1 R.C.A. No.
173/2014
Judgment.
Received on : 18.03.2011
Rereceived by transfer on: 21.04.2014
Registered on : 21.04.2014
Decided on : 30.03.2016
Duration :Y M D
05 00 12
IN THE COURT OF THE DISTRICT JUDGE1,
AT : BHOOM
(Presided over by [Link], District Judge1)
Regular Civil Appeal No. 173/2014. Exh. No.23
(Old [Link].50/2011).
1 Dilip s/o Kalyan Khandagle,
Age 50 years, Occup Agriculture,
R/o. Matrewadi, Tal. Bhoom, District–Osmanabad.
2 Rangnath s/o Kalyan Khandagle,
Age 37 years, Occup. Advocate, R/o as above.
3 Sarubai w/o Kalyan Khandagle,
Age 77 years, Occ. Household, R/o as above.
4 Sindubai w/o Ramesh Bhaskar,
Age 50 years, Occ. Household,
R/o Jakepimpri, Tal. Paranda, Dist. Osmanabad.
5 Jayshri w/o Shrimant Galande,
Age 45 years, Occ. Household,
R/o Sukta, Tal. Bhoom, Dist. Osmanabad.
... Appellants.
([Link].)
Versus
Mahananda w/o Anna Aware,
Age 56 years, Occup household,
R/o. Ghatpimpri, Tal. Washi,
DistrictOsmanabad.
... Respondent.
([Link].. )
Mr. R.V. Mote, Adv. for the appellants.
Mr. S.S. Saruk, Adv. for respondent.
2 R.C.A. No. 173/2014
Judgment.
Claim: Appeal under order 41 Rule 1 of Civil Procedure Code.
.…
JUDGMENT
(Delivered on 30th March, 2016)
1 This appeal is preferred by the original defendants
against the Judgment and decree passed by the learned Joint Civil
Judge, Junior Division, Bhoom, in Regular Civil Suit No. 116/2005
dated 15.02.2011.
2 Facts giving rise to this appeal may be summarized as
under :
For the sake of convenience, I will refer the parties of
this appeal, by their original nomenclature, as plaintiff and
defendants.
3 Plaintiff filed her suit for partition and separate
possession claiming her 1/6th share in the suit properties.
4 In order to clarify relationship in between the parties,
plaintiff has given genealogy, as under :
Ganpati
|
Kalyan
|
Sarubai (Deft.3)
|
| | | | |
Mahananda Dilip Rangnath Sindhubai Jayashri
Pltf. Deft.1 deft. 2 deft. 4 deft.5
3 R.C.A. No. 173/2014
Judgment.
5 It is her further case that, land Gat Nos. 4, 5, 6 and 190,
situated at village Matrewadi, Tal. Bhoom and grampanchayat House
properties, bearing Nos. 100, 105 and 127, situated at village
Matrewadi, Tal. Bhoom are the subject matters of the present suit
(hereinafter referred to as the 'suit properties').
6 It is the case of plaintiff that, the suit properties are
ancestral properties of deceased Kalyan. There was joint family of
deceased Kalyan, plaintiff and defendants. Her father deceased
Kalyan died on 30.05.2004 at village Matrewadi.
7 It is her further case that, after the demise of her father,
as per Hindu Succession Act, she is having 1/6 th share in all the suit
properties. However, the suit properties ar appearing in the name of
defendants 1 and 2 in the revenue record as well as grampanchayat
record. Therefore, those entries are incorrect and are not binding
upon the plaintiff. Defendants 1 and 2 effected those entries in
revenue record and grampanchayat record of suit properties by
joining hands with the concerned authorities. Therefore, plaintiff
demanded partition and separate possession of her share to the
defendants on 01.08.2005. Defendants denied for the same.
Therefore, plaintiff constrained to file present suit. Accordingly, she
prayed for partition and separate possession of her 1/6th share from the
suit properties along with future mesne profits.
8 Defendants 1 to 5 resisted suit by filing their written
statement at Exh. 18. Defendants denied almost all averments made
by the plaintiff in her plaint. It is their specific case that, in the
4 R.C.A. No. 173/2014
Judgment.
genealogy given by the plaintiff she has avoided to mention the name
of wife of deceased Ganpati, viz. Parvati. Parvati died in the year
1988. Ganpati died in the year 1960. Deceased Ganpati was having
three daughters, by name, Bhamabai, Dwarkabai and Laxmibai.
These daughters are not shown by plaintiff in the genealogy. As
Ganpati died in the year 1960, his three daughters are also having
their shares in the suit properties. Therefore, the present suit filed by
plaintiff is bad for nonjoinder of necessary parties.
9 After the demise of Ganpati, the suit properties were
succeeded by his wife Parvati, son deceased Kalyan and his
daughters Bhamabai, Dwarkabai and Laxmibai. Subsequently, an
oral partition was taken place in between Kalyan and his three sisters.
In that partition, land Gat No. 4 and 190 were allotted to the share of
deceased Kalyan. Land Gat No. 5 and Gat No. 6 were allotted to the
shares of sisters of Kalyan. Accordingly, on the strength of that
partition Kalyan became owner of land Gat No. 4 and 190. Though
land Gat No. 5 & 6 were owned by the sisters of Kalyan, then also,
the name of Kalyan was remained in the 7/12 extract of these two
lands.
10 Deceased Kalyan effected partition of land Gat No. 4
and 190 and allotted these lands to defendants 1 and 2. That partition
deed was reduced into writing on stamp paper. On the basis of that
partitiondeed the names of defendants 1 and 2 are recorded in the
revenue record. Therefore, the names of defendants 1 and 2 appearing
in the revenue record of Sy. Nos. 4 and 190 are quite legal and proper.
Plaintiff is not having any share in these lands.
5 R.C.A. No. 173/2014
Judgment.
11 It is their further case that, the marriages of plaintiff and
defendants 4 & 5 were performed by incurring expenses by the
defendants 1 and 2. In lieu of those expenses the sisters had given
their shares from the suit properties to defendants 1 and 2. Marriages
of defendants 4 and 5 were performed in the year 1987 and 1993
respectively. Plaintiff's marriage was taken place in the year 1971.
Therefore, plaintiff and defendants 4 and 5 were not having any share
in the suit properties during the lifetime of deceased Kalyan.
12 It is their alternative case that, during his lifetime,
deceased Kalyan gave 4H25R land and 3H29R land to defendants 1
and 2 respectively from gat No. 4 and 190. Therefore, they are the
only owners of Gat No.4 and 190. So far as remaining lands Gat Nos.
5 & 6 are concerned, its total area is 5H78R. In this area deceased
Kalyan was having 1/4th share, which would come 1H45R. In this
1/4th share, plaintiff is having only 1/6th share. That means, plaintiff
would get only 24R land from land Gat Nos. 5 & 6. However, to
effect the partition and to have separate possession of 24R there is bar
of The Bombay Prevention of the Fragmentation And Consolidation
of Holdings Act, 1947. Therefore, plaintiff would not be entitled for
partition. Plaintiff has filed false suit to harass the defendants. On
all these grounds, they prayed for dismissal of the suit.
13. On considering the rival pleadings of both the sides, trial
Court framed issues at Exh.28. Thereafter, trial of the suit was
proceeded. At the conclusion of trial, learned Joint Civil Judge,
Junior Division, Bhoom come to the conclusion that, plaintiff is
having hr 1/6th share in all the suit properties. Therefore, her suit for
6 R.C.A. No. 173/2014
Judgment.
partition and separate possession was decreed with costs. So also,
separate inquiry for the determination of future mesne profits was
proposed.
14. Feeling aggrieved by the impugned Judgment and
decree, defendants have preferred this appeal on the following,
amongst many other grounds. That, trial Court has not properly
considered the pleadings of both the sides, evidence led by both the
sides before it and the legal provisions in its proper perspective.
Consequently, trial Court has passed erroneous decree, which is not at
all sustainable in law. Accordingly, defendants prayed for setting
aside the impugned decree and to dismiss the suit.
15. On considering the rival pleadings of both the sides and
the submissions made on behalf of both the sides, following points
are arising for my consideration. I have recorded my findings on the
said points for the reasons stated below :
Points Findings
1 Whether defendants proved previous No
partition ?
2 Whether they further proved that the present suit No
is bad for nonjoinder of necessary parties ?
3 Whether plaintiff is entitled for partition and Yes. Pltff., defts. 3 &
separate possession of her share ? 4 each are having 1/24
share. Defts. 1, 2 & 3
If yes, what are the shares of parties ?
each are having 7/24
share.
4 Whether plaintiff is entitled for future mesne Yes.
profits ? Separate enquiry is
proposed.
7 R.C.A. No. 173/2014
Judgment.
5 Whether the impugned decree calls for any Yes.
interference ?
6 What order ? As per final
order.
REASONS
16. In support of her case, plaintiff gave evidence by way of
affidavit at Exh.43 and closed her evidence. On behalf of defendants,
defendant No.1 Dilip Khandagale filed his affidavit by way of
evidence at Exh.63 and DW 2 Jagganath Jogdand at Exh. 68.
Thereafter, they also closed their evidence. Besides, both parties have
filed on record certain documents by way of documentary evidence.
As to points No. 1 & 2 :
17 It is the case of plaintiff that, deceased Kalyan was the
Karta of joint family. Suit properties were the ancestral properties of
deceased Kalyan. After the demise of Kalyan plaintiff and defendants
are the only legal heirs. Therefore, as per Hindu Succession Act, she
is having 1/6th share in all the suit properties. On the other hand, it is
the case of defendants that the plaintiff has given incomplete
genealogy. Ganpati was the father of Kalyan. Ganpati was having
his wife, by name, Parvati. Ganpati died in the year 1960. Parvati
died in the year 1988. Therefore, after the demise of Ganpati
partition was taken place in between Kalyan and his three sisters, by
name, Bhamabai, Dwarkabai and Laxmibai. These three ladies are
not made parties to the present suit. Therefore, the present suit is bad
for nonjoinder of necessary parties.
8 R.C.A. No. 173/2014
Judgment.
18 It is also their further case that, in the partition taken
place in between Kalyan and his sisters, Kalyan received only land
Gat Nos. 4 and 190 to his share. Subsequently, he partitioned these
two lands by preparing partitiondeed, and gave these lands to
defendants 1 and 2.
19 In the above mentioned background, now evidence of the
parties, is to be scrutinized.
20 During the crossexamination of PW 1 i.e. plaintiff, it has
brought on record that Ganpati and Parvati died longback prior to
attaining understanding of age by the plaintiff. Further, it is brought
on record that Ganpati died before getting independence of our
county. Besides, DW 1 i.e. defendant No. 1 admitted in his cross
examination that, the suit properties were recorded in the name of his
deceased father in revenue record, after the demise of his grand
father. Khasara Pahani Patrak of the suit lands are produced on
record at Exhs. 79, 80 & 81. In this revenue record, the name of
Kalyan is appearing in the revenue record of suit properties. This
Khasara Pahani Patrak are of the year 195455. That means, Ganpati
died prior to 195455. Defendants have not produced any single
document to show that Ganpati died in the year 1960. Therefore,
from the evidence of both sides, it appears that, deceased Ganpati
died before coming in to force the Hindu Succession Act, 1956.
Consequently, the daughters of Ganpati, by name, Bhamabai,
Dwarkabai and Laxmibai were not having any share in the suit
properties. In this scenario there was no question of effecting oral
partition in between deceased Kalyan and his above mentioned three
9 R.C.A. No. 173/2014
Judgment.
sisters. Therefore, the case pleaded by defendants that though the
partition was taken place in between deceased Kalyan and his three
sisters, the lands allotted to the share of his sisters bearing Gat Nos. 5
& 6 are still remained in the name of deceased Kalyan, cannot be
digested.
21 Furthermore, defendants came with a case that, during
the lifetime deceased Kalyan effected partition of land Gat Nos. 4 and
190. For that purpose documents of partitiondeed was prepared.
That partitiondeed is brought on record at Exh. 87. After perusing
this document at Exh. 87 and pleading of defendants appearing in
paragraph No. 13 of written statement, it appears that, it is not the
case of defendants that the documents produced at Exh. 87 is a
memorandum of partition. Even the document Exh. 87 is bearing
nomenclature as Vatni patrak. However, this document appears to be
nonregistered document. So also, this document is written upon a
stamp paper of Rs. 10/. During the trial this fact was brought to the
notice of trial court, and therefore, this document was impounded.
Consequently, during arguments, learned advocate appearing on
behalf of defendants vehemently submitted that, as the document is
impounded and deficit court fee amount is deposited in the trial court,
now this document can be read in evidence. However, this submission
cannot be digested. It is because, impounding a document is different
thing and registration of the document is different thing. Partition
deed is required to be registered. Therefore, as this document is
unregistered, it cannot be read in evidence, though document is
impounded by the trial court.
10 R.C.A. No. 173/2014
Judgment.
22 Besides, after going through this document at Exh. 87, it
appears that, deceased Kalyan effected partition of land Gat Nos. 4
and 190 in between defendants 1 and 2 only. Definitely, being
ancestral properties, in these lands deceased Kalyan as well as his
wife defendant No. 3 were having shares in it. However, no any
share was allotted to deceased Kalyan and defendant No. 3. In this
regard there is no any explanation in this document at Exh. 87 or even
in the pleading of the defendants. Therefore, in any way this
document cannot be treated as valid partitiondeed. Therefore, in the
light of the above observations, facts and circumstances, it is clear
that, the defendants failed to prove the previous partition. So also,
they failed to prove that the daughters of deceased Ganpati are the
necessary parties to the present suit and on that count, present suit is
bad for nonjoinder of necessary parties. Accordingly, I answer
points 1 and 2.
As to point No. 3 :
23 It is not in dispute that the suit properties were the
ancestral properties of deceased Kalyan. It is not in dispute that
Kalyan died on 30.05.2004. In the crossexamination, plaintiff has
unambiguously admitted that her marriage was taken place before
1993.
24 So far as Hindu Succession Act is concerned, State
amendment was taken place in Succession by survivorship. Vide that
amendment Sec. 29A, 29B and 29C were inserted in Chapter IIA. As
per this amendment in a joint Hindu family governed by the
11 R.C.A. No. 173/2014
Judgment.
mitakshara law, the daughter of a coparcener was given the
coparcener right like a male member as if she is a son born in that
family. However, in Section 29A (iv) it is mentioned that : nothing
in this Chapter shall apply to a daughter married before the date of the
commencement of the Hindu Succession (Maharashtra amendment)
Act, 1994. Therefore, this amended provision cannot be invoked in
the instant matter, as plaintiff herself admitted that her marriage was
taken place before 1993.
25 Subsequently, again amendment came in the Hindu
Succession Act vide Hindu Succession (Amendment) Act) 2005. As
per this amendment Section 6 of the Hindu Succession Act is
substituted. A daughter is given coparcenary right like a son in the
ancestral joint Hindu family governed by the mitakshara law. As per
Section 6(3) of Amended Act, where a Hindu dies after the
commencement of the Hindu Succession (Amendment) Act, 2005, his
interest in the property of joint Hindu family governed by the
mitakshara Law shall devolve by testamentary or intestate succession,
as the case may be, under this Act and not by survivorship . . . . .
26 I have already mentioned herinabove that deceased
Kalyan died in the year 2004, which is not a disputed fact. That
means Kalyan died before coming into force the Hindu Succession
(Amendment) Act, 2005. Consequently, the plaintiff would not
become coparcenar by virtue of this amended Act also.
27 In the above mentioned background, the plaintiff would
succeed the ancestral properties left by deceased Kalyan by way of
survivorship. Therefore, in order to determine the share of plaintiff,
12 R.C.A. No. 173/2014
Judgment.
provisions of Hindu Succession Act, 1956 could be invoked.
Accordingly. Notional partition will have to be taken into
consideration. As per that notional partition firstly the suit properties
would be divided into Kalyan, his wife defendant No. 3 and his two
sons defendants 1 and 2. Therefore, each of them would have been
entitled to 1/4th share each. 1/4th share of deceased Kalyan again
would have to be divided amongst the widow of deceased Kalyan, his
two sons and three daughters (including plaintiff). Accordingly, each
of them would get 1/24th share each. That means, plaintiff and
defendants 4 and 5 would be entitled to 1/24 th share each in the suit
properties. Defendants 1 to 3 would be entitled for 7/24th each in the
suit properties. Therefore, even though, plaintiff is claiming 1/6 th
share in all the suit properties she would not be entitled for the same,
but she would be entitled only for 1/24 th share in all the suit
properties. Accordingly, I answer point No. 3.
As to point No. 4 :
28 While claiming the partition and separate possession of
her share, plaintiff is also claiming future mesne profits. It is not the
case of defendants that, the suit properties are not to their possession.
So also, it is not their case that they were or are giving any share in
the yield/income of the suit properties to the plaintiff. That means,
the defendants are taking income/yield of the share of plaintiff
illegally. Therefore, definitely plaintiff would be entitled for future
mesne profits. However, at the same time, it is pertinent to note that,
in order to determine the future mesne profits there is no cogent and
reliable evidence on record. Therefore, it is desirable to have separate
13 R.C.A. No. 173/2014
Judgment.
enquiry to determine the future mesne profits. Accordingly, I answer
point No. 4.
As to point Nos. 5 & 6 :
29 After going through the Judgment of trial Court, it
appears that, the trial Court could not understand properly, the nature
of the document produced on record at Exh. 87 and held that it is a
partition deed. So also, while considering the Section 6 of Hindu
Succession (Amendment) Act, 2005, trial court committed an error
and held that, as per amended section 6 of Hindu Succession
(Amended) Act, 2005 plaintiff is entitled for equal share with her
brothers in the suit properties, though deceased Kalyan died prior to
coming into force of this Hindu Succession (Amended) Act, 2005.
Consequently, trial court committed error while determining the
shares of the parties. To that extent impugned decree calls for
interference. Therefore, present appeal deserves to be partly allowed.
Accordingly, I answer the points 5 & 6 and proceed to pass the
following order :
ORDER
i. Appeal is partly allowed.
ii. The impugned decree is modified as under :
iii Plaintiff's suit is decreed with costs.
iv Plaintiff is having1/24th share in all the suit properties,
i.e. agricultural lands and house properties.
v For the partition of agricultural lands, precept be sent to
Collector, Omanabad vide Sec. 54 of the Code of Civil Procedure for
14 R.C.A. No. 173/2014
Judgment.
effecting partition.
vi Partition of the house properties be effected by
appointing Court Commissioner to that effect.
vii. Separate enquiry be carried out to determine the past and
future mesne profits as per Order 20 Rule 12 (1)(b)(c) of the Civil
Procedure Code.
viii. Preliminary decree be drawn up accordingly.
(Judgment dictated and pronounced in open Court).
Sd/
(V.A. Pokale)
Date : 30.03.2016. District Judge 1, Bhoom.