Bombay High Court
Rajaram Appa Patil D./H vs 1. Shri Nitin Anandrao Patil And Ors on 12 June, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:23118
SA 484 & 465.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 484 OF 2013
Rajaram Appa Patil, ]
Deceased Legal Heirs. ]
]
1. Prabhakar @ Appasaheb Rajaram Patil, ]
Age:- 45 years Occ:- Agriculture, ]
R/o Minache-Khud, Tal : Bhudargad, ]
Dist: Kolhapur ]
]
2. Shri. Prakash @ Vijaykumar Rajaram Patil, ]
Age:- 35 years, Occ: service, ]
R/o - do - ]
]
3. Ravindra Rajaram Patil ]
Age 30 Years, Occu - do - ]
]
4. Sou. Dhondubai Rajaram patil ]
Age 75 years, Occu : Nil. ]
R/o - do - ]
]
5. Smt. Sanjiwani Shantinath Lipare ]
Age: 62 years Occ: Household, ]
R/o. Islampur, Tal: Walwa, Dist: Sangli. ]
]
6. Sou. Indubai Bhalchandra Kasar ]
Age: 60 years, Occ: Household, ]
R/o. Navlihal, Tal. Chikodi, ]
District Belgaum ]
]
7. Smt. Vijaymala Jaywant Pote, ]
Age:- 58 years, Occ: Household, ]
R/o. 9/670, Vikramnagar, ]
Mangalmurti Talkies Road, Ichalkaranji, ]
Tal. Hatkangle, District : Kolhapur ]
]
8. Sou. Bharati Vijay Hajare ]
Age: 50 years. Occ: Household, ]
R/o Sadlga, Tal: Chikodi, District:- Belgaum ]
Patil-SR 1 of 59
SA 484 & 465.doc
]
9. Sou. Sindhutai Bajrang Moholkar ]
Age: 40 years, Occ; Household, ]
R/o Manwaywada, S.T. Stand, ]
Near Water Tank, Near STD Booth, ]
Satara City, Satara ] ...Appellants.
Versus
1. Nitin Anandrao Patil ]
Age:- 37 years, Occ:- Education ]
R/o Kasabe Walve, Tal:- Radhanagri, ]
Dist Kolhapur. ]
]
2. Anandrao Rajaram Patil ]
Age :- 68 years Occ:- Agriculturist, ]
R/o Minche - Khurd, Tal Bhudargad ]
]
3. Pramila Anandrao Patil ]
Age:- 56 years, Occ:- service ]
R/o Sonage, Tal: Kagal, Dist :- Kolhapur ]
]
4. Vasanti Ganpatrao Kasar ]
Posting herself as Vasanti Anandrao Patil ]
Age:- 40 years Occ:- household ]
]
5. Vidyasagar Anandrao Patil, ]
Age 25 years, Occu : Nil. R/o - do - ]
]
6. Sachin Anandrao Patil ]
Age:- 20 years, Occu : Nil. R/o - do - ] ...Respondents.
ALONG WITH
SECOND APPEAL NO. 465 OF 2013
1. Shri. Anandrao Rajaram Patil ]
Age :- 70 years Occ:- Agriculturist ]
]
2. Vasanti Ganpatrao Kasar ]
Posting herself as Vasanti Anandrao Patil ]
Patil-SR 2 of 59
SA 484 & 465.doc
Age:- 40 years Occ:- household ]
]
3. Vidyasagar Anandrao Patil ]
Age:- 15 years, Defendant No.1 Legal heirs ]
]
4. Sachin Anandrao Patil ]
Age:- 9 years, Defendant No. 1 ]
Legal Heirs all residing at ]
Minche-Khurd, Tal:-Bhudargad ]
Dist:- Kolhapur ] ...Appellants.
Versus
1. Nitin Anandrao Patil ]
Age:- 27 years, Occ:- Education ]
R/o Kasabe Walve, Tal:- Radhanagri, ]
Dist:- Kolhapur. ]
]
2. Pramila Anandrao Patil ]
Age:- 46 years, Occ:- service ]
R/o Sonage, Tal: Kagal, Dist :- Kolhapur ]
]
3. Rajaram Appa Patil ]
Deceased his legal are named at ]
Sr. Nos. 11 to 15 Residing at ]
Minche-Khurd, Tal:- Bhudargad, ]
Dist:- Kolhapur ]
]
4. Prabhakar @ appasaheb Rajaram Patil, ]
Age:- 35 years Occ:- Agriculturist, ]
R/o Minche-Khurd, Tal : Bhudargad, ]
Dist: Kolhapur. ]
]
5. Shri. Prakash @ Vijaykumar Rajaram Patil, ]
Age:- 27 years, Occ: service, ]
R/o Minche-Khurd, Tal: Bhudargad, ]
Dist:- Kolhapur. ]
]
6 Sou. Dhondubai Rajaram Patil ]
Age:- 75 years, Occ: Nil. ]
R/o -do- ]
]
Patil-SR 3 of 59
SA 484 & 465.doc
7 Smt.Sanjiwani Shantinath Lipare ]
Age: 62 years Occ: Household, ]
R/o. Islampur, Tal: Walwa, Dist:-Sangli. ]
]
8 Sou. Indubai Bhalchandra Kasar ]
Age: 60 years, Occ: Household, ]
R/o. Navlihal, Tal. Chikodi, ]
District Belgaum ]
]
9 Smt. Vijaymala Jaywant Pote, ]
Age:- 58 years, Occ: Household, ]
R/o. 9/670, Vikramnagar, ]
Mangalmurti Talkies Road, Ichalkaranji, ]
Tal. Hatkangle, District :- Kolhapur ]
]
10 Sou. Bharati Vijay Hajare ]
Age: 50 years. Occ: Household, ]
R/o Sadlga, Tal: Chikodi, District:- Belgaum ]
]
11 Sau. Sindhutai Bajrang Moholkar ]
Age: 40 years, Occ: Household, ]
R/o Manwaywada, S.T. Stand, ]
Near Water Tank, Near STD Booth, ]
Satara City, Satara ] ...Respondents.
------------
Mr. Drupad S. Patil and Mr. Rugwed R. Kinkar for the Appellants in SA No. 484
of 2013.
Mr. Jai Kanade i/b Mr. B. G. Ligade for the Appellants in SA No. 465 of 2013.
Dr. Veerendra Tuljapurkar, Senior Advocate a/w Mr. Mandar Soman and Mr.
Niranjan Bhavake for the Respondent Nos.1 and 3 in SA No. 484 of 2013 and
for the Respondent No.1 and 2 in SA No. 465 of 2013.
------------
Coram : Sharmila U. Deshmukh, J.
Reserved on : March 28, 2024.
Pronounced on : June 12, 2024.
Patil-SR 4 of 59
SA 484 & 465.doc
Judgment :
1. Both the Second Appeals arise out of common judgment dated 4th May 2013 passed in Regular Civil Appeal No.21 of 2002 and Regular Civil Appeal No.131 of 2002. Regular Civil Appeal No.21 of 2002 was filed by the Defendant Nos.6 to 15 and Regular Civil Appeal No.131 of 2002 was filed by the Defendant Nos.1 and 3 to 5 challenging the judgment and decree dated 3rd November 2001 passed by Trial Court in Regular Civil Suit No.42 of 1990 decreeing the suit for partition and separate possession. Both appeals were heard together with consent of the parties as they arise out of common judgment and are being disposed of by this common judgment.
FACTUAL MATRIX:
2. For better understanding of the relationship of parties interse the genealogy chart tendered at the time of hearing is reproduced hereunder:
Patil-SR 5 of 59
SA 484 & 465.doc
3. Regular Civil Suit No. 42 of 1990 was filed by Nitin i.e son of Anandrao seeking partition and separate possession of the suit properties.
PROCEEDINGS IN TRIAL COURT:
PLAINT:
4. In RCS No.42 of 1990 filed by Nitin seeking partition, initially the daughters of Rajaram were not impleaded and after the death of Patil-SR 6 of 59 SA 484 & 465.doc Rajaram during the pendency of proceedings, the daughters of Rajaram i.e. Defendant Nos 11 to 15 came to be impleaded. The suit properties described in the plaint are 9 landed properties bearing Gat No. 303, 305, 370, 590(A), 590(B),597, 599, 606 and 610 situated at Mouje Minve Khurdh, Taluka :Bhudargad, Dist: Kolhapur.
5. It was contended that the suit properties were ancestral properties in which the plaintiff along with Defendant No.1 and Defendant No.2, i.e., his parents have undivided share. The Defendant No.1 had deserted the Plaintiff and the Defendant No.2 and was residing with Defendant No.3 Vasanti who was not his legally wedded wife. Defendant Nos.4 and 5 are their illegitimate children and do not have any right in the suit properties. After setting out relationship between the parties, it was pleaded that Prabhakar-Defendant No. 7, was born on 22 nd December 1953, Prakash @ Vijaykumar- Defendant No.8 was born on 30 th July 1965 and Ravindra-Defendant No.9 was born on 2nd October 1969.
6. Prior to 25th October 1959, Defendant Nos.1, 6 and 7, i.e., Anandrao, Rajaram and Prabhakar were coparceners and Rajaram was head of family. On 15th October 1959, there was partition of the joint family and Rajaram gave Vardi application to the revenue authorities for mutating revenue records of the joint family Patil-SR 7 of 59 SA 484 & 465.doc properties as per ownership possession and Mutation Entries Nos.508, 507 and 443 came to be effected. The Defendant Nos.1, 6 and 7 acquired separate ownership rights in respect of their separate properties. Subsequently, consolidation scheme was implemented in the village and lands of Anandrao, Prabhakar and Rajaram were converted into Gat Numbers. The suit properties are the ownership properties of Defendant no.1.
7. The properties which are stated to have been allotted to the share of Anandrao, Rajaram and Prabhakar are given in tabular form for ease of reference by this Court :
Properties allotted to: Gat Nos :
Rajaram Gat No. 285, 299, 308, 310, 321, 346,
363, 365, 387A, 387B, 387C, 374, 365
and Survey Nos. 81/2 and 88/1
Prabhakar Gat Nos. 439, 443, 446 and 487.
Anandarao Gat No. 303, 305, 370, 590(A),
590(B),597, 599, 606 and 610
8. Since the birth of Plaintiff in the year 1963, the suit properties are in possession of Plaintiff and Defendant Nos.1 and 2. Defendant Nos.8 and 9, i.e. Prakash and Ravindra were not born at the time of partition in the year 1959. The Defendant Nos. 8 and 9 have a right Patil-SR 8 of 59 SA 484 & 465.doc only in properties allotted to share of Defendant No. 6-Rajaram in partition of 1959. To deprive the Plaintiff of his share in the ancestral properties, a collusive suit for partition was filed by Defendant No. 8 and 9 i.e. Prakash @Vijaykumar and Ravindra against the Defendant Nos 1, 6 and 7 and by compromise between themselves and by misleading the Court obtained decree for partition. As the decree is collusive decree, the decree was not executed and after the present suit was instituted by the Plaintiff, Defendant Nos. 8 and 9, i.e., Prakash and Ravindra have filed Regular Darkhast No.8 of 1991. The decree passed in Regular Civil Suit No.61 of 1978 being obtained by collusion will not affect the suit properties and the decree in RCS No. 61 of 1978 be declared as cancelled. The Plaintiff is entitled to 1/3rd share in the suit properties being the joint family properties of the Plaintiff and the Defendant Nos. 1 and 2. The relief sought was declaration of Plaintiff's 1/3rd share and separate possession and for mesne profits till the possession of separate share is handed over. WRITTEN STATEMENTS:
9. Suit came to be resisted by the Defendant no.1 contending that the suit properties were subject matter of RCS No.61 of 1978 instituted by Defendant Nos. 8 and 9, which was decreed on 30 th January, 1980 wherein it is declared that Defendant Nos 8 and 9 have Patil-SR 9 of 59 SA 484 & 465.doc 1/5th share. As execution proceedings are pending, the Plaintiff taking advantage of the name of Defendant No. 1 in the 7/12 extract is seeking partition.
10. The Defendant No. 2 supported the case of the Plaintiff.
11. It appears that after the amendment, joint written statement came to be filed by the Defendant Nos.1, 3, 4 and 5 contending that there was no partition prior to decree of RCS No.61 of 1978. The alleged mutations of 15th October 1959 was for the purpose of obtaining society loans and was a temporary family arrangement and there was no partition. The Advocate for Defendant Nos.1, 6, 7, and 10 in RCS No.61 of 1978 is representing the Plaintiff in the present suit. Apart from the suit properties, the subject matter of RCS No. 61 of 1978 were the following joint family properties:
Gat No. Area in
Hectare - Are
487 1-70
443 0-21
439 0-26.9
446 0-29.3
285 0-40
299 0-41.7
310 0-03
308 0-07.7
321 0-05
346 0-21
Patil-SR 10 of 59
SA 484 & 465.doc
365 0-13
387A 0-27.4
387B 0-01
387C 0-06.1
675 0-51
363 0-11.1
795 0-5.1
574 0-20
12. The suit properties of RCS No.61 of 1978 were partitioned, possession handed over and revenue records mutated between Rajaram, Anandrao, Prabhakar, Vijay and Ravindra as under :
Rajaram :
Gat No. Area in
Hectare - Are
487 part 0-39
346 0-21
303 part 0-31.5
363 0-13.1
310 0-0.3
321 0-05
308 0-07.7
285 part 0-08
299 part 0-09.7
387 part 0-27.4
387B 0-01
387C 0-06..
590A part 0-07.4
590Bpart 0-17
Common Khate 88/1 0-17
Gat No. 675 part
Patil-SR 11 of 59
SA 484 & 465.doc
Anandrao :
Gat No. Area in
Hectare - Are
487 part 0-32
443 0-21
303 part 0-30
305 part 0-11
385 part 0-08
289 part 0-08
290A part 0-06
590A part 0-06
590B part 0-18
606 0-29
795 0-05.1
Prabhakar :
Gat No. Area in
Hectare - Are
487 part 0-32
365 0-13.1
303 part 0.30
305 part 0.11
285 part 0-08
299 part 0-20
610 0-06.1
Common Khate 81/2 0-17
Gat No. 649 part
Vijay:
Gat No. Area in
Hectare - Are
305 part 0-11.5
487 part 0-32
439 0-26.9
303 part 0-30
370 part 0-16.4
Patil-SR 12 of 59
SA 484 & 465.doc
285 part 0-08
299 part 0-08
597 0-16
590A part 0-06
590B part 0-18
Common Khate 0-17
81/2 Gat No. 649 part
Ravindra :
Gat No. Area in
Hectare - Are
487 part 0-35
446 0-29.3
303 part 0-30
370 part 0-17
285 part 0-08
299 part 0-08
599 0-12.1
590A part 0-06
590B part 0-18
306 part 0-11
Common Khate 81/2 0-17
Gat No. 649 part
13. Defendant Nos.6, 8 and 9 i.e., Rajaram, Prabhakar and Ravindra more or less raised the same contentions as raised by the Defendant Nos. 1 and 3 to 5. Additional written statement was also filed by the Defendant Nos.7 to 9 claiming share in share of Rajaram, after his death during the pendency of the proceedings.
14. Defendant No.10-Dhondubai contended that her marriage with Rajaram was solemnised after the death of his first wife. The Patil-SR 13 of 59 SA 484 & 465.doc decree in RCS No.61 of 1978 was passed after adjudication where independent advocates were appointed by the parties and there was no compromise or collusion between the parties. The Defendant no.1 being head of the branch of his family, the decree passed in RCS No.61 of 1978 is binding on Plaintiff and there was no prior partition on 15th October 1959 and separate entries were only for obtaining society loan and as temporary family arrangement. The Defendant No. 10 was an illiterate lady and was entitled to share in the suit properties of RCS No.61 of 1978 and as her 1/6 th share was not allotted, the same be allotted to her in present proceedings for which she is ready to pay the Court fees, however, being woman she is exempt from payment of Court fees. The Defendant No.10 has not received her 1/6th share either in the earlier proceedings or till now and therefore the 30 landed properties and 4 suit properties be partitioned and her 1/6th share be handed over.
15. An additional written statement came to be filed on 25 th October 1999 after the death of Rajaram seeking a share in the share of Rajaram along with her earlier 1/6th share.
16. The Defendant Nos.11, 12 and 14 claimed share in the suit properties being daughters of Rajaram.
Patil-SR 14 of 59
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EVIDENCE:
17. The Plaintiff examined himself and relied upon 7/12 extracts of suit lands, khate extracts of Anandrao, Rajaram, Prabhakar, birth extract of Ravindra, Prabhakar, record of right extracts, certified copy of Plaint, written statement, judgment and decree in RCS No. 61 of 1978.
18. Defendant No.1 examined himself and relied upon partition extract, decree in RCS No. 61 of 1978. Defendant No. 2 examined herself and supported the Plaintiff, Defendant Nos 8 examined himself and relied upon partition extract of 24th July, 1992.
PROCEEDINGS LEADING TO REMAND:
19. The Trial Court vide judgment dated 2nd January, 1995 decreed the suit declaring the Plaintiff's share as 1/5th share of suit property.
As against the decree, two Appeals were preferred, one by Defendant Nos 6 to 9 being Regular Civil Appeal No. 4 of 1995 and other by Defendant Nos 1, 3 to 5 being Regular Civil Appeal No. 180 of 1995. The 1st Appellate Court vide judgment dated 5th September, 1997 observed that the Trial Court has framed the issues holding that it is simple suit for partition and as Nitin had raised an issue of decree of RCS No. 61 of 1978 being collusive and not binding upon him it was necessary to frame an issue in that regard and its effect on Patil-SR 15 of 59 SA 484 & 465.doc Nitin's share. The Appellate Court observed that the trial court has ignored share of Dhondubai while holding that partition was effected in the year 1959 as no share was given to Dhondubai. The 1 st Appellate Court remanded the matter to the Trial Court to frame the issues and decide the same afresh. Upon remand Dhondubai, i.e. Defendant No.10 filed additional written statement contending that she has not received any share under the decree of 1980 passed in RCS No. 61 of 1978 and sought partition of her 1/6 th share in all properties and house property.
FINDINGS OF THE TRIAL COURT :
20. After remand the Trial Court framed 19 issues including the issue of binding nature of decree passed in RCS No.61 of 1978 and whether Dhondubai is entitled to a share. Vide judgment and decree dated 3rd November 2001, the suit was decreed by the Trial Court declaring that Nitin, Anandrao, Pramila, Vidyasagar and Sachin each have 1/5th share in the suit properties on the following broad findings:
The oral evidence of Plaintiff alongwith khate extracts and 7/12 extracts leads to conclusion that there was partition in the year 1959.
The continuous entries in name of Defendant No. 1 leads to presumption of partition which has not been rebutted and Patil-SR 16 of 59 SA 484 & 465.doc Defendant No. 1 was in possession till partition in Regular Darkhast No. 8 of 1991.
Darkhast being filed in the year 1991 reveals that RCS No. 61 of 1978 was filed in collusion with each other and to deprive the Plaintiff and Defendant No. 2 of their share.
Plaintiff and Defendant No. 2 were not parties to RCS No. 61 of 1978 and decree is not binding upon the Plaintiff.
Plaintiff has right to claim share in the suit property which came to share of Anandrao in partition of the year 1959.
FINDINGS OF THE APPELLATE COURT :
21. The judgment of the trial Court was challenged by two appeals being RCA No.131 of 2002 filed by the Defendant Nos.6 to 15 and RCS No.21 of 2002 filed by Defendant Nos.1 and 3 to 5. The Appellate Court vide judgment dated 31st March, 2009 partly allowed RCA No. 21 of 2002 and 131 of 2002 and remanded the suit to the Trial Court to decide the suit afresh by giving the parties opportunity to lead evidence or amendment, if necessary.
22. The order of remand was challenged by Nitin by way of Appeal from Order Nos.1197 of 2009 and 1128 of 2009 and with the consent of parties, the judgment and decree dated 31st March 2009 was set aside and Appeal was restored back to file of Appellate Court to decide afresh.
Patil-SR 17 of 59
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23. Vide judgment dated 4th May, 2013, the Appellate Court
framed and answered the following points for determination :
POINTS FINDINGS 1] Whether the Plaintiff has proved that suit
properties are joint family properties of himself, Yes.
Defendant Nos. 1 and 2 ?
2] Whether he has proved that he has 1/3rd share Shares are determined in
in the suit properties ? para No. 55 of this
judgment.
3] Whether he has proved that decree passed in
RCS No. 61/1978 was obtained by collusion
Yes.
between the Defendant Nos.1, 6 to 10 ?
4] Whether the decree passed in RCS No. 61/1978
is binding on the Plaintiff ? No.
5] Whether the suit is bad for non inclusion of all
the properties in common hotchpot ? No.
6] Whether the Plaintiff is entitled to partition and
separate possession of suit properties ? Yes.
7] Whether the Plaintiff is entitled to mesne profits
? Yes.
8] What order ? As per final order.
24. The conspectus of findings of Appellate Court are as under:
[A] On Previous Partition of the year 1959:
Anandrao has admitted that till 1959 all properties were joint and stood in name of Rajaram.
Rajaram -Defendant No. 6 has not stepped in the witness box.
Patil-SR 18 of 59
SA 484 & 465.doc
The long standing mutation entries showing name of Anandrao-Defendant No.1 in respect of suit properties deserves importance as admittedly there was no challenge to the mutation entries.
Anandrao, Rajaram and Prabhakar-Defendant Nos.1, 6 and 7 have pleaded in their written statement in RCS No. 61 of 1978 that 20 years prior thereto there was partition and that the Plaintiffs therein being born after partition were not entitled to seek partition.
Defendant Nos.1 and 7 being major on 1959 makes case of partition more probable.
Presumption of jointness stands rebutted as improbable that joint family status continued despite Defendant No.3 coming to reside with Defendant No.1 and birth of Defendant Nos.8 and 9.
Conduct of parties suggest that each one was dealing with his properties separately and loans have been taken by mortgaging the lands separately without obtaining consent of others.
After implementation of consolidation scheme, names of Defendant Nos.1, 6 and 7 alone were recorded to their respective lands in their possession.
Defendant Nos.10 to 13 have not asserted their rights to the properties of Defendant No. 6 till filing of written statement in present suit.
[B] On RCS No. 61 of 1978 being collusive and not binding on Plaintiff:
RCS No. 61 of 1978 is not properly constituted as Plaintiff being necessary party was not joined and decree is not binding upon the Plaintiff.
Patil-SR 19 of 59
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Defendant Nos.1, 6 and 7 have not actually contested RCS No.61 of 1978 by participating in the trial and no appeal was filed.
RCS No.61 of 1978 was not maintainable as it was not for re- opening of partition and right of the Defendant Nos. 8 and 9 was share in properties received by Defendant Nos. 6 and 7.
[C] On the right of Defendant No.10 to share in suit properties:
Defendant No.10 had not claimed her share in the ancestral properties in RCS No. 61 of 1978.
Court had refused her right which was not challenged by her. In the instant suit the Court is dealing with rights of parties to the properties allotted to Defendant No. 1 in the 1959 partition.
Defendant No. 10 is not seeking re-opening of partition.
SUBSTANTIAL QUESTION OF LAW :
25. The second appeal was admitted vide order dated 11 th March, 2015 on the following substantial question of law:
"(1) Whether the ld. Judge of Lower Appellate Court was justified in rejecting share to Smt. Dhondubai Rajaram Patil in ancestral properties on the ground of estoppel, particularly when the doctrine of promissory estoppel will not apply in contravention of provisions of law ?
(2) Whether in the absence of any prayer seeking declaration with respect to decree passed in RCS No. 61 of 1978, whether the ld. Judge of Appellate Court was justified in holding that the said decree is not binding on Plaintiffs and it is obtained by collusion ?"
Patil-SR 20 of 59
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ADDITIONAL SUBSTANTIAL QUESTIONS OF LAW:
26. The Appellate Court has accepted the theory of prior partition of the year 1959 on appreciation of the documentary evidence on record. The fulcrum of the dispute is the partition of the year 1959 and the substantial questions of law framed regarding the share of Dhondubai is intertwined with the issue of partition of the year 1959 as the partition of the year 1959, if held, to be established upon proper appreciation of evidence on record, would confine the issue in the present suit to the partition of the joint family properties allotted to the branch of Anandrao. Without delving into that aspect, in my view, this Court cannot answer the questions framed. As such this Court has framed the following additional question of law at the time of hearing of the appeal as under:
"(3) Whether the evidence on record supports the finding of the Appellate Court of previous partition of the year 1959 ?"
SUBMISSIONS:
27. Mrs. Kanade, learned Counsel for the Appellants in Second Appeal No. 484 of 2013 submits that the basic legal requirement of existence of clear and unequivocal declaration of intention to separate from the family is not established by evidence on record.
Patil-SR 21 of 59
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She submits that the Vardi application by Rajaram does not indicate an intention to separate and mutation entries does not mention partition. She submits that separate revenue records which was created on 15th October 1959 between Prabhakar, Anandrao and Rajaram was for the purpose of obtaining bank loans and was sham and nominal partition and the joint family status continued. She submits that revenue entries does not create or extinguish any title in the properties. Pointing out to the findings of the Appellate Court, she submits that the finding of Appellate Court that in the year 1959 the Defendant No. 1 and 7 were major is without any evidence in that respect. She further submits that the Appellate Court has drawn adverse inference against the Defendant No. 6 for not stepping in the witness box without considering the age of Defendant No. 6 which was 95 years in 1990. She submits that the finding of Appellate Court that the parties have dealt with their properties separately is on misreading of the evidence as the loans were taken by Rajaram on properties shown to be of Anandrao. She submits that the cross examination of Anandrao has been ignored which would show that there was no partition. She points out the cross-examination of Anandrao where he has stated that Rajaram had taken the loan and repaid which shows that if the partition had taken place in the year 1959 Rajaram could not have dealt with the Patil-SR 22 of 59 SA 484 & 465.doc properties of Anandrao.
28. She further submits that the decree of RCS No. 61 of 1978 was passed after adjudication and was not collusive. She would further submit that the findings of the Appellate Court on the issue of fraud and collusion is recorded in the absence of any evidence and without any particulars of fraud. She submits that as per the settled position in law in case of partition, head of the branches are required to be made parties and accordingly Anandrao being the head of the branch of his family which included Nitin at the time of filing of Regular Civil Suit No.61 of 1978, Nitin was not required to be made party. She submits that at the time of earlier suit Nitin who was born in the year 1963 was minor and was thus represented through the head of his family i.e., his father.
29. She submits that it is not the case of Nitin in the plaint that he was a necessary party to the earlier round of litigation. She submits that the only ground which has been raised is collusion in the earlier round of litigation. She would further submit that finding on collusion is an erroneous finding as the same advocate who is representing Nitin in the present proceeding had represented Rajaram.
Patil-SR 23 of 59
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30. She would further submit that as fraud has been pleaded by Nitin in obtaining the decree in the Regular Civil Suit No. 61 of 1978, necessary particulars of fraud are required to be set out as mandated by the provisions of Order 6 Rule 4 of the Code of Civil Procedure, 1908. She would submit that under Section 44 of the Indian Evidence Act, 1872 burden was upon the Plaintiff to prove that the decree in RCS No.61 of 1978 was obtained by fraud which he has failed to do. She submits that the findings that the decree in earlier suit was collusive amounts to sitting in appeal against the decree of RCS No.61 of 1978 when there is no challenge by Nitin to the decree. In support Mrs. Kanade has tendered a compilation of following judgments:
[a] Bhikaji Mahadev Gund v. Balvant Ramchandra Kulkarni [1927 SCC OnLine Bom 86];
[b] Keepattel Bappu alias Moidunni v. Mugharikutty's son Kizhakke Valappil Muhammad [1993 SCC OnLine Ker 99];
[c] Hamza Haji v.. State of Kerala [(2006) 7 SCC 416];
[d] Ranganayakamma v. K.S. Prakash [(2008) 15 SCC 673];
[e] Chandro Devi v. Union of India [(2017) 9SCC 469];
[f] Union of India v. K.C. Sharma & Co. [(2020) 15 SCC 209];
[g] Ravi Setia v. Madan Lal [(2019) 9 SCC 381];
[h] Dilbagrai Punjabi v. Sharad Chandra [1988 (Supp) SCC 710];
Patil-SR 24 of 59
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[i] Illoth Valappil Ambunhi v. Kunhambu Karanavan [(2020) 18 SCC 317];
[j] N. V. Srinivasa Murthy v. Mariyamma [(2005) 5 SCC 548];
[k] Sneh Gupta v. Devi Sarup [(2009) 6 SCC 194];
[l] Malgonda Siddhu Pujari v. Parvati Ganu Chaugule [2016 SCC OnLine Bom 14308];
[m] Sultan Sadik v. Sanjay Raj Subba [(2004) 2 SCC 377];
[n] State of Kerala v. M.K. Kunhikannan Nambiar [(1996) 1 SCC 435];
[o] State of Punjab v. Gurdev Singh [(1991) 4 SCC 1];
[p] Revanasiddappa v. Mallikarjun [(2023) 10 SCC 1];
[q] Palani Ammal v. Muthuvenkatacharla Moniagar [AIR 1925 PC 49];
[r] Addagada Raghavamma v. Addagada Chenchamma [1963 SCC OnLine SC 37];
[s] Jamna Prasad v. Mt. Durga Dei [1931 SCC OnLine All 319];
[t] Bishambar Das & Ors. v. Kanshi Parshad & Ors. [ILR 1931 13 (Lah) 483];
[u] Ragireddi Subba Rao v. Ragireddi Subba Rao & Ors. [AIR 1936 Mad 689];
[v] Bhikulal Kedarmal Agarwal v. Kisanlal Rudhmal Agarwal [1958 SCC OnLine Bom 86];
[w] Vimla Monga v. Ramlubhai [2014 SCC OnLine Del 1347];
Patil-SR 25 of 59
SA 484 & 465.doc
31. Mr. Patil, learned counsel appearing for the Appellants, i.e., Defendant Nos.8, 9 and 10 i.e., Prakash, Ravindra and Dhondubai in Second Appeal No. 484 of 2013 would submit that in the earlier round of litigation Dhondubai was held to be not entitled to any share during the lifetime of Rajaram-her husband. He would further submit that in the order of first remand, direction was given to frame the issue regarding the collusive decree passed in RCS No. 61 of 1978 and the share of Dhondubai, which order was not challenged by the plaintiff and Pramila. He submits that upon remand an additional written statement was filed by Dhondubai and there is specific prayer in paragraph No. 6 contending that she has not received any share in the suit of 1978 and sought partition of her 1/6th share in the suit properties and claimed waiver of Court fees and the prayer in fact amounts to a counter-claim against the Plaintiff and the co- defendants. He would submit that the consistent case of Dhondubai, Prakash and Ravindra is that the property standing in the name of Rajaram, Anandrao and Prabhakar are joint family properties and that RCS No. 61 of 1978 was decided on merits and all properties were held to be the joint family properties.
32. He submits that in RCS No.61 of 1978, properties were described by "survey numbers" and till 23 rd January 1980, the effect Patil-SR 26 of 59 SA 484 & 465.doc of the consolidation scheme was not given. He submits that the area of the suit properties aggregates to 10 Acres 4 Gunthas whereas the area of the suit properties mutated in name of Anandrao vide Mutation Entry No.508 of 25th October, 1959 admeasures 6 Acres 32 gunthas. He submits that Mutation Entry No. 443 was certified in the year 1958 to record the name of Rajaram in the 7/12 extract on the basis of actual possession and Mutation Entry No.508 was certified in the name of Anandrao on the basis of Vardi given by Rajaram. He submits that Nitin claims that the land at Survey No.15/5 and Survey No.15/15 in Mutation Entry No.226 are allotted to Anandrao which is contrary to the Mutation Entry No.508. He would further submit that the suit properties in RCS No.61 of 1978 were all joint family properties including the properties recorded in the name of Prabhakar vide Mutation Entry No. 507, recorded in the occupation of Anand vide Mutation Entry Nos. 226 and 508 and recorded in the name of Rajaram as per the Mutation Entry No.227 and also house properties.
33. He would further submit that the mutation entries do not record partition and therefore there is no question of seeking reopening of the partition by the Defendant Nos. 8, 9 and 10 while filing RCS No. 61 of 1978. He submits that the decree of RCS No. 61 Patil-SR 27 of 59 SA 484 & 465.doc of 1978 has attained finality and there is no prayer for setting aside the said decree. Pointing out to the unamended plaint in RCS No. 42 of 1990 he submits that the original plaint proceeds on the footing of alleged partition of 1959 without any reference to the decree passed in the Regular Civil Suit No. 61 of 1978 and by way of amendment, the pleadings relating to decree of passed in Regular Civil Suit No. 61 of 1978 were added, however there was no amendment to the prayer clause and without any relief being sought in that respect, the Courts could not have held that the decree is not binding on the Plaintiff or bad in law.
34. He would further summit that the mere separation in the 7/12 extracts is not the conclusive proof of partition unless it is proved that there is separation in food and residence for a long time and the parties were in separate possession and enjoyment of the properties and had independently dealt with the properties and except these separate 7/12 extracts, in the present case nothing else has been proved. He would further submit that even if the partition is assumed to have taken place in the year 1959 vide Mutation Entry No.508, then the right of the Plaintiff is only in respect of the properties mentioned in Mutation Entry No. 508 and all other properties will be treated as separate properties of Anandrao. He submits that Patil-SR 28 of 59 SA 484 & 465.doc Dhondubai had never relinquished her share and the finding in RCS No.61 of 1978 that that during the lifetime of Rajaram, Dhondubai will not be entitled to any share is contrary to the settled position in law. He submits that in event the decree in RCS No.61 of 1978 is held to be bad in law, Dhondubai has a right to contend that the partition of 1959 is illegal as nothing has been allotted to her and she is entitled to share in the properties standing in the name of Defendant Nos. 1, 6 and 7.
35. Mr. Patil would further submit that in the previous litigation, Rajaram had in fact taken the defence of previous partition and it is only after the evidence was led by the parties that the Trial Court has arrived at a finding that the properties were joint family properties. He submits that the decree of RCS No.61 of 1878 is not based on compromise and is not shown to be collusive. By relying upon the decision in the case of Vineeta Sharma v. Rakesh Sharma [(2020) 9 SCC 1) he would submit that that the Appellate Court has held the partition to be probable which is contrary to law laid down in Vineeta Sharma (supra) that oral partition is not to be considered on preponderance of probabilities. He relies upon the following decisions :
Patil-SR 29 of 59
SA 484 & 465.doc
[a] Gumansing Shivram Patil v. Bhika Harsing Patil [2022 SCC
OnLine Bom 866];
[b] Mahadu Appa Wanjole v. Laxman Veerappa Wanjole [2008(5)
Mh.L.J. 680];
[c] N.K. Mohd. Sulaiman Sahib v. N.C. Mohd. Ismail Saheb [1965 SCC
OnLine SC 103];
[d] H. Lakshmaiah Reddy v. L. Venkatesh Reddy [(2015) 14 SCC
784];
[e] Bishundeo Narain v. Seogeni Rai [1951 SCC 447];
[f] Jamalsab v. Fajulabi [2013 SCC OnLine Kar 6115];
[g] Ganganagouda v. Shankaragouda [2015 SCC OnLine Kar 7431];
[h] Smt. Mahadevi v. Smt. Sushilawwa [RFA No. 100239 of 2016
(Kar HC Dharwad Bench)]; and
[i] U.F.M. Prabhakar v. Ananth Babu Marathe [RSA No. 1089 of
2003 (Kar HC Dharwad Bench)]
36. Per contra Dr. Tuljapurkar, learned Senior Advocate appearing for the Respondent Nos.1 and 3 in the Second Appeal No.484 of 2013 and the Respondent Nos.1 and 2 in the Second Appeal No.465 of 2013 i.e., for Nitin and Pramila would contend that the additional question of law framed by this Court are pure questions of fact and even if it is held that the Appellate Court has drawn a wrong inference based on facts, the same is not sufficient so as to warrant interference under Section 100 of Civil Procedure Code. He would further submit that it is only in the case of no evidence that the Patil-SR 30 of 59 SA 484 & 465.doc findings of fact can be interfered with.
37. He submits that the first question of law framed on the rejection of share of Dhondubai on the ground of estoppel does not arise at all in the present case as neither the Trial Court nor the Appellate Court has declined the share of Dhondubai as being barred by principle of estoppel. He would further submit that in the earlier round of litigation, the suit was filed on behalf of the minors by Dhondubai in which she had not claimed any right and for the first time in the year 1998, in the present proceeding, a right is claimed by Dhondubai. He would further submit that Dhondubai has not sought reopening of the earlier partition and therefore being excluded from the joint family properties, Article 110 of the Limitation Act would have applied if she would have filed a separate suit for partition as her right has been denied on the date of the decree in RCS No. 61 of 1978 i.e., 31st January 1980.
38. Dr. Tuljapurkar would further submit that specific case of Anandrao in RCS No.61 of 1978 while defending the suit was that the partition has taken place prior to 20 years. He submits that although the suit was maintainable against Anandrao being the head of family, in RCS No. 61 of 1978, the Plaintiff's share was reduced as the share of Anandrao given in the partition of 1959 was reduced in decree of Patil-SR 31 of 59 SA 484 & 465.doc RCS No. 61 of 1978 and therefore Nitin was necessary party. He would further submit that Nitin being a necessary party, was not joined in the earlier proceedings then the decision in the RCS No. 61 of 1978 is not binding upon him and he is not required to seek any declaration qua the decree of RCS No. 61 of 1978. He would further submit that the earlier suit was collusive as Anandrao i.e., Nitin's father did not participate in the proceedings and only Rajaram had examined himself and not produced any documentary evidence. He would further submit that the remand was on the fresh issue of decree being collusive and not binding on share of Nitin. He has taken this Court minutely through the judgments of the Trial Court and the Appellate Court and would submit that based on evidence on record the Appellate Court and the Trial Court have held that the decree is collusive. Pointing out to the findings of the Appellate Court he would submit that as regards the Regular Civil Suit No.61 of 1978 the Appellate Court has rightly held that the revenue entries continued for decades and the dispute is shown to have arose only when the Regular Civil Suit No.61 of 1978 was filed without any case being made out that there was any dispute between the parties and that the Appellate Court has rightly noted that the suit was filed only to claim the share of the Defendant Nos.8 and 9. He would further submit that based on the fact that no appeal was filed against the Patil-SR 32 of 59 SA 484 & 465.doc decree passed in the earlier suit and it is only when the present suit has been filed that the execution is sought shows that the decree is collusive. He submits that the Appellate Court not only considered the documentary evidence in the form of mutation entries but also considered conduct of the parties in separately dealing with the properties and therefore the findings of the Appellate Court are based on the evidence on record. He submits that some of the suit properties mentioned in exhibit 95 are the same properties in the suit.
REASONS AND ANALYSIS:
39. By the instant suit, Nitin claims share in the properties allotted to Anandrao in partition of year 1959 between Anandrao, his step- brother Prabhakar and their father Rajaram. In the year 1959, Anandrao was not married to Pramila and Prakash and Ravindra-step brothers of Anandrao were not born. There is no dispute that the suit properties are ancestral joint family properties of the propositus-Rajaram. The partition of 1959 is denied by all Defendants except Pramila-Defendant No 2. The sum and substance of the issues seeking determination which holds the answers to the questions of law framed is firstly whether the Courts have rightly appreciated the evidence on record while accepting the theory of partition of the Patil-SR 33 of 59 SA 484 & 465.doc year 1959, secondly whether the suit for partition could be decreed in the absence of any declaration sought by Nitin for setting aside the decree of RCS No. 61 of 1978 and thirdly whether in the present proceedings, Dhondubai's claim for her share can be entertained. PARTITION OF 15th OCTOBER, 1959:
40. As the issue involves partition of ancestral properties, before proceeding to scrutinise the evidence on record, it will be profitable to bear in mind the relevant principles of Hindu Law as to the modes by which partition can be effected and the relevant indicators thereof. In the treatise by Mulla on Principles of Hindu Law, 24 th Edition, the learned author has stated thus:
"§ 324. How partition may be effected:
Partition is severance of joint status, and as such, it is a matter of individual volition. All that is necessary, therefore, to constitute a partition, is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severality.......... A partition may even be effected orally. In case a partition is effected orally, it must be supported by evidence, such as subsequent separate mutation entries and also payment of taxes, cesses or levies to prove that such oral partition had indeed taken place, in the absence of which it would be difficult to uphold a claim of such an oral partition. It may be effected by a deed of partition between the members or by a deed of release with or without consideration, which would bind the executants.........
Prima face, a document expressing the intention to divide brings about a division in status, but it is open to a party to prove that the document was a sham or a nominal one, not intended to be Patil-SR 34 of 59 SA 484 & 465.doc acted upon and executed for some ulterior purpose. It sometimes happens that persons make statements, which serve their purpose, or proceed upon ignorance of the true position: and it is not their statements, but their relations with the estate which is the determining fact. When a purported partition is proved to be a sham, the effect would be that the family is considered joint."
"§ 325. Partition by agreement:
(1) As regards partition, no act done by any member of a joint family, can operate as a partition, unless it has been done with the intention to put an end to his status as coparcener and acquire a new status, i.e., the status of a separate owner. As has been stated by their lordships of the Privy Council in the leading case of Appovier v Rama Subba Aiyan the true test of partition of property according to Hindu law is the intention of the members of the family to become separate owners. Intention being the real test, it follows that an agreement between the members of a joint family to hold and enjoy the property in defined shares as separate owners operates as a partition, although, there may have been no actual division of the property by metes and bounds. ......
In such a case, the interest of each member is divided, though the property remains physically undivided...... The mere fact, however, that the shares of the coparceners have been ascertained, does not by itself necessarily lead to an inference that the family has separated. There may be reasons other than a contemplated immediate separation for ascertaining what the shares of the coparceners on a separation would be. To constitute a partition, the shares should be defined with the intention of an immediate separation. For an instance, where there was no such intention, see Poornandachi v Gopalasami AIR 1936 PC 281.
(2) An agreement to separate is not required by law to be in writing, if it is in writing, and clearly indicates on the face of it an intention to separate and hold the property in defined shares as separate owners, no evidence is admissible of the subsequent acts of the parties to alter or control its legal effect. However, where the agreement is not in writing, or where it is in writing, but does not declare on the face of it what the intention of the parties was, evidence of subsequent conduct of the parties becomes material in order to determine whether there was a partition or not."
Patil-SR 35 of 59
SA 484 & 465.doc
§ 326. Evidence of partition and burden of proof This branch of the subject may be divided into five parts:
1. .......
2. .....
3. ........
4. The last case is of the kind dealt with by the Privy Council in Ganesh Dutt v Jewach, a case where there was no writing at all. In such a case, when the question arises as to whether there has been a partition or not, the intention of the parties as to separation can only be inferred from their acts. The question is one of fact to be decided with due regard to the cumulative effect of all the facts and circumstances, and primarily the burden of showing that there has been a partition is on the person setting it up.
. Cesser of Commonality is not a conclusive proof of partition, the reason is that a member may become separate in food and residence merely for his convenience. Separate residence of the members of the joint family in different places where they are in service does not show separation. Similarly, other acts, though standing by themselves, are not conclusive proof of partition, yet may lead to that conclusion in conjunction with other facts. They are separate occupation of portions of the joint property, division of the income of the joint property, definement of shares in the joint property in the revenue of land registration records, mutual transactions, etc. Separate enjoyment for sake of awareness is not partition. When, besides entries in revenue records showing that the two brothers who constituted a joint family, held separate khatas of sir and khudkasht lands, it was proved that letters were written by the brothers to one of their near relations expressly indicating their intention to effect partition as soon as possible, and separate suits were filed in the name of the individual brothers against the tenants, it was held that from these facts, partition could be inferred. The burden, however, of proving that the family continued to be joint in such a case lies on the person alleging it.
(5) Admission of severance made in legal proceedings, if not Patil-SR 36 of 59 SA 484 & 465.doc explained, can be very cogent evidence of partition. The statements of a particular person that he is separated from a joint family of which he was a coparcener, and that he has no further interest in the joint property or claim to any assets left by his father, would be statements made against the interest of such person, and, after such person is dead, they would be relevant under section 32(3) of the Evidence Act. The assertion that there was separation not only in respect of himself but between all the coparceners, would be admissible as a connected matter and an integral part of the same statement. It is not merely the precise fact, which is against interest that is admissible, but all matters that, are 'involved in it and knit up with the statement'.
41. It is clear from the reproduction of the above principles that for inferring partition, intention of the members of joint family to separate is to be culled out upon consideration of the cumulative effect of all facts and circumstances. In certain cases, the evidence may demonstrate the ascertainment of shares however without the supporting evidence to show the intention to separate, partition cannot be inferred. In other cases there may be mutation in revenue records but evidence may show that the arrangement was by way of convenience without any intention to separate. In other cases there may be only separation of food and residence but the estate may be joint. Each case has to be decided on it own facts, the underlying test being intention to separate.
42. The documentary evidence produced by Nitin i.e. 7/12 extracts, khate extracts, mutation entries etc establishes that since the year Patil-SR 37 of 59 SA 484 & 465.doc 1959 till atleast filing of the instant suit, the ancestral properties were shown in separate names of Rajaram, Anandrao, and Prabhakar. In Digambar Adhar Patil v. Devram Girdhar Patil [AIR 1995 SC 1728] the Apex Court held thus:
"The entries in the Record of Rights regarding the factum of partition is a relevant piece of documentary evidence in support of the oral evidence given, by the respondent and his brother to prove the factum of partition. Even in the evidence of Ram Chander, he clearly stated that there was a partition but he could not give the date and year in which the partition was effected nor the deed of the partition was produced. Under the Hindu Law, it is not necessary that the partition should be effected by a registered partition deed. Even a family arrangement is enough to effectuate the partition between coparceners and to confer right to a separate share and enjoyment thereof. Under those circumstances, when the factum of partition was evidenced by entries in the Record of Rights, which was maintained in official course of business, the correctness thereof was not questioned, it corroborates the oral evidence given by the brother and lends assurance to accept it."
43. It is settled that the father of a joint family is entitled to effect partition during his lifetime. A written deed of partition does not present much difficulty and in case of oral partition, the cumulative effect of the factual position has to be assessed to arrive at a conclusion of whether there was an intention to separate. Where there is an intention to separate, the first resultant step is the division of the properties in specific shares or in specific names and to impart the character of separate ownership to mutate the revenue Patil-SR 38 of 59 SA 484 & 465.doc records in separate names. This can of course be done for family convenience but separate record of rights is a strong indicator of severance of joint status with the addition of the manner in which the properties are thereafter dealt with by the members. If the evidence indicates that despite separate revenue records, the enjoyment of the properties was not in severalty, partition cannot be inferred.
44. In the present case, the evidence establishes that on 25 th October, 1959 Rajaram gave Vardi application for mutating the names of Rajaram, Anandrao and Prabhakar in separate properties which till then was standing in the sole name of Rajaram. Once specific defined properties were divided amongst the members of joint family and vested in them at the instance of Rajaram who was entitled to divide the properties amongst the living male members, there was disruption of joint family status. The contention is that the arrangement was for obtaining society loans and family convenience and to oppose the theory of partition it is contended that Rajaram had obtained loans on the properties of Rajaram. Both the pleas cannot sustain together, for if it is accepted that the division was for obtaining loans, even if the properties were standing in name of Rajaram, loans could have been obtained and secondly if Rajaram Patil-SR 39 of 59 SA 484 & 465.doc obtains loans on Anandrao's properties, he could have done the same when the properties were standing in his name. There is no elaboration on the family convenience as pleaded.
45. Along with the 7/12 extracts, the mutation entries and the Village Form No. 8A have also been produced. In all the record of rights, the names of Rajaram, Anandrao and Prabhakar have been recorded. Perusal of the 7/12 extracts of properties in the name of Anandrao shows encumbrances of certain financial institutions/ banks. One of the submissions of Mrs. Kanade was that these loans were obtained by Rajaram. As regards the loan obtained on 4th May 1981 on Gat No. 303 by mortgaging with Bhu-Vikas Bank, Anandrao has voluntarily deposed that the said loan was obtained by his father and in the cross-examination he has admitted that the application for the said loan as well as the sanction is in his name. He has further deposed that the loan was repaid on 29 th June 1991 by his father. However, he has admitted that it is on his signature. He has further stated that on 31st March 1963 in respect of the same land, loan was obtained for the purpose of digging a well. He has stated that the said loan was obtained by his father and has been repaid by his father, however no documentary evidence has been produced to demonstrate the same.
Patil-SR 40 of 59
SA 484 & 465.doc
46. In Prakash Chand v. Narendra Nath [AIR 1976 SC 2576], the Apex Court was considering an appeal against the decree of partition. In that case, the Apex Court observed thus:
"A very important document on record is Ext. A-26 copy of the statement of the Ram Saran made on 11-5-1951 only 10 days after the institution of the suit in some proceedings in the Court of Tehsildar of Anupsahar. Ram Saran said in his deposition "My family and that of Narendra has not been joint since 1921.." This was a very damaging admission on behalf of the plaintiffs. Ram Saran did not examine himself in the suit to explain this admission. The reason for his non-examination was not accepted by the High Court. The said admission clearly showed that at least since 1921 the parties, were separate, yet the suit for partition of the properties by metes and bounds was not instituted for about three decades. No such case was made out in the plaint that the parties were separate from 1921. The plaint was drafted in a suppressive manner to claim partition as if the parties were joint till the institution of the suit. Nor was it disclosed in the plaint as to who became the karta of the allegedly joint family after the death of Bhagwati Prasad."
47. The Apex Court has, thus, held that an admission of partition made on oath in legal proceedings to be cogent evidence of partition, if the same has not been explained. In the present case, to oppose the relief of partition in RCS No.61 of 1978 filed by Prakash and Ravindra, defence in the written statement filed by Rajaram, Anandrao and Prabhakar was that there was a partition prior to 20 years amongst them and since then they are in separate possession of their respective properties. It was further pleaded that Ravindra Patil-SR 41 of 59 SA 484 & 465.doc and Prakash were born after the partition and hence are not entitled to 2/5th share by partition. Anandrao was confronted with his statement in the written statement filed in the RCS No. 61 of 1978 and there was no explanation tendered for the said statement.
48. The contention of Mr. Patil by pointing out the areas forming part of Mutation Entry No.508 in the name of Anandrao on the basis of Vardi and Mutation Entry No.226 on the basis of occupation that in the suit property additional area has been claimed by Nitin is not part of the pleadings and no such submissions were advanced before the Appellate Court. The submission raises a question of fact which cannot be decided for the first time in Second Appeal.
49. The Appellate Court has accepted the theory of partition of 1959 by rightly appreciating the material on record that is: (a) oral evidence of Nitin (b) evidence of Anandrao and admission by Anandrao that till 1959 all properties were joint and in the name of Rajaram (c) long standing mutation entries (d) written statement of Defendant Nos.1, 6 and 7 in RCS No.61 of 1978 pleading partition prior to 20 years, (e) Rajaram not stepping into witness box (f) recording of names of Defendant Nos.1, 6, and 7 to their respective lands in consolidation scheme.
Patil-SR 42 of 59
SA 484 & 465.doc
50. The Appellate Court has drawn legitimate inferences from the oral and documentary evidence on record and the inferences are findings of fact which cannot be interfered with unless the findings of fact are shown to be perverse. The contention of Mrs. Kanade is that wrong inference has been drawn on the basis of evidence on record. It is settled position in law that the first Appellate Court is the last fact finding Court and where from a given set of circumstances, two inferences are possible, the one drawn by the first Appellate Court is binding on the High Court in second appeal and the High Court cannot substitute its opinion for the opinion of the first Appellate Court unless it is found that the conclusions drawn by the lower Appellate Court were erroneous being contrary to the mandatory provisions of law applicable or it is against the settled position on the basis of pronouncements made by the Apex Court or was based upon inadmissible evidence or arrived at without evidence. [See Kondiba Dagadu Kadam v. Savitkibai Sopan Gujar (1999) 3 SSC 722)].
51. It has been held by the learned Single Judge of this Court in Mahadu Appa Walonje (supra) that Mutation Entry itself in the absence of other evidence on record would not amount to a document which could be said to prove the partition. In the facts of Patil-SR 43 of 59 SA 484 & 465.doc that case, the theory put forth was that partition had taken place in the year 1960 in the presence of two panchas who were not examined in support of their case and did not adduce any documentary or oral evidence to show the partition. The facts of that case are clearly distinguishable. Although the mutation entries do not confer any title on the holders of the properties and by itself may not be a conclusive proof of the partition, however coupled with the conduct of parties particularly that the properties thereafter were being possessed and cultivated and were dealt with as their independent properties would be an important factor to be taken into consideration for deciding whether there was partition in the year 1959. In the cross examination of Anandrao there is a specific suggestion put as regards the loan which was obtained by Anandrao in respect of the property which was standing in his name and although he has stated that the loan was obtained by Rajaram, there is no document produced to show that the loan was obtained by Rajaram.
DECREE PASSED IN RCS NO. 61 OF 1978:
52. The issue to be answered is whether the Appellate Court could have rendered a finding on the binding or collusive nature of the decree without any prayer seeking such declaration. For that Patil-SR 44 of 59 SA 484 & 465.doc purpose it will be necessary to travel back in the litigation to understand the origin of framing of issue of collusive nature of the decree and its effect on Nitin's share.
53. The Trial Court had passed judgment and decree on 2 nd January 1995 decreeing the suit which came to be challenged by the Defendants by way of RCA No.84 of 1995 and RCA No.180 of 1995 before the District Court. The District Court observed that there was a specific assertion by Nitin that the decree passed in RCS No. 61 of 1978 is collusive and not binding on him and therefore it was necessary to frame an issue in that behalf. The Appellate Court held that the trial Court ought to have framed an issue about the alleged collusion when the decree in RCS No. 61 of 1978 was passed and its effect on Nitin's share as also about the claim of Dhondubai and remanded the matter to the trial Court to frame the necessary issues and after giving an opportunity to parties to lead the evidence, to decide the suit afresh. It is only upon remand that the trial Court framed the issue and answered the same in the judgment dated 3 rd November 2001.
54. The order of framing an issue qua the decree passed in RCS No.61 of 1978 was passed in the Defendant's own Appeals. Even at that point of time no declaration had been sought by Nitin in the Patil-SR 45 of 59 SA 484 & 465.doc instant suit. The Defendants invited order of remand from the Appellate Court on the additional issues to be framed as regards the binding and collusive nature of decree. The parties therefore were put to notice about the issues framed and had accepted the same. After remand, additional evidence was led by the parties and the issues came to be answered. It is now not open for the Defendants to contend that as there was no relief sought by Nitin, the Appellate Court could not have rendered a finding on the nature of decree of RCS No.61 of 1978.
55. It also needs to be noted that Nitin was not an eo nominee party to RCS No.61 of 1978 and was represented by his father Anandrao. No doubt, heads of the branches are necessary parties to the proceedings as what is necessary is proper representation of the entire joint family. However, in the instant case in my view, there was no proper representation by Anandrao of his branch. First despite filing a common written statement pleading previous partition prior to 20 years, Anandrao neither adduced oral evidence nor documentary evidence. By reason of the claim made by Defendant Nos.7 and 8, the property which was allotted to the share of Anandrao was to be reduced if the suit was decreed. That being the position, the suit was not defended by Anandrao nor Appeal was Patil-SR 46 of 59 SA 484 & 465.doc filed challenging the decree. Considering the manner in which the earlier suit had proceeded, it cannot be said that there was proper representation by Anandrao of his branch of family.
56. In Bishundeo v. Seogeni Rai (supra) the Apex Court was considering whether a minor can have a compromise which effects a partition set aside on the single ground of unfairness to him. The Apex Court held in paragraph 20 and 21 as under:
"20. The rule laid down in Mulla's book is expressly stated to be in cases where the partition is not effected by a decree of a competent Court. In our opinion, that is correct. It does not matter whether the decree was by consent or otherwise, for a decree, unless and until it is set aside or avoided in one or other of the ways in which alone a decree may be attacked, holds its force and binds all concerned.
21. It is well established that a minor can sue for partition and obtain a decree if his next friend can show that that is for the minor's benefit. It is also beyond dispute that an adult coparcener can enforce a partition by suit even when there are minors. Even without a suit, there can be a partition between members of a joint family when one of the members is a minor. In the case of such lastly mentioned partitions, where a minor can never be able to consent to the same in law, if a minor on attaining majority is able to show that the division was unfair and unjust, the Court will certainly set it aside. The rule, however, does not apply to decrees if the minor is properly represented before the Court and the decree is as binding on him as on the adult parties, unless the minor can show fraud or negligence on the part of his next friend or guardian ad litem. This contention also therefore fails."
57. In the instant case, at the time when RCS No.61 of 1978 was Patil-SR 47 of 59 SA 484 & 465.doc filed, there was already a dispute between Anandrao and Pramila and Nitin was residing with Pramila at his maternal grandparents' house. Perusal of plaint in RCS No.61 of 1978 does implead Anandrao in his capacity as head of branch of his family. Considering that there was dispute in the branch of Anandrao which was to the knowledge of Dhondubai, it cannot be said that there was proper representation of branch of Anandrao. A decree passed in partition suit with the heads of branches representing the minors is binding upon the minors unless fraud or negligence is shown. In the present case, Nitin has established that decree of RCS No.61 of 1978 was collusive decree and not binding upon him.
58. By RCS No.61 of 1878 filed through Dhondubai, Prakash and Ravindra claimed 2/5th share in 32 landed properties and 9 house properties. There is no reference to any partition of the year 1959 in the plaint. The Defendant Nos.1 to 3 therein, i.e., Anandrao, Prabhakar and Ravindra filed a common written statement and averred in paragraph No.3 that there has been a partition amongst the Defendant Nos.1, 2 and 3 prior to 20 years and thereafter the Defendant Nos.1, 2 and 3 are in possession of their respective shares of the properties. In paragraph No. 4 it is contended that the Plaintiff Nos.1 and 2 therein were born after the partition has been Patil-SR 48 of 59 SA 484 & 465.doc effected and therefore they have no right to demand 2/5 th share in the suit properties. It was also contended that the property at serial No. 32 therein, i.e., land bearing Survey No.83/26 is the self acquired property of the Defendant No. 1.
59. Despite specific contention of previous partition being raised by the Defendant Nos.1, 2 and 3, the Civil Court did not frame the issue of previous partition and the issues were limited as regards the nature of properties and the share of Plaintiffs. The Trial Court also framed an issue as regards the nature of suit property at serial No.32. By judgment dated 31st January 1980 the trial Court decreed the suit and declared that the Plaintiff Nos.1 and 2 to be entitled to 2/5th share in the suit properties.
60. The judgment of Trial Court indicates that the Trial Court has noted that the mother of 2 minors had examined herself and produced the 7/12 extracts of the suit properties and that she does not admit of any partition effected prior to 20 years. The Trial Court noted that the Defendant No.1, i.e., Rajaram had examined himself and had failed to discharge the burden that the property at serial No. 32 is the self acquired property. The Trial Court noted that the Defendant No.1 had not examined any witness nor produced any document. The Trial Court held that the wife of Defendant No.1, that Patil-SR 49 of 59 SA 484 & 465.doc is, Dhondubai is not entitled to any share during the lifetime of her husband and determined the shares of Rajaram and four sons as 1/5 th each. Despite the suit having been decreed on 31 st January 1980, no steps were taken for execution of the said decree and the admitted position is that after the instant suit came to be filed in the year 1990, an execution application was filed by the Defendant Nos. 7 and 8 seeking execution of the decree passed in the year 1980.
61. The Appellate Court held that the dispute is shown to have arisen only when the RCS No. 61 of 1978 was filed. The Appellate Court noted that the suit was filed by the Defendant Nos.8 and 9 when they were minors through their mother (Defendant No. 10) and it is nobody's case that the Defendant Nos.1 and 6 to 10 were residing separately or that there was dispute between the Defendant No.6 and Defendant No.10, that is, Rajaram and Dhondubai. The Appellate Court further noted that although the Defendant Nos. 1 and 6 and 9 had filed their written statement in the suit claiming the fact of earlier partition effected in the year 1959, they have not actually contested the suit by participating in the Trial Court and also no appeal was filed against the decree passed in the suit. The Appellate Court also noted that in the present suit, a joint written statement has been filed by the Defendants which goes to show that Patil-SR 50 of 59 SA 484 & 465.doc they are still together even after filing of RCS No. 61 of 1978.
62. The Appellate Court held that RCS No. 61 of 1978 was not properly constituted as the present Plaintiff being necessary party was not joined as party to the said suit and was thus a collusive one as it was filed only to deprive the right of the present Plaintiff. The Appellate Court held that since the present Plaintiff was not party to the said suit, the decree passed is not binding on the Plaintiff. Perusal of the decree of the Trial Court in RCS No. 61 of 1978 would indicate that no documentary evidence was tendered by the Defendant No.1 while opposing the suit for partition and it is in that context that the Appellate Court has come to a finding that despite claiming a fact of partition, the Defendants have not actually contested the suit by participating in trial and merely because the written statement has been filed and the evidence has been led would not amount to the lis having been contested. The fact that no appeal was preferred against the decree would also show that the decree was collusive one. The conduct of the parties in filing a joint written statement in the present suit even after the decree of partition passed in RCS No. 61 of 1978 supports the finding of the Appellate Court that the decree passed in RCS No. 61 of 1978 was collusive one. The Appellate Court in the instant suit has confined Patil-SR 51 of 59 SA 484 & 465.doc itself to the examination of the issue as to whether the earlier decree was collusive decree which is relevant fact under Section 44 of Indian Evidence Act, 1872. It cannot be said that whilst doing so, findings of the Appellate Court are in the nature of findings in appeal against the decree of RCS No. 61 of 1978.
63. As indicated above, although the Plaintiff was not eo nomine party to the earlier suit and being the head of the branch, Anandrao was a party to the proceedings which is permissible under the principles of Hindu Law. Even if it is held that Nitin was bound by the decree passed in RCS No. 61 of 19178 , it is open for Nitin to avoid the decree on the ground that that the decree was obtained by collusion.
64. The Apex Court in Gram Panchayat of Village Naulakha v. Ujagar Singh [2000 (7) SCC 543] upon consideration of section 44 of the Indian Evidence Act, 1872 held that in order to contend in a latter suit or proceedings that the earlier judgment was obtained by collusion, it is not necessary to file an independent suit for declaration as to its collusive nature or for setting it aside as a condition precedent.
65. In Asharfi Lal v. Koili [AIR 1995 SC 1440] the Apex Court has Patil-SR 52 of 59 SA 484 & 465.doc held in paragraph 8 as under:
"The same principle would apply to a judgment of a Court in an earlier suit or proceeding. The judgment of a competent Court is normally binding on the parties to the proceeding and it operates as resjudicata in a subsequent proceeding between the same parties. An exception to the said rule is en grafted by Section 44 of the Evidence Act which provides that any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under Sections 40, 41 and 42, and which has been proved by the adverse party was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion. The effect of the said provision is that a judgment delivered by a Court not competent to deliver it or a judgment,, which is obtained by fraud or collusion docs not operate as res judicata and is not binding on the parties to the said proceedings. [See : Beli Ram and Brothers v. Chaudhri Mohammad Afzal AIR 1948 PC 168]. A judgment can be avoided in a subsequent proceeding by a party which is able to show that it was delivered by a Court not competent to deliver it or it was obtained by fraud or collusion. Since such a judgment does not operate as resjudicata it is not necessary to institute a proceeding for setting it aside. A party to a proceeding against whom a judgment in an earlier suit is relied can successfully avoid the said judgment if he can establish in the subsequent proceeding that the said judgment was delivered by a Court not competent to deliver it or that it was obtained by fraud or collusion."
66. Apart from above, I find considerable force in the contention of Dr. Virendra Tuljapurkar that as in the earlier partition of 1959, the properties which were allotted to Anandrao came to be reduced in the subsequent partition of RCS No.61 of 1978, the Plaintiff's right was affected and therefore he was necessary party to the proceedings and as he was not impleaded, the decree is not binding upon him.
Patil-SR 53 of 59
SA 484 & 465.doc
SHARE OF DHONDUBAI:
67. In the year 1978, Dhondubai had filed RCS No. 61 of 1978 on behalf of the Defendant Nos.7 and 8 seeking 2/5 th share in the suit properties and had not sought any share for herself. It is well settled that the wife of propositus is not entitled to demand partition as she is not a coparcener but only a member of joint Hindu family. However, upon partition being effected, wife is entitled to a share in the property. In the present case, in the additional written statement filed by Dhondubai, she has claimed share in all the joint family properties forming subject matter of RCS No.61 of 1978 and on 25th October 1999, that is, after the death of Rajaram on 23 rd October 1998, the Defendant No.10 had sought a share in the share of Rajaram in addition to her 1/6th share.
68. By the claim made in the additional written statement dated 10th February, 1998, Dhondubai sought her share in the suit properties forming subject matter of RCS No.61 of 1978. However, there was no prayer seeking re-opening of partition in which case the issue of limitation would arise as in the year 1980 when decree in RCS No. 61 of 1978 was passed, Dhondubai was excluded from the joint family property. Secondly, in the present suit Dhondubai has not adduced any evidence and has relied upon the evidence of Prakash.
Patil-SR 54 of 59
SA 484 & 465.doc
Even if it is held that the additional written statement amounts to counter claim seeking re-opening of partition, Dhondubai has not stepped into the witness box and proved her claim.
69. The Appellate Court held that Dhondubai cannot now claim such right because in RCS No.61 of 1978 when she had the opportunity to ask for partition, she had not claimed the same and in the absence of challenge to the finding of Trial Court in RCS No. 61 of 1978, she cannot ask for her share in the present suit. In this regard if the judgment of the Trial Court dated 31 st January 1980 passed in RCS No. 61 of 1978 is seen, the Trial Court had specifically held that the wife of the Defendant No.1 is not entitled to any share during the lifetime of her husband, i.e., Rajaram. Even though the decision of the Trial Court was contrary to the settled position of law, Dhondubai had not challenged the said finding which has now attained finality. There are no independent proceedings initiated by Dhondubai to challenge the findings of the Trial Court and thus the Appellate Court has rightly held that by reason of refusal of her right in the earlier round of litigation, which has not been challenged by her, she cannot ask for her share in the present suit.
70. Another factor which militates against granting any right to Dhondubai in the present proceedings is that once it is accepted that Patil-SR 55 of 59 SA 484 & 465.doc there was partition effected in the year 1959, the issue which will fall for consideration is only the share of Nitin in the properties allotted to the share of Dhondubai as the partition of 1959 has resulted in severance of status with Anandrao being allotted certain properties in which Nitin seeks right, the issue in the instant suit is not as regards the properties of Rajaram.
71. In that view of the matter the Appellate Court has rightly held that the Defendant No.10 cannot be said to have any right in the properties falling to the share of Defendant No.1 in the said partition.
CONCLUSIONS:
72. By the judgment and decree dated 31 st January 1980 passed in RCS No.61 of 1978, the Trial Court has specifically declined the entitlement of Dhondubai to any share in the joint family property during the lifetime of Rajaram. The finding not being challenged by Dhondubai has attained finality. Without setting aside the said finding in RCS No.61 of 1978, Dhondubai could not have claimed a share in the present proceeding. The Appellate Court has rightly held that in the absence of challenge to the finding in RCS No.61 of 1978, Dhondubai cannot ask for her share in the present suit. That apart, in the present suit, the written statement filed by Dhondubai does not Patil-SR 56 of 59 SA 484 & 465.doc seek re-opening of the partition effected by decree passed in RCS No.61 of 1978. Even if Dhondubai's written statement is accepted as counter-claim, she has not stepped in the witness box and has not led evidence in support of her claim. The Appellate Court has rightly held that in the instant suit, the issue for consideration is share of Nitin in the properties of Anandrao as the partition of the year 1959 has been accepted and in these proceedings, Dhondubai cannot claim her share.
73. By order of remand in earlier round of litigation, the Defendants invited the framing of issue as regards the collusive nature of the decree in RCS No.61 of 1978 and its effect on Nitin's share. Subsequent thereto, necessary issues were framed, the parties led evidence and the issue was answered in favour of Nitin. It is now not open for the Defendants to contend that no finding could have been rendered on the collusive nature of the decree of RCS No.61 of 1978 without any prayer seeking such declaration.
74. The decree of RCS No.61 of 1978 was not binding upon Nitin as he was not eo nominee party to the proceeding. The principle that the necessary party is the head of branch of the family is based on the presumption that the head of the family will properly represent Patil-SR 57 of 59 SA 484 & 465.doc his branch and protect the interest of his branch of family. However, in the present case, it cannot be said that Nitin was properly represented and his interest was protected by Anandrao. From the frame of plaint in RCS No.61 of 1978, it is clear that Anandrao was not arrayed as the head of the branch of his family. In view of the prevailing dispute between Anandrao and Pramila, which was within the knowledge of Dhondubai, Nitin was required to be impleaded as party to the suit. The manner in which the proceedings of RCS No.61 of 1978 were conducted makes it more than evident that there was no proper representation of Nitin's interest by Anandrao. The decree is not binding upon Nitin as Anandrao was negligent in defending the earlier proceedings. By the decree passed in RCS No.61 of 1978, there was reduction in the share of Nitin and thus Nitin was necessary party and not being impleaded as party, the decree passed therein was not binding upon Nitin.
75. It is open for Nitin to avoid the decree of RCS No.61 of 1978 in the instant suit by showing collusive nature of the decree under Section 44 of Indian Evidence Act, 1882 and it is not necessary to file an independent suit for declaration as to its collusive nature for setting it aside.
76. The Appellate Court has rightly appreciated the evidence on record and accepted the theory of partition of the year 1959. The Patil-SR 58 of 59 SA 484 & 465.doc Appellate Court has drawn legitimate inference from the evidence on record in the form of 7/12 extracts, revenue entries etc coupled with the subsequent conduct showing the parties dealing independently with their properties and admission in RCS No.61 of 1978 of partition prior to 20 years. The findings being findings of fact based on evidence on record, in exercise of power under Section 100 of CPC, it is impermissible for this Court to substitute its own view for that of the Appellate Court in the absence of any demonstrable perversity.
77. The substantial questions of law are accordingly answered against the Appellants. Resultantly, both appeals stand dismissed.
78. In view of the disposal of Second Appeals, nothing survives for consideration in the pending civil/interim applications and the same stand disposed of.
[Sharmila U. Deshmukh, J.]
79. At this stage, request is made to extend the interim relief which was operating in favour of the Appellant. The stay is extended for the period of eight weeks from the date of uploading of this judgment.
[Sharmila U. Deshmukh, J.]
Patil-SR 59 of 59
Signed by: Sachin R. Patil
Designation: PS To Honourable Judge
Date: 12/06/2024 20:02:40