Supreme Court of India
GITABAI MARUTI RAUT (DEAD) THROUGH LR. & ORS. versus PANDURANG MARUTI RAUT (DEAD) THROUGH LRS. & ORS. on 11 August 2022
SUPREME COURT REPORTS
[2022] 6 S.C.R.
AGITABAI MARUTI RAUT (DEAD)THROUGH LR. & ORS.
v.
PANDURANG MARUTI RAUT (DEAD)THROUGH LRS. & ORS.
B
(Civil Appeal No. 7702 of 2013)
AUGUST 11, 2022
[HEMANT GUPTA AND VIKRAM NATH, JJ.]
Suit – For partition – Joint Family ancestral property – A suitCfor partition in the Joint Family Property was filed by plaintiff forthe properties situated in two villages-1 and 2 – ‘B’ was the commonancestor and left behind four sons, ‘N’, ‘R’, ‘M’ and ‘S’ – ‘M’ ispredecessor of the parties in dispute and his share in ancestralproperty is in dispute – ‘M’ married twice – First wife died in theDyear 1948 leaving behind defendant no.1,2,3,4 – Second wife andthe original plaintiff, died during the course of proceeding leavingbehind her legal representatives (two sons and three daughters),who are prosecuting the present case – In respect of property atvillage-1, the High Court affirmed the finding that defendant no.1had purchased the said property after death of ‘M’ – In respect ofEproperty at village-2, the High Court held that in absence of anyevidence that the property in the hand of ‘R’ was ancestral property,the plaintiff did not have share in the said property – Held: Nopleadings were raised regarding the property at village-1 that it isbeing purchased from the income of the joint family property,Ftherefore is not joint ancestral property – All three Courts haveconcurrently held that the property at village-1 was not ancestralproperty – With respect to Property at village-2 the evidence onrecord including written memorandum of settlement (Ex.111) andthe mutation of the same (Ex.104) together with the evidence ofPW1 and PW2 suggest that the said property is Joint family propertyG– No evidence that ‘R’ was the sole owner or that he acquired thedisputed property from his income – There is no evidence to suggestthat the disputed property was gifted to defendant no.1 by ‘R’ –Therefore, the plaintiff and defendants have equal share in theproperty at village-2.H
Allowing the appeal, the Court
HELD:1. In respect of a property at village-1, the HighCourt affirmed the finding that defendant No. 1, purchased theproperty at village-1 vide sale deed dated 25.2.1969 after thedeath of ‘M’. It was also held that the appellant neither pleadednor proved that there is sufficient nucleus of the income from thejoint family from which the property at village-1 could bepurchased. This Court does not find any pleadings regarding theproperty at village-1 as purchased from the income of the jointfamily property. All three Courts have concurrently held that theproperty at village-1 is not a joint ancestral property. This Courtfound no reason to interfere with the findings relating to theproperty situate in Village-1. [Para 4][1071-E-G]
2. The High Court has misread the most important evidenceled by the appellants i.e., one of the brothers, ‘S’(PW-2), who haddeposed that the land at village-2 was ancestral land. The MutationNo. 1274 itself shows that the land was partitioned amongst thebrothers. It was not a gift by ‘R’ in favor of defendant no.1, asfound by the High Court. The name of defendant no.1 in respectof share of ‘M’ came after the death of ‘M’ in the year 1966 beingthe eldest male member as Karta of the joint family of ‘M’.Defendant no.1 held the property as Karta of the joint familyproperty fallen to the share of ‘M’ in terms of the settlementarrived on 23.12.1961 (Ex.111). The settlement (Ex.111) is with‘M’ and not defendant no.1 as he was alive on that day. Since,when the revenue entry was being recorded in 1970, after ‘M’had died, defendant no.1 represented the estate of ‘M’ as Karta.In view of the said fact, the findings recorded by the High Courtare not tenable. [Para 12][1074-A-C]
3. Since the evidence on record including writtenmemorandum of settlement dated 23.12.1961 (Ex.111) and themutation (Ex.104) show that village-2 was a joint family property,therefore, the expression ‘partition’ has been used. There is noevidence that the property at Village-2 was gifted to defendantno.1 by ‘R’, the eldest son of ‘B’. There is no evidence that ‘R’was the sole owner or that he acquired the property from his A
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Aincome. The categorical statement of PW-1, the plaintiff is thather father-in-law was the owner of the property at village-2. EvenPW-2 has also deposed to the same effect. He was examined asthe surviving son of ‘B’. In the absence of any evidence that ‘R’had the capacity to purchase the property as the documentaryevidence in respect of partition of the property situated at Village-B2, the findings recorded by the High Court cannot be sustained.The plaintiff and defendants including daughters of ‘M’ have equalshare in the village-2 property. [Paras 14 and 15][1075-A-B]
Vineeta Sharma v. Rakesh Sharma & Ors. (2020) 9 SCCC1 : [2020] 10 SCR 135; Mallappa Girimallappa Betgeri& Ors. v. R. Yellappagouda Patil & Ors. AIR 1959 SC906; Surendra Kumar v. Phoolchand (D) through LRs.& Anr. (1996) 2 SCC 491 : [1996] 2 SCR 15;Appasaheb Peerappa Chamdgade v. DevendraPeerappa Chamdgade & Ors. (2007) 1 SCC 521 : 2006D(11) SCALE 184 – referred to.
Case Law Reference
[1996] 2 SCR 15referred to Para 8[2020] 10 SCR 135referred to Para 15
[2020] 10 SCR 135E
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7702of 2013.
From the Judgment and Order dated 01.10.2008 of the High Courtof Judicature at Bombay in Second Appeal No.167 of 2007.F
Sudhanshu S. Choudhari, B. G. Parab, R. A. Sonawane, MaheshP. Shinde, Ms. Rucha A. Pande, Dilip Annasaheb Taur, NarayanBabanrao Dhokale, Advs. for the Appellants.
P. S. Patwalia, Pallav Sisodia, Siddharth Bhatnagar, Sr. Advs.,GNirnimesh Dube, Ms. Ritika Khanna, Arvind S. Avhad, KrishankantTodkar, Bhausahed Gadade, Ms. Pracheta Kar, Aditya Sidhra, NadeemAfroz, Sonal Anand, Anant Agarwal, Samarth Agarwal, Ms. Sweta Rani,Advs. for the Respondents.
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The Judgment of the Court was delivered by HEMANT GUPTA, J.
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1. The plaintiff filed the present appeal against the judgment dated01.10.2008 passed by the High Court of Judicature at Bombay dismissingthe second appeal filed by her. However, the plaintiff died on 18.12.2014during the pendency of the appeal. Now, the legal representatives of thedeceased are prosecuting the present appeal.
2. The question for consideration herein is whether the propertiesat villages Pirangut and Nande are joint family ancestral properties inthe hands of Maruti, the deceased son of Balaji, predecessor of theparties in appeal. The admitted family tree shows that Balaji was thecommon ancestor. He left behind his four sons, Narayan, Raghunath,Maruti and Sopan. Maruti died on 13.7.1966. He married twice, both hiswives had a similar name, Geetabai. The first wife, Geetabai, died in theyear 1948 leaving behind the defendant Nos. 1, 2, 3 and 4, namely,Pandurang, Krishnakant, Ramchandra and Muktabai. Geetabai, his secondwife and the original plaintiff, filed a suit for partition. She died duringthe pendency of the proceedings leaving behind two sons and threedaughters, namely, Chandrakant, Ramesh, Uma, Shailaja and Sumitra.
3. There is no dispute in respect of the property situated at Lavale,which has been held to be a joint family property wherein a finding hasbeen returned that the plaintiff would have a share in the estate.
4. In respect of a property at Nande, the High Court affirmed thefinding that Pandurang/defendant No. 1, purchased the property at villageNande vide sale deed dated 25.2.1969 after the death of Maruti. It wasalso held that the appellant neither pleaded nor proved that there issufficient nucleus of the income from the joint family from which theproperty at village Nande could be purchased. In the absence of anyproof, the claim of appellant for such property situated at Village Nandewas negated. Our attention was drawn to the plaint filed by the deceasedGeetabai but we do not find any pleadings regarding the property atNande as purchased from the income of the joint family property. Allthree Courts have concurrently held that the property at Nande is not ajoint ancestral property. We find no reason to interfere with the findingsrelating to the property situate in Village Nande.
5. Hence, the only question which survives for consideration iswhether the property situated at village Pirangut is an ancestral property,in which the appellants had share.
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A6. The plaintiff has pleaded that land at Pirangut was purchasedby Hindu Undivided Family (HUF). The plaintiff and deceased Marutilooked after and brought up defendant Nos. 1 to 4. The plaintiff alongwith all defendants were living jointly and after the death of Maruti, thejoint family continued even thereafter, as the Defendant No. 1 assumedthe position of Karta of Maruti’s family. It is pleaded that there was aBpartition of the properties during Maruti’s life time. The memo wasreduced in writing and signed by all the four sons of Balaji in the year1961, but the mutation on the basis of family settlement was sought inthe year 1970, only after the death of Maruti.
7. In respect of the property at Pirangut, the High Court returnedCthe following findings:
“9. This takes me to consider the claim of the Appellant in theproperty at Pirangut. The property at Pirangut was admittedlypurchased by Raghunath, uncle of Defendant no. 1 from oneKanhu Dhondu Kudale on 19[th] August 1947. According to theDappellant by Mutation entry 1274 this property was partitioned,and the land at Pirangut was given to Defendant no. 1. If that beso the Appellant obviously has share in it. Per contra it is the caseof the defendant no. 1 that this property was purchased byRaghunath in 1947, which was latter on gifted in favour ofEDefendant no. 1. In order to claim share in the property at Pirangutit was for the appellant/plaintiff to plead and prove that propertyat Pirangut was ancestral property. Then and then only appellant/Plaintiff would have share in it. In the absence of any evidencethat the property in the hand of Raghunath was ancestral property,in my considered view, the appellant/plaintiff could not have reliedFupon the Mutation entry no. 1274 to claim share in the suitproperty.”
8. Mr. Sudhanshu S. Choudhari, learned counsel for the appellantsreferred to judgments reported as Mallappa Girimallappa Betgeri &Ors. v. R. Yellappagouda Patil & Ors.[1], Surendra Kumar v.GPhoolchand (D) through LRs. & Anr.[2] and Appasaheb PeerappaChamdgade v. Devendra Peerappa Chamdgade & Ors.[3] to contendthat the property purchased by Raghunath was the property from the 1 AIR 1959 SC 9062 (1996) 2 SCC 491H3 (2007) 1 SCC 521
GITABAI MARUTI RAUT (DEAD) THROUGH v. PANDURANGMARUTI RAUT (DEAD) THROUGH [HEMANT GUPTA, J.]
income of the ancestral property and, therefore, in the said property, theappellants cannot be deprived of their share. The appellants also referredto the statement of Sopan, brother of Raghunath, who had appeared asPW-2. Sopan had deposed that the ancestral property is situated at Lavaleand Pirangut and that the property at Pirangut was entered in the nameof the elder brother Raghunath. The partition took place between thebrothers and a memorandum (Ex 111) was prepared to this effect.
9. The memorandum dated 23.12.1961- Ex-111 has been producedby the appellants before this Court. The said memorandum showsdifferent parts of the land situated in village Pirangut falling to the shareof Narayan, Raghunath, Maruti and Sopan. Apart from the share in theland, even the other activities were arranged for and memorandum wasprepared. In the cross-examination, Sopan admitted that there was nojoint family at Nande but the partition had taken place between thebrothers of the property situated at Lavale and Pirangut. He stated thatthe property situated at Pirangut was standing in the name of his brotherRaghunath.
10. The plaintiff Geetabai appeared as PW-1. She deposed thatlanded property at Pirangut was inherited by them from her father-in-law, Balaji. She has also referred to the memorandum of settlementrecorded on 23.12.1961 and that it bears the signature of Raghunath andSopan (PW-2) and thumb impression of Narayan. In the cross-examination, she stated that the land in the name of her father-in-lawwas situated at Village Lavale and Pirangut. She further deposed thatlanded property situated at Pirangut as well as the property at Nandewere purchased by her husband. She denied that the property situatedat Pirangut was purchased by Raghunath. She also denied the suggestionthat property at Village Lavale alone was joint family property.
11. The memorandum of partition was entered on 23.12.1961 whenMaruti was alive, but the same was sought to be given effect in therevenue record vide Ex.104, Mutation No. 1274 on 28.6.1970. Suchrevenue record is in respect of land situated at village Pirangut, wherein,namely, Narayan, Raghunath and Sopan, sons of Balaji and PandurangMaruti son of fourth brother Maruti, have been allotted separate shareof land in the land situated at Village Pirangut. Pandurang had beengiven share as by that time Maruti had died. Therefore, Pandurang gotthe property by partition amongst four brothers alone.
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A12. The High Court has misread the most important evidence ledby the appellants i.e., one of the brothers, Sopan (PW-2), who haddeposed that the land at village Pirangut was ancestral land. The MutationNo. 1274 itself shows that the land was partitioned amongst the brothers.It was not a gift by Raghunath in favor of Pandurang/defendant no.1, asfound by the High Court. The name of Pandurang in respect of share ofBMaruti came after the death of Maruti in the year 1966 being the eldestmale member as Karta of the joint family of Maruti. Pandurang held theproperty as Karta of the joint family property fallen to the share of Marutiin terms of the settlement arrived on 23.12.1961. The settlement (Ex.111)is with Maruti and not Pandurang as he was alive on that day. Since,Cwhen the revenue entry was being recorded in 1970, after Maruti haddied, Pandurang represented the estate of Maruti as Karta. In view ofthe said fact, the findings recorded by the High Court in para 9 are nottenable.
13. In fact, neither Geetabai (PW-1) nor Sopan (PW-2) had beenDsuggested that the property was gifted by Raghunath to Pandurang.Pandurang has not said a word about the partition entered by four brotherson 23.12.1961. In the cross-examination, he admitted that there was apartition between his father and uncle before 1960 but he could not tellthe exact year. He could not identify the signatures of his uncle on Ex.111,though he identified the signatures of Sopan (PW-2). He also admittedEthat he has not raised any objection regarding mutation entry no. 1274.He denied that his father had purchased any land at Pirangut. ThoughPandurang has stated that Raghunath has gifted the property to him butno gift deed has been produced on record nor the immovable propertycould be gifted orally. Therefore, the stand of the Pandurang that theFland was gifted to him is untenable. Therefore, the findings recorded bythe High Court is without any evidence.
14. The principles of law enunciated in the above judgments arenot in dispute. Since the evidence on record including writtenmemorandum of settlement dated 23.12.1961 (Ex.111) and the mutationG(Ex.104) show that Pirangut was a joint family property, therefore, theexpression ‘partition’ has been used. There is no evidence that theproperty at Village Pirangut was gifted to Pandurang by Raghunath, theeldest son of Balaji. There is no evidence that Raghunath was the soleowner or that he acquired the property from his income. The categoricalstatement of Geetabai, the plaintiff is that her father-in-law was theH
GITABAI MARUTI RAUT (DEAD) THROUGH v. PANDURANGMARUTI RAUT (DEAD) THROUGH [HEMANT GUPTA, J.]
owner of the property at Pirangut. Even Sopan has also deposed to thesame effect. He was examined as the surviving son of Balaji. In theabsence of any evidence that Raghunath had the capacity to purchasethe property as the documentary evidence in respect of partition of theproperty situated at Village Pirangut, the findings recorded by the HighCourt cannot be sustained.
15. The plaintiff and defendants including daughters of Marutihave equal share in the Pirangut and Lavale property in view of thejudgment of this Court reported as Vineeta Sharma v. Rakesh Sharma& Ors.[4]. Thus, Geetabai, the plaintiff, Pandurang, Krishnakant,Ramchandra, Muktabai, defendant Nos. 1 to 4, and Chandrakant, Ramesh,Uma, Shailaja and Sumitra, defendant Nos. 5 to 9 would have 1/10[th]share each. The share of Geetabai would devolve according to law ofsuccession applicable. The purchaser shall be entitled to such interest inthe property as its vendor had in terms of the above decree.
16. The preliminary decree is ordered to be granted in the saidterms. The parties are directed to seek final decree from the competentCourt in accordance with law.
17. The appeal thus stands allowed in the above terms.
Ankit Gyan
Appeal allowed.
(Assisted by : Aarsh Choudhary, LCRA)
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