Gujarat High Court
Shantilal Purshottamdas Patel Since ... vs Deceased Ajitkumar Parshottamdas ... on 7 May, 2026
NEUTRAL CITATION
C/FA/2/1991 ORDER DATED: 07/05/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2 of 1991
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SHANTILAL PURSHOTTAMDAS PATEL SINCE DECEASED THRO'HIS
HEIRS & ORS.
Versus
DECEASED AJITKUMAR PARSHOTTAMDAS PATEL THRO HIS & ORS.
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Appearance:
MR VM PATEL, FOR VMP LEGAL for
MR DHAVAL SHAH(2354) for the Appellant(s) No.
1.1.1,1.1.2,1.1.3,1.1.4,1.2,1.3,1.4,1.5,2,3.1,3.2,3.3,3.4,4,5
ADVOCATE NOTICE NOT RECD BACK for the Defendant(s) No. 3.2
ADVOCATE NOTICE SERVED for the Defendant(s) No. 2,3.3,3.4
ADVOCATE NOTICE UNSERVED for the Defendant(s) No. 4,5
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Defendant(s) No. 3,8,8.3
DELETED for the Defendant(s) No. 3.1
MR PR NANAVATI(508) for the Defendant(s) No. 1.2,1.3,1.4
RULE SERVED for the Defendant(s) No. 1.1,1.5,6,7
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 07/05/2026
ORDER
1. The remarks in the cause list of this First Appeal belongs to year 1991 shows that the Respondent No.3.1 is deleted, Advocate Notice issued to Respondent No.3.2 is not received back, Advocate Notice issued to Respondent Nos.4 and 5 remained unserved as they are residing abroad and few of the respondents have expired.
1.1 Since appellants have not cleared procedural aspects, despite given more than sufficient time and opportunity, as this appeal is more than year 30 years old, it is kept up for final hearing on request of learned advocates for both the sides.
2. This First Appeal filed under Section 96 of the Code of Civil Procedure, 1908 ('the Code', for short) at the behest of original plaintiff challenging the judgment and decree dated 31.08.1990 passed in Civil Suit No.155 of 1976 by the learned City Civil Court Page 1 of 27 Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026 NEUTRAL CITATION C/FA/2/1991 ORDER DATED: 07/05/2026 undefined No.5 at Ahmedabad by which the plaintiff's suit was dismissed.
3. The parties herein are referred to as per their original status before the trial Court.
4. The facts gathered from the impugned judgment as well as from the Records and Proceedings, in brief, are that;-
4.1 The original plaintiff nos.1 and 2 and the defendant no.1 are real brothers. Plaintiff no.3 is wife of plaintiff no.1 and plaintiff nos.4 and 5 are sons of plaintiff no.1. Defendant Nos.2 and 3 are also alleged to be partners of firm in whose favour defendant no.1 executed Agreement to sale ('ATS', for short). The defendant nos.4 to 8 are persons who have alleged to have purchased the 'suit land' from defendant nos.2 to 3. Plaintiff filed the suit for the relief of declaration that defendant no.1 is not a real owner but the Benamidar holder of the plot no.17 of land bearing Survey No.41 (Final Plot No.9) of T.P. Scheme No.IV (Maninagar) , admeasuring 657 sq yards, situated at Mouje Danilimda, Ahmedabad ['the suit land', for short], with a further relief of declaration that suit land is property of one or more of the plaintiff and other ancillary reliefs. The reliefs prayed by the plaintiff read thus:
"(a) That the Honourable Court will be pleased to declare that the property more particularly described in para 2 hereinabove is the property of the Plaintiffs or any one more of them and that the defendant is not the real owner thereof but a benamidar.
(b) The defendant, his agents and servant and any person claiming through him be resrained by a permanet injunction from selling, mortgaging, transferring or dealing with the said property or any part thereof in any manner whatsoever.Page 2 of 27 Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026
NEUTRAL CITATION C/FA/2/1991 ORDER DATED: 07/05/2026 undefined
(c) Decree for possession be passed against all Defendants directing them to handover the peaceful and vacant possession of the suit property described in the Plaint by removing all the superstructure that might have been raised on the sauit land.
(d) Decree for damages for illegal use and occupation of the suit land be passed against Defts. 4 to 8 at the rate of Rs.400/- from 1-2-78 till handing over the possession of the suit land.
(E) The cost of the suit be awarded.
(f) And such other and further relief as the Hon'ble Court deemed fit be passed."
Amongst aforesaid reliefs, few of them asked subsequently by amending the plaint.
4.2 Bai Reva was the mother of plaintiff nos.1-2 and defendant no.1. According to the plaintiff, she has been gifted the suit land by her brother late Ratilal Chunilal Patel (now expired). However, for sake of convenience, in revenue proceedings, the suit land was mutated in the name of defendant no.1. It is the further case that the land of Survey No.41 was purchased by late Ratilal Chunilal Patel by executing sale-deed at Sr.No.485 in the office of Sub- registrar on 25.07.1933. He has purchased the land of Survey No.41 from Hiralal Trikamlal. Later on the land of Survey No.41 was divided into 38 plots, layout plan of which has been approved. Out of love and affection, as well as considering the poor financial situation of Bai Reva, her real brother late Ratilal Chunilal Patel gifted sub-plot no.17 to her and was mutated in the name of defendant no.1. In that factual situation, it is claimed that defendant no.1 was holding the suit land as Benamidar for and on behalf of entire family.
Page 3 of 27 Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026 NEUTRAL CITATION C/FA/2/1991 ORDER DATED: 07/05/2026 undefined 4.3 It is claimed that this factual scenario was within the
knowledge of the defendant no.1 and therefor he has never claimed that the suit land is self-acquired and self-owned property. Likewise, none of the brothers i.e. plaintiff nos.1 and 2 did claim that the suit land is not the property of HUF family consisting of three brothers i.e. plaintiff nos.1, 2 and defendant no.1. Plaintiff then developed his case that Bai Reva, on 19.02.1952, executed writing and prescribed suit land as her own property gifted by her real brother, late Ratilal Chunilal Patel, whereby defendant no.1 agreed and also put the signatures on this writing and thereby such writing executed by Bai Reva, in presence of some other persons including defendant no.1, settled the dust and established that the suit land is property of the joint family or undivided family. The defendant no.1 since signed the document / writing dated 19.02.1952, also acknowledged that though suit land stands in the name of defendant no.1, in all sense and reality, it is undivided property of family.
4.4 Plaintiff put his case further that, Bai Reva, the mother of plaintiff nos.1-2 and defendant no.1 executed a Will on 11.11.1962 and made arrangement of her property post her death. The immovable property described in the Will also includes the suit land. Plaintiff nos.1 and 2 were appointed Executor of the Will. The Will of Bai Reva states that name of defendant no.1 is mutated in the suit land at the instance of Bai Reva and, therefore, suit land has to be administered as per her last wish described in the Will of Bai Reva. Bai Reva died on 21.01.1967 and subsequent to her death, all disputes started between the parties. Notices and letters were exchanged and ultimately since the dust and dispute between the parties could not be settled, the plaintiff filed suit for Page 4 of 27 Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026 NEUTRAL CITATION C/FA/2/1991 ORDER DATED: 07/05/2026 undefined declaration and injunction claiming aforesaid reliefs against the defendants.
4.5 The suit was hotly contested by defendant no.1 by filing written statement at Exh.9. The averments and assertions made by the plaintiff in the plaint are denied in toto with a specific contention that Bai Reva, mother of contesting parties, at no point of time, was the owner of the suit land and as such she had no right, title or interest in the suit land. It is also contended that possession of the suit land has been handed over to the defendant nos.2 and 3 and subsequent thereto handed over to rest of the defendants. It is claimed by defendant no.1 that he was sole absolute owner of the suit land. Late Ratilal Chunlal Patel, who could transfer the property in the name of any of the person of family of Bai Reva or even name of Bai Reva, if it is gifted property, has chosen to transfer the suit land in the name of defendant no.1 and also mutated revenue entry thereof. This indices of defendant no.1's title theory of Benamidar is got up theory and with a view to take away suit land.
4.6 Another contention raised by defendant no.1 is that he has acquired the suit land as a partner of Vishwakunj Society, however, since some difference and dispute arose between the partners of Vishwakunj Society, Civil Suit No.959 of 1968 filed in the Civil Court and it relates to dispute between the partners and that Civil Suit being a former suit, since contained a dispute to decide title of the suit land, the present suit deserves to be stayed as issue in dispute in both the suits are same. It is further contended that late Ratilal Chunilal Patel, who was the defendant no.1 in the Civil Suit No.959 of 1968, the owner of land bearing Survey No.41 whereby Page 5 of 27 Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026 NEUTRAL CITATION C/FA/2/1991 ORDER DATED: 07/05/2026 undefined the land has been divided into 38 plots and suit land is one of the plots, in para:20 of the written statement, in unequivocal terms, stated that the sub-plot no.17 of Final Plot No.9 of Town Planning Scheme IV (Maninagar) is sold to defendant no.1 for sale consideration of Rs.900/- on 23.06.1938. It is further contended that the Village Form No.6, Entry No.491 recorded on 27.06.1938 supports the theory that the suit land was sold by late Ratilal Chunilal Patel to the defendant no.1 and thereby with these averments the defendant claims that he is absolute owner of the suit land. The defendant no.1 further denies the right of Bai Reva his mother or plaintiff nos.1 and 2 also denied his signatures on alleged writing dated 19.02.1952 or execution of the writing and also denied execution of the Will with the further contention that Bai Reva had no whatsoever right to bequeath the suit land to any other person as she was lacking the title of the suit land.
4.7 Other defendants also filed written statement in line of the defense raised by the defendant no.1.
4.8 The learned City Civil Court, upon rival pleading framed the in total 9 issues at Exh.40 on 08.07.1980 and after amendment in the pleading, added Issue Nos.10 to 17 on 06.01.1991. Both the parties led the evidence to prove their case. Learned City Civil Court by comprehensive and detailed judgment, pleased to dismiss the suit by impugned judgment and decree.
4.9 Being aggrieved, the plaintiff has filed the present appeal on the grounds stated in appeal memo.
5. I have heard learned advocate Mr.V.M.Patel for V.M.P. Legal for the appellant along with Mr.Dhaval Shah and Mr.P.R.Nanavati Page 6 of 27 Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026 NEUTRAL CITATION C/FA/2/1991 ORDER DATED: 07/05/2026 undefined appearing for respondent nos.1.2 to 1.4.
6.1 In his vehement argument, learned advocate Mr.V.M.Patel for the appellant assailing the impugned judgment and decree, would mainly submit that the learned City Civil Court has committer serious, manifest and apparent error and dismissed the suit of the plaintiff. He would further submit that late Ratilal Chunilal Patel was owner of the property had no reason to gift or transfer the suit land in favour of defendant no.1 ignoring his real sister Bai Reva. Learned advocate Mr.Patel taking this Court to the factual situation would submit that Bai Reva, her husband and their children were suffering poor and dire financial situation as husband of Bai Reva being share broker lost his movable and immovable property and even some of properties were also auctioned, therefore, out of love, apathy and sympathy, late Ratilal Chunilal Patel and his brother Mulji Chunilal Patel firstly purchased the house owned by husband of Bai Reva from the Court's auction and allowed Bai Reva, her husband and entire family to stay there for considerable long time and later on they also gifted the said house to Bai Reva. It implies that late Ratilal Chunilal Patel and his brother Mulji Chunilal Patel were taking care of Bai Reva and her family. The transfer of the suit land in favour of defendant no.1 was one of the such gift by late Ratilal Chunilal Patel. Therefore, though suit land stands and remains in the name of defendant no.1, in reality and substance it was property of the joint family which consists right of plaintiff nos.1, 2 along with defendant no.1.
6.2 Mr.Patel, learned advocate for the appellant refers to Exh.112 and submits that Bai Reva, by this writing clearly discloses her intention and states that the suit land and other immovable Page 7 of 27 Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026 NEUTRAL CITATION C/FA/2/1991 ORDER DATED: 07/05/2026 undefined property are joint property of family and those have to be partitioned amongst three brothers consists of plaintiff nos.1, 2 and defendant no.1. Mr.Patel, learned advocate also refers to signature in document at Exh.112 and submits that defendant no.1 also signed the said document and thereby, he has acknowledged this family settlement declaring all the properties to be the properties of family.
6.3 Mr.Patel, learned advocate further submits that learned trial Court unnecessarily compared the signature of defendant no.1 upon Exh.112 and Exh.118, despite one of the signatories of Exh.112 i.e. Vinayak Ratilal Patel deposed as P.W.2 at Exh.111 and identified signatures of defendant no.1 on Exh.112. He would further submit that deposition of P.W.-2 Vinayak Ratilal Patel since went unimpeachable in cross-examination, in view of Sections 67 and 68 of the Evidence Act the writing at Exh.112 in nature of family settlement was proved. It was direct evidence in regard to document at Exh.112 which clearly depicts that the title of the suit land was lying with three sons of Bai Reva. He would submit that learned City Civil Court ignored the very legal facet and unwarrantedly went on to compare signature of defendant nos.1 on Exh.112 and Exh.118, to discard Exh.112.
6.4 In support of aforesaid submissions, learned advocate Mr.V.M.Patel placed reliance on the following judgments.
(i) Ajit Savant Majagvai vs. State of Karnataka, (1997) 7 SCC 110; and
(ii) Disha Impex Pvt Ltd. vs. Srinivasa Minerals and Traders and others, ILR 2011 Kar 4259 (2011 SCC OnLine Kar 72).
Page 8 of 27 Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026 NEUTRAL CITATION C/FA/2/1991 ORDER DATED: 07/05/2026 undefined 6.5 It is further argued by learned advocate Mr.Patel that the
late Ratilal Chunilal Patel, the uncle of the contesting parties and real brother of Bai Reva, except Plot No.17 of the suit land, transferred all the sub-plots of Survey No.41 by way of registered sale-deed and plot no.17 was transferred in the name of defendant no.1 by mutating his name in the revenue record. This transaction itself infers that the suit land was gifted to the family of Bai Reva as to meet with their poor financial condition and was never the transfer of immovable property by recognise mode. The reading of Exh.112 in corollary having signature of defendant no.1 thereof without any ambiguity speaks and establish that it is the family settlement and by such family settlement, parties have settled their dispute and mother, being the head of the family, declared her wish that her son should not fight and all of them should get share in the property. The parties to the dispute have pre-existing title in the plot no.17 on the suit land which makes it abundantly clear that Exh.112 does not require any registration their family settlement is executed generally to smoothen relationship within the family invokes the antecedent title does not require registration. He refers to Section 17(1)(b) read with Section 49 of the Registration Act and by placing reliance upon the judgment in case of Korukonda Chalapathi Rao & Ors. vs. Kurukonda Annapurna Sampath Kumar reported in (2022) 15 SCC 475 as well as in the case of Dalip Kaur (Dead) through Legal Representatives and Ors. vs. Ram Kishan (Dead) through Legal Representatives and Ors. reported in (2018) 18 SCC 807, submits that the Court should give true effect to the family settlement or family arrangement avoiding technical interpretation of the document. He would further submit that since family arrangement / family settlement at Exh.112 has binding effect and since it is signed by the defendant no.1, he is estopped Page 9 of 27 Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026 NEUTRAL CITATION C/FA/2/1991 ORDER DATED: 07/05/2026 undefined from disputing the same and claiming that the suit land is his own and personal and cannot be parted.
6.6 In line of the aforesaid argument, learned advocate Mr.Patel submitted to allow this appeal and quash and set aside the impugned judgment and decree and to grant the reliefs claimed in the plaint or in the suit.
7.1 Mr.P.R.Nanavati, learned advocate appearing for the respondents, as against the aforesaid submissions, in his concise argument would submit that late Ratilal Chunilal Patel, in the suit proceedings of Civil Suit No.959 of 1968, filed a written statement and admitted in para:20 of the written statement that the suit land has been sold to defendant no.1 at sale consideration of Rs.900/- on 23.06.1938. It is statement before the Court in regard to relevant facts which is related to dispute between the parties. Since Ratilal Chunilal Patel died on 05.12.1975, his statement in regard to the dispute between the parties stating that defendant no.1 is the purchaser of the suit land becomes relevant and such statement is admissible as evidence under Section 32 of the Indian Evidence Act. Such statement is sufficient to dislodge the suit of the plaintiff. He would further submit that in Civil Suit No.959 of 1968, the competent Civil Court declared Mr.Ajit Patel - defendant no.1 as owner of the suit land. The findings arrived at by the Civil Court has been carrying to challenge in First Appeal whereby contesting parties have compromised the dispute, upholding title in favour of Mr.Ajit Patel - Defendant No.1. However such findings of the Civil Court is aframed in appeal proceedings and become judgment in rem which equally binds to plaintiff nos.1 and 2. He would further submit that though this judgment was available to the learned City Page 10 of 27 Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026 NEUTRAL CITATION C/FA/2/1991 ORDER DATED: 07/05/2026 undefined Civil Court, at the time of passing the impugned judgment and decree, yet learned City Civil Court has again examined the title of the suit land independently and reached to the conclusion in favour of defendant no.1 and thereby two different Civil Courts decided the title of the suit land and held that it lies in favour of defendant no.1.
7.2 It is also argued by learned advocate Mr.Nanavati that branding Exh.112 document as family settlement is a theory first time developed in the appeal. Learned advocate Mr.Nanavati, taking this Court to the issues framed by learned trial Court, submits that no such issue was framed by learned trial Court as there was no specific pleadings of family settlement existed which indicates that after loosing the suit at the level of the City Civil Court, plaintiff developed new theory and claimed that Exh.112 is a family settlement, has a binding effect and defendant no.1 since signed the same is estopped from refuting it. Learned advocate Mr.Nanavati submits that, be that as it may, by no whisper the averments made in the Exh.112 document depicts it as a family settlement. He would further submit that Exh.112 itself says that it is an arrangement made by Bai Reva post her death and such posthumous argument proved Exh.112 as Will. He would further submit that Bai Reva was not holding any title of suit land and cannot bequeath the same in her Will at Exh.112. Learned advocate Mr.Nanavati further submits that signature at Exh.112 is denied by defendant no.1. The deposition of Vinayakbhai Prosecution Witness No.2 in regard to proving signature of defendant no.1 has been thoroughly discussed by learned City Civil Court to discard the same on the ground that P.W.No.2 is interested witness and cannot be considered as witness of truth. Moreover, learned City Page 11 of 27 Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026 NEUTRAL CITATION C/FA/2/1991 ORDER DATED: 07/05/2026 undefined Civil Court, in exercise of powers under Section 73 of the Evidence Act, compared the signatures of defendant no.1 on Exhs.112 and 118 and rightly concluded that the signatures of the defendant no.1 on Exh.112 is doubtful.
7.3 Learned advocate Mr.Nanavati mainly on the basis of the aforesaid arguments submits to dismiss the appeal and to confirm the judgment and decree, impugned in this appeal.
8.1 Regard being held by rival submissions made by learned counsel for both the sides and applying minds to Records and Proceedings, at the outset, let me refer the issues framed by trial Court. Firstly, in all, nine issues were framed and then Issue Nos.10 to 17 were added. They read as under:
"(1) Whether the plaintiff proves that ant..v.ben was the absolute owner of sub-plot No.17 in Pinal Plot No.9 of Survey No.41 (Part) in Town Planning someme do.4 (Kaninar) udaeasuring about 657 sq.yards ?
(2) Whether the suit lana, in Goverment record, was mutated in the name of defendant no.1 for the sake of convenience only ?
(3) Whether def ndant no.1 was only a binsider of Bai Reva and not the owner of the suit Land ?
(4) Whether defendants on 14.6.1975 executed agree ment of sale in respect of the suit land in favour of M/s.Shah Patel & Co. and handed over possession of the suit land as the owners therof?
(5) Whether deceased Revaben was competent to bequsst suit land by executing a Will dt. 11.11.1962 as alleged ?
(6) Whether the suit is false, frivolous and vexatious?
(7) Whether the defcadanta are entitled to compensatory Page 12 of 27 Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026 NEUTRAL CITATION C/FA/2/1991 ORDER DATED: 07/05/2026 undefined costs under Section 36 () of Civil Procedure Code ?
(8) To what relief, if any the plaintiff is entitled to?
(9) What order and decree ?
(10) Is it proved that the defendants 2 and 3 were put in physical possession of the suit land, by the defendant no.1 on 14th June, 1975, and that the defendants 2 ani 3 constructed three bungalows thereon spending considerable amounts of money?
(11) Is it proved that the aforesaid trousfer of possession by the defend at no.1 to defensant no.2 and 3 and the aforesaid construction of bungalows by defendants 2 and 3 thereon was to the knwoledge of the plaintiffs and that the plaintiff having not objected against the same, can it be said that the suit is bad for delay, lachies, acquiseance or sufference; can it be said that the plaintiff is estoppad from seeking possession on the aforesaid circumstances?
(12) Can it be said that in the aforesaid circumstances, the agreement to sell entered into between the defendant no.1 on the one hand and drendants 2 and 3 on the other hand is binding upon the plaintiffs ?
(13) In case the conclusion is that the defendant no.1 had no apetence to transfer the aforesaid circumstances call for any equities in favour of the defendents 2 to 8; in such contingency, what will be the just and equiteble order?
(14) Is it proved that the defendants 2 and 3 entered into agreement for purchasing the suit Iand from deft.no.1 in good faith believing that the defendant no.1 vas competent to transfer full ownership over the suit land to the defendants 2 and 3; whether the said good faith on the part of defaniants 2 and 3 vill give rise to any equity in favour of defendants 2 to 8 and in such contingency, what will be the just and equitable order. ?
(15) In the above connection, can the plaintiff be directed to transfer the suit land to the defendants 2 to 3 Page 13 of 27 Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026 NEUTRAL CITATION C/FA/2/1991 ORDER DATED: 07/05/2026 undefined or their nominees at the price agreed by and between the delentant no.1 on the one hand and defendats 2 and 3 on the other in the agreement to purchase entered into by and between them?
(16) (a) Is it proved that defendant no.1 is in possession of the suit land as an owner openly, peaceably and without interference from anyone for more than 12 years prior to the date of the suit and that the defendant no.1 became owner of the suit land by such adverse possession ?
(b) Is it proved that the period of foresaid 12 years should be computed from the date the plaintiff sought amendment in the plaint and prayed for possession of the suit land in the present suit, as contended by defendants 2 and 3 ?
(17) Is it proved that by their conduct the Plaintiffs allowed defendants 2 to 3 to believe that the plaintiffs were not interest in claiming possession of the suit land and that as a result, the plaintiffs are not entitled to claim relief of possession ?"
8.2 Both the parties have led evidence orally and documentary. The extensive and exhaustive analysis of the evidence was made by learned City Civil Court to answer the Issue Nos.1 to 3 and Issue Nos.5 to 7 'in negative', Issue Nos.4, 10, 11 to 15, 17 as 'does not survive' and Issue Nos.8 and 9 'as per order below' and Issue Nos.16A and 16B 'in affirmative'.
8.3 While taking up the rival arguments of learned advocates for both the sides, following points for consideration arise.
(i) Whether the suit land is joint property of the plaintiff nos.1 and 2 and defendant no.1 ?
(ii) Whether suit land is proved as absolute property of
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NEUTRAL CITATION
C/FA/2/1991 ORDER DATED: 07/05/2026
undefined
defendant no.1 ?
(iii) Whether Exh.112 document is family settlement and
created binding effect ?
(iv) Whether Exh.112 if proved to be a Will, if so, does Bai
Reva had right to bequeath suit land ?
(v) What Order ?
8.4 In regard to aforesaid disputed questions, at the outset, let
me note that late Ratilal Chunilal Patel was the owner of the land of survey no.41 admeasuring Acre 06.00 land of Final Plot No.9. He had purchased land of Survey No.41 from earstwhile owner Harilal Trikamlal by registered sale deed at Serial No.485 registered in Sub Registrar Office on 25.07.1933. Late Ratial Chunilal Patel had also one brother Muljibhai Chunilal Patel. Bai Reva was their real sister. The land of Survey No.41 was divided into 38 plots and become part of Vishwakunj Society. The suit land is Plot No.17, one of the total 38 plots of land at Survey No.41. According to the record, Plot No.17 was transferred by late Ratilal Chunilal Patel in the name of defendant no.1 who is nephew (son of the sister). The effect of transfer was given in the revenue record. The name of defendant no.1 was mutated in Village Form No.6 and 7/12 extracts, in the year 1938-40 vide Entry No.491 (Exh.81 and Exh.145). It is true that late Ratilal Chunilal Patel transferred other plots by way of registered sale deed in favour of third party, but transfer this suit land in favour of defendant no.1 by way of mutating the entry in name of defendant no.1 in revenue record. However, at no point of time, late Ratilal Chunilal Patel came out from this transfer and resisted or raised contention that it is an Page 15 of 27 Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026 NEUTRAL CITATION C/FA/2/1991 ORDER DATED: 07/05/2026 undefined illegal or not bona fide transfer, equally, neither defendant no.1 or plaintiff nos.1 and 2 or Bai Reva, at no point of time, till executing Exh.112 claims or asserted that late Ratilal Chunilal Patel illegally transferred the suit land in name of defendant no.1.
8.5 It is in this background, the statement of late Ratilal Chunilal Patel in Civil Suit No.959 of 1968 filed by Mr.Ajit Patel - defendant no.1 (as plaintiff) as defendant no.1 made statement before the Court of law in written statement, more particularly in para:20 of that suit, that the land has been sold to Ajitkumar Parsottamdas Patel (defendant no.1) for sale consideration of Rs.900/- on 23.06.1938 assumes significance. Revenue Entries in Village Form 6, Entry No.491 (Exh.81) also recorded said transaction and it remains unchallenged and unrebuttal or recalled throughout the life time of Shri Ratilal Chunilal Patel, who died on 05.12.1975. Therefore, his statement before the Court of law in regard to ownership and title of the suit land, under Section 32 of the Indian Evidence Act, become relevant and admissible. In this factual and legal situation, heavy burden lies upon plaintiffs to establish that the suit land was a joint property of plaintiff nos.1 and 2 and defendant no.1, whereby defendant no.1 acted as Benamidar.
8.6 It is settled principle that burden lies squarely upon plaintiffs to establish the clear title of the suit land, by leading cogent evidence. It is settled principle of law that the plaintiff must succeed on its own strength and not on weakness of the defense. The famous settled principle has been consistently reiterated by the Hon'ble Supreme Court. In the case of Union of India & Ors. vs. Vasavi Co.operative Society Limited reported in (2014) 2 SCC 269, Hon'ble the Supreme Court has held that 'in a suit for Page 16 of 27 Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026 NEUTRAL CITATION C/FA/2/1991 ORDER DATED: 07/05/2026 undefined declaration of title, the burden is always on plaintiff to establish his title and if he cannot succeed on the weakness of the defendant's case'.
8.7 Learned advocate Mr.V.M.Patel, to discharge the burden heavily relied upon Exh.112 and claimed that it is family settlement whereby it was decided about the antecedent right of parties in regard to the suit land and also signed by defendant no.1. Therefore, he is estopped from reversing from the binding effect of this document at Exh.112.
8.8 In view of above, it is incumbent for Court to refer Exh.112, to find out whether it is a family settlement. True translation of Exh.112 from Gujarati to English reads as under:
"Exhibit-112 Stamp of One Rupee Eight Annas Rs. 2750 Mark-3/4 On this Date: 13th February, 1952, Ms. Reva wd/o Purshottamdas Damodardas, residing at: Sarangpur, Ahmedabad (illegible) sd/- illegible Shantilal Purshottamdas and Ajitbhai Purshottamdas and Ratilal Chunilal:-
I-the undersigned, Reva d/o Chunilal Kakubhai , residing at: Sarkivad, Sarangpur, Ahmedabad, hereby inform you that administration of the below mentioned cash and immovable property shall be handled by you after my demise.
Rs. 2000.00 Deposited with Gopal Krishna Mill
Rs. 1000.00 Deposited with Bansi Flour Mill
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NEUTRAL CITATION
C/FA/2/1991 ORDER DATED: 07/05/2026
undefined
Rs. 1000.00
(illegible) Deposited with the firm
Union Traders
Deposited with Ajitbhai
Rs. 5000.00 Purshottamdas
Rs. 9000.00/- (Total)
The interest received from the said deposits of Rs. 9000.00/- shall be managed by Reva during her lifetime and after her demise, it shall be managed as follows:
Rs. 2000.00/- shall be deposited on interest for the clothes of Vidhya and the interest received shall be given to Vidhya for her clothes.
Rs. 2000.00/- shall be deposited on interest for the clothes of Indira and the interest received shall be given to Indira for her clothes.
Rs. 5000.00/- kept with Ajitbhai, the same money shall be accounted and given to Bhupendra.
The residential house of Sarkivad and plot unit-1 in Vidhyakunj Society and the plot unit-1 near Kankariya shall be distributed to Ajitbhai, Shantilal and Bhupendra equally, when Bhupendra turns major in age.
Articles from the List of Articles annexed herewith shall be handed over by you to Vidhya and Indira when they become responsible enough to conserve them, or when it comes to your attention and it shall be managed by Shantilal Purshottamdas and Ajitbhai Purshottamdas and Ratilal Chunilal until then:
It shall be implemented accordingly by you after my lifetime as mentioned above.
Date: 19-2-1952
Witness Vinayak (Ratilal) Patel Revaben d/o Chunilal Kakubhai
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NEUTRAL CITATION
C/FA/2/1991 ORDER DATED: 07/05/2026
undefined
himself
Witness Muljibhai Chunilal Self attested
Patel himself
Witness Becharbhai Muljibhai Sd/- illegible
himself witness Shantilal
Purshottamdas Patel himself
illegible
Note: The above translation has been done from very old hand- written content in illegible handwriting by deciphering text that could be retrieved from the given handwritten content in the best possible way.
Despite this, some part are still illegible which is marked as illegible.
8.9 The aforesaid document has been pressed as a family arrangement or settlement. What could be a family settlement or family arrangement has been dealt with by Professor Mulla in Hindu Law, 24th Edition.
8.10 It has been further held in Hindu Law, 24th Edition, by Sir Dinshaw Fardunji Mulla that, "Family arrangement or family settlement, as it is sometimes termed generally meets with approval of the court and the court always leans in favour of a transaction relating to any such arrangement, which ensures peace and goodwill among the family members. This does not rest on any special rule of Hindu law, but flows from general principles and policy of law. It is governed by a special equity peculiar to itself and where the terms are fair, taking into consideration the circumstances of the case, the court makes every effort to recognise and sustain it. Though, conflict of legal claims in praesenti or in futuro generally regarded as a condition for the validity of a family arrangement, it is not necessarily so. Even bona Page 19 of 27 Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026 NEUTRAL CITATION C/FA/2/1991 ORDER DATED: 07/05/2026 undefined fide dispute, present or possible, which may not involve future claims will suffice. Thus, for instance, members of a joint Hindu family may, to maintain peace or to bring about harmony in the family, enter into such a family arrangement. It is not against the other. The prime factor is that it should be in the interest of the family. A family arrangement or settlement occupies a position different from a commercial one. Such a settlement generally meets with the approval of the court, as such a settlement or arrangement is governed by distinct equitable principles, where the settlement is fair. Such a settlement should not be put to risk when it enures for the benefit of the family. A settlement should normally be accepted, even if it is subsequent to an award or other judicial proceedings, and would prevail even over the award, when there is a finding that it was entered into in order to amicably resolve familial issues."
8.11 In case of Tek Bahadur Bhujil vs. Debt Singh Bhujil, 1963 SCC Online SC 197, the Hon'ble Supreme Court held as under:
"13. Family arrangement as such can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in future. It is only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of Page 20 of 27 Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026 NEUTRAL CITATION C/FA/2/1991 ORDER DATED: 07/05/2026 undefined title declaring for future what rights in what properties the parties possess. The document Exhibit 3 does not appear to be of such a nature. It merely records the statements which the three brothers made, each referring to others as brothers and referring to the properties as joint property. In fact the appellant, in his statement, referred to respondents 1 and 2 as two brother co-partners; and the last paragraph said:
...
14. Learned counsel for the appellant laid great stress on what this Court said in Sahu Madho Das v. Mukhand Ram, (1955) 2 SCR 22 at pp. 42-43 : ((S) AIR 1955 SC 481at pp. 490-491).
Reliance is placed on the following in support of the contention that the brothers, having no right in the property purchased by the mother's money, could not have legally entered into a family arrangement. The observations are:
"It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknow- ledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognizing the right of the others, as they had previously asserted it, to the portions allotted to them respectively. That explains why no conveyance is required in these cases to pass the title from the one in whom it resides to the person receiving it under the family arrangement. It is assumed that the title claimed by the person receiving the property under the arrangement had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary." these observations do not mean that some Title must exist as a fact in the persons entering into a family arrangement. They simply mean that it is to be assumed that the parties to the arrangement had an antecedent title of some sort and that the agreement clinches and defines what that title is Similar assumption Page 21 of 27 Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026 NEUTRAL CITATION C/FA/2/1991 ORDER DATED: 07/05/2026 undefined can be made in the present ease even on the basis that the property was purchased with the moneys of the mother. How they got some antecedent title in the property is not for us to determine. The plaintiff alleged that the property belonged to the family. The appellant did not allege that it could not have belonged to the family as it was purchased with the moneys of the mother but claimed that it was his self
- acquired property. In the circumstances, it can be assumed that the parties recognized the existence of such antecedent title to the parties to the property as was recognized by them under the family arrangement. It is not so much an actually existing right as a claim to such a right that matters"
Therefore, family settlement must exist some pre-existing or antecedent title and it records writing in presentia the arrangement done in the past to keep the harmony and peace in the family.
8.12 In the famous judgment in case of Kale vs. Director of Consolidation reported in (1976) 3 SCC 119, the Hon'ble Supreme Court culled out the principle of family settlement as under:
"10. In other words, to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:
"(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;
(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;
(3) The family arrangement may be Page 22 of 27 Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026 NEUTRAL CITATION C/FA/2/1991 ORDER DATED: 07/05/2026 undefined
even oral in which case no registration is necessary;
(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing.
Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;
The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same;
(5) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the Page 23 of 27 Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026 NEUTRAL CITATION C/FA/2/1991 ORDER DATED: 07/05/2026 undefined family arrangement is final and binding on the parties to the settlement."
8.13 In case of Khushi Ram vs. Nawal Singh reported in (2021) 16 SCC 279 /32, in regard to the essential which constitutes the family arrangement is as under:
"Before we answer the above issue, it is necessary to find out what is the concept of family with regard to which a family settlement could be entered. A three- Judge Bench of this Court in Ram Charan Das v. Girja Nandini Devi [Ram Charan Das v. Girja Nandini Devi, 1965 SCC OnLine SC 17 : (1965) 3 SCR 841 : AIR 1966 SC 323] had occasion to consider a family settlement regarding the immovable property, this Court laid down that every party taking benefit under a family settlement must be related to one another in some way and have a possible claim to the property or a claim or even a semblance of a claim. The following was laid down at SCR p. 851 :
(AIR p. 329, para 11) "11. ... In the first place once it is held that the transaction being a family settlement is not an alienation, it cannot amount to the creation of an interest. For, as the Privy Council pointed out in Hiran Bibi case [Hiran Bibi v. Sohan Bibi, 1914 SCC OnLine PC 28 : AIR 1914 PC 44] in a family settlement each party takes a share in the property by virtue of the independent title which is admitted to that extent by the other parties. It is not necessary, as would appear from the decision in Rangasami Gounden v. Nachiappa Gounden [Rangasami Gounde v. Nachiappa Gounden, 1918 SCC OnLine PC 95 : (1918-19) 46 IA 72] that every party taking benefit under a family settlement must necessarily be shown to have, under the law, a claim to a share in the property. All that is necessary is that the parties must be related to one another in some way and have a possible claim to the property or a claim or even a semblance of a Page 24 of 27 Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026 NEUTRAL CITATION C/FA/2/1991 ORDER DATED: 07/05/2026 undefined claim on some other ground as, say, affection."
9. In line of the aforesaid law laid by Hon'ble the Supreme Court, in regard to family settlement or family arrangement, if we examine the documents at Exh.112, it is rather a document executed by Bai Reva for arrangement of the property after her death. In opening para itself she has stated that property has to be administered post her death. Therefore, such posthumous arrangement for administration of her property by no means would be family settlement or family arrangement. The signature of defendant no.1 even if proved on that document, it is at the most signature of attesting witness nothing more than that. In light of the aforesaid finding in tandem with the settled principles of Law, I do not subscribe theory of learned advocate Mr.V.M.Patel for VMP Legal that the document at Exh.112 is family settlement and has to be given effect thereof giving holistic view to the document. Argument raising such theory appears to be complete an afterthought.
10. Exh.112 also raised the issue that whether Bai Reva had legitimate right to bequeath the suit land. This document which turned and proved to be an instrument of testament in succession is produced in a Civil Court to claim the title. Section 30 of the Hindu Succession Act, 1956 reads as under:
"30. Testamentary succession.--Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him or by her, in accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925), or any other law for the time being in force and applicable to Hindus.Explanation.--The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a Page 25 of 27 Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026 NEUTRAL CITATION C/FA/2/1991 ORDER DATED: 07/05/2026 undefined member of a tarwad, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhi, illom, kutumba or kavaru shall notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this section."
11. The expression "which is capable of being so disclosed by him or her" assumes a significance and thereby if a Hindu intent to make a testamentary succession or to dispose of property by way of Will, he / she should be authorised and capable to dispose of the same during his / her lifetime.
12. Therefore, notwithstanding the legality of Exh.112 in absencia of title, Bai Reva had no capability or right to dispose of the suit land even by executing the Will as she was not capable to dispose of suit land during her life time. Lastly, it is to be noted that in a Civil Suit No.959 of 1968, the Competent Civil Court declared the defendant no.1 as an owner and occupier of the suit land. That decision is carried to challenge in appeal but by consent the parties have disposed of appeal and it conferred the title of suit land in favour of defendant no.1.
13. In light of the aforesaid observations, according to this Court, learned City Civil Court in its vividly discussion and reason and comprehensive judgment touched all the issues; analyzed the evidence in its true perspective. Since the learned City Civil Court has correctly examined the issues in backdrop of the evidence both oral and documentary and reached to the conclusion, this Court finds no justifiable or warranted reason to interfere with the impugned judgment and award. Therefore, this Court agreed with findings recorded by learned trial Court. In view of above, the appeal deserves no consideration. Before parting with judgment, Page 26 of 27 Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026 NEUTRAL CITATION C/FA/2/1991 ORDER DATED: 07/05/2026 undefined this Court advantageously refers to judgment in case of Lailteshwar Prasad Singh and others vs. S.P. Srivastava (dead) through Legal Representatives reported in (2017) 2 SCC 415, whereby Hon'ble Supreme Court held as under:
"14. The points which arise for determination by a court of first appeal must cover all important questions involved in the case and they should not be general and vague. Even though the appellate court would be justified in taking a different view on question of fact that should be done after adverting to the reasons given by the trial Judge in arriving at the finding in question. When the appellate court agrees with the views of the trial court on evidence, it need not restate effect of evidence or reiterate reasons given by the trial court; expression of general agreement with reasons given by the trial court would ordinarily suffice. However, when the first appellate court reverses the findings of the trial court, it must record the findings in clear terms explaining how the reasonings of the trial court are erroneous."
14. In wake of the aforesaid reasons alongside the provisions of Law, the aforesaid points of determination are answered accordingly.
15. There is no gainsaid that appeal is bereft of merits and deserves to be dismissed. Accordingly, it is dismissed. The judgment and decree impugned in this appeal stands confirmed and upheld. Interim relief granted earlier, if any, shall stand vacated forthwith. Records and Proceedings be sent back to the concerned trial Court.
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