Bombay High Court
Trimbak N.Yadav(Decd.) By His Heirs vs Laxmibai G. Yadav And Ors on 16 June, 2025
2025:BHC-AS:23501
2-SA-579-1988.doc
rrpillai IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 579 OF 1988
Trimbak Nivruti Yadav
Since deceased through Legal Heirs
a. Smt. Vijya Vilas Yadav
Age : 72 years, Occ.: Agriculture
b. Shri. Satywan Trimbak Yadav
Age : 72 years, Occ.: Agriculture
c. Laxman Trimbak Yadav
Age : 68 years Occ.: Agriculture
d. Sugriv Trimbak Yadav
Age : 60 years Occ.: Agriculture
e. Smt. Draupadibai Trimbak Yadav
Age : 75 Occ. : Agriculture
All R/at: Bhutashthe
Tal : Madha, Dist. Solapur
f. Sou. Yamuna Gyandev Vyavahere
Age : 85 years, Residing at : Asthi,
Tal: Madha, Dist: Solapur
g. Sou. Mandodari Navnath Patil
Age : 70 years, R/at. Padsali
Tal. Madha, Dist. Solapur
h. Sou. Sojar Raghunath Kadam
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Age : 62 years, R/at/Post : Ropale ... Appellants
(BK), Tal. Pandharpur, Dist. Solapur Defendant No.1
Versus
1. Smt. Laxmibai Genu Yadav
Age : 95 years, Occ.: Agriculture
2. Sopan Genu Yadav
Age : 90 years, Occ.: Agriculture
since deceased through LRs
2(a) Shri Popat Sopan Yadav
Age: 71 years, Occ.: Agriculture
2(b) Shri Bapurao Sopan Yadav
Age : 65 years, Occ.: Agriculture
since deceased through LRs
2(b)(i) Santosh Bapurao Yadav
Age : 43 years, Occ. : Agriculture
2(b)(ii) Mangal Bapurao Yadav
Age: 59 years, Occ.: Agriculture
All Adult, R/o. Bhutashte
Tal - Madha, Dist. Solapur
2(b)(iii) Jayshree Dattatraya Bhosale
Age : 40 years,Occ.: Agriculture
R/o. Ropale (BK)
Tal. Pandharpur, Dist. Solapur
2(c) Shri Dilip Sopan Yadav, Adult
Age : 68 years, Occ : Agriculture
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All R/at/Post : Bhutashtre
Tal. Madha,Dist. Solapur
3. Shri. Gorakh Genu Yadav
Age: 90 years, Occ.: Agriculture
Since deceased through LRS
3(a) Smt. Kantabai Gorakh Yadav
Age: 85 years, Occ.: Agriculture
3(b) Shri. Abhiman Gorakh Yadav
Age: 68 years, Occ.: Agriculture
3(c) Shri. Sandip Gorakh Yadav
Age: 58 years, Occ.: Agriculture
3(d) Smt Ramanbai Gorakh Yadav
Age: 55 years, Occ.: Agriculture
3(e) Smt, Suman Gorakh Yadav
C/o. Suman Dhanaji Vyavahare
Age: 45 years, Occ.: Agriculture
3(f) Smt. Ladubai Dhanaji Vyavahare
R/at C/o. Ladubai Dilip Vyavahare
Age: 42 years, Occ.: Agriculture
4(a) Shri Shivaji Baba Patil
Age 90 years, R/at/Post: Rapale
Tal. Madha, Dist. Solapur
Since deceased through her LRs
4(a)(i) Smt. Narmada Shivaji Patil
Age: 80 years Occ.: Agriculture
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4(a)(ii) Shri. Dashrath Shivaji Patil
Age: 60 years Occ.: Agriculture
4(a)(iii) Shri. Balasaheb Shivaji Patil
Age: 46 years Occ.: Agriculture
4(a)(iv) Shri. Vilas Shivaji Patil
Age: 44 years Occ.: Agriculture
All R/ at/Post: Ropale (BK)
Tal. Pandharpur, Dist. Solapur
4(a)(v) Sou. Rajabai Sarjerao Pawar
Age: 52 years Occ.: Agriculture
R/at/Post: Mendhapur
Tal. Pandharpur, Dist. Solapur
4(a)(vi) Sou. Vijaya Bhaskar Patil
Age: 42 years Occ.: Agriculture
R/at/Post: Rahatewadi
Tal. Mangalwedha, Dist. Solapur
4(b) Mrs. Manodhari Sopan Atkale
Age 94 years, R/at: Shegaon
Dumala Tal. Pandharpur, Dist.
Solapur Since deceased through
her LRS
4(b)(i) Dnyaneshwar Sopan Atkale
Age 87 years, R/at: Shegaon
Dumala
Since deceased through legal heirs
4(b)(ia) Malan Dnyaneshwar Atkale (widow)
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Age 62 years, R/o at: Shegaon
Dumala,
Tal. Pandharpur, Dist. Solapur
4(b)(ib) Kiran Dnyaneshwar Atkale
Age 42 years, Occ.: Agriculture
R/at: Shegaon Dumala
Tal. Pandharpur, Dist. Solapur
4(b)(ic) Uddhav Dnyaneshwar Atkale
Age 40 years, Occ.: Agriculture
R/o at: Shegaon Dumala,
Tal. Pandharpur, Dist. Solapur
4(b)(id) Pratiba Netaji Dalavi
Age 35 years, Occ.: Agriculture
R/o at: Yavli, Tal: Mohol,
Dist: Solapur.
4(b)(ii) Balkrishna Sopan Atkale
Age 58 years, Occ.: Agriculture
4(b)(iii) Audumbar Sopan Atkale
Age 56 years, Occ.: Agriculture
4(b)(iv) Pandharinath Sopan Atkalre
Age 55 years, Occ.: Agriculture
All R/at post: Shegaon Dumala,
Tal. Pandharpur, Dist. Solapur
4(b)(v) Sunita Rajendra Nagane
Age 56 years, Occ.: Agriculture
R/at: Post Pachora, Chalisgaon Dist-
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Jalgaon
4(b)(vi) Janabai Ramesh Nagare
Age 53 years, Occ.: Agriculture
R/oat: Upari, Tal-Pandharpur
Dist-Solapur
4(b)(vii) Pushpa Bhaskar Patil
Age 49 years, Occ.: Agriculture
R/o at: Vaddegaon Tal- Mohol
Dist-Solapur
5 Gopalbai Bhagwan Chavan
Age 89 years, Occ.: Agriculture
Since deceased through her LRs.
5(a) Shri. Digambar Bhagwan Chavan
Age 88 years, Occ.: Agriculture
Since deceased through his LRs.
5(a)(i) Smt. Rukmini Digambar Chavan
Age 85 years, Occ.: Agriculture
5(a)(ii) Dattatray Digambar Chavan,
Age 50 years, Occ.: Agriculture
R/o. Babhulgaon, Tal. Pandharpur,
Dist. Solapur.
5(a)(iii) Smt. Vimal Vaijanath Kadam
Age 55 years, Occ.: Agriculture
5(a)(iv) Kamal Tukaram Mutkule
Age 65 years, Occ.: Agriculture
R/o Padyali Tal. Madha, Dist.
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Solapur
5(a)(v) Sou. Sharda Tukaram Mutkule,
Age 45 years, Occ.: Agriculture
R/o at:, Padsali,
Tal. Madha, Dist. Solapur
5(a)(vi) Shamal Tanaji Dubal
Age 57 years, Occ.: Household
R/at: Narayan Chincholi,
Tal. Pandharpur, Dist. Solapur
5(b) Shri. Dagadu Bhagwan Chavan
Age 85 years, Occ.: Agriculture
Since Deceased through legal heirs.
5(b)(i) Rahibai Dagadu Chavan
Age 75 years, Occ.: Agriculture
5(b)(ii) Shankar Dagadu Chavan
Age 45 years, Occ.: Agriculture
5(b)(iii) Hanumant Dagadu Chavan
Age 40 years, Occ.: Agriculture
All r/o at: Babhulgaon,
Tal: Pandharpur, Dist: Solapur.
5(b)(iv) Sunita Raosaheb Makhar
Age 45 years, Occ.: Agriculture
R/o at: Mendhapur, Tal: Pandharpur
Dist: Solapur.
5(b)(v) Kavita Alias Janabai Dilip Korake
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Age 43 years, Occ.: Agriculture
R/o at: Bhose(k), Tal: Pandharpur
Dist: Solapur.
5(b)(vi) Anita Sanjay Pawar
Age 48 years, Occ.: Agriculture
R/o at: Ankoli, Tal: Mohol
Dist: Solapur
5(b)(vii) Ashabai Uddhav Bedare
Age 50 years, Occ.: Agriculture
R/o at: Batalin, Tal: Magalvedha
Dist: Solapur.
5(c) Shri. Abhimanyu Chavan
Age 72 years, Occ.: Agriculture
R/at: Babhugaonk,
Tal. Pandharpur, Dist. Solapur
6. Smt. Rakhmabai Hariba Gaikwad
Age 56 years, Occ.: Agriculture
R/at: Bahndgaon,
Tal. Indapur, Dist. Pune
Since Deceased through legal heirs
6(a) Jitu Hariba Gaikwad
Age 80 years, Occ.: Agriculture
6(b) Popat Hariba Gaikwad
Age 70 years, Occ.: Agriculture
(Since decdthrough his legal heirs)
6(b)(i) Kamal Popat Gaikwad
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Age : 67 years, Occ.: Agriculture
6(b)(ii) Satish Popat Gaikwad
Age : 44 years, Occ.: Agriculture
6(b)(iii) Dilip Popat Gaikwad
Age: 40 years, Occ.: Agriculture
All 6(b)(i) to 6(b)(iii)
R/o at: Bahndgaon, Tal.
Indapur, Dist. Pune
6(b)(iv) Suvarna Mukund Pol
Age: 39 years, Occ.: Agriculture
R/o at: Shetphal (Nagoba)
Tal. Karmala, Dist. Solapur
6(c) Shivaji Hariba Gaikwad
Age 65 years, Occ.: Agriculture
All Nos a to c R/o at: Bahndgaon,
Tal. Indapur, Dist. Pune
6(d) Sojar Popat Yadav
Age: 67, Occ: Household,
R/at/: Bhutashte,
Tal.Madha, Dist. Solapur
7. Smt. Bhamabai Kashinath Anbhule
Age 50 years, R/at: Dhavalas,
Tal. Madha, Dist. Solapur
Since Deceased through legal heirs.
7(a) Haridas Kashinath Anbhule
Age 72 years, Occ.: Agriculture
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7(b) Dada Kashinath Anbhule
Age 68 years, Occ.: Agriculture
7(c) Bharat Kashinath Anbhule
Age 65 years, Occ.: Agriculture
All R/o- Dhavlas, Tal: Madha,
Dist: Solapur.
7(d) Indumati Sandipan Patil
Age 71 years, Occ.: Agriculture
R/o-Shedshinge, Tal: Madha,
Dist: Solapur.
7(e) Prabhavati Laxman Lokare
Age 60 years, Occ.: Household
7(f) Usha Popat Lokare
Age 55 years, Occ.: Household
Nos-e and f R/o- Shiral,(Tembhurni),
Tal: Madha, Dist: Solapur.
7(g) Sudamati Mahadeo Survase
Age 53 years, Occ.: Household
R/o-Survase Vasti, Tal; Barshi,
Dist: Solapur.
8 Smt. Sitabai Bhagwat Vyavahare
Age about 70 years, R/at:
Bhutashte,
Tal. Madha, Dist. Solapur
Since expired through her legal heirs
8(1) Bhagwat Namdev Vyavahare
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Age 75 years, Occ.: Agriculture
8(2) Shahaji Bhagwat Vyavahare
Age 65 years, Occ.: Agriculture
8(3) Balasaheb Bhagwat Vyavhare
Age 64 years, Occ.: Agriculture
8(4) Dhanaji Bhagwat Vyavhare
Age 62 years, Occ.: Agriculture
8(5) Uttam Bhagwat Vyavhare
Age 59 years, Occ.: Agriculture
All R/at: Bhutashte, Tal. Madha,
District Solapur
8(6) Sou. Chhya Nagnath Yadav
Age 55 years, Occ.: Agriculture
R/at: Siddheshwar Chawl No. 2,
Vagri vada, Datt Mandir Road,
Santacurz (E), Mumbai - 400 055
9 Shri. Bhagwat Murlidhar Yadav
Age 51 years, R/at: Bhutashte,
Tal. Madha, Dist. Solapur
Since Deceased through legal heirs
9(a) Dattatray Bhagwat Yadav
Age 58 years, Occ.: Agriculture
9(b) Shivram Bhagwat Yadav
Age 60 years, Occ.: Agriculture
Since deceased through legal heirs
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9(b)(i) Rukmini Shivram Yadav
Age 42 years, Occ.: Household
R/at: Bhutashte, Tal. Madha, Dist.
Solapur
9(b)(ii) Ganesh Shivram Yadav
Age 32 years, Occ.: Agriculture
R/at: Bhutashte,
Tal. Madha, Dist. Solapur
9(b)(iii) Balaji Shivram Yadav
Age 27 years, Occ.: Agriculture
R/at: Bhutashte,
Tal. Madha, Dist. Solapur
9(b)(iv) Sonali Devidas Karale
Age 25 years, Occ.: Household
R/o at: Nalgaon, Tal: Paranda,
Dist: Usmanabad
9(b)(v) Madhuri Hanumant Garad
Age 23 years, Occ.: Household
R/o at: Kandar, Tal: Karmala
Dist: Solapur.
9(c) Bharat Bhagwat Yadav
Age 45 years, Occ.: Agriculture
9(d) Sakharabai Bhagwat Yadav
Age 50 years, Occ.: Agriculture
9(e) Shalan Narhari Pawar
Age 69 years, Occ.: Agriculture
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Nos-9(a) to 9(e) R/at: Bhutashte,
Tal. Madha, Dist. Solapur
9(f) Malan Digambar Ingale
Age 65 years, Occ.: Agriculture
R/at: Dhawalas,
Tal. Madha, Dist. Solapur
10. Shri. Devidas Trimbak Yadav
Age 85, R/at: Bhutashte,
Tal. Madha, Dist. Solapur
Since deceased through legal heirs.
10(a) Kantilal Devidas Yadav
Age 68 years, Occ.: Agriculture
R/at: Bhutashte,
Tal. Madha, Dist. Solapur
10(b) Rajkumar Devidas Yadav
Age 52 years, Occ.: Agriculture
R/at: Bhutashte,
Tal. Madha, Dist. Solapur
10(c) Champabai Navnath Deshmukh
Age 63 years, Occ.: Household
R/at: Gursale,
Tal. Pandharpur, Dist. Solapur
10(d) Anita Shivaji Shelke
Age 63 years, Occ.: Household
R/at: Mallkhambi, Tal. Malshiras,
Dist. Solapur
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10(e) Savita Dattatraya Nalawade
Age 50 years, Occ.: Household
R/at: Haldivadi, Tal. Sangola,
Dist. Solapur. ... Respondents
Mr. Umesh Mankapure a/w. Mr. Rupesh K. Bobade and Ms.
Shradha K. Nakadi for the Appellants.
Mr. Sharad T. Bhosale i/b. Mr. Dilip Bodake for Respondent
Nos.2a, 2c, 2b(i) to 2b(ii), 3A to 3E, 4G, 5b, 5c, 6a to 6d, 7a,
7b, 7c, 7f, 7g, 8(2), 8(4), 8(6), 9a to 9c, 9e and 9f.
Mr. Raghavendra Kulkarni for Respondent nos. 10(a) to
10(e).
CORAM: GAURI GODSE J
RESERVED ON: 6th MARCH 2025
PRONOUNCED ON: 16th JUNE 2025
JUDGMENT:
BASIC FACTS:
1. This second appeal is preferred by the heirs and legal representatives of the deceased defendant no. 1 to challenge the concurrent judgments and decrees granting a 1/3 rd share in the suit land jointly to the plaintiffs, and 1/3 rd each to the defendants. Respondent nos. 1 to 8 are original plaintiffs, respondent no. 9 is original defendant no. 2 and respondent 14/37 ::: Uploaded on - 16/06/2025 ::: Downloaded on - 16/06/2025 23:09:16 ::: 2-SA-579-1988.doc no. 10 is one of the heirs of defendant no.1. The second appeal is admitted by order dated 3 rd July 2014 on the following substantial questions of law :
"(i) Whether grant of suit land was in individual capacity of Nivruti or on behalf of joint family ?
(ii) Construction of lease deeds dated 24 th June 1912, 27th February 1917 ?
(iii) Whether decree in Suit No. 81 of 1968 barred the present suit ? "
2. One Bapu Yadav was the ancestor. He was survived by three sons, Nivruti, Genu and Murlidhar. Genu's heirs have filed suit for partition and separate possession. Defendant no. 1 is the son of Nivruti, and defendant no. 2 is the son of Murlidhar. Nivruti expired sometime in 1917, Bapu expired sometime in 1928, Murlidhar expired sometime in 1948, and Genu expired sometime in 1972. The suit property was allotted in the name of Nivruti by executing a Kabulayatnama dated 24th June 1912 ("the lease") and then an order of regrant dated 27 th February 1917 ("the regrant order").
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3. Defendant no. 1 - Trimbak is the son of Nivruti. According to defendant no. 1, Bapu was alive on the date of the lease and the regrant order in the exclusive name of Nivruti. According to defendant no.1, after the death of Nivruti, there was a partition between Trimbak, Genu and Murlidhar in respect of the joint family properties. Since the suit property was not part of the joint family properties, the same was not included in the partition that took place in the year 1933. According to defendant no.1, it was only in 1968 that Genu filed a suit for a simple injunction against Trimbak regarding the suit property. However, the suit was dismissed on 4th October 1971. After the death of Genu, his heirs and legal representatives, for the first time, prayed for partition and separate possession against Trimbak and Murlidhar's son Bhagwat by filing the present suit.
4. The suit for partition was dismissed; however, the first appellate court allowed the appeal preferred by the plaintiffs and remanded the matter to the trial court. After remand, the suit was decreed granting a 1/3rd share jointly to the plaintiffs and a 1/3rd share each to the defendants. The first appeal preferred by Trimbak, i.e. defendant no. 1, was dismissed, 16/37 ::: Uploaded on - 16/06/2025 ::: Downloaded on - 16/06/2025 23:09:16 ::: 2-SA-579-1988.doc and the trial court's decree is confirmed. Hence, this second appeal. 1.
5. The plaintiffs contended that the suit property was Bapu's joint family property and was leased in the name of Nivruti on behalf of the joint family. The plaintiffs did not dispute the 1933 partition; however, they contended that since the land was regranted, necessary permission was required before effecting the partition. Hence, it was not made part of the partition that took place in 1933.
6. The plaintiffs contended that Nivruti had no independent source of income and thus the land was regranted on behalf of the joint family in the name of Nivruti by making a payment towards nazrana. The plaintiffs contended that the original suit land belonged to the Forest Department, and it was granted in the name of Nivruti on a tenancy agreement for a period of four years. Thereafter, on payment of nazrana, the land was regranted in the name of Nivruti on a new tenure basis. The suit claim was opposed by defendant no. 1 on the ground that the land was independently taken on lease by Nivruti, and he never acted 17/37 ::: Uploaded on - 16/06/2025 ::: Downloaded on - 16/06/2025 23:09:16 ::: 2-SA-579-1988.doc as Karta of the joint family. Defendant no. 1 contended that the suit for injunction filed on the ground that the suit land was joint family property was dismissed; hence, the plaintiffs were not entitled to seek partition and separate possession on the same ground.
7. Based on the evidence on record, the trial court accepted the plaintiffs' contention that the suit land, though granted in the name of Nivruti, was granted on behalf of the joint family, and Nivruti was acting as Karta of the joint family. Based on the revenue record placed before the trial court, the plaintiffs' contention was accepted that the suit property was cultivated by and on behalf of the joint family members.
8. Defendant no. 1's contention that the suit property was exclusively granted in the name of Nivruti was disbelieved for want of any evidence to indicate that there was a separation between the joint family and the land was independently taken by Nivruti in his individual capacity. The earlier suit was dismissed only because the plaintiffs could not prove that 1/3rd portion of the suit land was in their exclusive possession as they claimed in view of the family arrangement. Hence, 18/37 ::: Uploaded on - 16/06/2025 ::: Downloaded on - 16/06/2025 23:09:16 ::: 2-SA-579-1988.doc the suit for a simple injunction to protect their possession was dismissed. In the absence of any supporting evidence, the trial court disbelieved defendant no.1's contention that the suit land was his exclusive property and held that the land was granted to Nivruti on behalf of the joint family. This decree was confirmed by the first appellate court. SUBMISSIONS ON BEHALF OF THE APPELLANTS:
9. Learned counsel for the appellants submitted that when the suit property was taken on lease by Nivruti, Bapu, i.e., the father of Nivruti, Genu and Murlidhar, was alive. Hence, there was no reason for granting the lease in the name of Trimbak as the Karta of the joint family. Even if it is assumed that Nivruti was acting as Manager, the land was granted in the independent name of Nivruti. The partition that was effected in 1933 is not disputed by the parties. Thus, it supports the case of defendant no.1 that, as the suit land was an independent property of Nivruti, it was not included in the partition of 1933. Since Bapu was alive when the document of lease and the order of regrant were made in favour of Nivruti, it is clear that the document of lease and 19/37 ::: Uploaded on - 16/06/2025 ::: Downloaded on - 16/06/2025 23:09:16 ::: 2-SA-579-1988.doc the order of regrant were not in the name of Nivruti as Manager of the joint family.
10. Learned counsel for the appellants submits that a party cannot be presumed to be acting as a Manager without any supporting pleading and evidence. To support his submissions on presumption of joint family nucleus and the burden to prove it, learned counsel for the appellants relied upon the decision of the Hon'ble Apex Court in the case of D.S. Lakshmaiah and Another vs. L. Balasubramanyam and Another.1 On the proposition that a party cannot be presumed to be acting as Manager, learned counsel for the appellants relied upon the decision of the Hon'ble Apex Court in the case of Narendrakumar J.Modi vs. Commissioner of Income Tax, Gujarat II, Ahmedabad 2 and Tribhovandas Haribhai Tamboli vs. Gujarat Revenue Tribunal and Others 3.
11. Learned counsel for the appellants further submitted that the plaintiffs never pleaded that Nivruti was acting as the Manager of the joint family. Hence, in the absence of any pleadings and evidence, it cannot be presumed that Nivruti 1 (2003) 10 SCC 310 2 AIR 1976 Supreme Court 1953 3 (1991) 3 SCC 442 20/37 ::: Uploaded on - 16/06/2025 ::: Downloaded on - 16/06/2025 23:09:16 ::: 2-SA-579-1988.doc was acting as the Manager of the joint family. To support his submissions that evidence without pleading cannot be relied upon, learned counsel for the appellants relied upon the decision of the Hon'ble Apex Court in the case of Srinivas Raghavendrarao Desai (Dead) by Lrs vs. Kumar Vamanrao alias Alok and Others.4
12. Learned counsel for the appellants submitted that the document of lease is in the name of Nivruti and not on behalf of the Hindu Undivided Family. Hence, the document, if read as it is, shows that it is only in the individual name of Nivruti. The supporting evidence led by defendant no. 1 indicates that Nivruti exclusively and independently cultivated the land since 1912, when it was granted on lease in his name. When the document of lease and the order of regrant were in the individual name of Nivruti, it cannot be presumed that Nivruti was acting as Karta of the joint family and the lease and the regrant order were on behalf of the joint Hindu family. During Bapu's lifetime, there was no reason for Nivruti to act as Karta of the Joint family. Hence, the undisputed facts regarding the date of death of Bapu, the lease document and 4 2024 SCC OnLine SC 226 21/37 ::: Uploaded on - 16/06/2025 ::: Downloaded on - 16/06/2025 23:09:16 ::: 2-SA-579-1988.doc the order of regrant only in the name of Nivruti support the case of defendant no. 1 that the suit property is the independent property of Nivruti. Learned counsel for the appellants, therefore, submits that the first question of law must be answered in favour of defendant no. 1.
13. Learned counsel for the appellants submits that both impugned judgments proceed on the presumption that Nivruti was acting as Karta of the joint family. However, there is no evidence supported by any pleadings that Nivruti was acting as Karta of the joint family. The receipts for payment of land revenue were also issued in the name of Nivruti. Therefore, the payment of land revenue, if paid by the plaintiffs on a few occasions on behalf of Nivruti, will not make the suit land a joint family property. The plain reading of the terms and conditions of the lease document and the order of regrant produced at Exhibit 94, exclusively in the name of Nivruti, is sufficient to hold that the suit land was an independent property of Nivruti. The terms of lease and the regrant order indicate that the same is in the individual name of Nivruti. Hence, according to the learned counsel for the appellants, without supporting evidence that the suit land belonged to 22/37 ::: Uploaded on - 16/06/2025 ::: Downloaded on - 16/06/2025 23:09:16 ::: 2-SA-579-1988.doc the joint family, the plaintiffs would not be entitled to a decree of partition and separate possession. He therefore submits that even the second question of law must be answered in favour of the appellants.
14. Learned counsel for the appellants submits that the earlier suit filed simplicitor for injunction on the ground that the suit land belongs to the joint family was dismissed. The earlier suit was filed on the ground that the plaintiffs' possession over part of the suit land was obstructed by defendant no. 1. Therefore, the cause of action to seek a prayer for partition and separate possession arose at the time of filing the first suit. However, the plaintiffs failed to reserve their right under Order II Rule 2 of the Code of Civil Procedure,1908 ("CPC") to seek partition at a later stage. Hence, the present suit is barred by Order II Rule 2 of the CPC, and thus, the present suit for partition and separate possession on the same cause of action would not be maintainable. Learned counsel for the appellants, therefore, submits that even the third question of law must be answered in favour of defendant no. 1.
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2-SA-579-1988.doc SUBMISSIONS ON BEHALF OF RESPONDENT NOS. 1 TO 9(f):
15. Learned counsel for the plaintiffs and defendant no. 2 ("respondents") submits that the earlier suit for a simplicitor injunction was dismissed, and the issue regarding the nature of the suit property was answered in the affirmative. Since the issue answered in the affirmative in the earlier suit was never under challenge, it attained finality, and hence it was not open for defendant no. 1 to contend that the suit property does not belong to the joint family and was independent and individual property of Nivruti. The issue nos. 7 and 8 in the present suit are therefore rightly decided in favour of the plaintiffs. The receipts produced at Exhibits 21 to 26 and at Exhibits 66, 87, 89, 92 and 93 support the plaintiffs' case that the suit land belonged to the joint family. All the payment receipts would indicate that the payment towards land revenue for the suit land was at times paid by Nivruti and at times by Genu or Murlidhar. Hence, the fact that the land revenue was paid by all three brothers from time to time supports the plaintiffs' contention that though the lease document and the regrant order were in the name of Nivruti, the same was granted on behalf of the joint family. Both 24/37 ::: Uploaded on - 16/06/2025 ::: Downloaded on - 16/06/2025 23:09:16 ::: 2-SA-579-1988.doc courts have rightly held that the suit land belongs to the joint family, and thus, all three sons of Bapu would be entitled to one-third share each.
16. Learned counsel for the respondents submitted that the present suit is based on a different cause of action. Hence, the bar under Order II Rule 2 of the CPC would not be applicable. He therefore submits that all three questions of law be answered in favour of the respondents. ANALYSIS AND CONCLUSIONS:
17. To consider the rival submissions made on behalf of the parties, I have carefully perused the papers of the second appeal and the record and proceedings. The initial facts regarding the relationship between the parties, the date of death of the respective parties, except the date of death of Bapu, are not disputed. The lease document and regrant order at Exhibit 94 issued in the name of Nivruti are not in dispute. There is also no dispute that in the earlier suit filed by the plaintiffs for a simplicitor injunction, issue no. 1 was answered in the affirmative by holding that the suit land belonged to the joint family.
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18. In the Regular Civil Suit No. 81 of 1968, Genu, i.e. predecessor in title of the present plaintiffs, pleaded that he and his brothers, i.e. present defendants, were cultivating their respective share of the land; however, defendant no. 1 started obstructing his cultivation. Hence, the suit was filed for a simple injunction to protect his exclusive possession and cultivation of his share. Genu died during the pendency of the suit, and the present plaintiffs were brought on record as his heirs. The suit was dismissed holding that the suit land was granted by the government to the family of the plaintiff and the defendants. It was also held that the plaintiff could not prove his separate exclusive possession of the 1/3 rd portion of the suit land; hence, the prayer for injunction was refused. The judgment and decree in the said suit was not challenged.
19. In the present suit, the plaintiffs pleaded that in view of the dismissal of the said suit, defendant no. 1 started obstructing the plaintiffs' joint possession; hence, the suit was filed for partition and separate possession. The trial court framed issue nos. 2 and 4 as under:
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2-SA-579-1988.doc "2. Is the suit time barred?
4. Is not the contention res-judicata in view of the judgment in suit no. 81/1968 ?"
20. Both these issues were deleted. The trial court decreed the suit by holding that the suit lands belonged to the joint family and the plaintiffs are entitled to their 1/3 rd share. The appeal court confirmed the trial court's findings on the suit land belonging to the joint family, and thus the plaintiffs were entitled to 1/3rd share in it. The appeal court referred to the findings in the RCS No. 81 of 1968, which held that the suit land belonged to the joint family and that the suit for simple injunction was dismissed only because the plaintiffs could not prove their exclusive possession on independent 1/3rd area in the middle of the land as pleaded by them.
21. A different cause of action is pleaded in the present suit. The cause of action pleaded in the present suit is based on the obstruction to joint possession, in view of the dismissal of the suit for injunction. In the first suit for simple injunction, the plaintiffs pleaded that they were in exclusive 27/37 ::: Uploaded on - 16/06/2025 ::: Downloaded on - 16/06/2025 23:09:16 ::: 2-SA-579-1988.doc possession of 1/3rd the area in the middle of the suit land described in the plaint. Their claim of exclusive possession was disbelieved in that suit, and it was held that the suit land belongs to the joint family. Thereafter, the present suit was filed by pleading that after dismissal of the earlier suit for simple injunction, defendant no. 1 started obstructing their joint possession; hence, they claimed partition and separate possession. To attract the bar under Order II Rule 2 of the CPC, the cause of action is a cause of action which gives occasion for and forms the foundation of the suit. In the present case, the cause of action pleaded in the present suit was unavailable when the first suit for simple injunction was filed on a foundation that the plaintiff was cultivating a portion of the land described in the plaint. Therefore, the bar of Order II Rule 2 of the CPC would not apply, as argued on behalf of the appellants. Therefore, the decree in RCS No. 81 of 1968 would not bar the present suit. Hence, the third question of law is answered in favour of the plaintiffs.
22. There is no dispute that there was a joint family of Babu, Genu, Murlidhar and Nivruti. The nucleus of the joint family is accepted, and the partition effected in 1933 of the 28/37 ::: Uploaded on - 16/06/2025 ::: Downloaded on - 16/06/2025 23:09:16 ::: 2-SA-579-1988.doc joint family properties, excluding the suit land, is not in dispute. Once jointness is accepted, the presumption of the existence of a joint family can be rebutted only by proof of the separation of the joint family. Therefore, the burden would be upon defendant no.1 to prove that the lease and the order of regrant of the suit land executed in the name of Nivruti was his self-acquired property. An important aspect that needs to be considered is that on the date of executing the lease document in the name of Nivruti and the order of regrant, the existence of a Hindu joint family is not disputed. The partition in respect of the other joint family properties is admittedly effected in 1933. Hence, a subsequent partition effected in 1933 cannot be a ground to hold that the suit land was exclusive property of Nivruti.
23. A perusal of the record and proceedings indicates that the receipts dated 21st February 1913 were issued in the name of Nivruti. The receipts at Exhibits 22 and 23, dated 26th February 1914, also stand in the name of Nivruti. However, after Nivruti's death on 27 th February 1917, the receipt dated 29th March 1928 at Exhibit 24 is issued in the name of Trimbak Nivruti, and the amount is shown to have 29/37 ::: Uploaded on - 16/06/2025 ::: Downloaded on - 16/06/2025 23:09:16 ::: 2-SA-579-1988.doc been paid by Genu. Receipts at Exhibits 21, 22 and 23 are also in the name of Nivruti and are shown as paid by Nivruti. A subsequent receipt of 1932 at Exhibit 25 is issued in the name of Trimbak; however, the amount is shown to have been paid by Genu. Similarly, there are two other receipts at Exhibits 26 and 27, which are issued in the name of Trimbak; however, the amount is shown to have been paid by Bhagwat, i.e., son of Murlidhar. Other receipts on record at Exhibits 28, 77, 76, 69, 88, 87 and 83 indicate that the payment was made either by Genu or the son of Genu. Thus, the record indicates that the lease and grant were in the name of Nivruti; however, no material is placed on record to show that the payments towards lease rent and revenue were paid exclusively by Nivrutti from his independent income.
24. It was contended on behalf of the defendant no. 1, i.e. Trimbak, that though in the earlier suit the issue regarding the nature of the suit land was answered by holding that the suit land belonged to the joint family, the suit for a simple injunction was dismissed. Hence, according to the learned counsel for the appellants, there was no occasion for 30/37 ::: Uploaded on - 16/06/2025 ::: Downloaded on - 16/06/2025 23:09:16 ::: 2-SA-579-1988.doc defendant no. 1 to challenge the findings recorded in the earlier suit filed by the plaintiffs. Hence, the findings recorded on the nature of the suit land in the earlier suit would not create any bar of res judicata in the subsequent suit. However, in my view, a perusal of the impugned judgments indicates that the issue of the status of the suit land is independently decided based on the evidence on record, and it is not decided on the ground of the findings recorded in the earlier suit.
25. It was argued on behalf of the plaintiffs that the contents of the Kabulayatnama and the regrant order indicate that it was an order on behalf of the joint family. It is submitted that 7/12 extracts produced at Exhibit 26 show that the joint family members jointly cultivated the suit land. The plaintiffs relied upon receipts to show that there was a joint family nucleus. There is no dispute that the stamps on the receipts of payments made regarding the suit land show that Genu, Murlidhar and their sons paid the amount on the respective dates. Thus, the evidence on record supports the contention of the plaintiffs that though the lease in respect of the suit land was executed in the name of Nivruti and the 31/37 ::: Uploaded on - 16/06/2025 ::: Downloaded on - 16/06/2025 23:09:16 ::: 2-SA-579-1988.doc regrant order was also in the name of Nivruti, the same was on behalf of the joint family. The partition effected with respect to the other properties in 1933 would not change the status of the joint family that existed on the date of issuing the lease and the regrant order. Thus, the admitted fact that joint family properties existed on the date of the lease and when the regrant order was passed coupled with the fact of the partition effected in 1933 excluding the suit land supports the plaintiffs' contention that a joint family nucleus existed on the date of the grant of lease and the regrant order in the name of Nivruti.
26. The lease was issued in the name of Nivruti on payment of land revenue. Even on the order of the regrant, the amount of land revenue was required to be paid. It is neither pleaded nor proved that Nivruti had an independent source of income. Thus, the grant of lease and the regrant order in the name of Nivruti would not make the suit land independent property of Nivruti, in the absence of any pleadings and proof that Nivruti had his own independent source of income and the payments made on account of 32/37 ::: Uploaded on - 16/06/2025 ::: Downloaded on - 16/06/2025 23:09:16 ::: 2-SA-579-1988.doc lease and the regrant order, were paid by Nivrutti from his independent income.
27. Thus, the submissions made by the learned counsel for the appellants that the findings recorded in the earlier suit could not be challenged as the final decree was in favour of the appellants is not relevant, in as much as, the issues in the present suit are decided by examining the independent evidence on record to support the plaintiffs' case that the suit land belongs to the joint family. Hence, the first question of law is answered in favour of the plaintiffs.
28. A plain reading of the lease document and the regrant order at Exhibit 94 indicates that the same is in the individual name of Nivruti. However, considering the findings recorded on the existence of the joint family nucleus on the date of the lease and the date of the regrant order, the interpretation of the construction of the lease deed is not necessary. Nothing is argued by the parties on the construction of the lease deed. The findings on the existence of a joint family nucleus on the dates of the lease and the regrant order are sufficient 33/37 ::: Uploaded on - 16/06/2025 ::: Downloaded on - 16/06/2025 23:09:16 ::: 2-SA-579-1988.doc to hold that the suit land belonged to the joint family. Hence, the second question of law is answered accordingly.
29. The date of death of Bapu is disputed. Neither of the parties produced any evidence to indicate the exact date of death of Bapu. However, in view of the existence of a joint family nucleus and in the absence of any proof of Nivruti having an independent source of income, the grant of lease and the order of regrant are rightly presumed by both the courts to be on behalf of the joint family. It is not uncommon that the eldest son's name is entered as the karta of the joint family. It is common for the family's eldest son to act as Karta or manager of the joint family. The Hon'ble Apex Court in the case of Narendrakumar Modi, held that so long as the family members remain undivided, the seniormost member is entitled to manage the properties and is presumed to be manager until contrary is proved and a senior member may give up the right of management and a junior member may be appointed manager. Thus, in the present case, Nivruti being the eldest son, both the courts have rightly presumed that he acted as Karta or Manager of the joint family. No material is produced to prove the date of death of Bapu or 34/37 ::: Uploaded on - 16/06/2025 ::: Downloaded on - 16/06/2025 23:09:16 ::: 2-SA-579-1988.doc that at the relevant time Bapu was acting as karta. The legal principles settled in the decision of Tribhovandas Haribhai Tamboli are in the context of the right to sell the property in question as a manager, so long as the father is alive. In the facts of the case before the Hon'ble Apex Court, the father was under disability due to lunacy; hence, it was held that an order from the court under the Indian Lunacy Act had to be obtained to manage the joint family property. Thus, it was held that the managership of the joint family property goes to a person by birth and is regulated by seniority and the karta or the manager occupies the position superior to that of the other members and therefore the junior member cannot deal with the joint family property as manager so long as the karta is available. Thus, in the facts of the present case, and the controversy involved, the legal principles settled in the decisions relied upon by the learned counsel do not support the appellants' arguments.
30. The decision of the Hon'ble Apex Court in the case of Srinivas Raghavendrarao Desai is relied upon to contend that no evidence could be led beyond pleadings. There can be no debate on the legal proposition that the evidence led 35/37 ::: Uploaded on - 16/06/2025 ::: Downloaded on - 16/06/2025 23:09:16 ::: 2-SA-579-1988.doc by the party has to be supported by pleadings. In the present case, the plaintiffs pleaded that the suit land belongs to the joint family, though the lease and the regrant order are in the name of Nivrutti alone. The Hon'ble Apex Court in the case of D.S.Lakshmaiah and Another, held that if it is proved that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint, and the onus would shift on the person who claims it to be self-acquired property to prove that he acquired it with his own funds and not from joint family nucleus. In the present case, it is not disputed that joint family property existed on the date the suit land was acquired, on payments made on account of the lease terms and the regrant order. The joint family nucleus at the relevant time is not disputed; hence, the burden would be upon defendant no. 1 to plead and prove that Nivrutti had his independent source of income and that the suit land was acquired from his independent income.
31. Hence, the legal principles settled in the decisions relied upon by the learned counsel for the appellants are of no assistance to the arguments made on behalf of the 36/37 ::: Uploaded on - 16/06/2025 ::: Downloaded on - 16/06/2025 23:09:16 ::: 2-SA-579-1988.doc appellants. The evidence on record supports the plaintiffs' contention that though the lease document and the order of regrant were in the name of Nivruti, the same was on behalf of the joint family. Hence, all the questions of law are answered accordingly in favour of the plaintiffs.
32. For the reasons recorded above, no interference is therefore warranted to reverse the impugned judgments and decrees. Hence, the second appeal is dismissed.
[GAURI GODSE, J.] Digitally signed by RAJESHWARI RAJESHWARI RAMESH RAMESH PILLAI PILLAI Date:
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