Gujarat High Court
Shanabhai Mangalabhai Patel vs Bhagwanbhai Revabhai Patel (Abate) on 26 July, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SA/53/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 53 of 2017
With
CIVIL APPLICATION NO. 1 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/-
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1 Whether Reporters of Local Papers may be allowed to NO
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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SHANABHAI MANGALABHAI PATEL
Versus
BHAGWANBHAI REVABHAI PATEL (ABATE)
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Appearance:
MR HARSHAD K PATEL(2844) for the PETITIONER(s) No. 1
MR DEVARSHI C SHAH(5545) for the RESPONDENT(s) No. 2,4,5,6
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 26/07/2018
ORAL JUDGMENT
This Second Appeal under Section 100 of the Civil Procedure Code is at the instance of one of the original plaintiffs and is directed against the judgment and order dated 16th April 2016 passed by the 3rd Additional District Judge, Panchmahals at Godhra, in the Regular Civil Appeal No.53 of 2002 arising Page 1 of 12 C/SA/53/2017 JUDGMENT from the judgment and decree passed by the Civil Judge (J.D.), Kaalol, dated 21st October 2002 in the Regular Civil Suit No.45 of 1983.
The plaintiffs preferred the Regular Civil Suit referred to above for declaration and injunction. The declaration to the effect that the plaintiffs are the sole owners of the suit properties and are in exclusive possession of the same and the injunction prayed for was to the effect that the defendants shall not disturb the peaceful possession of the plaintiffs. The defendants contested the suit by filing their written-statement. The stance of the defendants before the trial Court was that the suit properties are ancestral and the same were partitioned way back in the year 1949. According to the defendants, after the suit properties were partitioned, revenue entries in this regard were also mutated in the record of rights. According to the defendants, Revabhai Ranchhodbhai was the head of the family. Revabhai had three sons, namely Mangalbhai, Chinubhai and Bhagwanbhai. The appellant herein - original plaintiff no.2 is the son of Mangalbhai. Chinubhai had no issues. The defendants are all children of Bhagwanbhai. According to the defendants, as Chinubhai had no issues, he bequeathed his share in the property to Bhagwanbhai and that is how the defendants derived the right in the suit properties.
The trial Court, vide Exh.32, framed the following issues :
"(1) Whether the plaintiff proves that the suit property is an ancestral property owned and occupied by him ?Page 2 of 12
C/SA/53/2017 JUDGMENT
(2) Whether the plaintiff proves that the defendants
have no right into it ?
2-A(1) Whether the plaintiff proves that the suit property
is an ancestral property and 1/2 share is owned and occupied by the defendants ?
2-A(2) Whether the plaintiff proves that the defendants have no right into the properties ?
2-A(3) Whether the defendant no.2 proves that he is the owner and occupier of the suit properties on the basis of the writing in para-4 of the Will ?
(3) What order and decree ?"
The issues framed by the trial Court referred to above came to be answered accordingly as under :
"(1) Partly in the affirmative.
(2) Partly in the affirmative.
2-A(1) Partly in the affirmative.
2-A(2) Partly in the affirmative.
2-A(3) Partly in the affirmative.
(3) Partly in the affirmative.'
Page 3 of 12
C/SA/53/2017 JUDGMENT
The trial Court, on appreciation of the oral as well as documentary evidence, partly allowed the suit. The operative part of the judgment and decree passed by the trial Court reads as under :
"ORDER The plaintiff's suit is hereby partly allowed.
It is hereby declared that the lands bearing Survey Nos.141 and 178/3 situated at Mouje Ramnath, Delol, are the ancestral properties owned and occupied jointly by the plaintiffs and defendants.
It is hereby ordered that there is 1/2 share of the plaintiffs and defendants in the aforementioned suit properties.
It is hereby ordered that the plaintiffs should pay the requisite stamp duty on the aforementioned both the suit properties.
It is hereby ordered that after the payment of the requisite stamp duty by the plaintiffs, a yadi is to be sent to the Collector, Godhra, to partition the aforementioned both the suit properties in 1/2 share each."
Being dissatisfied with the judgment and decree passed by the trial Court, the appellant herein - original plaintiff no.2 preferred the Regular Civil Appeal No.53 of 2002 in the District Court, Panchmahals at Godhra. The Regular Civil Appeal filed by the appellant herein came to be dismissed vide judgment and order dated 16th April 2016, thereby affirming the judgment and decree passed by the trial Court.
Page 4 of 12C/SA/53/2017 JUDGMENT Being dissatisfied with the judgment and order passed by the lower appellate court, the appellant - original plaintiff no.2 is here before this Court with the present Second Appeal under Section 100 of the Civil Procedure Code.
In the memorandum of the Second Appeal, the following questions have been formulated as the substantial questions of law :
"(a) Whether the Courts below have erred in passing the impugned order, considering the Will in the ancestral properties, which is seriously objected by the appellant ?
(b) Whether the Courts below can make partition of the ancestral properties on the basis of the Will which is disputed ?
(c) Whether the Courts below can pass the judgment and decree on the basis of the Will without framing any issue in respect of the Will of the ancestral properties in compliance of the provisions of Code of Civil Procedure, 1908 ?
(d) Whether Sec.57 of Hindu Succession Act is required to be complied in case of partition of ancestral properties on the basis of the Will ?
(e) Whether the provisions of Transfer of Property Act would apply in case of partition of ancestral properties and whether such provision is followed in the present case or not ?Page 5 of 12
C/SA/53/2017 JUDGMENT
(f) Whether the Courts below can pass the impugned orders to declare the properties covered by Will even though the said properties are ancestral properties and all the parties have equal share in the same ?
(g) Whether the court below have appreciated these Entries made by revenue authorities under BLR Code was legally admissible documents or not ?
(h) Whether the courts below have erred in not considering the defence of the appellant in the suit as well as in the appeal in its true perspective ?
(h) Whether the courts below can consider the documentary evidence produced by the parties without framing the provisions of the Indian Evidence Act ?"
The lower appellate Court, while dismissing the appeal filed by the appellant herein, observed as under :
"12. Whereas the defendants of the suit have examined two witnesses namely Muljibhai Rambhai Patel as witness no. 1 and as witness no.2, defendant no. 2 himself has deposed on oath vide Exh.149. Aforesaid witness no.2 has specifically adduced oral evidence that the properties belong to Revabhai were orally partitioned prior to 55 years between three brothers namely Mangalabhai Revabhai, Chinubhai Revabhai and Bhagwanbhai Revabhai. In this partition, land being survey no.157/1, 177/2/2 and survey no.128/2, 186/1 etc. were came into the share of Mangalabhai Revabhai. Land being survey no.178/9, 250 Page 6 of 12 C/SA/53/2017 JUDGMENT paiki 154/3, 154/4, 160 and 3rd portion of land being survey no.148, 178/3 were came into the share of Chinubhai; and land being survey no.155/1, 155/3, 177/2/1. and 3" portion of land being survey no.141, 178/3 were came into the share of Bhagwanbhai. Since than all the heirs of deceased Revabhai are having their exclusive, possession of the land came into their share. Also deposed that house bearing property no.910 was also came into the share of Chinubhai Revabhai. On death of Chinubhai, the land came into .the share of Chinubhai were being cared by Chanchalben (wife of Chinubhai). Chinubhai passed away on dated 17.06.1981 and Chanchalben also passed away on dated 02.05.1982. After the death of Chanchalben, all the lands came into share of Chinubhai were being cared by this witness because all these properties bequeathed to him by Chinubhai. In this will, Muljibhai Ramabhai and Dahyabhai Garbadbhai have put their signatures as witnesses and the said will was got registered on next date.
This witness was cross-examined in detail on behalf of the plaintiff wherein they could not succeed to bring out any evidence on record to disbelieve oral evidence adduced by this witness. 0n the contrary, on behalf of the plaintiff, question put in cross-examination to this witness suggesting that on the date of which the will registered, Chinubhai was able to move and speak and his hand was vibrating; and also put question suggesting that at the time of writing of will, nobody except Muljibhai Dahyabhai and family members and writer of will were present.Page 7 of 12
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13. Considering oral evidence of witness no.2 of the defendant's side, plaintiff does not succeed to bring evidence on record to come to the conclusion that as per defence of the defendants; properties in dispute were not partitioned between three brothers namely Mangalabhai Revabhai, Chinubhai Revabhai and Bhagwanbhai Revabhai. In support of all oral evidence adduced by the defendants, they have also produced village form no.6 showing entry no.3545 dated 05.04.1949 vide Exh.150 and village form no.6 showing entry no.3005 dated 19.02.1971 vide Exh.151 and original will vide Exh.187.
14. The aforesaid witness no.2 of the defendants side has already been cross-examined by the LA for the plaintiff. But, plaintiff failed to bring any evidence which enable this Court to come. to the conclusion that the oral evidence stated on the point of partition took place between three brothers are not either believable or trustworthy. More and above defendants have already produced documentary evidence i..e village form no.6 showing entry no. 3545 dated 05. 04.1949 vide Exh.150 and Exh.174. On perusal of this revenue record, it emerges that agricultural lands in disputes bearing survey no.157/1,177/2/2 were came into the share of Mangalabhai Revabhai; lands bearing survey no. 178/9, 250 paiki, 154/3 and 154/4 were came into the share of Chinubhai @ Chhaganbhai Revabhai and lands bearing survey no.155/1, 155/3 and 177/2/1 were came into the share of Bhagwanbhai Revabhai. Also it emerges that the said entry has already been certified by the concern revenue authority. Also on perusal of village form no.6 showing mutation entry Page 8 of 12 C/SA/53/2017 JUDGMENT no.3005 dated 19.02.1971 produced vide Exh.151, survey no.160 came into the share of Chinubhai @ Chhaganbhai Revabhai. Though long period has been elapsed, these mutation entries have never challenged by the plaintiff before any revenue authority or court.
15. Therefore, both these unchallenged entries are believable and both are reliable. Also defendants have already produced resolution dated 31.0.7 1982 passed by the Gram Panchayat Delol with regard to residential house no. 910. and statement of assessment of residential house no. 910 vide Exh.170 and Exh. 149. On perusal of these documents defendants succeed to bring evidence to prove that this disputed house was standing in the .name of Chinubhai Revabhai and thereafter said property in dispute was transferred into the name of one of the defendants Umeshbhai Bhagwanbhai Patel. This type of documents are support to the defence of the defendants. Therefore, on considering above discussed oral as well as documentary evidences, defendants are succeed to prove that partition took place between the legal heirs of deceased with regard to properties in dispute. Furthermore no any specific argument advanced on behalf of the plaintiff before this Court that on what reason the findings arrived at by the Ld. Trial Court is wrong. Also no any submission put forth by the plaintiff that specific either oral or documentary evidence has not been considered while delivering impugned judgment by the Ld. Trial Court.
16. The defendants have already produced documentary Page 9 of 12 C/SA/53/2017 JUDGMENT evidence to corroborate oral evidence leaded by them and to controvert evidence leaded by the plaintiff; and plaintiffs have not produced any supporting evidence to corroborate the oral evidence leaded by the plaintiff. The plaintiff could have easily examined any person as a witness from family members but has chosen not to examine to get support. Therefore, in light of foregoing views and discussion, this first Appellate Court comes to the conclusion that no any either error or mistake committed by the Ld. Lower Court while arriving at the conclusion that partition took place with regard to properties in dispute between the co-partners.
17. Also one of the argument advanced by the plaintiff that the will relied and produced by the defendants is fabricated and bogus one and the defendant has not obtained probate on the basis of the said will. But, this Appellate Court is not agree with this argument because considering the oral evidence adduced by the witness no.1 examined by the defendants, i am of the view that the defendants succeed to prove that the will produced vide Exh.187 is executed and signed by the deceased Chhaganbhai in presence of this witness no.1 and this will is also got registered before concern registrar. In light of foregoing reasons when defendants succeed -to prove that partition with regard to properties in dispute took place and property for which the will was executed were came into the share of deceased Chinubhai @ Chhaganbhai Revabhai. Therefore, it is needless to say that the plaintiffs have not any concern with the transaction, entered into by the deceased Chhaganbhai with regard to the property coming into his share during Page 10 of 12 C/SA/53/2017 JUDGMENT partition. And since this suit is not instituted by the defendants claiming right towards properties in question on the basis of will and the said will is remains unchallenged till date, the defendants are not under obligation to obtain and submit probate on the basis of will executed by Chhaganbhai during his life time.
18. On perusal of appeal memo Exh.1 and order passed below Exh.1 during pendency of this appeal though the opponent no.1 and 3 are died, the appellant miserably fails to bring on record the legal heirs of these deceased opponents. Therefore, this appeal ordered to be abated in respect of these two defendants i.e. opponent no.1 and 3. Looking to the nature of relief sought by the plaintiff in the suit, I am agree with the arguments advanced on behalf of the opponents side that since appeal is continuous proceeding of the suit, all the legal heirs of deceased opponents are necessary and proper parties. Therefore in absence of necessary and proper parties in the appeal, any decree passed by this Court will not be effective and binding decree in the favour of the appellant."
Thus, the defendants were able to establish their right, title and interest over the suit properties on the basis of the Will executed by Chinubhai in favour of Bhagwanbhai. As pointed out above, the defendants are the legal heirs of Bhagwanbhai. The only argument canvassed before me in this Second Appeal is that the courts should not have believed or relied upon the Will said to have been executed by Chinubhai in favour of Bhagwanbhai. The appellant herein is not questioning the Page 11 of 12 C/SA/53/2017 JUDGMENT genuineness of the Will but, he is questioning the right of Chinubhai to execute the Will. This right is being questioned on the ground that the suit properties are ancestral. The two courts below have recorded concurrent findings that the suit lands were partitioned way back in the year 1949. Mangalbahi, Chinubhai and Bhagwanbhai were allotted their shares in the suit properties. As Chinubhai had no issue, he bequeathed his share in the suit properties in favour of Bhagwanbhai.
In such circumstances, I am of the view that no error, not to speak of any error of law, could be said to have been committed by the two courts below. In my view, none of the questions formulated could be termed as substantial questions of law. They are all questions of fact. No interference is warranted in this Second Appeal. This Second Appeal, therefore, fails and is hereby dismissed.
In view of the order passed in the main matter, the connected Civil Application stands disposed of.
(J.B.PARDIWALA, J.) /MOINUDDIN Page 12 of 12