellate court, being the last fact-finding court,
examined the record thoroughly and held that partition by metes and
bounds is not proved. The first appellate court examined the sale
deeds executed by the plaintiffs by registered sale deeds. I have
perused the documents and the evidence on record. The alienation is
for an undivided share in the suit properties. Thus, the Mutation Entry
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112 effected at the behest of defendant no.1 alone and the subsequent
conduct of the plaintiffs of alienating their undivided share cannot be
accepted as sufficient material to conclude that there is a complete
partition by metes and bounds. Thus, on perusal of the record and
proceedings and the reasons recorded by the first appellate court, I do
not find any illegality and perversity in the reasons recorded by the first
appellate court in holding that the suit properties originally belonged to
Waman and after his death defendant no.1's name was substituted as
manager or karta of the joint family, there is no partition by metes and
bounds and thus, the plaintiffs are entitled to partition and separate
possession.
20. In the decision of Kesharbai, the Hon'ble Apex Court held that
the joint and undivided family being the normal condition of a Hindu
family, it is usually presumed until the contrary is proved that every
Hindu family is joint and undivided, and all its property is joint. The
Hon'ble Apex Court further held that such presumption cannot be
made once a partition, whether general or partial, is shown to have
taken place in a family. Thus, it is held that once a division of right, title
or status is proved or admitted, the presumption is that all joint
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properties were partitioned or divided.
21. In the decision of Shekoji Bhimrao, this court was dealing with
the trial court's decree of injunction in a suit for simplicitor injunction,
which was reversed by the first appellate court. This court held that
ordinarily, the first appellate court would not draw inference opposite to
that of the trial court in the absence of perverse appreciation of the
evidence by the trial court. This court, in the case of Rajaram Patil
held that a separate record of rights is a strong indicator of severance
of joint status in addition to the manner in which the members
thereafter deal with the properties. However, this court also held that if
evidence indicates that despite separate revenue records, the
enjoyment of the properties was not in severalty, partition cannot be
inferred.
22. In the present case, both the courts held that Waman was the
possessor and cultivator of the suit properties. The trial court held that
defendant no. 1 became the owner in view of the orders passed under
the Tenancy Act and the Watan Abolition Act. The trial court also
accepted the theory of partition. However, the first appellate court held
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that after the death of Waman, defendant no.1's name was substituted
as manager to the joint family and disbelieved Defendant No.1's theory
of exclusive ownership and prior partition. I have recorded reasons to
confirm these findings. Hence, in view of the findings recorded
disbelieving the theory of partition, the legal principles settled in the
decisions of Kesharbai, Shekoji Bhimrao and Rajaram Patil relied
upon by the learned counsel for the appellants would not be of any
assistance to the arguments raised on behalf of appellants.
23. Learned counsel for the appellants submitted that the plaintiffs
would not be entitled to a three-fourth share, and plaintiff no. 2, a
female heir, would have no rights regarding the tenanted property.
Regarding the applicability of Section 40 of the Tenancy Act, learned
counsel for the appellants relied upon the decision of the Hon'ble Apex
Court in the case of Vithal Dattatraya Kulkarni. The question before the
Hon'ble Apex court for consideration was whether the heirs of the
tenant whose tenancy was terminated by the landlord were entitled to
exercise the right that the tenant would have, if alive, to obtain
possession of the land if the landlord ceased to cultivate at any time
within twelve years after he obtained possession. The Hon'ble Apex
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court dealt with the unamended and the amended Section 40 after
1956. Thus, to answer the question under consideration, the Hon'ble
Apex court held that under the amended Section 40, the heirs of the
tenant were automatically deemed to succeed to the tenancy,
however, there was no such deeming effect before the 1956
amendment. In the present case, no such controversy is involved.
Hence, it is not necessary to discuss about the legal principles on
applicability of unamended or amended Section 40. In the present
case, Waman died prior to 1956. There is nothing on record to indicate
that by following procedure under the unamended Section 40 of the
Tenancy Act, the tenancy was continued in the exclusive name of
defendant no. 1. There is also nothing on record to indicate that any
procedure was followed after the amended Section 40, to confer
exclusive tenancy upon defendant no.1. Therefore, the tenancy
continued in the name of joint family. In the decision of Sarjerao Maruti
Sathe, this court in similar facts held that Section 40 of the Tenancy
Act merely says that the landlord shall continue the tenancy in favour
of those willing. In the similar facts of the case, this court held that the
other two brothers were minors, therefore the landlord had no option,
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but to continue the tenancy in the name of the eldest son. This court
further held that in the absence of any evidence of issuance of notice
to other sons or their consent, mere certificate under Section 32M in
the name of the eldest son, would not give him exclusive title.
Therefore, the legal principles settled in the decision of this court in the
case of Sarjerao Maruti Sathe would apply. Thus, in the present case,
mere issuance of the purchase certificate or regrant order in the name
of defendant no. 1 would not confer upon him any exclusive right and
the same has to be construed as on behalf of joint family.
24. I have already recorded reasons to hold that the first appellate
court has not disregarded the theory of prior partition on the ground of
unequal partition. Hence, the first question of law is answered
accordingly. I have also confirmed first appellate court's findings that
Waman was the original holder of the suit properties, and after his
death, the name of defendant no. 1 was substituted as manager or
karta of the joint family. There is nothing on record to show that there
was partition by metes and bounds by the following procedure as
recognized by law. The sale deeds on record show that the alienation
by the plaintiffs is for their undivided share. Hence, the alienation
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would not indicate the intention to severance of the joint status and
would not support the theory of partition. Hence, the second and third
questions of law are answered accordingly. Thus, the plaintiffs would
be entitled to partition and separate possession, and the area already
alienated by them shall be binding only on their share while
determining shares. Hence, for the reasons recorded above, the
impugned judgment and decree do not require any interference on the
questions of law framed in the second appeal. Therefore, the
questions of law framed in the second appeal are answered
accordingly in favour of the plaintiffs.
Cross Objection No. 24888 of 2024:
25. The first question of law in the cross objection is regarding
defendant no. 2's entitlement to claim a share in the suit property.
Admittedly, defendant no. 2 is not related to Waman and thus is not
entitled to claim any share by relying upon any of the provisions of the
Hindu Succession Act, 1956. Admittedly, defendant no. 2 is the
maternal sister of defendant no.1. Thus, question no. 1 in the cross
objection is answered accordingly that defendant no. 2 would not be
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entitled to claim any share in the suit property.
26. With reference to the second question of law framed in the cross
objection, the theory of allotment of share to defendant no. 2 is based
on the consent of the parties. However, there is no pleading with
regard to any particulars of consent. There are no pleadings with
regard to in what manner the consent would create any right, title, or
interest in favour of defendant no.2. Admittedly, there is no document
of transfer of title executed in favour of defendant no. 2, hence mere
contribution, if any, by defendant no. 2 towards payment of purchase
price under the Tenancy Act would not ipso facto create any right, title
or interest in favour of defendant no. 2. Thus, the findings recorded by
the First Appellate Court that an area of 2 anas 4 paise share allotted
to defendant no.2 is required to be excluded from the partition because
of the sale by defendant no. 1 to defendant no. 2 is unsustainable.
Thus, the finding recorded for the exclusion of the area given to
defendant no. 2 is perverse. In the absence of any valid document of
transfer, it cannot be held that the said area was sold by defendant no.
1 to defendant no. 2.
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27. I do not find any substance in the argument raised on behalf of
defendant no. 2 that since the area allotted to defendant no. 2 is
further alienated, the impugned decree cannot be interfered with. Once
defendant no. 2 is held to have no title in respect of 6 acres of land
claimed by her, then further alienation made by her cannot be treated
as a valid transfer as it was without any entitlement. Only on the
ground of further alienation by defendant no. 2, the area claimed by
defendant no. 2 cannot be validated. Thus, the area claimed by
defendant no. 2 cannot be excluded from the decree for partition and
separate possession.
28. So far as the determination of shares made by the First Appellate
Court is concerned, it is necessary to examine the submissions made
on behalf of the plaintiffs. There is no dispute that the common
ancestor was Waman. Though there is dispute on date of death of
Waman, in view of the findings recorded by both courts, it is clear that
Waman expired before 1956. Waman had two wives Hausabai no.
1(deceased) and Hausabai no. 2 (plaintiff no.2). Hausabai no. 1
predeceased Waman. Therefore, on death of Waman, property
devolved upon the surviving widow, i.e. Hausabai no. 2 (Plaintiff no.2)
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and Waman's three sons, i.e. defendant no.1, deceased Nana and
Plaintiff no. 1. Anna-defendant no. 1 is the son of the first Hausabai
(deceased) and Waman. Deceased Nana and Balu (plaintiff no. 1) are
sons of Waman from his second wife (plaintiff no.2). Sushilabai
(plaintiff no. 3) is the widow of Nana. The plaintiffs nos. 4 (Deepak) and
5 (Pravin) are the sons of deceased Nana and plaintiff no. 3.
29. The Hon'ble Apex Court, in the case of Lachman Singh, was
considering the question whether the word 'sons' in clause (a) of sub-
section (1) of Section 15 of the Hindu Succession Act 1956, include
'step-sons' also. The Hon'ble Apex Court held that the word 'sons' in
clause (a) of Section 15(1) of the Act does not include 'step-sons' and
that step-sons fall in the category of the heirs of the husband referred
to in clause (b) thereof. The Hon'ble Apex Court thus held that when a
property becomes the absolute property of a female Hindu, it shall
devolve first on her children (including children of the predeceased son
and daughter) as provided in Section 15(1)(a) of the Act and then on
other heirs subject to the limited change introduced in section 15(2) of
the Act. Thus, it is held that the step-sons or step-daughters will come
in as heirs only under clause (b) of section 15(1) or under clause (b) of
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section 15(2) of the Act.
30. In the present case, the relations and determination of shares
can be better understood by referring to the following family tree;
FAMILY TREE
Waman
Hausabai no.1(deceased) (first wife)
Hausabai no.2 (Second Wife)
Plaintiff No.2.
Anna (Son)
Sushilabai
(Wife of Nana)
Deepak (son) Pravin (Son)
31. Hausabai No.1, i.e. mother of defendant no.1 predeceased
Waman. Thus, on the death of Waman, in view of the well-settled legal
principles of Hindu Law prior to 1956, the property devolved equally
upon plaintiff no. 2 (Hausabai No.2), deceased Nana, Balu (Plaintiff
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no.1) and defendant no. 1- Anna, who would be entitled to one-fourth
share each. The plaintiff no. 2 (Hausabai, i.e. second wife of Waman)
expired during the pendency of the suit. Thus, in view of Section 14
read with Section 15 of the Hindu Succession Act, 1956, one-fourth
share of plaintiff no. 2 would devolve equally upon her two sons, i.e.
deceased Nana and plaintiff no. 1. Defendant no. 1- Anna being the
stepson of plaintiff no. 2 would not be entitled to claim any share in
plaintiff no. 2's share. The plaintiff no.1. (Balu) expired and his heirs
and legal representatives are brought on record in the first appeal. The
plaintiff no. 3 (Sushila) is shown as deceased in the title of first appeal
represented through her heirs and legal representatives. Defendant
no. 1 is also shown as deceased in the title of first appeal and
represented through his heirs and legal representatives. Thus, one-
fourth share of deceased plaintiff no. 2 (Hausabai) is to be divided
equally between heirs and legal representatives of deceased plaintiff
no.1 and heirs and legal representatives of deceased Nana, i.e.
plaintiff nos. 3 to 5. Thus, heirs and legal representatives of deceased
defendant no. 1 would be jointly entitled to a one-fourth share. The
heirs and legal representatives of deceased plaintiff no. 1 would be
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jointly entitled to his one-fourth share plus one-half share in deceased
plaintiff no. 2's one-fourth share. The heirs and legal representatives of
deceased plaintiff no. 3 (Sushilabai) i.e. Plaintiff No.4 (Deepak) and
Plaintiff No. 5 (Pravin) would be jointly entitled to Nana's one-fourth
share plus one-half share jointly in plaintiff no. 2's one-fourth share.
Thus, the determination of the shares made by the First Appellate
Court must be modified in the aforesaid terms.
32. Hence, for the reasons stated above, the Second Appeal and the
cross objections are disposed of by passing the following order :
(i) Second Appeal is dismissed.
(ii) Cross Objection is allowed.
(iii) Judgment and decree dated 30 th March 2015 passed by
the District Judge-1, Baramati in Regular Civil Appeal No. 127
of 1994 is confirmed, save and except clause [5] of the
operative part of the judgment and the findings thereon.
(iv) Clause [5] of the operative order of judgment dated 30 th
March 2015 passed by the District Judge-1, Baramati in
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Regular Civil Appeal No. 127 of 1994 is substituted as
follows : -
(a) The heirs and legal representatives of
deceased defendant no. 1 would be jointly entitled to
one-fourth share.
(b) The heirs and legal representatives of
deceased plaintiff no. 1 would be jointly entitled to
his one-fourth share plus one-half share jointly in
deceased plaintiff no. 2's one-fourth share.
(c) The heirs and legal representatives of
deceased plaintiff no. 3, i.e. plaintiff nos. 4 and 5
would be jointly entitled to Nana's one-fourth share
plus one-half share jointly in deceased plaintiff no.2's
one-fourth share.
(d) The sale deed executed by the respective
plaintiffs shall not be binding on the share of the heirs
and legal representatives of defendant no. 1.
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(e) The undivided share already alienated by the
respective plaintiffs shall form part of the respective
share of the respective plaintiffs.
(v) Save and except the above modifications, the judgment
and decree dated 30th March 2015 passed by the District
Judge-1, Baramati in Regular Civil Appeal No. 127 of 1994
stands confirmed.
(vi) Cross objection is allowed in the aforesaid terms with
no order as to costs.
(vii) In view of the disposal of the second appeal and the
cross objection, Interim Application No. 16705 of 2022 and
Civil Application No. 916 of 2015 are disposed of as
infructuous.
[GAURI GODSE, J.]
Digitally
signed by
RAJESHWARI
RAJESHWARI RAMESH
RAMESH PILLAI
PILLAI Date:
2025.03.07
02:04:02
+0200
Note :This is the corrected judgment pursuant to speaking to minutes order dated 6 th March 2025.
