Bombay High Court
Smt. Venubai Wd/O Natthu @ Devidas vs Smt. Vimlabai W/O Keshaorao Thakare on 6 February, 2013
Author: R. K. Deshpande
Bench: R. K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Second Appeal No.393 of 1995.
1] Smt. Venubai wd/o Natthu @ Devidas
Mankar, Aged about 64 years. ..... (Dead)
1-a] Aditya Nathuji @ Devidas Mankar, ..... (Amended
Minor, through his guardian as per Court's
Smt. Pramilabai Nathuji @ Devidas order dated
Mankar, R/o.-Gandhi Nagar, Pulgaon, 10-1-2003)
Tq.Deoli, District Wardha.
2] Smt. Pramilabai wd/o Natthu
@ Devidas Mankar,
Aged about 52 years,
Occ.- Household,
R/o.-Gandhinagar, Pulgaon,
District Wardha. .... APPELLANTS.
....VERSUS ....
1] Smt. Vimlabai w/o Keshaorao Thakare,
Aged about 51 years,
Occ.-Household work,
R/o.-Motinagar, Amravati,
Tahsil and District Amravati,
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2] Smt. Satyabhamabai w/o Motiram .... (Deleted as per
Mankar, Occ.-Household work, Court's order
R/o.-Langda Gin, Pulgoan, dated 9-3-2000)
Tahsil and District Wardha.
3] Smt. Indu wd/o Babasaheb Sawade,
Aged about 45 years,
Occ.-Household work,
R/o.-Langda Gin, Pulgoan,
Tahsil and District Wardha.
4] Smt. Sindhu w/o Wamanrao Andure,
Aged about 39 years, Occ.-Teacher,
R/o-Kedianagar, Amravati,
Tahsil and District Amravati.
5] Smt. Baby @ Rajani wd/o Gunwantrao
Kakade, Aged about 37 years,
Occ.-Household work, R/o.-Gaurkheda,
Taluka and District Amravati.
6] Smt. Shalu w/o Narayanrao Itapure,
Aged about 39 years, Occ.-Household,
R/o.-Motinagar, Amravati,
Tahsil and District Amravati.
7] Smt. Chhaya w/o Narendra Kadu,
Aged about 30 years,
Occ.-Household Work,
R/o.-State Bank Colony,
Chandur Railway,
District Amravati. .... RESPONDENTS.
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_______________________________________________
Sh. S.V. Sohoni, Advocate for appellants.
Sh. N.S.Badhe, Advocate for respondent Nos. 1 to 7.
_______________________________________________
Coram : R. K. Deshpande, J
Date : February 06, 2013.
ORAL JUDGMENT
1. Heard finally by consent of the learned Advocates appearing for the parties.
2. In Special Civil Suit No.38 of 1979 the learned Civil Judge, Senior Division, Amravati passed a decree for partition and separate possession on 9-9-1986 with all other consequential orders. The plaintiff Vimalabai was th held entitled to 1/8 share in the whole properties described in Part-I - Schedule-B attached to the plaint, except the portion of field Survey Nos.51/1 and 53/1 situated at village Sonora Kakade Pragane Mangrul ::: Downloaded on - 09/06/2013 19:38:15 ::: 4 Wed.06022013sa315.11JUDG.odt Dastgir, Tq. Chandur Rly, District Amravati sold by Motiram. Regular Civil Appeal Nos.496 of 1986 and 498 of 1986 preferred by both the parties were dismissed on 21-2-1995 with some modification to the th extent of holding the plaintiff entitled to 1/24 share in the properties shown in Schedule-B (Part I and II), agricultural lands and house property except the property sold by Motiram during his life time. Hence, this second appeal by the original defendant Nos. 8 & 9 claiming through the defendant No.1.
3. Undisputed factual position is that the ancestral property in the hands of one Motiram Mankar was partitioned by executing a registered Partition Deed dated 6-4-1955 to which Natthuji @ Devidas the defendant No.1 who was the son of Tulsabai the first ::: Downloaded on - 09/06/2013 19:38:15 ::: 5 Wed.06022013sa315.11JUDG.odt wife of Motiram was a party. The property which had fallen to the share of Motiram in this partition was further partitioned on 27-10-1969 between Motiram and his third wife Satyabhama the defendant No.2. There were other transactions also in the form of Gift Deed and Exchange Deed and it is not necessary to refer them here. Vimalabai the original plaintiff who claimed to be the daughter of Narmadabai the second wife of Motiramji filed a suit in question i.e Special Civil Suit No.38 of 1979 for partition and separate possession of th 1/8 share in the entire property excluding the property sold by Motiramji in the year 1977.
4. Both the Courts below have disbelieved the registered Partition Deed dated 6-4-1955 for the reason that the burden of proof to prove that the Partition Deed ::: Downloaded on - 09/06/2013 19:38:15 ::: 6 Wed.06022013sa315.11JUDG.odt was real, genuine and not nominal was upon the defendants which was not discharged and that there was evidence brought on record to establish that the parties continued to live together and enjoy the property in common as before. It is not in dispute that if such Partition Deed is accepted to be true, correct and binding upon the parties, the plaintiff will be th entitled to 1/24 share in the property which had fallen to the share of Motiramji Mankar alone of course excluding the property which was sold by Motiram and excluded by the Courts below. In such eventuality, the th th plaintiff would not be entitled either 1/8 share or 1/24 share in the entire property as has been held by the Courts below.
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5. While admitting this second appeal the Court had framed the following substantial questions of law :-
"1] Whether both the Courts below were justified in holding that the partition deed dated
6.4.1995 was nominal, not real and genuine, since not acted upon by the parties ?"
"2] Whether the burden of proving the existence of joint family was on the original plaintiff, especifically on the face of the registered partition deed dated 6.4.1955? If yes. whether the Courts below were right in casting the negative burden on the appellants?"
"3] Whether Section 23 of the Hindu Succession Act imposes a restriction on a female heir to demand partition of a house property? If yes, whether the original plaintiff can enforce a partition in respect of the house property shown in Schedule-B of the plaint?"::: Downloaded on - 09/06/2013 19:38:15 :::
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6. So far as the substantial question of law at serial No.3 is concerned, it is conceded by Sh. Sohoni, the learned Advocate appearing for the appellants that the th plaintiff would be entitled to 1/24 share in the property which had fallen to the share of Motiramji in the Partition Deed dated 6-4-1955. Hence, the said substantial question of law does not deserve any consideration.
7. Sh. Sohoni, the learned Advocate appearing for the appellant-defendants has urged that it is the plaintiff who is coming before the Court with a case that the registered Partition Deed dated 6-4-1955 was not real, genuine but was nominal and not to be acted upon. He, therefore submits that once the Partition Deed is proved it is for the plaintiff to establish the case ::: Downloaded on - 09/06/2013 19:38:16 ::: 9 Wed.06022013sa315.11JUDG.odt with which he has come before the Court. If the facts are not proved then it is the plaintiff who shall fail in the matter. He, therefore, submits that the Courts below have committed an error in holding that the burden of proof in respect of such facts was upon the appellant-defendants. Relying upon para 322 of Mulla's Principles of Hindu Law, he has urged that once the shares are defined, the parties may continue to live together and enjoy the property in common as before.
He submits that the property ceases to be the joint family property. Sh. Badhe, the learned Advocate appearing for the plaintiff-respondents has supported the findings recorded by the Courts below.
8. The Partition Deed dated 6-4-1955 is a registered document and it is proved and marked as Exhibit-116. It ::: Downloaded on - 09/06/2013 19:38:16 ::: 10 Wed.06022013sa315.11JUDG.odt is the plaintiff who is coming before the Court with a case that this Partition Deed was not the real, genuine but was merely a nominal and the parties had decided not to act upon it. In view of this, the burden of proof in respect of such facts clearly lay upon the plaintiff-respondents. The Courts below have committed an error of law in holding that it was the burden upon the appellant-defendants to establish that the said Partition Deed was real, genuine and binding upon the parties.
9. The provisions contained in para 322 of Mulla's Principles of Hindu Law relied upon by Sh. Sohoni is reproduced below :-
"322. What is Partition.--According to the true notion of an undivided Mitakshara family, no individual member of that family, whilst it remains undivided, can predicate of ::: Downloaded on - 09/06/2013 19:38:16 ::: 11 Wed.06022013sa315.11JUDG.odt the joint property, that he--that particular member--has a certain definite share, one-third or one-fourth. Partition, according to that law, consists in a numerical division of the property; in other words, it consists in defining the shares of the coparceners in the joint property; an actual division of the property by metes and bounds is not necessary ( c). Once the shares are defined, whether by an agreement between the parties or otherwise, the partition is complete. After the shares are so defined, the parties may divide the property by metes and bounds, or they may continue to live together and enjoy the property in common as before. But whether they do the one or the other, it affects only the mode of enjoyment, but not the tenure of the property. The property ceases to be joint immediately the shares are defined, and thenceforth the parties hold the property as tenants-in-common (d).
Where at a partition between a Hindu, his two sons, and his two wives one-fifth was allotted to each of the sons and three-fifths to the father and his wives, it was held that the father and his wives became tenants-in-common, but though they had not divided their shares by metes and bounds inter se there could be no reunion between them, and the father therefore had no right to sell the properties of the wives and any such ::: Downloaded on - 09/06/2013 19:38:16 ::: 12 Wed.06022013sa315.11JUDG.odt alienation by him was not binding on them
(e)."
It has been clearly laid down that once the shares are defined by way of partition, the partition becomes complete. The parties may divide the property by metes and bounds or they may continue to live together and enjoy the property in common as before. Such conduct affects only the mode of enjoyment but not the tenure of the property. The property ceases to be the joint family property upon the shares being defined and the parties hold the property as the tenants-in- common. The Courts below have, therefore, committed an error in holding that the property continued to be the joint family property in spite of the registered Partition Deed dated 6-4-1955.
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10. In the result, the second appeal is allowed. The Judgment and decree dated 9-9-1986 passed in Regular Civil Suit No.38 of 1979 by the trial Court as modified by the appellate Court in Regular Civil Appeal Nos.496 of 1986 and 498 of 1986 by its common Judgment and order dated 21-2-1995 is hereby quashed th th and set aside to the extent of granting 1/8 or 1/24 share to the plaintiff in the entire suit property. It is th held that the plaintiff is entitled to 1/24 share in the properties which had fallen only to the share of Motiramji at the time of his death, of course excluding the property which was sold i.e 51/1 and 53/1 situated at Sonora Kakde Pragane Mangrul Dastgir, Taluka Chandur Rly., District Amravati which was sold by Motiramji. Rest of the decree passed by the trial Court is maintained in respect of share of the plaintiff as ::: Downloaded on - 09/06/2013 19:38:16 ::: 14 Wed.06022013sa315.11JUDG.odt decreed by this Court. No order as to costs.
JUDGE Deshmukh ::: Downloaded on - 09/06/2013 19:38:16 :::