Gujarat High Court
Shardaben D/O Dawalbhai Maganbhai ... vs Lh Of Natvarbhai Dawalbhai Patel on 18 December, 2023
Author: Ashutosh Shastri
Bench: Ashutosh Shastri
NEUTRAL CITATION
C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 5014 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In
R/FIRST APPEAL NO. 5014 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
=================================================
1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India or any order
made thereunder ?
==================================================
SHARDABEN D/O DAWALBHAI MAGANBHAI PATEL W/O NALINBHAI
NAROTTAMBHAI PATEL
Versus
LH OF NATVARBHAI DAWALBHAI PATEL
==================================================
Appearance:
MR SHALIN MEHTA SR. ADVOCATE with MR AMRISH K PANDYA(3219) for the
Appellant(s) No. 1
MR ASIT B JOSHI(2567) for the Appellant(s) No. 1
for the Defendant(s) No. 1.2,1.3,1.4,9
MR DEVEN PARIKH SR. ADVOCATE with MR VIMAL A PUROHIT(5049) for the
Defendant(s) No. 1,1.1,2,3,4,5,6,7,8
==================================================
CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 18/12/2023
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI) Page 1 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined
1. By way of this First Appeal under Section 96 of the Code of Civil Procedure, the appellant - original plaintiff has assailed the judgment and decree passed by the learned 4 th Additional Senior Civil Judge, Ahmedabad (Rural) dated 26.09.2022 below Exhibit-168 and Exhibit-170 in Special Civil Suit No. 370 of 2010, whereby the suit came to be dismissed.
2. The background of facts which has given rise to the present First Appeal in a very summarized manner are that the appellant - original plaintiff being daughter of the original land owner Davalbhai Patel who expired on 17.08.1986 and the appellant - original plaintiff is having 1/3 rd rights in share and title in the said undivided ancestral suit property and since opponents defendants denied the legitimate right of the appellant from the share, the suit was filed for the purpose of seeking partition, declaration and permanent injunction with respect to suit lands which are consisting of land bearing Block Survey Nos. 199, 229, 259/2, 383/3 and 383/4, situated at Village Thaltej Taluka Daskroi, District : Ahmedabad. The said Civil Suit was also submitted along with application for seeking Page 2 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined interim injunction below Exhibit-5 in which reply was filed by the defendants below Exhibit-15 denying the claim of the appellant merely on the basis of the revenue entries. As per the say of the appellant, the said reply was met with by filing re-
joinder by the appellant at Exhibit-22.
2.1. It is the case of the appellant that during the pendency of the said proceedings, the defendants herein submitted an application at Exhibit-24, under Order VII Rule 11 of the Code of Civil Procedure requesting to reject the plaint as the suit is barred by law of limitation. The said plea at the relevant point of time was accepted by the trial court and allowed the said application under Order VII Rule 11 of the Code of Civil Procedure Code by passing order on 30.11.2011 and rejected the suit. Feeling aggrieved and dissatisfied with the said order, present appellant filed First Appeal No. 3866 of 2011 before this Court and this Court was pleased to set aside the order and restore the Special Civil Suit to its file vide oral judgment dated 21.02.2014.
2.2. According to the appellant, in the meantime, the trial Page 3 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined court thereafter decided Exhibit-5 application vide order dated 31.01.2015 which came to be rejected against which, the appellant approached this Court by filing Appeal from Order No. 28 of 2015. However, the said Appeal from Order also came to be dismissed vide order dated 04.02.2015.
2.3. It is further the case of the appellant that against the said order, the appellant approached the Hon'ble Apex Court by filing Special Leave Petition (Civil) No. 11570 of 2015 and the Hon'ble Apex Court after hearing the parties was pleased to dispose of the said SLP vide order dated 11.09.2015 by observing that till the suit is finally decided, the properties in question should not be disposed of or no third party rights be created without taking prior permission of the trial court and the said relief according to the appellant continued all throughout till final disposal of the suit i.e. 26.09.2022. It is also the case of the appellant that this interim protection was also extended till final disposal of the appeal before this Court and the same was then also continued by recording the submission which was made from the beginning by the learned advocate appearing on behalf of the contesting respondents i.e. Shri Page 4 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined Deven Parikh learned Senior Advocate which is recorded on 23.12.2022 which is continued all throughout. With the aforesaid background the First Appeal was heard at length at the request of learned Senior Advocate Mr. Shalin Mehta assisted by Mr. Asit B. Joshi, learned advocate appearing for the appellant, whereas Mr. Deven Parikh, learned Senior Advocate assisted by Mr. Vimal Purohit, learned advocate appearing on behalf of the defendants and as such, the appeal was heard by us.
3. Mr. Shalin Mehta, learned Senior Advocate appearing for the appellant has raised multiple contentions and reiterated the contentions which have been narrated with the additional support of the decisions which have been cited before us since basic contentions are clearly narrated in memo of appeal, we deem it proper to reproduce hereunder :
"(a) The appellant respectfully submits that impugned judgment and decree passed by Ld. Trial Judge, is arbitrary, erroneous, unreasonable, unjustified, contrary to the settled position of law as also dehors the provisions of law and hence, deserves to be quashed and set aside in the interest of justice and equity.
(b) That the Ld. Trial Judge erred in fact and in law considering the revenue entry of relinquishment of Page 5 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined rights for the purpose of payment of revenue; as extinguishment of rights, share and interest of the plaintiff from the ancestral undivided suit land. That the Ld. Trial Judge ought to have appreciated that relinquishment before revenue authorities merely converts joint enjoyment in to enjoyment in severalty and is divestative in nature i.e. rights to pay revenue in respect of suit land in favour of defendants and same would not transfer the title, share and interest in favour of defendants.
(c) That the Ld. Trial Judge grossly erred in relying upon the revenue entries no. 6180 and 6181 dtd. 18.11.1986 of same day for adjudicating the rights, title, share and interest of the plaintiff in a suit for partition and declaration of the ancestral property.
(d) That the Ed. Trial Judge erred in fact and in law in ignoring the settled position of law that mutation of revenue entries and revenue proceedings (RTS) would not confer right, title or interest in the immovable property. It is submitted that Ld. Trial Judge ought to have appreciated the settled proposition of law that likewise mutation of revenue entries and revenue proceedings (RTS) would not extinguish the right, title or interest in the immovable property that too undivided ancestral suit land in absence of any oral or written documentary evidenced of partition amongst the family.
(e) That the Ld. Trial Judge ought to have appreciated that as per the settled law if at all relinquishment before the revenue authority is considered to be a partition or family arrangement same has to be equitable with exchange else consequent mutation of entry to that effect is only for fiscal purpose and they create no title.
Moreover, Ld. Trial Judge has erred impugned judgment not considering the fact that from the entry in revenue record it cannot be assumed that the partition has already taken place, especially when there is no other property which is said to have gone Page 6 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined to the share of the plaintiff during partition. Therefore, impugned judgment passed by Ld. Trial Judge rejecting the suit of the plaintiff is perverse and illegal and deserves to be set aside.
(f) That the Ld. Trial Judge erred in considering the admission of defendants that there is no oral or written partition deed amongst the family in respect of suit land. However, in absence of such vital documentary evidence in a suit for partition, somehow, Ld. Trial Judge considered the statement of the appellant before the revenue authorities and receipt of notice u/s. 135D of the Bombay Land Revenue Code, 1879 in a mutation entry proceedings, as an oral partition and rejected the suit. Thus, Ld. Trial Judge has apparently erred in law, hence, impugned judgment deserves to be quashed and set aside.
(g) That the Ld. Trial Judge has misdirected itself by observing in para 17 and 18 of the impugned judgment that "Whether right of plaintiff can be said to be withdrawn by an oral family arrangement, for which the reply before Talati on 18.11.1986 and notice us/. 135(d) is said to be signed by plaintiff and her mother." and rejecting the suit against the plaintiff thereby depriving the plaintiff from its legitimate rights in the undivided ancestral property of the father. That the Ld. Trial Judge also erred in observing that statement recorded by plaintiff before revenue authority in mutation proceedings cannot be admitted in evidence as a presumption of partition.
(h) That the Ld. Trial Judge erred in fact by observing in para 23 of the impugned judgment that "As discussed above, when the reply before Talati Exh. 125 and notice u/s. 135(d) were signed by the plaintiff and her mother and relying upon that mutation entry no. 6181 vide Exh. 124, removing their name had been affected waiver of her right in the year 1986, it is proved that there was a family arrangement, whereby, the plaintiff and her mother had withdrawn their right." Thus, Ld. Trial Judge has erred in fact and also in law by considering the revenue proceedings / mutation Page 7 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined proceedings as family / oral partition and has rejected the prayer of the plaintiff for partition of the undivided ancestral suit land.
(i) That the Ld. Trial Judge in para 20 and 21 of the impugned judgment, misinterpreted, misread and misapplied observation of the Hon'ble Apex Court in para 129 of a decision rendered in a case of Vineeta Sharma vs. Rakesh Sharma by considering the statement of the plaintiff before the revenue authorities in mutation of revenue proceedings as a public document establishing oral partition amongst the plaintiff and defendants. At this stage it is pertinent to note that it is an admitted position on the part of defendants that there is no family arrangement establishing partition of the suit land. Thus, Ld. Trial Judge grossly erred in fact and in law in rejecting the suit of the plaintiff, hence, impugned judgment deserves to be quashed and set aside in the interest of justice.
(j) That without prejudice to the rights and contentions of the plaintiff to the submission that there was no family arrangement and or oral partition, it was the case of the plaintiff that family arrangement has to be equitable, however, Ld. Trial Judge impliedly relied upon the cross examination of the plaintiff wherein it is stated that defendant had helped to the son of plaintiff, therefore, there is equitable family arrangement.
(k) That the Ld. Trial Judge has wrongly observed in para 25 25 (internal (internal pg. 29/30) of the impugned judgment that "In the contemporary times, the daughters were not claiming any right from the properties of this father and were use to left it for their brothers. Therefore, very liberal and broad view of the validity of the family settlement is required to be taken to uphold and maintain that family settlement. The central idea is that if by consent of parties a matter is settled, it should not be allowed to be re-opened by the parties to the agreement on frivolous and untenable grounds." The appellant submits that as such in Page 8 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined absence of any documentary evidence of family arrangement/family settlement/oral partition on record, Ld. Trial Judge grossly erred in fact by holding that there was a family arrangement, there was oral family settlement, between the plaintiff and defendants and therefore, plaintiff is not entitle for any relief. These, observations of the Ld. Trial Judge are un- sustainable and not applicable to the facts of the present case. Therefore, also impugned judgment deserves to be quashed and set aside.
(l) That the Ld. Trial Judge grossly erred in not considering the legal position as held by this Hon'ble Court in 2022 (1) GLR 480 wherein it is observed that Relinquishment of rights into father s property document of relinquishment of right cannot be treated to have extinguished right of petitioner in the share of father after his death relinquishment cannot - unregistered deed of be treated to be relinquishment deed - even after death of father, right of sister on account of succession for her share in father s share of land in question was required to be examined.
(m) That the Ld. Trial Judge in para 28 of the impugned judgment has erred in holding that defendants have remained successful in discharging the heavy burden of plea of oral partition while relying upon mutation entry no. 6181 and reply of plaintiff before Talati vide Exh. 124 to 126.
(n) That the Ld. Trial Judge after considering the decision relied upon by the plaintiff reported in 2004 (1) GLH 487 erred in coming to the conclusion that there was an oral family arrangement by which plaintiff has withdrawn her right.
(o) It is submitted that though it is admitted by the defendants that there was no family settlement even then Ld. Trial Judge in para 30 has held that plaintiff has failed to prove that there was no family settlement. Infact, it is the case of defendant that there was family arrangement / settlement but at the same time defendants have admitted that there was no Page 9 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined family arrangement, in that circumstances, Ld. Trial Judge ought to have held that there is no family settlement / arrangement of partition of suit land.
(p) That the Ld. Trial Judge ought to have appreciated that if statement before revenue authority in writing is considered as family arrangement then same cannot be considered as Oral partition. If that is so then it requires registration under the provision of Registration Act.
(q) That the Ld. Trial Judge has erred in fact and in law by holding that there is an illusion of cause of action and there is no real cause of action. That the Ld. Trial Judge ought to have appreciated that this Hon'ble Court vide Order dtd. 21.02.2014 passed in FA no. 3866 of 2011 has allowed the First appeal and quashed and set aside the order passed by Ld. Trial Judge while allowing the application under Or. 7 R. 11 of the Code of Civil Procedure, 1908 filed by defendants. Therefore, also impugned judgment is contrary to the findings assigned by this Hon'ble Court in order dtd. 21.02.2014, hence, deserves to be interfered by this Hon'ble Court in the interest of justice.
(r) That the Ld. Trial Judge in para 32 of the impugned judgment has erred in answering issue no. 2 in affirmative and issue no. 4 and 4A in negative.
That the Ld. Trial Judge has not assigned any findings on the principle contention and main decisions of the Hon'ble Apex Court reported in 1996 (6) SCC 223; 1997 (7) SCC 137; 215 (14) SCC 784 wherein it is clearly held by the Hon'ble Apex Court that mutation of property in the revenue record does not create or extinguish title nor has it any presumptive value on title.
Moreover, it is observed by the Ld. Trial Judge that decisions relied upon by defendants wherein, it is held that records of rights is not a documents of title. Therefore, infact, it supports the case of the plaintiff Page 10 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined that mutation entry of relinquishment and statement before the revenue authorities would not disentitle the plaintiff from its legitimate rights, title and share in the ancestral immovable property.
(s) That the Ld. Trial Judge erred in framing issue no.1 which is a sole domain of revenue authority in view of provisions of Sec. 135L of Bombay Land Revenue Code, 1879.
(t) That the Ld. Trial Judge has not property appreciated the averments of the plaint while observing that plaintiff is unable to prove that Revenue entry no. 6181 is bogus and forged. Infact it is not the case of plaintiff that revenue entry no. 6181 is bogus and forged but same is got mutated keeping the plaintiff in dark.
(u) That the Ld. Trial Judge while answering issue no. 4A in para 32 of the impugned judgment has not assigned any findings with regard to issue no. 4A for deciding that suit properties were of father of the plaintiff and defendant no. 1 and thereby plaintiff is entitled for 1/3rd share in the suit properties. Hence, impugned judgment deserves to be set aside.
(v) That the Ld. Trial Judge grossly erred in holding that in view of ration laid down by the Hon'ble Apex Court in Vineeta Sharma's case, plea of oral partition is supported by mutation entry and receipt of notice u/s. 135D by the plaintiff. Hence, impugned judgment deserves to be quashed and set aside.
(w) That the Ld. Trial Judge has erred and law and in fact in answering issue no. 3 in negative and by holding in para 34, 36 and 37 that decision relied upon by the plaintiff in a case of Vidya Devi @ Vidya Vati Vs. Prem Prakash reported in 1995 (4) SCC 496 for the contention that no limitation is prescribed for filing suit for partition, is not applicable to the case of the plaintiff, therefore, suit is barred by limitation.
At this stage Ld. Trial Judge ought to have appreciated Page 11 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined the settled legal proposition that the right to sue accrued for the plaintiff when a clear and unequivocal threat to infringe that right by the defendants Therefore, dismissal of suit of the plaintiff as barred by limitation is required to be set aside.
(x) Even otherwise impugned judgment dtd. 26.09.2022 passed in Special Civil Suit No. 370 of 2010 below Exh. 168 by Ld. 4th Addin. Senior Civil Judge, Ahmedabad (Rural) is liable to be quashed and set aside and this Hon'ble Court may be pleased to allow the present First Appeal by setting aside the decree dtd. 26.09.2022 passed in Special Civil Suit No. 370 of 2010 below Exh. 170 by Ld. 4th Addln. Senior Civil Judge, Ahmedabad (Rural) in the interest of justice and equity.
3.1. To substantiate his submission, Mr. Mehta, learned Senior Advocate has relied upon the following decisions delivered by Hon'ble Apex Court and this Court :-
"1. In the case of Dayaben Mahashanker Jani v. Labhshanker Natverlal Bhatt reported in 2011 (0) AIJEL HC 226154 = { 2011 LawSuit Guj 1303}.
2. In the case of Arunachal Gounder (dead) by Lrs., v. Ponnuswamy & Ors., reported in AIR 2022 SC 605 = { 2022 (0) AIJEL SC 68256}.
3. In the case of Vineeta Sharma v. Rakesh Sharma & Ors., reported in 2020 (9) SCC 1 = {2020 (0) AIJEL SC 6645}.
4. In the case of Roshanben Hajibhai Deraiya W/o Ganibhai Sorathiya v. State of Gujarat & Ors., reported in 2022 (1) GLR 480 = {2021 LawSuit (Guj) 1986}.
5. In the case of Madhukantaben D/o Somabhai Shankerbhai Patel v. State of Gujarat reported in 2022 LawSuit (Guj) 5169.
6. In the case of Radhiben Wd/o Chetia Mavji Katara & Page 12 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined Ors., v. Surtan Vesta Damor & Anr., reported in 2007 (1) GLR 788 = { 2007 LawSuit (Guj) 621}.
7. In the case of Md. Mohamad Ali (dead) by Lrs. v. Sri Jagdish Kalita & Ors., reported in 2004 (1) GLH 487.
8. In the case of Sawarni (Smt.) v. Inder Kaur (Smt.) & Ors., reported in 1996 (6) SCC 223.
9. In the case of Balwant Singh & Anr., v. Daulat Singh (Dead) by Lrs. & Ors., reported in 1997 (7) SCC 137.
10. In the case of Jitendra Singh v. State of Madhya Pradesh & Ors., reported in 2021 (10) Scale 413.
11. In the case of Gurunath Manohar Pavaskar & Ors., v. Nagesh Siddappa Navalgund & Ors., reported in 2007 (13) SCC 565.
12. In the case of Vidya Devi @ Vidya Vati (dead by Lrs) v. Prein Prakash Ors., reported in AIR 1995 SC 1789 = 1995 (0) GLHEL SC 34106.
14. In the case of Shardaben D/o. Davalbhai Maganbhai Patel v. Natverlal Davalbhai Patel & Ors., rendered in First Appeal No. 3866 of 2011 dated 21.02.2014."
4. As against this, Mr. Deven Parikh, learned Senior Advocate appearing on behalf of the contesting defendants has vehemently contended that after full fledged adjudication the plaint came to be rejected and the decision delivered is in consonance with the clear proposition of law and well supported by material on record and therefore, such a well reasoned order in exercise of discretion may not be set-at-naught in absence of any distinguishable material or different Page 13 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined circumstance. It has been vehemently contended by Mr. Parikh, learned Senior Advocate that pursuant to the family settlement which took place has resulted into relinquishment, and same has been properly considered by the trial court and as such, claim of the plaintiff is not tenable at all. Apart from that, it has been submitted that if the relief contained in the plaint to be looked into in its proper perspective, it would clearly indicate that this is not basically a suit for partition at all and ex-facie suit is not maintainable. By referring to paragraphs 6, 8 and 10 of the plaint it has been submitted that the suit in the present form is unsustainable and more particularly, the relief cannot be granted without praying for setting aside the so called partition even if it had taken place. It has been further submitted that the suit is clearly outside the purview of even law of limitation and the principle of delay and laches would also come in the way of the original plaintiff to seek any relief. According to Mr. Parikh, learned Senior Advocate, the suit has been brought after almost a period of 24 years and as such, the trial court has rightly exercised the discretion in passing the impugned order. It has been clearly concluded on the basis of critical analysis of the Page 14 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined material on record and after considering the proposition of law that family arrangement had already taken place wherein way back in 1986, the original plaintiff had waived her right and as such, past partition of years back, rightly has not been allowed to be re-opened unless there is some apparent mistake or fraud which is not the case here. On the contrary, after close reading of the plaint, the trial court has come to the conclusion that entire case of the plaintiff is not either on the ground fraud or mistake and hence, plaintiff is not entitled to any share from the property as already waived her right along with her mother way back in the year 1986.
4.1. Mr. Parikh, learned Senior Advocate has further submitted that even from any circumstance, the suit is not possible to be held as within limitation and that is in view of the fact that the plaintiff had already waived her right by virtue of family arrangement in the year 1986 and the said family arrangement has already been mutated in the revenue records and the effect has been given by making entry no. 6181 on 18.11.1986 and as such, after examining such sequence of events it has been categorically held that no case is made out to call for any Page 15 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined interference.
4.2. Mr. Parikh, learned Senior Advocate has further submitted that perusal of paragraph 30 and the conclusion thereof is also evident enough that on what instance, the suit has been brought after so many years. In fact, in deposition, precisely, in cross-
examination, it is clearly admitted by the plaintiff in paragraph 7 that the father expired in the year 1986 and till 2020 undisputedly no proceedings have been initiated by her. Even no revenue proceedings were also initiated at any point of time and it was also specifically admitted that on her own in 1986 she relinquished her right and the present suit has been field only at the instance of her husband and son. This clear admission in cross examination has been examined at length scrupulously by the trial court and then arrived at a conclusion that the suit is clearly barred from limitation and as such conjoint reading of the deposition and the supportive material on record has led trial court to arrive at a conclusion that the suit of the plaintiff deserves to be rejected and since this conclusion is on the basis of critical analysis of the material on record, it is not perverse in any form and that being so, in the absence of any material Page 16 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined irregularity or perversity, simply because different view is possible, came cannot be set-at-naught since the conclusion of the trial court is based upon analysis of material available on record and hence, requested not to disturb the order which has been passed.
4.3. To substantiate his submission, Mr. Parikh, learned Senior Advocate has relied upon the following decisions :
"1. In the case of G.Sekar v. Geetha & Ors., reported in 2011 LawSuit SC 588 = {2009 (6) SCC 99.
2. In the case of Kale & Ors., v. Dy. Director of Consolidation & Ors., reported in AIR 1976 SC 807.
3. In the case of Ravinder Kaur Grewal & Ors., v. Manjit Kaur & Ors., reported in AIR 2020 (SC) 3799.
4. In the case of Subraya M N v. Vittala MN & Ors., reported in AIR 2016 SC 3236.
5. In the case of Heirs of decd. Maniben D/o. Nathabhai Ishvarbhai & Wd/o Kantilal Nathalal Patel v. Heirs of decd. Dwarkbahi Nathabhai Ishvarbhai & Ors., reported in 2016 LawSuit Guj 1310.
6. In the case of Anadiben Jamabhai Patel v. State of Gujarat & Ors., reported in 2010 LawSuit Guj 426 = {2010 (3) GLR 2601}.
7. In the case of S. Shanmugam Pillai & Ors., v. K. Shanmugam Pillai & Ors., reported in 1972 LawSuit SC 291 = { AIR 1972 SC 2069}.
8. In the case of Ramesh Kumar & Anr., v. Furu Ram & Ors., reported in 2011 LawSuit (SC) 858 = {2011 (8) SCC Page 17 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined
613.
9. In the case of Gurubaksh Singh v. Nikka Singh & Anr., reported in 1962 LawSuit (SC) 267 = [AIR 1963 SC 1917}.
10. In the case of Narain Prasad Aggarwal (dead) by Lrs v. State of Madhya Pradesh reported in 2007 LawSuit (SC) 696 = { 2007 (1) SCC 736}.
11. In the case of Khatri Hotels Pvt. Ltd. & Anr., v. Union of India & Anr., reported in 2011 LawSuit (SC) 944 = {2011 (9) SCC 126}.
12. In the case of Ramti Devi v. Union of India reported in AIR Online 2016 SC 440 = {AIR Online 1994 SC 397}.
13. In the case of M. Meenakshi v. Metadin Agarwal (D0 by Lrs., reported in 2006 AIR SCW 4323 ={ (2007) 1 WLC (SC) CVL 436}."
5. In rejoinder Mr. Mehta, learned Senior Advocate after referring to the aforesaid decisions has reiterated his submissions and has contended that in no case, the trial court ought to have come to a conclusion that there was a family arrangement and the plaintiff has relinquished her right from the suit properties and as such, has submitted that error committed by the trial court while passing the order be corrected by quashing and setting aside the same.
6. Having heard the learned advocates appearing for the respective parties, before dealing with the submissions, we Page 18 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined would like to quote hereunder the reasons which are assigned by the trial court and following are the relevant discussions and part of the findings arrived at by the learned trial court, we deem it proper to quote hereunder :-
"9. It is the admitted position of fact that father of plaintiff - Dawalbhai Maganbhai had died on 17.08.1986, leaving behind his widow - Samuben, Dauther i.e. plaintiff - Shardaben; two sons - deceased defendant Nos.1 - Natvarbhai and father of defendant No.2 - Nagarbhai. The suit properties were of Dawalbhai is also not disputed. It is also an admitted fact that after death of Dawalbhai, name of aforesaid 4 heirs were entered in revenue records of the suit properties vide mutation entry No.6180 dated 18.11.1986. The plaintiff has produced mutation entry No.6180, notice u/s 135(d) for mutation entry No.6180, pedigree of Dawalbhai before Talati and Panchnama & reply before Talati regarding mutation entry No.6180 vide Exh.103, 108, 110 and 111. The defendants have produced such documents vide Exh.121 to 123. To show that the name of defendants are running in the suit properties, plaintiff has produced revenue records of the suit properties vide Exh.97 to
102. Defendant has also produced such documents vide Exh.116 to 120. The fact that the name of defendants are running in the revenue record since 1986 is also not disputed.
10. It is pleaded at Para No.6 of the plaint that right of plaintiff was diminished by removing her name from the suit properties vide mutation entry No.6181 dated 18.11.1986. Plaintiff at Para No.4 of her examination-in-chief has stated that the defendants, on the same day of entering her name had removed her name, playing fraud, cheating and breach of trust. It is stated by son of plaintiff - Dipakbhai, in his examination-in-chief at Exh.109, para No.3 that he had preferred an application under RTI to obtain the papers of mutation entry No.6181, but, the Talati had replied vide letter Exh.106 that those documents could not be found. It is not specifically stated by the plaintiff anywhere that mutation entry No.6181, removing name of plaintiff was bogus or forged. In that view of the matter, in absence of any oral or documentary evidence, it cannot be said that mutation entry Page 19 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined No.6181, removing name of plaintiff was bogus or forged. Even the averments of the plaint does not openly states that fact. It is pertinent to note that the plaintiff has not even produced the record of mutation entry No.6181.
11. It is argued by the plaintiff that upon an application under RTI to obtain papers of mutation entry No.6181, the Talati had replied vide Exh.106 that such record is not available with their Village Office. Plaintiff has also argued that in the xerox copy of notice u/s 135(d) of mutation entry No.6181 (Exh.156) and reply thereto (Exh.157), there is one stamp & signatures of Talati, whereas, in certified copies of those very documents (Exh.125 & 126), there are 2 and 3 stamp & signatures of Talati, respectively. The plaintiff, by raising aforesaid two points has submitted that the mutation entry No.6181 is bogus and forged. But, perusing the examination-in-chief of son of plaintiff namely Dipakbhai vide Exh.109, he has stated that he had preferred an application under RTI on 08.10.2015, which was replied vide O.W.No.45/15 by Talati, Thaltej (Exh.106). Now perusing the reply of Talati Exh.106, it is categorically stated that record regarding mutation entry No.6181 is not available with village office. Perusing certified copies of notice u/s 135(d) regarding mutation entry No.6181 and reply thereto vide Exh.125 and 126, it does appear that those certified copies of the year 2022, are with the stamp of City Mamlatdar, Ahmedabad. Therefore, there are possibilities that the record regarding mutation entry No.6181 may be lying with Mamlatdar Office and not with village Panchayat Officer, in the year 2015. It is also required to be noted that the application under RTI by son of plaintiff was of the year 2015, whereas, certified copies produced by defendants are of the year 2022; and evidence of both the sides have been recorded in the year 2022. It is the case of the plaintiff that there is single stamp & signature in Exh.156 (copy of notice u/s 135(d) of mutation entry No.6181) and Exh.157 (copy of reply of plaintiff and mother - Samuben relinquishing their right ); and there are 2 and 3 stamp & signatures in Exh.125 (certified copy of notice u/s 135(d) of mutation entry No.6181) and Exh.126 (certified copy of reply of plaintiff and mother - Samuben relinquishing their right ). The plaintiff, by showing these documents had cross-examined defendant No.2, but, he had replied that they had obtained these copies from Panchayat, and he is not aware of the reason thereof. It is pertinent to note that the plaintiff Page 20 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined has not produced revenue record regarding mutation entry No.6181, but, defendants have produced the certified copies of record of mutation entry No.6181 vide Exh.124 to 126. (Certified copy of mutation entry No.6181 vide Exh.124, certified copy of notice u/s 135(d) regarding mutation entry No.6181 vide Exh.125, and reply of plaintiff and her mother, relinquishing their right before Talati vide Exh.126). Now, if the plaintiff is with the case that there exist no revenue record regarding mutation entry No.6181, then, he could have proved that fact by calling any officials from Mamlatdar Office or Panchayat Office. But, no attempt has been made by the plaintiff to disprove these certified copies of revenue record. These documents Exh.124 to 126 are no doubt the certified copies of public documents. Section 77 & 79 of Indian Evidence Act is required to be considered, which is as under:-
" 77. Proof of documents by production of certified copies Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.
79.Presumption as to genuineness of certified copies The Court shall presume [to be genuine] every document purporting to be a certificate, certified copy or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer [of the Central Government or of a State Government, or by any officer [in the State of Jammu and Kashmir] who is duly authorized thereto by the Central Government] : Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf. The Court shall also presume that any officer by whom any such document purports to be signed or certified held when he signed it, the official character which he claims in such paper. " Thus until rebuttal, the certified copies of revenue record of mutation entry No.6181, Exh.124 to 126 shall presume to be genuine. As discussed above, the plaintiff has not attempted to rebut these documents.Page 21 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023
NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined
12. At this juncture, Section 90 of the evidence act is also required to be considered, which is as under:-
"90. Presumption as to documents thirty years old Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
Explanation - Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or the circumstances of the particular case are such as to render such an origin, probable."
As per provisions of Section 90 of the evidence Act, when mutation entry No.6181 (Exh.124), notice u/s 135(d) (Exh.125) and reply before Talati (Exh.126) dated 18.11.1986 clearly shows the signatures of the plaintiff and her mother before Talati; and when these 30 years old documents are produced from the custody of public Authority before the Court in the year 2022, there is a presumption regarding execution of that documents. Moreover, it is required to be noted that the plaintiff in her plaint, examination-in-chief and entire evidence, has not denied her and her mothers' signatures in notice u/s 135 (d) (Exh.125) and reply before Talati (Exh.126), regarding mutation entry No.6181 dated 18.11.1986. Therefore, the record regarding mutation entry No.6181 dated 18.11.1986 cannot be said to be forged or bogus.
14. Another argument of the plaintiff is that the mutation entry No.6181 (removing her and her mothers name) was bogus and forged as it was of the same date i.e. 18.11.1986, on which Page 22 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined their names had been entered vide mutation entry No.6180. But, mere statement that mutation entry is bogus as it was entered on the same day, on which their name was entered cannot be accepted, in absence of any evidence. The plaintiff has to prove his case as the burden to prove this issue is casted upon him. The plaintiff has not made any attempt to discharge that burden. Therefore, as discussed above, the plaintiff is not able to prove that mutation entry No.6181 dated 18.11.1986 is bogus and forged. Hence, I answer Issue No.1 in Negative.
(2) Whether the defendants prove that the plaintiff is not having any right, title or interest after 1986?
(4) Whether the plaintiff proves that she is entitled for partition of her 1/3rd share over the suit properties?
(4.A) Whether the plaintiff proves that the suit properties were of father of plaintiff and defendant No.1, namely Dawalbhai Maganbhai Patel and thereby the plaintiff is entitled for 1/3rd share over the suit properties?
16. Now, the dispute is in narrow compass. The plaintiff is with the case that she is still having her 1/3rd right over the suit property. Whereas, defendants are with the case that as there was a family arrangement; plaintiff and her mother, by filing a reply before Talati and signing a notice u/s 135(d) had waived their right; and thereby mutation entry No.6181 was effected.
19. Thus, there may be an oral family arrangement, for which no registration is necessary. Defendants have also relied upon the judgment of Ravindra Kaur Grewal Vs. Manjit Kaur reported in 2020 AIR (SC) 3799, wherein, the ratio laid down in Kale's case [supra] is upheld. The defendants have also relied upon the judgment of Subraya M N Vs. Vittala M N reported in 2016 AIR (SC) 3236, wherein, Hon'ble Supreme Court has held that "there is no provision of law requiring family settlements to be reduced to writing and registered, though when reduced to writing the question of registration may arise. Binding family arrangements dealing with immovable property worth more than Rs.100/- can be made orally and when so made, no question of registration arises". Therefore, it is well-settled that there may be oral family Page 23 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined settlement between the parties, for which no registration is required.
21. In view of aforesaid ratio laid down by Hon'ble Supreme Court it is to be decided that whether the plea of oral partition, appears to be supported by reply & notice u/s 135(d) before Talati is required to be accepted. Moreover, 'in exceptional cases' words casts heavy burden of proof. It is pertinent to note that plaintiff, in his plaint at Para No.6 has stated that the name of plaintiff was entered by mutation entry No.6180 on 18.11.1986 and on the same day i.e. 18.11.1986, her name was removed by mutation entry No.6181. But, the plaintiff has not produced any such record of mutation entry No.6181. Defendants have produced certified copies of mutation entry No.6181(removing name of plaintiff and her mother), reply before Talati (appears to be signed by plaintiff and her mother) and notice u/s 135(d) (appears to be signed by plaintiff and her mother) thereof vide Exh.124 to 126, respectively. As discussed earlier in issue No.1, when the defendants have produced certified copies of 30 years old mutation entry, reply & notice u/s 135(d) before Talati, the presumption under Section 90 of Evidence Act is required to be drawn. As there appears the signature of plaintiff and her mother upon the certified copies of 30 years old public documents and such signatures have not been denied, it is required to be presume that the plaintiff and her mother had signed that reply & notice u/s 135(d) before Talati, and Talati had put his signature; and those documents were executed as it appears. This presumption is no doubt a rebutable presumption, but, when there is nothing; not even the specific averments, then, it can safely be said that the documents i.e. reply before Talati Exh.125 and notice u/s 135(d) Exh.126 were duly signed by plaintiff and her mother - Samuben.
22. The plaintiff was cross-examined on these documents by defendants, which is as under:- " The plaintiff was cross- examined on these documents by defendants, which is as under:-
"સવાલ:- જે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ પ્રમાણે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ વારસાઈ નોંધ વખતે કલમ - ૧૩૫ નો ંધ વખતે કલમ - ૧૩૫ વખતે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ કલમ - ૧૩૫(ડી) ની નોટિ સમાં તમે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ સહી કરે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫લી તે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ જ પ્રમાણે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ જયારે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ તમારો હકક ઉઠાવી લીધ વખતે કલમ - ૧૩૫ો તે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ની કલમ-૧૩૫(ડી) ની નોટિ સમાં પણ તમે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ સહી કરે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫લી હતી?Page 24 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023
NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined જવાબ:- મે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ ં સહી કરે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫લી છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ . હવે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ હું જણાવું છુ ં કે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ , મને પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ કાંઈ નોંધ વખતે કલમ - ૧૩૫ ખબર પડતી નથી.' "એ વાત ખરી છે કે વાત ખરી છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ કે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ , આ દાવાના કામે કરવામાં આવેલ તમામ દાવાના કામે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ કરવામાં આ દાવાના કામે કરવામાં આવેલ તમામવે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫લ તમામ કાય&વાહી તથા તે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ અંગન ે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ ા તમામ દસ્તાવે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫જી પુરાવાઓ અંગેની પુરાવાઓ અંગેની અંગન ે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ ી કાય&વાહી મારા પટિત તથા મારા (દીકરો) દીપકભાઈ નોંધ વખતે કલમ - ૧૩૫એ વાત ખરી છે કે કરે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫લી છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ . એ વાત ખરી છે કે વાત ખરી છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ કે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ , મારા પટિત નલીનભાઈ નોંધ વખતે કલમ - ૧૩૫ તથા મારા દીકરા દીપકભાઈ નોંધ વખતે કલમ - ૧૩૫ના કહે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ વાથી મે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ ં આ દાવાના કામે કરવામાં આવેલ તમામ દાવો કરે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫લો છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ . એ વાત ખરી છે કે વાત ખરી છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ કે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ , મે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ ં ૧૯૮૬માં ટિહકક જતો કરે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫લો અને પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ મારા દીકરા અને પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ મારા પટિતના કહે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ વાથી હાલનો દાવો કરે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫લો છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ . એ વાત ખરી છે કે વાત ખરી છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ કે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ , આ દાવાના કામે કરવામાં આવેલ તમામજરોજ હું મારા દીકરા સાથે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ કો &માં આ દાવાના કામે કરવામાં આવેલ તમામવે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫લી છુ ં . એ વાત ખરી છે કે વાતની મને પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ ખબર પડતી નથી કે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ , મે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ ં હકક સ્વે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ચ્છાએ વાત ખરી છે કે કમી કરાવે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫લ હોવા છતાં અને પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ હું હાલના દાવા થકી માંગવામાં આ દાવાના કામે કરવામાં આવેલ તમામવે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫લ દાદ મે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ ળવવા હકદાર ન હોવા છતાં મે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ ં હાલનો દાવો ખો ો કરે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫લ છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ કે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ કે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫મ. એ વાત ખરી છે કે વાત ખરી નથી કે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ , હું સોગદં ઉપર ખો ી જુબાની આ દાવાના કામે કરવામાં આવેલ તમામપું છુ ં . મારી હાલની ઉમ ં ર ૭૧ વર્ષ છે& છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ . એ વાત ખરી છે કે વાત ખરી છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ કે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ , મે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ ં હાલનો દાવો તથા સરતપાસ વાંચે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫લ નથી અને પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ સીધ વખતે કલમ - ૧૩૫ી જ સહી કરે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫લી છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ . "
(emphasis supplied)
24. The plaintiff has heavily relied upon cross-examination of defendant No.2, wherein, he has admitted thatthat "એ વાત ખરી છે કે વાત ખરી છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ કે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ , મારા આ દાવાના કામે કરવામાં આવેલ તમામંક-૧૫ ના જવાબના પે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫રા નં.૧૦ માં જણાવેલ છે કે માં જણાવે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫લ છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ કે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ , કૌ ુ ં બિબક વહે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ ચ ં ણી થયે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫લી છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ પરંતુ તે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫વી કૌ ુ ં બિબક વહે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ ચ ં ણી હકીકતે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ થયે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫લી નથી. એ વાત ખરી છે કે વાત ખરી છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ કે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ , જો કૌ ુ ં બિબક વહે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ ં ચણી થયે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫લી ન હોય તો તમામ વારસદારોનો હકક પોસાય છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ ." and " એ વાત ખરી છે કે ને પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ વાત ખરી છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ કે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫) ઘરની સ્ત્રી સભ્યો, ઘરના પુરૂર્ષ છે સભ્યોની સૂચના અનુસારનું કામ કરે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ . એ વાત ખરી છે કે વાત ખરી છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ કે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ , ઘરના સ્ત્રી સભ્યો પુરૂર્ષ છે સભ્યો ઉપર પુરતો ટિવશ્વાસ રાખે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ . એ વાત ખરી છે કે વાત ખરી નથી. । કે ઘરની મહિલા સભ્યો પુરૂષો કહે ત્યાં સહી કરી આપે છે કે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ ઘરની મટિહલા સભ્યો પુરૂર્ષ છેો કહે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ ત્યાં સહી કરી આ દાવાના કામે કરવામાં આવેલ તમામપે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ .". But, the deposition cannot be read in isolation; it should be read as whole. Defendant No.2, before aforesaid cross- examination, had stated that " એ વાત ખરી છે કે વાતની મને પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ ખબર નથી કે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ , વાદી- શારદાબે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫નનો હકક કમી કરવામાં આ દાવાના કામે કરવામાં આવેલ તમામવ્યો તે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ સમયે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ તે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫મનું કોઈ નોંધ વખતે કલમ - ૧૩૫ સોગદં નામું, એ વાત ખરી છે કેફીડે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫વી કે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ ડે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫કલે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫રે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫શન રજુ કરવામાં આ દાવાના કામે કરવામાં આવેલ તમામવે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫લું ન હતું. .એ વાત ખરી છે કે વાતની મને પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ ખબર નથી કે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ , શારદાબે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ને પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ આ દાવાના કામે કરવામાં આવેલ તમામજટિદન સુધ વખતે કલમ - ૧૩૫ી કયાંય તે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫મનો હહકક કમી કરવા અંગન ે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ ું સોગ ં દનામુ,ં એ વાત ખરી છે કેફીડે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫વી કે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ ડે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫કલે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫રે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫શન આ દાવાના કામે કરવામાં આવેલ તમામપે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫લ છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ કે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ કે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ મ. સાહે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ દ જાતે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ જણાવે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ કે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ , આ દાવાના કામે કરવામાં આવેલ તમામ બધ વખતે કલમ - ૧૩૫ી કાય&વાહી મારા ટિપતા, કાકા અને પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ દાદીએ વાત ખરી છે કે કરે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫લી હતી, , જે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫થી મને પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ કાંઈ નોંધ વખતે કલમ - ૧૩૫ ખબર નથી. એ વાત ખરી છે કે વાત ખરી છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ કે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ , નો ંધ વખતે કલમ - ૧૩૫ નં.૬૧૮૦ માં જણાવેલ છે કે અને પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ ૬૧૮૧ ની નામ દાખલ થયા તથા હકક કમી થયાની નો ધ વખતે કલમ - ૧૩૫ો અંગન ે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ ી મને પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ કોઈ નોંધ વખતે કલમ - ૧૩૫ જાતમાટિહતી નથી)" It is further stated that " એ વાત ખરી છે કે વાત ખરી છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ કે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ , વાદી શારદાબે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ને પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ હકક જતો કરે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫લો કે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ કે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ મ તે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ અંગન ે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ ી મને પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ કોઈ નોંધ વખતે કલમ - ૧૩૫ જાતમાટિહતી નથી. સાહે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ દ જાતે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ જણાવે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ કે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ , મને પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ મારા ટિપતા અને પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ દાદીએ વાત ખરી છે કે જણાવે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫લું કે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫, મારા ફોઈ નોંધ વખતે કલમ - ૧૩૫ તે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ વાદીએ વાત ખરી છે કે તે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫મનો હકક જતો કરે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫લો છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ ." . The plaintiff in her cross examination at Para No.7 has also stated that " એ વાત ખરી છે કે વાત ખરી Page 25 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ કે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ વારસાઈ નોંધ વખતે કલમ - ૧૩૫ તથા હકક કમીની કાય&વાહીમાં મારા બે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ ભાઈ નોંધ વખતે કલમ - ૧૩૫ઓ અંગેની , હું તથા મારા માતૃશ્રી સક ં ળાયે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫લા છીએ વાત ખરી છે કે.". Thus, the plaintiff herself has put- up the case that defendant No.2 has no personal knowledge about the waiver of right of the plaintiff, which is affirmed by defendant No.2. In that view of the matter, aforesaid cross- examination that no family arrangement had taken place is not helpful to the plaintiff. Moreover, the plaintiff herself has admitted in her cross- examination at Para No.7 that she had waived her right in the year 1986. It is pertinent to note that as per the case of plaintiff the suit properties had been devolved upon plaintiff, mother- Samuben, deceased defendant No.1 - Natvarbhai and father of defendant No.2 Nagarbhai. Mother Samuben had expired before 20 years from the date of filing present suit. Father of defendant No.2 Nagarbhai had expired before filing present suit. It is also required to be noted that defendant No.1 - Natvarbhai was alive when the reply of defendant was filed and he had expired on 19.05.2018 i.e. before production of evidence. Therefore, while producing the reply that there was a family arrangement, deceased defendant No.1 Natvarbhai was alive, but, he had expired before commencement of evidence. The family arrangement had taken place between these 4 legal heirs. Thus, no legal heir (Samuben, Natvarbhai and Nagarbhai) other than plaintiff was alive at the time of evidence. The family arrangement had taken place between them, but, no one other than plaintiff is alive. Therefore also, the submission of not having family arrangement; cannot be accepted. More particularly, when the plaintiff has categorically admitted the waiver of her right in the year 1984.
25. It is heavily argued on behalf of the plaintiff that family arrangement must be equitable. As the plaintiff was not given anything and therefore, no family arrangement can be said to have taken place. The plaintiff had cross-examined the defendant No.2 that whether any amount or property was given to plaintiff against her waiver of right from the suit properties. Defendant No.2 has answered that he is having no knowledge about that. In these circumstances, when defendant No.2 is having no personal knowledge about the family arrangement and other 3 heirs (Samuben, Natvarbhai and Nagarbhai) other than plaintiff is not alive at the stage of evidence, it has not come on record that upon what terms the family arrangement had actually made. The plaintiff in her Page 26 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined cross examination has stated that ""એ વાત ખરી છે કે વાતની મને પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ જાણ છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ કે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ , રાવજી પુરાવાઓ અંગેનીભાઈ નોંધ વખતે કલમ - ૧૩૫ વર્ષ છેો& સુધ વખતે કલમ - ૧૩૫ી અદાણીમાં ઉચા હોદ્દા પર રહે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ લ છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ . એ વાત ખરી છે કે વાત ખરી છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ કે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫, દીપકભાઈ નોંધ વખતે કલમ - ૧૩૫ જે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ પે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ ્ રોલપંપ ચલાવતા હતા તે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ રાવજી પુરાવાઓ અંગેનીભાઈ નોંધ વખતે કલમ - ૧૩૫ ધ્વારા મળે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ લા હતા. સાહે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ દ ૬ જાતે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ જણાવે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ કે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ , તે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ પે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ ્ રોલ પંપ પાછા આ દાવાના કામે કરવામાં આવેલ તમામપે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫લા છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ . એ વાત ખરી છે કે વાત ખરી છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ કે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ મારા દીકરા દીપકભાઈ નોંધ વખતે કલમ - ૧૩૫ અદાણીમાં સીએ વાત ખરી છે કેનજી પુરાવાઓ અંગેનીના મી ર રીડીંગનું કામ કરે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ જે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ હાલે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ પણ ચાલુ છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ ." Thus, it appears that defendant No.2 has helped son of the plaintiff. A family arrangement is an agreement between members of the same family, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property for the peace and security of the family by avoiding litigation or by saving-its honour. Therefore, it cannot be said that while having a family settlement, every member must get something. To avoid in anticipation, future disputes which might ruin them all, any member may abandon all claim to all title and interest in all the properties and acknowledges that the sole and absolute title to all the properties to be of other member. The plaintiff and her mother is stated to have relinquished their right in the year 1986. In the contemporary times, the daughters were not claiming any right from the properties of his father and were use to left it for their brothers. Therefore, very liberal and broad view of the validity of the family settlement is required to be taken to uphold and maintain that family settlement. The central idea is that if by consent of parties a matter has been settled, it should not be allowed to be re-opened by the parties to the agreement on frivolous or untenable grounds. Defendants have relied upon the judgment in case of Maniben Naranbhai Ishvarbhai Vs. heirs of deceased Dwarkabhai Naranbhai Ishvarbhai reported in 2016 LawSuit (Guj) 1310, wherein, Hon'ble Gujarat High Court has observed at Para No.45 that "... Even otherwise, relinquishment that arose between first blood relations is to be looked into as routine practice in prevalent rural part of the country since decades...". In present case also there is a relinquishment between first blood relations, and therefore, it cannot be said that there must be something in the share of every member of family. The family arrangement can be there, wherein, some member does not gain anything. Thus, mere upon pleadings it cannot be believed that there was no family arrangement. More particularly when the plaintiff herself has clearly admitted the waiver of her right from the suit properties in the year 1986. Hence, I am of the view that there was a family arrangement between the heirs of Dawalbhai i.e. Page 27 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined between plaintiff, mother - Samuben, Natvarbhai and Nagarbhai and pursuant thereto, the plaintiff and mother - Samuben had filed reply Exh.126 before Talati and she alongwith her mother had voluntarily relinquished their right. The circumstances and evidence clearly shows that there was an oral family settlement, which is evident from mutation entry No.6181 and therefore, I am of the view that the plaintiff is not entitled for any share over the suit properties.
26. Another argument of plaintiff is that no right can be waived by unregistered released deed. On this point, the plaintiff has relied upon the judgment of Hon'ble Gujarat High Court in case of Roshanben Hajibhai Deraiya Vs. State of Gujarat reported in 2021 LawSuit (Guj) 1986, wherein, Hon'ble Gujarat High Court has held that the affidavit/ consent does not meet the requirement of Section 49 of the Registration Act, capable to transfer a right, hence cannot be treated to be a relinquishment deed and therefore, the right of the petitioner on the basis of this document cannot be treated to have extinguished. Further the plaintiff has relied upon the judgment of Hon'ble Gujarat High Court in case of Madhukantaben Somabhai Patel Vs. State of Gujarat reported in 2022 LawSuit (Guj) 5169, wherein, Hon'ble Gujarat High Court has held that if any right over the property is to be relinquished or extinguished, it requires compulsory registration before the registering authority under the Act. In view of Section 49 of the Act, the said document cannot be received as an evidence of any transaction affecting such property. The plaintiff has further relied upon the judgment in case of Radhiben wd/o Chetia Mavji Katara Vs Surtan Vesta Damor reported in 2007 LawSuit (Guj) 621, wherein, Hon'ble Gujarat High Court has held that Section 49 clearly provides that in a case where document, which under the law, was required to be registered, if is not registered, then, the same would not be admitted in evidence, except for collateral purpose. If a document is not admissible in evidence and cannot be relied upon, nor does convey title in the law, then, on the basis of such document, an entry could not be relied upon, nor does convey title in the law, then, on the basis of such document, an entry could not be made in the revenue record. Per contra; defendants have relied upon the judgment of Hon'ble Gujarat High Court in case of Anandiben Jamabhai Patel Vs. State of Gujarat reported in 2010 LawSuit (Guj) 426, Page 28 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined wherein, Hon'ble Gujarat High Court, relying upon the judgment in Kale's case [supra] has held that even a family arrangement may be oral and in each case no registration is necessary, and registration would be necessary only if the terms of the family arrangement are reduced in writing. Defendants have relied upon the judgment of Hon'ble Gujarat High Court in case of Heirs of deceased Maniben Naranbhai Vs. Heirs of deceased Dwarkabhai Naranbhai reported in 2016 LawSuit (Guj) 1310, wherein, Hon'ble Gujarat High Court has held that the relinquishment of right or relinquished right does not require registration.
27. At this juncture, once again the judgment of Vineeta Sharma's case [supra] relied upon by the plaintiff herself is required to be considered. By this landmark judgment, Hon'ble Supreme Court overruled the judgment in case of Prakash Vs. Phulvati, Mangammal Vs. T B Raju, and had partly overruled the judgment in case of Danamma @ Suman Surpur Vs. Amar. At Para No.127, Hon'ble Supreme Court has held as under:-
"127. A special definition of partition has been carved out in the explanation. The intendment of the provisions is not to jeopardise the interest of the daughter and to take care of sham or frivolous transaction set up in defence unjustly to deprive the daughter of her right as coparcener and prevent nullifying the benefit flowing from the provisions as substituted. The statutory provisions made in section 6(5) change the entire complexion as to partition. However, under the law that prevailed earlier, an oral partition was recognised. In view of change of provisions of section 6, the intendment of legislature is clear and such a plea of oral partition is not to be readily accepted. The provisions of section 6(5) are required to be interpreted to cast a heavy burden of proof upon proponent of oral partition before it is accepted such as separate occupation of portions, appropriation of the income, and consequent entry in the revenue records and invariably to be supported by other contemporaneous public documents admissible in evidence, may be accepted most reluctantly while exercising all safeguards. The intendment of Section 6 of the Act is only to accept the genuine partitions that might have taken place under the prevailing law, and are not set up as a false defence and only oral ipse dixit is to be rejected outrightly. The object of preventing, setting up of false or frivolous defence to set at naught the benefit emanating from Page 29 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined amended provisions, has to be given full effect. Otherwise, it would become very easy to deprive the daughter of her rights as a coparcener. When such a defence is taken, the Court has to be very extremely careful in accepting the same, and only if very cogent, impeccable, and contemporaneous documentary evidence in shape of public documents in support are available, such a plea may be entertained, not otherwise. We reiterate that the plea of an oral partition or memorandum of partition, unregistered one can be manufactured at any point in time, without any contemporaneous public document needs rejection at all costs. We say so for exceptionally good cases where partition is proved conclusively and we caution the courts that the finding is not to be based on the preponderance of probabilities in view of provisions of gender justice and the rigor of very heavy burden of proof which meet intendment of Explanation to Section 6(5). It has to be remembered that courts cannot defeat the object of the beneficial provisions made by the Amendment Act. The exception is carved out by us as earlier execution of a registered document for partition was not necessary, and the Court was rarely approached for the sake of family prestige. It was approached as a last resort when parties were not able to settle their family dispute amicably. We take note of the fact that even before 1956, partition in other modes than envisaged under Section 6(5) had taken place. (emphasis supplied)
28. Hon'ble Supreme Court has permitted the plea of oral partition, with imposing a heavy burden of proof. In the case on hand as stated earlier, the plea of oral partition is supported by mutation entry No.6181, backed by reply before Talati and notice u/s 135(d), vide Exh.124 to 126 respectively. Further, it is also an admitted position of fact that the name of defendants are running since 1986 in the revenue records. Moreover, it is not the case of plaintiff that she has ever possessed, or have any proceeds, or has paid any taxes, or exercised any right over the suit properties, since her marriage in the year 1969. Further, as signature of plaintiff and her mother is not denied; and as plaintiff has accepted waiver of her right in the year 1986 in her cross examination, I am of the view that defendants have remained successful in discharging the heavy burden of plea of oral partition.
35. The plaintiff in his plaint has stated that father of the Page 30 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined parties - Dawalbhai had died on 17.08.1986 and name of plaintiff, mother and 2 brothers entered into revenue record on 18.11.1986 vide mutation entry No.6180; and on the same day name of plaintiff and mother was removed vide mutation entry No.6181. The plaintiff has stated she is having 1/3 rd undivided right over the suit properties. It is categorically stated at Para No.7 of the plaint that the plaintiff recently came to know about removal of her name from revenue record, upon obtaining copies of such records. The plaintiff has filed present suit in the year 2010. As discussed in issue No.1, the plaintiff has remained failed in proving the fact that the mutation entry No.6181, removing name of plaintiff and her mother was bogus and forged. Now, considering the question of limitation regarding the knowledge of mutation entry No.6181 dated 18.11.1986, plaintiff at Para No.7 of her cross-examination has clearly admitted that " "એ વાત ખરી છે કે વાત ખરી છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ કે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ મારા ટિપતા ૧૯૮૬ માં ગુજરી ગયા ત્યારબાદથી સને પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ ૨૦ માં જણાવેલ છે કે૧૦ માં જણાવેલ છે કે સુધ વખતે કલમ - ૧૩૫ી આ દાવાના કામે કરવામાં આવેલ તમામ દાવા બાબતે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ મે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ ં આ દાવાના કામે કરવામાં આવેલ તમામ દાવા બાબતે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ કોઈ નોંધ વખતે કલમ - ૧૩૫ કાય&વાહીકરે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫લી નથી. એ વાત ખરી છે કે વાત ખરી છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ કે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ , મારા ટિપતા ૧૯૮૬ માં ગુજરી ગયા ત્યારથી સને પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ ૨૦ માં જણાવેલ છે કે૧૦ માં જણાવેલ છે કે સુધ વખતે કલમ - ૧૩૫ી મૈ કોઈ રેવન્યુ પ્રોસીડીંગ્સ કરેલા નથી કોઈ નોંધ વખતે કલમ - ૧૩૫ રે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫વન્યુ પ્રોસીડીંગ્સ કરે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫લા નથી." It is also admitted in the same para that " એ વાત ખરી છે કે વાત ખરી છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ કે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ મે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ ં વા(ખરી છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ કે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ મે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ ં ૧૯ મે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ ં ૧૯૮૬ માં હકક જતો કરે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫લો અને પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ મારા દીકરા એ વાત ખરી છે કેને પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ પટિતના કહે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ વાથી હાલનો દાવો કરે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫લો છે પ્રમાણે વારસાઈ નોંધ વખતે કલમ - ૧૩૫ ." This admission of the plaintiff alone is sufficient to prove that the plaintiff had a knowledge of waiver of her right in the year 1986, even though, she has not preferred any revenue or civil proceedings until the year 2010. This admission clearly proves that the suit is barred from limitation. Though, the plaintiff was afforded with the chance to show that her suit is within limitation and she had no knowledge about removal of her name in the revenue record; the plaintiff, except her oral evidence, has not produced any other evidence to show that her suit is within limitation.
37. It is also required to be noted that the plaintiff in her plaint has stated that she recently came to know about removal of her name. But, the plaintiff in her entire evidence has not specified any time, on which she gained such knowledge. Moreover, considering the entire evidence of the plaintiff, there is mere averment in the plaint and examination-in-chief that she recently came to know about exclusion of her name, but, no evidence either oral or documentary has been produced to prove that she actually came to know about this exclusion of her name just before filing the suit. Moreover, the plaintiff has not even denied her signature upon notice u/s Page 31 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined 135(d) of the Act, Exh.125 and reply before Talati dated 18.11.1986, Exh.126. Thus, when the plaintiff has not denied her signature upon Exh.125 and 126, it can be said that the plaintiff was having sufficient knowledge about removal of her name in the revenue records from the year 1986. Furthermore, when the certified copies of revenue records Exh.125 and 126 of the year 1986 are produced from the custody of public records in the year 2022, the presumption under Section 90 of Evidence Act is required to be drawn. As per Section 90 the signatures of plaintiff and her mother are presumed to be there and it was duly executed on 18.11.1986 as stated therein. As stated earlier, the plaintiff has not produced any evidence, so that, this presumption can be rebutted. On the contrary, her and her mothers' signatures have not been denied. Defendants have relied upon the judgment of Hon'ble Supreme Court in case of Khatri Hotels Private Limited Vs. Union of India reported in 2011 LawSuit (SC) 944, wherein, it is held that the expression 'period of limitation' to begin to run from date when right to sue 'first' accrued and successive violation of right will not give rise to fresh cause and suit will be liable to be dismissed if it is beyond period of limitation counted from day when right to sue first accrued. In present case, as discussed earlier, the limitation would begin to run from 18.11.1986. Moreover, the plaintiff clearly admitted the fact that she had waived her right from the suit properties in the year 1986. Therefore, the suit of plaintiff is apparently barred by limitation. Hence, I answer Issue No.3 in Negative."
7. The aforesaid conclusion arrived at by the trial court is on the basis of critical analysis of the evidence on record which was led before him and prima facie perusal of the said conclusion reflects that the same is not only in consonance with the record, but also in consonance with the proposition of law as discussed and as such, the order cannot be said to be perverse or suffers from non-application of mind or cannot be said to be Page 32 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined reflecting irregular exercise of jurisdiction. Hence, we are of the considered opinion that the order is well supported by reasons.
In light of the aforesaid observations, the conclusion arrived at by the trial court is on the basis of analysis of deposition and certain admissions which are already discussed, which appears to this Court that the suit is clearly barred by law of limitation and the proceeding is initiated at the instance of husband as can be seen from the clear discussion in the order. Hence, there appears to be hardly any error which may persuade us to exercise appellate jurisdiction.
8. At this stage, we may observe that no doubt appeal is a continuance of suit and the jurisdiction of appellate Court is not that much circumscribe, in the absence of any perversity or material irregularity or in the absence of any distinguishable material, where the conclusion based upon analysis of evidence whether to be substituted is well observed by Hon'ble Apex Court in the case of Venkatesh Construction Company v.
Karnataka Vidyut Karkhane Limited reported in (2016) 4 SCC 119. Since the said proposition of law laid by the Hon'ble Apex Court in the aforesaid decision is relevant to the issue, we Page 33 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined deem it proper to quote the same hereunder :
"20. The Appellate Court may not interfere with the finding of the trial court unless the finding recorded by the trial court is erroneous or the trial court ignored the evidence on record. The High Court reversed the decree passed by the trial court without discussing oral and documentary evidence and several grounds raised before the trial court. The High Court veered away from the main issue and went on to elaborate on the law of arbitration and the mode of setting aside the arbitral award under Section 34 of the Arbitration Act, which in our view, was not warranted. Without considering the oral and documentary evidence, the High Court erred in interfering with the factual findings recorded by the trial court and the impugned judgment is liable to be set aside.
The said proposition is also reiterated in the case of V. Prabhakara v. Basavaraj K. (Dead) by Legal Representatives and Another reported in (2022) 1 SCC 115.
"22. The first appellate court while exercising power under Section 96 can re-do the exercise of the trial court. However, such a power is expected to be exercised with caution. The reason being, the trial court alone has the pleasure of seeing the demeanor of the witness. Therefore, it has got its own advantage in assessing the statement of the witnesses which may not be available to the appellate court. In exercising such a power, the appellate court has to keep in mind the views of the trial court. If it finds that the trial court is wrong, its decision should be on the reasoning given. A mere substitution of views, without discussing the findings of the trial court, by the appellate court is not permissible. If two views are possible, it would only be appropriate to go with the view expressed by the trial court. While adopting reasoning in support of its findings, the appellate court is not expected to go on moral grounds alone.
23.The aforesaid views expressed by us are nothing but a reiteration of the settled principle of law as could be seen through the following paragraphs of the decision rendered by this Court in the case of Jagdish Singh v. Madhuri Devi, (2008) Page 34 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined 10 SCC 497:
"27. It is no doubt true that the High Court was exercising power as first appellate court and hence it was open to the Court to enter into not only questions of law but questions of fact as well. It is settled law that an appeal is a continuation of suit. An appeal thus is a re- hearing of the main matter and the appellate court can reappraise, re-appreciate and review the entire evidence
- oral as well as documentary and can come to its own conclusion.
28. At the same time, however, the appellate court is expected, nay bound, to bear in mind a finding recorded by the trial court on oral evidence. It should not forget that the trial court had an advantage and opportunity of seeing the demeanor of witnesses and, hence, the trial court's conclusions should not normally be disturbed. No doubt, the appellate court possesses the same powers as that of the original court, but they have to be exercised with proper care, caution and circumspection. When a finding of fact has been recorded by the trial court mainly on appreciation of oral evidence, it should not be lightly disturbed unless the approach of the trial court in appraisal of evidence is erroneous, contrary to well- established principles of law or unreasonable.
29. Before more than a century, in Coghlan v. Cumberland [(1898) 1 Ch 704 (CA)] Lindley, M.R. pronounced the principle thus;
"Even where the appeal turns on a question of fact, the Court of Appeal has to bear in mind that its duty is to rehear the case, and the Court must reconsider the materials before the Judge with such other materials as it may have decided to admit. The Court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the Court comes to the conclusion that the judgment is wrong. When, as often happens, much turns on the relative credibility of witnesses who have been examined and cross-examined before the Judge, the Court is sensible of the great Page 35 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined advantage he has had in seeing and hearing them. It is often very difficult to estimate correctly the relative credibility of witnesses from written depositions and when the question arises which witness is to be believed rather than another; and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the Judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may shew whether a statement is credible or not; and these circumstances may warrant the Court in differing from the Judge, even on a question of fact turning on the credibility of witnesses whom the Court has not seen.
" (See also observations of Lord Thankerton in Watt v. Thomas, [1947 AC 484])
30. In Sara Veeraswami v. Talluri Narayya [AIR 1949 PC 32] the Judicial Committee of the Privy Council, after referring to relevant decisions on the point, stated (Quoting from Watt v Thomas, [(1947) 1 All ER 582, pp.583 H-584 A]): "...
but if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a Judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given."Page 36 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023
NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined
31. This Court also, before more than half a century in Sarju Pershad v. Jwaleshwari, Pratap Narain Singh [AIR 1951 SC 120] stated:
"8. The question for our consideration is undoubtedly one of fact, the decision of which depends upon the appreciation of oral evidence adduced in the case. In such cases, the appellate court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in court. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is and it is nothing more than a rule of practice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact."
32. Referring to several cases on the point, the Court concluded: (Sarju Pershad case[1950 SCC 714], "18. ...The duty of the appellate court in such cases is to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial court arrived at or whether there is an element of improbability arising from proved circumstances which, in the opinion of the court, outweighs such finding."
(emphasis supplied)
33. After about a decade, in Radha Prasad v. Gajadhar Singh [AIR 1960 SC 115] this Court reiterated:
"14. The position in law, in our opinion, is that when an appeal lies on facts it is the right and the duty of the appeal court to consider what its Page 37 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined decision on the question of facts should be; but in coming to its own decision it should bear in mind that it is looking at the printed record and has not the opportunity of seeing the witnesses and that it should not lightly reject the trial Judge's conclusion that the evidence of a particular witness should be believed or should not be believed particularly when such conclusion is based on the observation of the demeanor of the witness in court. But this does not mean that merely because an appeal court has not heard or seen the witness it will in no case reverse the findings of a trial Judge even on the question of credibility, if such question depends on a fair consideration of matters on record. When it appears to the appeal court that important considerations bearing on the question of credibility have not been taken into account or properly weighed by the trial Judge and such considerations including the question of probability of the story given by the witnesses clearly indicate that the view taken by the trial Judge is wrong, the appeal court should have no hesitation in reversing the findings of the trial Judge on such questions. Where the question is not of credibility based entirely on the demeanor of witnesses observed in court but a question of inference of one fact from proved primary facts the court of appeal is in as good a position as the trial Judge and is free to reverse the findings if it thinks that the inference made by the trial Judge is not justified."
34. In T.D. Gopalan v. Commissioner of Hindu Religious & Charitable Endowments [(1972) 2 SCC 329], this Court said:
"9. The High Court next proceeded to reproduce a summary of the statement of each of the witnesses produced by the defendants. No attempt whatsoever was made to discuss the reasons which the learned District Judge had given for not accepting their evidence except for a general observation here and there that nothing had been Page 38 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined suggested in the cross- examination of a particular witness as to why he should have made a false statement. We apprehend that the uniform practice in the matter of appreciation of evidence has been that if the trial court has given cogent and detailed reasons for not accepting the testimony of a witness the appellate court in all fairness to it ought to deal with those reasons before proceeding to form a contrary opinion about accepting the testimony which has been rejected by the trial court. We are, therefore, not in a position to know on what grounds the High Court disagreed with the reasons which prevailed with the learned District Judge for not relying on the evidence of the witnesses produced by the defendants."
35. Yet in another decision in Madhusudan Das v. Narayanibai [(1983) 1 SCC 35], this Court said:
"8. ...At this stage, it would be right to refer to the general principle that, in an appeal against a trial court decree, when the appellate court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate court should permit the findings of fact rendered by the trial court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies. ...The principle is one of practice and governs the weight to be given to a finding of fact by the trial court. There is, of course, no doubt that as a matter of law if the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on a misreading of the evidence or on conjectures and Page 39 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined surmises the appellate court is entitled to interfere with the finding of fact."
(emphasis supplied)
36. Three requisites should normally be present before an appellate court reverses a finding of the trial court:
(i) it applies its mind to reasons given by the trial court;
(ii) it has no advantage of seeing and hearing the witnesses; and
(iii) it records cogent and convincing reasons for disagreeing with the trial court.
37. If the above principles are kept in mind, in our judgment, the decision of the High Court falls short of the grounds which would allow the first appellate court to reverse a finding of fact recorded by the trial court. As already adverted earlier, the High Court has 'virtually' reached a conclusion without recording reasons in support of such conclusion. When the court of original jurisdiction has considered oral evidence and recorded findings after seeing the demeanour of witnesses and having applied its mind, the appellate court is enjoined to keep that fact in mind. It has to deal with the reasons recorded and conclusions arrived at by the trial court. Thereafter, it is certainly open to the appellate court to come to its own conclusion if it finds that the reasons which weighed with the trial court or conclusions arrived at were not in consonance with law."
(emphasis in original)"
9. At this stage Mr. Mehta, learned Senior Advocate has submitted that even if family arrangement and partition can take place orally, but there must be fair equitable distribution of property amongst the legal heirs and here there is no such equal distribution at all. Hence, the family arrangement or the plea of oral partition cannot be believed. If this plea which has Page 40 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined been taken up by the defendants if to be believed, there would be a resultant effect of gender justice concept if the view taken by the trial court is to be accepted, but then, the very concept of right of daughters equal in property stands defeated and as such, the decision delivered by the trial court is erroneous, deserves to be interfered with. It has been submitted however, that the conclusion which has been arrived at on the point of limitation is no longer available to be reconsidered in view of the fact that earlier decision under Order VII Rule 11 of Code of Civil Procedure was found to be not just conclusion and as such, this being erroneous approach while dealing with the controversy, the real controversy involved in the proceedings suffers from vice of non-application of mind. Mr. Mehta, learned Senior Advocate has then submitted that amendment in the succession law came into effect in 2006 and though it cannot be retrospective, but definitely daughters will get right in the property of the father even if father is not alive and further by virtue of mere piece of paper of half page at Exhibit-128 the legitimate right of the daughter i.e. plaintiff cannot be allowed to be extinguished and as such, by relying upon few decisions, Page 41 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined Mr. Mehta, learned Senior Advocate has reiterated that there is definite right of daughters in the property and that fact having ignored by the trial court, the decision is not just and proper.
10. Mr. Praikh, learned Senior Advocate has submitted that since the judgment and order is self explanatory and there is a clear conclusion based upon the analysis of material on record, no interference be made. Now in the context of the aforesaid rival submissions, if we perused the material on record, as indicated above and discussed, it has been clearly found by the trial court that oral family arrangement is permissible in the eye of law and a reference is taken out from the decision delivered by the Hon'ble Apex Court as indicated in paragraph 18 and in addition, yet another decision of recent time in the case of Ravinder Kaur Grewal & Ors., v. Manjit Kaur & Ors., reported in AIR 2020 SC 3799 as well as decision in the case of Subraya M N v. Vittala M N & Ors., reported in AIR 2016 SC 3236, have been considered and arrived at a specific conclusion that there can be oral family arrangement between the parties which requires no registration.Page 42 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023
NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined 10.1. In addition to this, since heavy burden was lying on the plaintiff to establish the claim, the same having not been undertaken, the trial court on proper scrutiny came to conclusion that defendants have produced certified copies of 30 years old mutation entry as well as notice under Section 135(d) before the Talati and by taking resort of Section 90 of Evidence Act, conclusion is arrived at and that is more so in view of the fact that signatures upon such old public documents have not been denied, and as such, by examining the reply filed before the Talati at Exhibit-125 as well as notice under Section 135(d) (Exhibit-126) were signed by the plaintiff and her mother 'Samuben' simultaneously and the said signatures having not been denied for a pretty long period, no grievance was raised by either of them, the trial court appears to have rightly exercised the discretion vested in law.
10.2. In addition thereto, it is also visible from the conclusion that cross-examination of the plaintiff has further revealed that the plaintiff appears to be not inclined, but her husband and son are agitating and rather constraining the plaintiff to initiate Page 43 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined proceedings, though plaintiff was quite conscious, aware and admitted that she has relinquished her right way back in the year 1986 and as such, from 1986 to 2010, neither in the civil proceedings nor in the revenue proceedings, any grievance is raised with regard to family arrangement which has been implemented, operative and acceptable to the family members of the deceased and as such, upon such admission from the cross-examination itself of the plaintiff, the conclusion is derived and as such, since the plaintiff was quite conscious about such thing right from the inception, the question of later personal knowledge also is not possible to be agitated by the plaintiff.
10.3. In respect of equitable family arrangement, discussion has taken place in paragraph 25 of the impugned judgment wherein at length the trial court has examined the issue, as also seen demeanor of witnesses upon such deposition and thereafter has come to a specific conclusion and believed the factum of oral family arrangement and after examining oral as well as documentary evidence, when there is a clear positive conclusion, in the absence of any distinguishable circumstance, we are unable to accept the stand of Mr. Mehta, learned Senior Page 44 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined Advocate. Even in respect of other contentions about unregistered lease deed, etc., detailed examination is quite visible and as such, we are not repeating in the present order but from the reading of the order, it is quite clear that there was a specific knowledge about family partition, there was a specific conduct not to agitate from 1986 to 2010 and personally the plaintiff appears to be not inclined to initiate proceedings, but at the instance of husband and son, she is trying to re-open the family arrangement under the guise of present suit proceedings, and that having not been found in favour of the appellant, we see certain justification from the reasons which are assigned in the order and as such, conjoint reading of this material and the discussion, we are of the opinion that there appears to be no such irregularity or perversity which may persuade us to take a different view or substitute the view taken by the trial court in the absence of any different material.
10.4. At this stage, in light of the aforesaid discussion on perusal of the judgments which have been cited before us, are also since quite in different contextual facts, we are not in a position to apply the ratio in the present background of facts as Page 45 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined straight-jacket formula. At this stage we may quote that if facts are different, even one additional fact would make a world of difference in applying the ratio from the judgments and this salutory principle is propounded by Hon'ble Apex Court in the case of State of Madhya Pradesh Vs. Narmada Bachao Andolan and Another reported in (2011) 7 SCC 639. The relevant observations contained in paragraph 64, we deem it proper to quote hereunder :-
"64. The Court should not place reliance upon a judgment without discussing how the factual situation fits in with a fact- situation of the decision on which reliance is placed, as it has to be ascertained by analysing all the material facts and the issues involved in the case and argued on both sides. A judgment may not be followed in a given case if it has some distinguishing features. A little difference in facts or additional facts may make a lot of difference to the precedential value of a decision. A judgment of the Court is not to be read as a statute, as it is to be remembered that judicial utterances have been made in setting of the facts of a particular case. One additional or different fact may make a world of difference between the conclusions in two cases. Disposal of cases by blindly placing reliance upon a decision is not proper. (Vide MCD v. Gurnam Kaur, Govt. of Karnataka v. Gowramma and State of Haryana v. Dharam Singh)".
11. In light of this, if we peruse the decisions cited before us by Mr. Parikh, learned Senior Advocate, it is the position of law which is settled down quite far before that even void orders or the actions are to be assailed within appropriate period of time.
Page 46 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined The relevant observations contained in the decision of the Hon'ble Apex Court in the case of M. Meenakshi v. Metadin Agarwal reported in AIR 2006 SCW 4323 since relevant, we deem it proper to quote hereunder:-
"15. The Division Bench commented that having regard to the Muslim law of inheritance and succession, the competent authority should not have jumped to the conclusion that the declarant wanted to retain the built up area and also apportioning the built up area and vacant land between the male members and the female members of the family. The Division Bench made a terse comment against the competent authorities by raising a question as to how permission had been granted in favour of the cooperative society while rejecting similar application in favour of the Plaintiff while declining such permission in favour of the Respondent. The learned Judges purported to have addressed themselves to the question as regards the propriety, legality and/or validity of the order passed under Section 9 of the Act and came to the conclusion that even after alienating 26972 sq. metres of land to the society, the family still owned excess lands which would be about 5261 sq. metres including 2253 sq. metres of land wherever buildings were standing.
16. Relying upon certain decisions, the Division Bench opined that a decree for specific performance could have been granted, stating :
".....In this case also the defendant having entered into agreement to sell open land of thousand metres each to the plaintiffs took a round about turn by selling the vast extent of property along with other family members which was declared as surplus land to Murthy Housing Cooperative Society Limited with the active connivance of the competent authority in obtaining a letter Ex.A-16/ B10 dated 26.6.1980 wherein the competent authority says that area sought to be sold include built up area which is absolutely false and the competent authority made such a statement in collusion with the defendant Page 47 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined who in fact helped him in alienating about 30,000 square metres of land which is declared as surplus land circumventing the provisions of Urban Land Ceilings Acts more so after the entire procedure contemplated under the Act is over.Hence the order of competent authority is only camouflage to avoid the completion of the sale transaction. In the light of the foregoing discussion, we cannot agree with the reasoning given by the trial court as well as the Learned Single Judge in dismissing the suits, since the land offered for sale do not contain any built up area either as per the agreement of sale or any of the maps that were filed before various authorities....."
17. The competent authority under the 1976 Act was not impleaded as a party in the suit. The orders passed by the competent authority therein could not have been the subject-matter thereof. The Plaintiff although being a person aggrieved could have questioned the validity of the said orders, did not chose to do so. Even if the orders passed by the competent authorities were bad in law, they were required to be set aside in an appropriate proceeding. They were not the subject matter of the said suit and the validity or otherwise of the said proceeding could not have been gone into therein and in any event for the first time in the Letters Patent Appeal.
18. It is a well-settled principle of law that even a void order is required to be set aside by a competent court of law inasmuch as an order may be void in respect of one person but may be valid in respect of another. A void order is necessarily not non est. An order cannot be declared to be void in a collateral proceeding and that too in absence of the authorities who were the authors thereof. The order passed by the authorities were not found to be wholly without jurisdiction. They were not, thus, nullities.
20. We fail to appreciate the manner in which the Division Bench not only went into the legality of the orders passed by the competent authority made under the 1976 Act but also made comments about their alleged personal involvement therein. The High Court Page 48 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined had no jurisdiction to make such comments and pass strictures against the said authority.
21. Once it is held that the orders passed by the competent authority could not have been the subject- matter of a decision in the suit, it must be held that the entire approach of the Division Bench was unsound in law. It posed unto itself wrong questions leading to wrong answers."
11.1. Yet another decision which has been brought to our notice on the issue of limitation is that limitation beings to run from the date of knowledge and if hopelessly barred suits are visible, even the same gets set-at-naught by exercising discretion under Order VII Rule11 (d) of the Code of Civil Procedure as well and further, unless the document is void or cancelled by appropriate declaration or set aside, the document or the proceedings must be within some reasonable period. The said discussion is found from paragraph 2 of the decision in the case of Ramti Devi v.
Union of India reported in AIR Online 2016 SC 440. Since we are not inclined to overburden the present order in view of this peculiar background of facts, as such, we are not reproducing the observations.
12. Yet another decision which has been brought to our notice by Mr. Parikh, learned Senior Advocate is the decision in the Page 49 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined case of Ranganayakamma & Anr., v. K. S. Prakash (Dead) By Lrs., & Ors., reported in (2008) 15 SCC 673 wherein, there are some observations made by the Hon'ble Apex Court about reasonable equivalent distribution. The relevant observations from the said decision, we deem it proper to quote hereunder :-
"33. Mr. Chandrasekhar has drawn our attention to the statements made in the power of attorney to contend that no other or further agreement was entered into and the power of attorney should have been preceded by a regular deed. In our opinion, it was not necessary. Relinquishment may be unilateral. A sister relinquishing her right in favour of the brothers may do so in various ways. Expression to that effect may be made in several ways.
35. Coming now to the deed of partition, admittedly, one-third share in Item No. 3 had been given to the mother. Appellants and other sisters relinquished their right, title and interest therein. The materials brought on records by the parties would clearly go to show that they had taken a decision in unison. A similar power of attorney was executed by one of the sisters being Smt. Venajakshi, who, as noticed hereinbefore, upon receipt of a sum of about Rs. 40,000/-, relinquished her right. It may be true that in the said deed of partition dated 5th August, 1983, the amount of consideration was shown at Re. 1/-. But whether the same by itself would invalidate the said deed of partition is another question which we intend to deal with at an appropriate stage. The fact, however, remains that in the plaint filed in the present suit by the appellants, the execution or validity of the document including the registered power of attorneys and deeds of lease being Exhibit Nos. 9, 10, 11, 12, 13 and 14 executed between 1983 and 1985 are not in question. These documents in categorical terms go to show that the partition effected in 1983 had been acted upon.
39. Another aspect of the matter cannot also be lost sight of.Page 50 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023
NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined Order VI, Rule 4 of the Code of Civil Procedure reads as under:
"4. Particulars to be given where necessary In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading."
40. When a fraud is alleged, the particulars thereof are required to be pleaded. No particular of the alleged fraud or misrepresentation has been disclosed.
41. We have been taken through the averments made in the plaint. The plea of fraud is general in nature. It is vague. It was alleged by the plaintiffs that signatures were obtained on several papers on one pretext or the other and they had signed in good faith believing the representations made by the respondents, which according to them appeared to be fraudulent representation. When such representations were made, what was the nature of representation, who made the representations and what type of representations were made, have not been stated. Allegedly, on some occasions, respondent Nos. 1 and 2 used to secure the signatures of one or more of the plaintiffs and defendants No. 3 to 8 on several papers but the details therein had not been disclosed.
42. Admittedly, the papers were signed either in the office of the advocate or before the Sub-Registrar. It was, therefore, done at a public place. No signature was obtained on the blank paper. No document was executed in a hush-hush manner. It has been alleged that taking fraudulent advantage of the innocence and ignorance of the plaintiffs and Defendant No. 2, the said deed of partition was executed resulting in an unjust, unfair and unequal fraudulent partition of the unequal properties. If their signatures had not been obtained on blank sheets of papers, it was for the plaintiffs - appellants to show who had taken advantage and at what point of time. Both the courts below have come to the conclusion that the sisters jointly had taken a stand that they would not claim any share in the property. One of the sisters, who wanted a share in the Page 51 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined property, had been paid a sum of Rs. 40,000/- and she had executed a deed of relinquishment. The said fact is not denied. All other sisters were, thus, aware thereof. They knew what was meant by relinquishment. All deeds including the said deed of partition was executed with the knowledge that they had been signing the deed of partition and no other document. This has categorically been stated by the plaintiff No. 1 Kanthamma in her evidence which we may notice in the following terms:
1. "Each of the sisters have been given one rupee and signatures were obtained on partition deed on 5.8.1983"
2. "I had gone to Sub-Registrar's office at the time of registration of the said partition deed. Sub-Registrar did not explain the contents of the said partition deed.
3. "I do not remember the date on which I affixed my signature on partition deed. We all the sisters and mother had gone to Sub- Registrar's Office at the time of registration of the partition deed." They were, therefore, aware that the deed in question was a deed of partition. They admitted that they had put their signatures before the Sub-Registrar and no where else. Their statements appear to be far- fetched and beyond the ordinary human conduct. If a plea was to be raised and evidence was required to be addressed that there had been a fraudulent misrepresentation as regards the character of partition deed (Exhibit D-6) and in absence of any particulars having been furnished as regards alleged fraud and misrepresentation, the said deeds would not be void but only voidable.
50. A deed of `release' for a consideration is a transaction. When, thus, a release is made for consideration, the particulars of consideration and other particulars which are required to be averred in the deed being essential elements thereof. Relinquishment of a property by a sister in favour of her brother for a consideration or absence of it, stands on a different footing. Section 25 of the Indian Contract Act must be read and construed having regard to the fact situation obtaining in the cases. In Smt. Manali Singhal and another v. Ravi Singhal and others [AIR 1999 Delhi 156], it was held:Page 52 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023
NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined "20. Learned counsel for the defendants has then argued that the impugned settlement is without any consideration. Hence the same is hit by S. 25 of the Contract Act. The contention of the learned counsel may be an ingenious one but can be brushed aside without any difficulty. Parties more often than not settle their disputes amongst themselves without the assistance of the Court in order to give quietus to their disputes once and for all. The underlying idea while doing so is to bring an era of peace and harmony into the family and to put an end to the discord, disharmony, acrimony and bickering. Thus the consideration in such type of settlements is love and affection, peace and harmony and satisfaction to flow therefrom."
51. We would proceed on the basis that the consideration of rupee one shown in the deed of partition is no consideration in the eye of law. However, the question is as to whether a partition deed would be violative of Section 25 of the Indian Contract Act for want of consideration. It is per se not a void document. No such plea was raised. No issue has been framed. No evidence has been adduced. No ground has been taken even in the memo of appeal before the High Court. The validity of the partition deed (Ex. D-6) by reference to the recitals of the release of shares by the daughters of Sreenivasulu has not been questioned.
52. Renunciation in the Indian context may be for consideration or may not for consideration. This has been so held by this Court in Kuppuswamy Chettiar v. A.S.P.A. Arumugam Chettiar and Another [(1967) 1 SCR 275] in the following terms:
"4. ...In the present case, the release was without any consideration. But property may be transferred without consideration. Such a transfer is a gift. Under Section 123 of the Transfer of Property Act, 1882, a gift may be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. Consequently, a registered instrument releasing Page 53 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined the right, title and interest of the releasor without consideration may operate as a transfer by way of a gift, if the document clearly shows an intention to effect the transfer and is signed by or on behalf of the releasor and attested by at least two witnesses. Exhibit B-l stated that the releasor was the owner of the properties. It showed an intention to transfer his title and its operative words sufficiently conveyed the title. The instrument, on its true construction, took effect as a gift. The gift was effectively made by a registered instrument signed by the donor and attested by more than two witnesses."
The said principle has been noticed by a Full Bench of the Madras High Court in Chief Controlling Revenue Authority, Referring Officer v. Rustorn Nusserwanji Patel [AIR 1968 Madras 159] stating :
"(8) In the present case, prima facie, it may be contended with great force and plausibility that the document rightly purports to be a release and should be received as such. For it cannot be disputed, we think, that the estate in question is owned by two parties or co-owners, that the releasee has already an undivided half share in the estate and that what the releasor purports to do by the document is to effect himself, in respect of both this title and his right to possession in favour of the releasee. Nevertheless, Sri Ramaswami for the State has contended, upon two main lines of reasoning, that the document has to be interpreted as a conveyance or should be held essentially to be such. The first line of reasoning is based upon the distinction well known to law borrowed from the English law of real Property between a joint tenant and a tenant-in-common. This distinction has also been applied to the concept of a Hindu Coparcenary as existing before a division in status and the state of rights between erstwhile co-
parceners after division is status as would be apparent from cited passages in Mulla's Hindu law. The other line of reasoning is that upon the Page 54 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined actual phraseology of Article 55 of Schedule I such a document as this cannot amount to a release."
53. The question again came up for consideration before a Special Bench of the Madras High Court in The Chief Controlling Revenue Authority, Board of Revenue, Madras v. Dr. K. Manjunatha Rai [AIR 1977 Madras 10], in the context of the Payment of Stamp Duty wherein it was categorically held:
"14. For a release, in law, may be effected either for consideration or for no consideration. In either case, if the transaction operates as a relinquishment or a renunciation of a claim by one person against another or against a specified property, it will be a release..."
It is, therefore, not a pure question of law.
54. Section 25 of the Indian Contract Act contains several exceptions, that is to say : (i) if it is in writing; (ii) if it is registered or (iii) if the same has been executed on account of love and affection. The deed of partition is both in writing and registered. One of the questions which had been bothering this Court is as to whether a document had been executed out of love and affection or not. The fact that the parties are near relatives is not in dispute. The love and affection of the sisters on the brothers has categorically been accepted by Plaintiff No. 1 Kanthamma in her deposition, stating:
"In the house of defendants 1-2 whenever there is a function, as our father died and since we had more affection and faith on defendants 1-2, we used to sign the documents without going through the contents."
55. The deed of partition could have also been entered into by way of family arrangement where no registration was required. Such a course of action had not been taken. The parties knew the nature of the document. Appellants and other sisters being highly educated were supposed to know the contents thereof. Their husbands Page 55 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined are well-off in the society. The transaction, therefore, was transparent. Furthermore, the mother was alive. She was also a party to the deed of partition. She must have played a pivotal role. She even if suffering from illness might be anxious to see that family properties are settled. Release by an heir other than a co-parcenar does not need any consideration. A release is valid even without consideration.
56. Mr. Chandrasekhar, however, has drawn our attention to Anson's Law of Contract, page 154, wherein the law is stated to be as under:
"...Some additional factor is required to bring a case within one of the exceptions: for example, the existence of a relationship in which one party is able to take an unfair advantage of the other. In the absence of some such factor, the general rule applies that the courts will enforce a promise so long as some value for it has been given."
As regards, nominal and inadequate consideration, the learned Author states:
"Nominal consideration' and `nominal sum' appear...., as terms of art, to refer to a sum or consideration which can be mentioned as consideration but is not necessarily paid. This view was expressed by Lord Wilberforce (in a speech with which all the other members of the House of Lords concurred) in Midland Bank & Trust Co. Ltd. v. Green. In that case a husband sold a farm, said to be wroth 40,000, to his wife for 500. It was held that the wife was, for the purposes of Section 13(2) of the Land Charges Act 1925, a "purchaser for money or money's worth" so that the sale to her prevailed over an unregistered option to purchase the land, which had been granted to one of the couple's children. It was not necessary to decide whether the consideration for the sale was nominal but Lord Wilberforce said that he would have "great difficulty" in so holding; and that "To equate `nominal' with `inadequate' or even `grossly Page 56 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined inadequate' consideration would embark the law on inquiries which I cannot think were ever intended by Parliament. On the facts of the case the 500 was in fact paid and was more than a mere token, so that the consideration was not nominal on either of the two views stated above. But if the stated consideration had been only 1, or a peppercorn, it is submitted that it would have been nominal even if it had been paid, or delivered, in accordance with the intention of the parties."
58. Consideration even in the Indian context would mean a reasonable equivalent or other valuable benefit passed on by the promiser to the promise or by the transferor to the transferee. Love and affection is also a consideration within the meaning of Sections 122 and 123 of the Transfer of Property Act.
13. However, even Mr. Parikh, learned Senior Advocate has also pressed certain other decisions, but aforementioned observations would also make stand of the defendants little stronger and as such, we are not hereunder discussing much, but it appears to us that a case is made out by the defendants herein to confront the stand of the appellant.
14. So from the aforementioned observations made by Hon'ble Apex Court also, it appears that in view of this peculiar background of facts and the admitted position of the appellant, it appears to this Court that no case is made out. At this stage we may also refer to certain decisions which have been cited by Page 57 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined Mr. Mehta, learned Senior Advocate to justify his stand on behalf of the appellant, but close perusal of such decisions in aforementioned certain undisputed facts, we are unable to apply in a straight-jacket formula. Mr. Mehta, learned Senior Advocate has drawn our attention to a decision in the case of Vineeta Sharma v. Rakesh Sharma & Ors., reported in (2020) 9 SCC 1, in addition to other decisions. Since this being pressed vigorously, we deem it proper to deal with the same.
Here is the case in which, Hon'ble Apex Court was concerned with the interpretation of Section 6 of the Hindu Succession Act, 1956 as amended by Hindu Succession (Amendment) Act 2005 had been referred to larger Bench in view of the conflicting verdicts rendered in two decisions being in the case of Prakash v. Phulavati reported in (2016) 2 SCC 36 and in the case of Danamma v. Amar reported in (2018) 3 SCC 343. In that context the Hon'ble Apex Court was examining the issue and made certain observations. Of course the observation is with respect to principle of succession and while referring to paragraphs 116 as well as 119, decision culled out is that proviso to sub-section (1) of Section 6 and sub-section (5) of Page 58 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined Section 6 is required to be given such meaning and extent to not dilute the relevance in the forward and future-looking scheme of Section 6. The past cases shall not be reopened for this purpose and that was the submissions based upon Hon'ble Apex Court decision in the case of Shashikalabai v. State of Maharashtra reported in (1998) 5 SCC 332 and later on after discussing in paragraph 125 of the said decision, it has been observed that it is settled law that family arrangement can be entered into to keep harmony in the family. Paragraph 135 of the said decisions has also indicated that heavy burden of proof of oral partition required before it is accepted and as such, since observations of paragraph 135 are relevant, we deem it proper to reproduce hereunder and what has been ultimately observed while answering the Reference is contained in paragraph 137.1 to 137.5 which we deem it proper to quote hereunder :-
"135. A special definition of partition has been carved out in the explanation. The intendment of the provisions is not to jeopardise the interest of the daughter and to take care of sham or frivolous transaction set up in defence unjustly to deprive the daughter of her right as coparcener and prevent nullifying the benefit flowing from the provisions as substituted. The statutory provisions made in section 6(5) change the entire complexion as to partition. However, under the law that prevailed earlier, an oral partition was recognised.Page 59 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023
NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined In view of change of provisions of section 6, the intendment of legislature is clear and such a plea of oral partition is not to be readily accepted. The provisions of section 6(5) are required to be interpreted to cast a heavy burden of proof upon proponent of oral partition before it is accepted such as separate occupation of portions, appropriation of the income, and consequent entry in the revenue records and invariably to be supported by other contemporaneous public documents admissible in evidence, may be accepted most reluctantly while exercising all safeguards. The intendment of Section 6 of the Act is only to accept the genuine partitions that might have taken place under the prevailing law, and are not set up as a false defence and only oral ipse dixit is to be rejected outrightly. The object of preventing, setting up of false or frivolous defence to set at naught the benefit emanating from amended provisions, has to be given full effect. Otherwise, it would become very easy to deprive the daughter of her rights as a coparcener. When such a defence is taken, the Court has to be very extremely careful in accepting the same, and only if very cogent, impeccable, and contemporaneous documentary evidence in shape of public documents in support are available, such a plea may be entertained, not otherwise. We reiterate that the plea of an oral partition or memorandum of partition, unregistered one can be manufactured at any point in time, without any contemporaneous public document needs rejection at all costs. We say so for exceptionally good cases where partition is proved conclusively and we caution the courts that the finding is not to be based on the preponderance of probabilities in view of provisions of gender justice and the rigor of very heavy burden of proof which meet intendment of Explanation to Section 6(5). It has to be remembered that courts cannot defeat the object of the beneficial provisions made by the Amendment Act. The exception is carved out by us as earlier execution of a registered document for partition was not necessary, and the Court was rarely approached for the sake of family prestige. It was approached as a last resort when parties were not able to settle their family dispute amicably. We take note of the fact that even before 1956, partition in other modes than envisaged under Section 6(5) had taken place.
137.1. The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the Page 60 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined daughter born before or after amendment in the same manner as son with same rights and liabilities.
137.2. The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.
137.3. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.
137.4. The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class−I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.
137.5 In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly."
15. The aforesaid decision of Hon'ble Apex Court has indicated that in exceptional case where plea of oral partition is supported by public documents and the partition is finally Page 61 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined evinced in the same manner as if it had been affected by a decree of court, it may be accepted and the plea of partition based on false evidence alone cannot be accepted and to be rejected out ightly. Now this observation if it is to be relied upon with the facts on hand, it is undipusted fact that family arrangement took place way back in 1986 and the same has been acted upon throughout till 2010 and even in cross-
examination of plaintiff, certain documents are to that effect that the said family arrangement has been operative throughout and it was mutated in revenue records as well which for pretty long period were not assailed in any forum and as such, in this peculiar background of facts, we are unable to straightway apply the decision so as to dislodge the finding which is otherwise based upon critical analysis of material on record.
Few other decisions which are pointed before us one of such was in the case of H. Lakshmaiah Reddy & Ors., v. L. Venkatesh Reddy reported in AIR 2015 SC 2499 wherein also, few paragraphs have been relied upon in respect of issue related to relinquishment and the release of right. It is no doubt true that mutation of property in the revenue record would not Page 62 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined create or extinguish title nor has it any presumptive value on title, but at the same time, mutation entries which have been affected undisputedly family arrangement which has already been accepted by the parties to the proceedings then in that case, when such entries are backed by specific deposition as well as admissions, the said cannot be ignored and as such, the observations contained in paragraphs 8 and 9 of the aforementioned decision are not possible to be thrust upon to the respondent to dislodge the finding which has been arrived at.
16. Yet another decision which has been brought to our notice is the decision in the case of G. Sekar v. Geetha & Ors., reported in (2009) 6 SCC 99, wherein also if the facts are reconsidered the same are altogether different then what is prevailing on hand and after observing in paragraphs 52, 53 and 54, the respondents were directed to to file new suit or obtain decree of partition. Gender equality is no doubt recognized by the world community in general, but here is the case in which when plaintiff herself has accepted factum of partition or rather the factum of family arrangement long back relinquished her Page 63 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined right along with mother and over a period of time, the said arrangement has been worked out, operative and practically recognized till 2010, the background of these facts may not be possible to be ignored just to apply the proposition. Same is the case with respect to yet another decision which has been relied upon is the decision of the learned Single Judge in the case of Heirs of Decd. Maniben D/o. Nathabhai Ishvarbhai & Wd/o Kantilal Nathalal Patel v. Heirs of decd. Dwarkabhai Nathabhai Ishvarbhai & Ors., reported in 2016 LawSuit (Guj) 1310 wherein, the learned Single Judge has also observed about relinquishment and the context of the case which was put forth and this aforesaid judgment has a different background wherein there was a dispute with regard to whether mother of appellant Maniben had signed or her signature is forged or fabricated was not believed, whereas, here specifically the signatures are not disputed rather admitted and there is no stand with regard to any forgery committed nor any criminal complaint exists between the parties. Hence, the judgments which have been tried to be relied upon are to be viewed in different context. Even one of the other decisions Page 64 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined delivered by the learned Single Judge of this Court in the case of Anandiben Jamabhai Patel v State of Gujarat & Ors., reported in 2010 (3) GLR 2601 in which also, few observations are such, which are significant and as such, we deem it proper to quote hereunder.
7. It is required to be noted that so far as the appellant is concerned, admittedly she has made a statement before the revenue authorities in the year 1969 relinquishing her right in the land in question in favour of her brother Ravji Jama and on the basis of that, Mutation Entry 68 was made in the revenue record and the name of Ravji Jama was mutated in the revenue record and thereafter, on his death the name of heirs of Ravji Jama were mutated.
9. In view of the above, at least the said statement made by the appellant before the revenue authorities relinquishing her rights in the suit land is binding to the appellant and she is estopped from contending contrary to her statement made by her before the revenue authorities in the year 1969.
10. The contention on behalf of the appellant - original plaintiff that as the relinquishment of by the appellant of her right in the year 1969 was not in writing and the same was not registered as required under sec.17 of the Registration Act, it cannot be said that the appellant has waived her right in the suit lands, is concerned, the same cannot be accepted. The plaintiff cannot be permitted to take the benefit of her own wrong.
12. Even otherwise, as observed by the Hon'ble Supreme Court in the case of Kale and others Vs. Deputy Director of Consolidation and others, reported in AIR 1976 SC 807 even a family arrangement may be oral and in each case no registration is necessary. As observed by the Hon'ble Supreme Court, registration would be necessary only if the terms of the family arrangement are reduced in writing. In any case, the appellant cannot be permitted to take the benefit of her own Page 65 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined wrong and now to contend that though she has made statement in the year 1969 relinquishing her right in the suit land in favour of her brother Ravji Jama which continued upto 1986, the same shall not be binding to her as the same was not in writing and registered under sec.17 of the Registration Act. It is required to be noted that even the suit in question has been instituted by the appellant - original plaintiff in the year 1986 claiming right in the suit land in question on the death of her father who died in the year 1967 and even her brother also died in the year1974. The stage/time at which the appellant - original plaintiff has instituted the suit in the year 1986 also deserve to be considered. As stated above, only when the Gujarat Revenue Tribunal held against the widows of her brother Ravji Jama and when they lost before the Gujarat Revenue Tribunal and when they were required to hand over the possession of excess land under the provisions of the Gujarat Agricultural Lands (Ceiling) Act, at that stage the plaintiff has instituted the suit claiming her right in the suit land, and that itself is suggestive of the fact that the suit has been instituted only with a malafide intention and in collusion with the other private defendants, only with a view to avoid execution and handing over the possession of the excess land which is declared surplus in the year 1981 which confirmed by the Gujarat Revenue Tribunal in the year 1985.
14. Now, the contention on behalf of the learned advocate appearing on behalf of the appellant that the learned appellate court has materially erred in dismissing he appeal on the ground of waiver of right by the appellant - plaintiff without framing of the issues is concerned, it is to be noted that on the basis of the material on record and the facts narrated hereinabove, the learned appellate court while dismissing the appeal has observed that in view of the statement made by the appellant before the revenue authorities relinquishing her right in the land in question favour of her brother Ravji Jam, it can also be said that the appellant has waived her right. Under the circumstances, it cannot be said that the learned appellate court has committed any error in holding same."
17. There are other decisions also being submitted by learned Senior Advocates appearing for both the parties, but when the Page 66 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined facts are so clear on the record and the conclusion arrived at by the trial court is based upon detailed examination of material on record, we are of the clear opinion that no case is made out to call for any interference and as such, appeal does not require any interference in our considered opinion. Hence, we deem it proper to dismiss the same hereby by confirming the judgment and order passed by the trial court.
18. Since the main First Appeal is dismissed, the Civil Application does not survive for further consideration. Hence, Civil Application stands disposed of.
(ASHUTOSH SHASTRI, J) (DIVYESH A. JOSHI,J) : FURTHER ORDER :
After pronouncement of the judgment, Mr. Mehta, learned Senior Advocate appearing for the appellant has requested that to enable to appellant to approach the higher forum, the interim protection which has been continued all throughout be continued. Though this has been resisted by the Senior Counsel Page 67 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023 NEUTRAL CITATION C/FA/5014/2022 CAV JUDGMENT DATED: 18/12/2023 undefined appearing for the defendants, but considering the controversy and in view of the fact that throughout protection is continued, we deem it proper to grant eight weeks time from today. Thus, considering the aforesaid circumstances, interim protection granted earlier stands continued for eight (8) weeks hereafter.
(ASHUTOSH SHASTRI, J) (DIVYESH A. JOSHI,J) phalguni Page 68 of 68 Downloaded on : Thu Dec 21 20:36:37 IST 2023