[Cites 5, Cited by 0]
Bombay High Court
1.Smt. Bhagirathi Haribhau Yadav And ... vs Dnyaneshwar Vishnu Kate And Others on 27 January, 2026
Author: Manish Pitale
Bench: Manish Pitale
2026:BHC-AS:3808
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 450 OF 2014
Bhagirathi Haribhau Yadav & Ors. ... Appellants
Versus
Dnyaneshwar Vishnu Kate & Ors. ... Respondents
WITH
CIVIL APPLICATION NO. 971 OF 2017
WITH
CIVIL APPLICATION NO. 972 OF 2017
WITH
INTERIM APPLICATION NO. 10554 OF 2024
IN
SECOND APPEAL NO. 450 OF 2014
******
Mr. Sanjeev Gorwardkar, Senior Advocate, a/w Mr. Ratnesh M.
Dube i/by Ms. Rutuja Ambekar for the Appellants.
Mr. Anil Anturkar, Senior Advocate, a/w Mr. Atharva Date, Mr. S.
G. Kudle, Mr. Kishor Jadhav, Ms. Nishi Agarwal, Mr. Siddharth
Yadav and Mr. Sarosh Krishnan i/by Mr. S. G. Kudle for
Respondent No.10.
Mr. Sagar Kursija i/by Tejas D. Deshmukh for Applicants in
CAS/971/17 and CAS/972/17.
******
CORAM : MANISH PITALE, J
RESERVED ON : 20th NOVEMBER 2025
PRONOUNCED ON : 27th JANUARY 2026
JUDGMENT :
. The original plaintiffs are appellants in this appeal and they
are dissatisfied with the first Appellate Court i.e. the District
Judge-5, Pune, only partly allowing their appeal by judgment and
order dated 6th February 2014. The Small Causes Court and Court
of Joint Civil Judge Senior Division, Pune had dismissed the suit of
the appellants in its entirety. The first Appellate Court partly
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decreed the same. But, according to the appellants, the suit ought
to have been allowed in its entirety, particularly in the context of
land at survey No. 119/2B at Mauje Pimple Saudagar, Tal. Haveli,
Dist. Pune.
2. The proceedings in the present case were contested by
original defendant No.10, who is respondent No.10 in this appeal,
while the other defendants failed to contest the suit. The four
original plaintiffs are the sisters of the original defendant No.1,
while defendant No.2 is his wife and defendant Nos.3 and 4 are
their children. Defendant Nos.5 to 20 were all purchasers of
properties from original defendant Nos.1 to 4.
3. The original plaintiffs filed the suit for partition and separate
possession of joint family properties specified in the plaint and
also for a specific declaration that the documents executed by
defendant Nos. 1 to 4 in favour of defendant Nos.5 to 20 were
legal and valid only to the extent of share of defendant No.1 and
that they were not binding on the shares of the original plaintiffs.
As noted hereinabove, the suit was dismissed in its entirety, while
the first Appellate Court allowed the appeal by partly decreeing
the same in respect of the suit properties, except the properties at
survey No. 119/2B and 18/7. During the course of arguments, in
this appeal, the learned counsel for the appellants, on instructions,
restricted the claim of the appellants (original plaintiffs) only to
the property at survey No. 119/2B.
4. This Court, on 6th August 2014, framed two substantial
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questions of law, while admitting the appeal. At the stage of final
hearing, on 6th November 2025, by recourse to Section 100(5) of
the Civil Procedure Code, 1908 (CPC), this Court framed a
further substantial question of law, as a consequence of which,
arguments in this appeal were heard on the following three
substantial questions of law :
[1] Whether the appellate Court was right in excluding
Survey Nos.119/2B and 18/7 from the partition and
separate possession ?
[2] Whether the findings recorded by the appellate
Court are based upon the relevant evidence available on
record?
[3] Whether averment in respect of nature of property
in the registered sale deed would operate as an estoppel
against the parties to the transaction?
5. Before considering the rival submissions made on behalf of
the appellants and contesting respondent No.10 on the
aforementioned substantial questions of law, it would be
appropriate to briefly refer to the chronology of events, leading to
filing of the instant appeal.
6. Narayan Kate was an ancestor of the original plaintiffs
(appellants) and defendant Nos.1 to 4 (respondent Nos.1 to 4). He
had three sons Laxman, Vishnu and Mahadu. The said Narayan
Kate expired, leaving behind the aforesaid three sons. In or about
1920, survey Nos. 119 and 124 were taken on permanent tenancy
(known as Mirashi tenancy) from one Kashinath Vinayak
Gupchup. As per the Mirashi tenancy, the aforesaid sons of
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Narayan Kate used to give crop share to Kashinath Vinayak
Gupchup. In 1924, Laxman died, leaving behind Vishnu and
Mahadu. The two brothers continued the Mirashi tenancy. In
1927, Kashinath Vinayak Gupchup expired and the name of his
daughter Yamunabai Balkrushna Rede was entered into the
revenue record in respect of the said properties. In 1929, the said
Yamunabai Balkrushna Rede died, leaving behind her daughter
Laxmibai Deshpande, whose name was entered into the revenue
record. It appears that the other properties jointly belonging to the
brothers had been mortgaged with Laxmibai Deshpande and a
loan was obtained, in the context of which in 1936, Laxmibai
Deshpande filed Regular Civil Suit No. 553 of 1936 for recovery
of land by foreclosure of mortgage. The suit was decreed and the
two brothers i.e. Vishnu and Mahadu paid the decretal amount.
The names of the two brothers continued in the revenue record as
tenants of the said survey No.119.
7. In 1945, Vishnu died, leaving behind his widow Tanubai and
four daughters i.e. the original plaintiffs and one son i.e. the
original defendant No.1. It is to be noted that sometime during
this period, part of land at survey No.119 and others were notified
for acquisition for military hospital and somewhere down the line,
survey No.119 was renumbered as 119/1 and 119/2. The
appellants claim that survey No.119/1 was subject matter of
acquisition, while survey No.119/2 continued as part of the
Mirashi tenancy.
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8. In this backdrop, on 15th October 1949, Tanubai i.e. widow
of Vishnu and their son Dnyaneshwar i.e. original defendant No.1
filed Civil Suit No. 2496 of 1949 against Mahadu and his sons, for
partition and separate possession. In 1950, the Collector passed
award in pursuance of Land Acquisition proceedings concerning
survey No.119. On 24th July 1951, a compromise decree was
passed in aforesaid Civil Suit No. 2496 of 1949 filed by the said
Tanubai and original defendant No.1 against Mahadu and his sons.
While the other properties were partitioned as per the
compromise between the parties, as regards survey No.119, the
compensation was divided equally between the branches of Vishnu
and Mahadu.
9. It is the case of the appellants that after Vishnu expired, the
name of only Mahadu erroneously stood recorded in the revenue
record pertaining to land at survey No.119/2, although, the
Mirashi tenancy was continued for and on behalf of the family. It
is further claimed that upon enactment of the Hindu Succession
Act in 1956, as per Section 14(1) thereof, the said Tanubai, who
had acquired life interest in the properties as per the Hindu
Women Right to Property Act, 1937, became the absolute owner
of the property. On 10th July 1960, Tanubai died and according to
the appellants, her share devolved upon the original plaintiffs as
her daughters and original defendant No.1 as her son. On 26 th July
1974, the said Mahadu and original defendant No.1 Dnyaneshwar
made a joint application before the Competent Authority for sub-
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division of survey No.119/2. On the basis of the said application,
on 2nd August 1974, the said survey No.119/2 was sub-divided in
the revenue record as survey No.119/2A and survey No.119/2B,
with survey No.119/2B being allotted to original defendant No.1
Dnyaneshwar. The appellants urged that they being the daughters
were entitled to share in the said property, but only the name of
original defendant No.1 Dnyaneshwar was recorded in the
revenue record, further claiming that such entry in itself would not
deprive them of their rightful claim.
10. On 9th June 1983, the original defendant No.1 Dnyaneshwar
entered into a registered document styled as sale deed in respect of
3 acres 25 guntha at survey No.119/2B, whereby the property was
sold/made over to original defendant No.10 (respondent No.10
herein). In the said document, it was categorically stated that
subject property was ancestral property derived from Vishnu. It is
the case of the appellants i.e. the original plaintiffs that they were
completely unaware of the aforesaid transaction unilaterally
executed by the original defendant No.1 Dnyaneshwar i.e. their
brother. It is in this backdrop that the appellants filed Special Civil
Suit No. 1900 of 1997 for partition, separate possession and
declaration, as noted hereinabove. The plaint specifically included
property at survey No.119/2B, concerning the document executed
unilaterally by original defendant No.1 in favour of original
defendant No.10 (respondent No.10 herein). Upon completion of
pleadings and recording of evidence, the Court of Joint Civil
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Judge Senior Division, Pune, rejected the contentions of the
appellants and dismissed the suit by judgment and order dated
22nd March 2011. Aggrieved by the same, the appellants filed Civil
Appeal No. 273 of 2012. By the impugned judgment and order,
the Court of District Judge-5, Pune i.e. the first Appellate Court,
only partly allowed the appeal, specifically holding that while the
original plaintiffs had been able to prove their share along with the
original defendant No.1 in other suit properties, as regards land at
survey No.119/ 2B, it could not be made subject matter of
partition and the prayer made on behalf of the appellants that the
registered document dated 9th June 1983 executed in favour of
respondent No.10 be declared to be binding only to the extent of
share of original defendant No.1, was also rejected. Aggrieved by
the same, the appellants filed present Second Appeal No. 450 of
2014, wherein this Court is required to consider the above
mentioned three substantial questions of law.
11. Mr. Sanjeev Gorwardkar, learned senior counsel appearing
for the appellants, submitted that the Appellate Court committed a
grave error in holding in favour of respondent No.10, despite
agreeing with the appellants on all other counts, while partly
allowing the appeal and thereby, partly decreeing the suit. It was
submitted that the land at survey No.119/2B pertained to Mirashi
tenancy and that such a tenancy is a permanent tenancy, which can
be inherited, dealt with, willed away and it can also be subject
matter of transaction in favour of another person for
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consideration. Reliance was placed on judgment of this Court in
the case of Shrimantibai Ramu Nargude & Anr. v/s. Bhimrao Appa
Nargude & Ors., 2008(6) Mh.L.J. 807, in support of the said
proposition. By referring to the chronology of events and entries
made in revenue records from time to time, it was submitted that
although, the revenue record could not bestow title on any
individual, but such entries were indicative of the fact that the
Mirashi tenancy pertaining to survey No.119 was always part of
and treated as joint family asset by the members of the joint family,
whose original ancestor was the said Narayan Kate. It was
submitted that, during the course of events, that occurred from the
year 1920 onwards, although in some places, names of only one or
two individual members of the joint family were entered in the
revenue record, but all throughout the said land at survey No.119
and thereafter, 119/2B was treated as joint family property in the
form of Mirashi tenancy, ultimately being held by the original
defendant No.1 Dnyaneshwar for the branch pertaining to one of
the three sons of Narayan Kate i.e. Vishnu. By referring to the
plaint in Civil Suit No.2496 of 1949 and the compromise decree
passed therein, it was submitted that the property came to Tanubai
and through her ultimately to the appellants as her daughters and
their successors, as also original defendant No.1 i.e. Dnyaneshwar
being the son. In such a situation, it was submitted that the
original defendant No.1 Dnyaneshwar could not have unilaterally
dealt with the said Mirashi tenancy by executing the registered
document dated 9th June 1983 in favour of the original defendant
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No.10 (respondent No.10). At best, the said document would be
legal and valid only to the extent of share of original defendant
No.1 Dnyaneshwar and it would certainly not be binding on the
daughters of Tanubai i.e. the original plaintiffs (appellants herein).
12. It was submitted that the first Appellate Court in the present
place accepted the contentions raised on behalf of the appellants
with regard to the joint nature of property that was the subject
matter of the suit and yet, while dealing with the land at survey
No.119/2B, an error was committed by holding that Tanubai had
no interest left therein. The evidence and material on record was
wrongly appreciated to hold that after compromise in Civil Suit
No. 2496 of 1949, Tanubai lost her interest in land survey No.
119 and hence, the original defendant No.1 Dnyaneshwar was
entitled to deal with the property at land survey No.119/2B, as per
his own will.
13. It was further submitted that the first Appellate Court
erroneously ignored the admissions given by the original
defendant No.10 (respondent No.10 herein) in the evidence and
also the specific statement made in the subject document dated 9 th
June 1983, executed in favour of defendant No.10 to the effect
that the subject property was ancestral property derived from
Vishnu.
14. It was further submitted that the respondent No.10 before
this Court cannot claim that the plaint in Civil Suit No. 2496 of
1949 and the compromise decree passed therein, could not be
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looked at because details thereof were never pleaded, for the
simple reason that the said argument was rejected by the first
Appellate Court and the same remained unchallenged, particularly
in the light of cross objection not being pressed in the present case.
It was further submitted that the respondent No.10 was also not
justified in contending that the original Mirashi tenancy was in
favour of the three brothers i.e. Laxman, Vishnu and Mahadu in
their individual capacities, for the reason that on this aspect also
the first Appellate Court had held against the respondent No.10,
which has remained unchallenged. It was further submitted that
the respondent No.10 cannot be permitted to argue that survey
No.119 was acquired in its entirety and that partial acquisition
was not pleaded on behalf of the appellants. It was submitted that
this argument was self-destructive for the reason that if the entire
survey No. 119 had been acquired, there would be no basis for the
original defendant No.1 executing the registered document dated
9th June 1983 in favour of respondent No.10 with regard to survey
No. 119/2B.
15. As regards the contention raised on behalf of respondent
No.10 concerning admissions, particularly the statement
amounting to admission in the said registered document dated 9 th
June 1983, it was submitted that the admissions in the evidence
were clearly on record and the statement about the subject
property being ancestral property was contained in the registered
document dated 9th June 1983, upon which respondent No.1
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himself relies and therefore, the attempt to wriggle out of the
situation by relying upon an assertion made in the additional
written statement cannot come to the aid of respondent No.10. It
was submitted that the contention pertaining to estoppel would
not inure to the benefit of respondent No.10 in the light of
admission given in cross-examination by the respondent No.10
himself.
16. It was submitted that in such circumstances, while the first
Appellate Court correctly held in favour of the appellants with
regard to other properties, a grave error was committed in respect
of property at survey No.119/2B. It was submitted that therefore,
the substantial questions of law deserve to be answered in favour
of the appellants and the appeal ought to be allowed.
17. Mr. Anturkar, learned senior counsel appearing for the
contesting respondent No.10, submitted that the contentions
raised on behalf of the appellants cannot be countenanced in the
light of deficient pleadings and also in the absence of appropriate
evidence to support the claims of the appellants. It was submitted
that there was absolutely no pleading on record to justify framing
of the third substantial question of law, which this Court framed
by exercising power under Section 100(5) of the CPC. It was
submitted that the aspect of the estoppel was inextricably linked
the assertion of admission inuring to the benefit of the appellants.
That estoppel was required to be pleaded and hence, there was no
substratum for framing the third substantial question of law. As
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regards the first two substantial questions of law, it was submitted
that the first Appellate Court correctly appreciated the pleadings,
evidence and material on record to render findings in favour of
respondent No.10, as regards the registered document dated 9 th
June 1983.
18. It was submitted that neither the factum pertaining to filing
of Civil Suit No. 2496 of 1949 nor the compromise decree was
ever pleaded on behalf of the appellants. Therefore, reference to
the same, during the course of arguments, on behalf of the
appellants could be said to be without any basis and deserves to be
ignored. It was submitted that the relevant documents on record
show that the subject land pertaining to survey No.119 was never
pleaded to be a joint family property and that there was nothing
on record to show that only a part of the said survey No. 119 was
acquired. This was being orally asserted for the first time before
this Court. The record shows that the entire survey No.119 was
acquired and the compensation received was distributed as per the
compromise decree pertaining to the aforesaid suit of the year
1949. It was submitted that even if it was to be assumed for the
sake of arguments that only part of survey No.119 was acquired,
the tenancy must have existed only in the part that was acquired.
Much emphasis was placed on the contents of the plaint pertaining
to Civil Suit No. 2496 of 1949, highlighting the fact that while
enumerating the ancestral property, certain lands, including land at
survey No.119 were kept out.
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19. It was submitted that the first Appellate Court correctly
found that even if there were so called admissions on the part of
respondent No.10 with regard to the property being ancestral
property, when the evidence and material on record was
appreciated in its totality, there was lack of material to
substantially prove any such admission to operate as an estoppel. It
was not even the case of the original plaintiffs that due to the so
called admission in the subject agreement/registered document
dated 9th June 1983, they had altered their position in any manner.
On this basis, it was submitted that the alleged admissions were
wholly irrelevant. It was further submitted that the only witness
who entered the witness box on behalf of the appellants was born
much after the relevant incidents had already taken place and
therefore, he could never have deposed with regard to such facts.
The appellants never entered the witness box and on that basis, it
was submitted that this Court may consider drawing an adverse
inference against them. In this regard, reliance was placed on the
judgment of the Supreme Court in the case of Janki Vashdeo
Bhojwani & Anr. v/s. Indusind Bank Ltd. & Ors., (2005) 2 SCC
217. It was further submitted that revenue records nowhere show
that original defendant No.1 Dnyaneshwar or for that matter even
Mahadu held the subject land at survey No.119 as a Karta of the
joint family. It was submitted that therefore, the appeal deserved
to be dismissed. An attempt was made to claim that the suit was
barred by limitation, as the subject document was executed in the
year 1983, while the suit was filed in the year 1987.
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20. On this basis, it was submitted that three the substantial
questions of law deserve to be answered against the appellants and
the appeal deserves to be dismissed.
21. This Court has considered the rival submissions by perusing
the record, including the pleadings and evidence, as also the
judgments of the two Courts below. It was specifically submitted
on behalf of respondent No.10, on instructions, that the cross-
objection was not pressed and hence, it was withdrawn.
22. A perusal of the impugned judgment of the first Appellate
Court shows that points were framed for consideration after
referring to the chronology of events, pleadings, evidence and
material on record, as also the judgment and order passed by the
original Court i.e. the Joint Civil Judge Senior Division, Pune.
23. The first Appellate Court in the impugned judgment
specifically found that the documents at exhibits 226 and 227 i.e.
the plaint in Civil Suit No. 2496 of 1949 and the compromise
decree were not only placed on record, but also relied upon by the
original plaintiffs i.e. the appellants. It was recorded that the
relationship between the parties was nowhere disputed, thereby
showing that the original plaintiffs were indeed the sisters of
defendant No.1 Dnyaneshwar and that they were the only
children of Vishnu and Tanubai. On this basis, a categorical
finding was rendered by the first Appellate Court that in view of
the admitted relationship between the parties and certified copies
of the aforesaid documents placed on record at exhibits 226 and
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227, it was clear that the said documents could certainly be
considered to reach a conclusion with regard to rival submissions
pertaining to joint nature of properties. It was also held that only
facts were required to be pleaded and not the evidence, thereby
accepting the contention of the appellants that the documents at
exhibits 226 and 227 could certainly be considered. The findings
of the first Appellate Court have gone unchallenged insofar as
respondent No.10 is concerned and therefore, it cannot now lie in
the mouth of the said respondent that this Court ought not to look
at the documents at exhibits 226 and 227 i.e. the plaint in Civil
Suit No. 2496 of 1949and the compromise decree passed thereon.
24. The first Appellate Court further went on to hold that
Tanubai i.e. the widow of Vishnu acquired limited interest under
the Hindu Women Right to Property Act, 1937, in the undivided
joint family property interest of the deceased Vishnu. It was also
found that after the death of Vishnu, Tanubai and the original
defendant No.1 Dnyaneshwar acquired tenancy rights of survey
No.119 along with Mahadu. A finding was also rendered that
since original defendant No.1 was minor at the relevant time and
Tanubai was widow, Mahadu was cultivating the land as a tenant
on behalf of the joint family. Again the said finding has remained
unchallenged on behalf of respondent No.10. This is because the
cross objection was not pressed on behalf of the respondent No.10
and this Court has only considered the second appeal filed by the
appellants i.e. the original plaintiffs. The contention sought to be
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raised on behalf of respondent No.10 that the suit was barred by
limitation is also rejected on the very same basis. This is because
the first Appellate Court correctly held that the suit was filed
within limitation.
25. But, the first Appellate Court, while considering the aspect
of land being acquired by the Government from land at survey
No.119 for military hospital, reached a conclusion that
compensation amount for such acquisition was divided equally
amongst the plaintiffs in Civil Suit No. 2496 of 1949 i.e. Tanubai
and Dnyaneshwar on the one hand and defendants i.e. Mahadu
and his sons on the other, further holding that the tenancy rights
of the family came to an end and land survey No. 119 became
property of the Government. This finding ignores the fact that
despite the acquisition proceeding culminating into an award and
the compensation being distributed as per the compromise
between the aforesaid parties, the name of Mahadu continued on
the revenue record with regard to a part of survey No.119 and
that he continued to perform agricultural activities thereon. The
land at survey No.119 was shown in the record as split into land
at survey No.119/1 and survey No.119/2, with the name of
Mahadu being entered in the revenue record in respect of survey
No.119/2. Thereafter, a joint application was made by the said
Mahadu with original defendant No.1 Dnyaneshwar for further
sub-division of survey No.119/2, leading to the revenue record on
2nd August 1974 recording survey No.119/2B as allotted to the
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original defendant No.1 Dnyaneshwar. In the face of this material
and the specific claim of the appellants that Dnyaneshwar
necessarily held tenancy in survey No.119/2B for or on their
behalf also, the first Appellate Court could not have reached the
conclusion that the entire survey No.119 was acquired, for which
compensation was disbursed.
26. It is surprising that the respondent No.10 also took a stand
before this Court that the entire survey No.119 was acquired by
the Government. This completely cuts against the interest of
respondent No.10 itself because if the entire land in survey
No.119 was actually acquired, the whole basis of original
defendant No.1 executing registered document dated 9 th June
1983 in favour of respondent No.10 would be destroyed. In other
words, accepting the aforesaid contention raised on behalf of the
respondent No.10 would destroy the very basis of the said
respondent claiming right in the land at survey No.119/2B. The
alternative submission made on behalf of respondent No.10 that
even it is assumed for the sake of arguments that only part of
survey No.119 was acquired, the tenancy must have existed only
in the part that was acquired, is an argument based on conjectures
and it runs counter to the contemporaneous record available in
this case.
27. The impugned judgment and order of the first Appellate
Court, while considering the rival submissions with regard to land
at survey No.119/2B, erred in proceeding on the basis that
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Laxmibai Deshmukh i.e. the successor of the original owner
Kashinath Vinayak Gupchup had never sold the land in survey
No.119/2 to Mahadu and therefore, ultimately it could not be said
that there was any basis for the land being mutated in the name of
Mahadu. The first Appellate Court also erred in holding that
Tanubai had no interest left in land survey No.119, after having
taken part of the compensation as per the compromise decree
passed in Civil Suit No. 2496 of 1949. As noted hereinabove, the
revenue record did show that Mahadu's name as a tenant
continued on land survey No.119/2 and ultimately it was split into
land survey Nos.119/2A and 119/2B. This aspect was not
appreciated in the correct perspective by the first Appellate Court
to hold against the appellants.
28. The first Appellate Court also erred in holding against the
appellants with regard to admissions given by the contesting
respondent No.10 in the pleadings as well as the evidence. The
assertion recorded in the registered document dated 9 th June 1983
executed by the original defendant No.1 in favour of defendant
No.10 (respondent No.10 herein) was also not taken into account
in the correct perspective.
29. The evidence on record shows that original defendant No.10
(respondent No.10) in cross-examination admitted to the contents
of the aforesaid registered document dated 9 th June 1983 executed
by the original defendant No.1, wherein it was specifically
recorded that the subject property was ancestral property. The
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statement in the said document has to be read in the face of such
an admission and this factor cannot be ignored while deciding the
claim of respondent No.10 that the property at survey No.119/ 2B
ought not to be considered as ancestral property, in which the
appellants could stake their claim. It is in this sense that the
admission given on behalf of the respondent No. 10 was required
to be appreciated. The first Appellate Court erred in proceeding
on the basis that mere admission of the adverse party would not
confer any right upon the appellants. This finding was given on
the aforementioned erroneous finding that Tanubai had no interest
left in land at survey No.119. The evidence on record
demonstrating the manner in which the land at survey No.119 was
initially bifurcated into survey Nos.119/1 and 119/2 and
thereafter, into survey Nos.119/2A and 119/2B, traces the manner
in which the said property was recorded in the name of the
original defendant No.1 Dnyaneshwar. This aspect had to be
considered, coupled with the said admissions and in that context,
the statement in the registered document dated 9 th June 1983 was
required to be appreciated. The first Appellate Court failed to do
so in the correct perspective.
30. The law regarding admission amounting to an estoppel and
such estoppel requiring pleading would not come in the way of the
appellants in the facts and circumstances of the present case,
where the statement in the registered document dated 9 th June
1983, to which respondent No.10 was a party, bolsters the case of
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the appellants with regard to their claim of the same being joint
family property or ancestral property. In this context, the
admission given in the evidence on behalf of the respondent
No.10 could not be ignored and mere withdrawal of admission in
the additional written statement would also not inure to the
benefit of respondent No.10. Once this conclusion is reached, it
becomes evident that the first Appellate Court in the present case,
having rendered findings with regard to joint nature of the
property in land survey No.119, which was a Mirashi tenancy,
could not have proceeded to hold against the appellants on the
erroneous basis that Tanubai had lost her interest in the said
property or that the land having been acquired by the
Government, the declaration claimed in respect of the land at
survey No.119/2B could not be granted to the appellants. As noted
hereinabove, the contention raised on behalf of the respondent
No.10 that the entire survey No.119 was acquired by the
Government would render null and void the registered document
dated 9th June 1983, upon which the respondent No.10 claims
right in the aforesaid suit property. This further demonstrates the
fallacy in the contentions raised on behalf of respondent No.10.
31. This Court finds substance in reliance placed on behalf of
the appellants on the judgment of this Court in the case of
Shrimantibai Ramu Nargude & Anr. v/s. Bhimrao Appa Nargude
& Ors. (supra), wherein it has been specifically held that Mirashi
tenancy is a permanent tenancy, which is inheritable and can also
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be transferred. The transfer of such a right in the present case
ought to have been held by the first Appellate Court as legal and
valid only to the extent of share of original defendant No.1
Dnyaneshwar and not binding on the appellants.
32. The law laid down by the Supreme Court in the case of
Janki Vashdeo Bhojwani & Anr. v/s. Indusind Bank Ltd. & Ors.
(supra) cannot come to the aid of respondent No.10, for the
reason that the first Appellate Court itself held that even if the
witness, who actually deposed on behalf of the appellants, could
not be having personal knowledge about the events that occurred
prior to his birth, the documents at exhibits 226 and 227 i.e. the
plaint in the Civil Suit No. 2694 of 1949 and the compromise
decree were undeniable documents and the contentions raised in
that context were clearly found to be acceptable by the first
Appellate Court itself. In the face of such findings rendered in
favour of the appellants, the first Appellate Court could not have
gone ahead to hold against the appellants in respect of suit
property at survey No.119/2B.
33. It is also relevant to note that in the first written statement,
the original defendant No.10 (respondent No.10) had expressly
pleaded oral partition of survey No.119/2B and such a contention
necessarily presupposes that it was joint family property. This is
another aspect which has to be read in conjunction with the
statement made in the registered document dated 9 th June 1983
that the subject property i.e. survey No.119/2B was ancestral
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property. Therefore, when the evidence and material on record is
appreciated from any angle, it is found that the first Appellate
Court erred in rendering findings against the appellants in respect
of the said suit property, despite rendering findings in their favour
with regard to the joint nature of the property in the earlier part
of the judgment. The flow of the logic of the impugned judgment
of the first Appellate Court in paragraphs 38 onwards ought to
have continued, but the error crept in from paragraphs 42
onwards, leading to perverse findings rendered by the first
Appellate Court, while only partly allowing the suit of the
appellants (original plaintiffs).
34. In view of the above, this Court is of the opinion that the
three substantial questions of law framed in this appeal deserve to
be answered in favour of the appellants and against the respondent
No.10. Accordingly, the questions are answered in favour of the
appellants and the appeal deserves to be allowed.
35. As noted hereinabove, the appellants themselves restricted
arguments in this appeal to property at survey No.119/2B,
although the first substantial question of law referred to property
at survey No.18/7 also. Therefore, the benefit of this judgment for
the appellants is restricted to suit property at land survey No.119/
2B.
36. In view of the above, the appeal is allowed and the
impugned judgment and order of the first Appellate Court is
modified by further holding that the registered document dated 9 th
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June 1983, styled as sale deed, executed by original defendant
No.1 Dnyaneshwar in favour of original defendant No.10
(respondent No.10 herein) is legal and valid only to the extent of
share of original defendant No.1 Dnyaneshwar and that it is not
binding on the shares of the original plaintiffs i.e. the appellants
herein and their successors. The rest of the findings rendered by
the first Appellate Court and the decree passed in respect of the
other properties is upheld. The decree shall stand modified
accordingly. The modified decree shall be drawn up in the light of
the observations made hereinabove.
37. Pending applications, if any, stand disposed of.
38. In the facts and circumstances of the present case, there shall
be no order as to costs.
(MANISH PITALE, J.)
