GITABAI MARUTI RAUT (DEAD) THROUGH LR. & ORS VERSUS PANDURANG MARUTI RAUT (DEAD) THROUGH LRS. & ORS.

GITABAI MARUTI RAUT (DEAD) THROUGH LR. & ORS VERSUS PANDURANG MARUTI RAUT (DEAD) THROUGH LRS. & ORS.

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7702 OF 2013

GITABAI MARUTI RAUT (DEAD) THROUGH LR.

& ORS.

 .....APPELLANT(S)

VERSUS

PANDURANG MARUTI RAUT (DEAD)

THROUGH LRS. & ORS.

.....RESPONDENT(S)

J U D G M E N T

HEMANT GUPTA, J.

1. The plaintiff filed the present appeal against the judgment dated

01.10.2008 passed by the High Court of Judicature at Bombay

dismissing the second appeal filed by her. However, the plaintiff died

on 18.12.2014 during the pendency of the appeal. Now, the legal

representatives of the deceased are prosecuting the present appeal.

2. The question for consideration herein is whether the properties at

villages Pirangut and Nande are joint family ancestral properties in the

hands of Maruti, the deceased son of Balaji, predecessor of the parties

in appeal. The admitted family tree shows that Balaji was the common

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ancestor. He left behind his four sons, Narayan, Raghunath, Maruti and

Sopan. Maruti died on 13.7.1966. He married twice, both his wives had

a similar name, Geetabai. The first wife, Geetabai, died in the year

1948 leaving behind the defendant Nos. 1, 2, 3 and 4, namely,

Pandurang, Krishnakant, Ramchandra and Muktabai. Geetabai, his

second wife and the original plaintiff, filed a suit for partition. She died

during the pendency of the proceedings leaving behind two sons and

three daughters, namely, Chandrakant, Ramesh, Uma, Shailaja and

Sumitra.

3. There is no dispute in respect of the property situated at Lavale, which

has been held to be a joint family property wherein a finding has been

returned that the plaintiff would have a share in the estate.

4. In respect of a property at Nande, the High Court affirmed the finding

that Pandurang/defendant No. 1, purchased the property at village

Nande vide sale deed dated 25.2.1969 after the death of Maruti. It was

also held that the appellant neither pleaded nor proved that there is

sufficient nucleus of the income from the joint family from which the

property at village Nande could be purchased. In the absence of any

proof, the claim of appellant for such property situated at Village

Nande was negated. Our attention was drawn to the plaint filed by the

deceased Geetabai but we do not find any pleadings regarding the

property at Nande as purchased from the income of the joint family

property. All three Courts have concurrently held that the property at

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Nande is not a joint ancestral property. We find no reason to interfere

with the findings relating to the property situate in Village Nande.

5. Hence, the only question which survives for consideration is whether

the property situated at village Pirangut is an ancestral property, in

which the appellants had share.

6. The plaintiff has pleaded that land at Pirangut was purchased by Hindu

Undivided Family (HUF). The plaintiff and deceased Maruti looked after

and brought up defendant Nos. 1 to 4. The plaintiff along with all

defendants were living jointly and after the death of Maruti, the joint

family continued even thereafter, as the Defendant No. 1 assumed the

position of Karta of Maruti’s family. It is pleaded that there was a

partition of the properties during Maruti’s life time. The memo was

reduced in writing and signed by all the four sons of Balaji in the year

1961, but the mutation on the basis of family settlement was sought in

the year 1970, only after the death of Maruti.

7. In respect of the property at Pirangut, the High Court returned the

following findings:

“9. This takes me to consider the claim of the Appellant in the

property at Pirangut. The property at Pirangut was admittedly

purchased by Raghunath, uncle of Defendant no. 1 from one

Kanhu Dhondu Kudale on 19th August 1947. According to the

appellant by Mutation entry 1274 this property was partitioned,

and the land at Pirangut was given to Defendant no. 1. If that be

so the Appellant obviously has share in it. Per contra it is the

case of the defendant no. 1 that this property was purchased by

Raghunath in 1947, which was latter on gifted in favour of

Defendant no. 1. In order to claim share in the property at

Pirangut it was for the appellant/plaintiff to plead and prove that

property at Pirangut was ancestral property. Then and then only

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appellant/Plaintiff would have share in it. In the absence of any

evidence that the property in the hand of Raghunath was

ancestral property, in my considered view, the appellant/plaintiff

could not have relied upon the Mutation entry no. 1274 to claim

share in the suit property.”

8. Mr. Sudhanshu S. Choudhari, learned counsel for the appellants

referred to judgments reported as Mallappa Girimallappa Betgeri &

Ors. v. R. Yellappagouda Patil & Ors.

1

, Surendra Kumar v.

Phoolchand (D) through LRs. & Anr.

2

 and Appasaheb Peerappa

Chamdgade v. Devendra Peerappa Chamdgade & Ors.

3

 to

contend that the property purchased by Raghunath was the property

from the income of the ancestral property and, therefore, in the said

property, the appellants cannot be deprived of their share. The

appellants also referred to the statement of Sopan, brother of

Raghunath, who had appeared as PW-2. Sopan had deposed that the

ancestral property is situated at Lavale and Pirangut and that the

property at Pirangut was entered in the name of the elder brother

Raghunath. The partition took place between the brothers and a

memorandum (Ex 111) was prepared to this effect.

9. The memorandum dated 23.12.1961- Ex-111 has been produced by

the appellants before this Court. The said memorandum shows

different parts of the land situated in village Pirangut falling to the

share of Narayan, Raghunath, Maruti and Sopan. Apart from the share

1 AIR 1959 SC 906

2 (1996) 2 SCC 491

3 (2007) 1 SCC 521

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in the land, even the other activities were arranged for and

memorandum was prepared. In the cross-examination, Sopan admitted

that there was no joint family at Nande but the partition had taken

place between the brothers of the property situated at Lavale and

Pirangut. He stated that the property situated at Pirangut was standing

in the name of his brother Raghunath.

10. The plaintiff Geetabai appeared as PW-1. She deposed that landed

property at Pirangut was inherited by them from her father-in-law,

Balaji. She has also referred to the memorandum of settlement

recorded on 23.12.1961 and that it bears the signature of Raghunath

and Sopan (PW-2) and thumb impression of Narayan. In the crossexamination, she stated that the land in the name of her father-in-law

was situated at Village Lavale and Pirangut. She further deposed that

landed property situated at Pirangut as well as the property at Nande

were purchased by her husband. She denied that the property situated

at Pirangut was purchased by Raghunath. She also denied the

suggestion that property at Village Lavale alone was joint family

property.

11. The memorandum of partition was entered on 23.12.1961 when Maruti

was alive, but the same was sought to be given effect in the revenue

record vide Ex.104, Mutation No. 1274 on 28.6.1970. Such revenue

record is in respect of land situated at village Pirangut, wherein,

namely, Narayan, Raghunath and Sopan, sons of Balaji and Pandurang

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Maruti son of fourth brother Maruti, have been allotted separate share

of land in the land situated at Village Pirangut. Pandurang had been

given share as by that time Maruti had died. Therefore, Pandurang got

the property by partition amongst four brothers alone.

12. The High Court has misread the most important evidence led by the

appellants i.e., one of the brothers, Sopan (PW-2), who had deposed

that the land at village Pirangut was ancestral land. The Mutation No.

1274 itself shows that the land was partitioned amongst the brothers.

It was not a gift by Raghunath in favor of Pandurang/defendant no.1, as

found by the High Court. The name of Pandurang in respect of share of

Maruti came after the death of Maruti in the year 1966 being the eldest

male member as Karta of the joint family of Maruti. Pandurang held the

property as Karta of the joint family property fallen to the share of

Maruti in terms of the settlement arrived on 23.12.1961. The

settlement (Ex.111) is with Maruti and not Pandurang as he was alive

on that day. Since, when the revenue entry was being recorded in

1970, after Maruti had died, Pandurang represented the estate of

Maruti as Karta. In view of the said fact, the findings recorded by the

High Court in para 9 are not tenable.

13. In fact, neither Geetabai (PW-1) nor Sopan (PW-2) had been suggested

that the property was gifted by Raghunath to Pandurang. Pandurang

has not said a word about the partition entered by four brothers on

23.12.1961. In the cross-examination, he admitted that there was a

6

partition between his father and uncle before 1960 but he could not

tell the exact year. He could not identify the signatures of his uncle on

Ex.111, though he identified the signatures of Sopan (PW-2). He also

admitted that he has not raised any objection regarding mutation entry

no. 1274. He denied that his father had purchased any land at

Pirangut. Though Pandurang has stated that Raghunath has gifted the

property to him but no gift deed has been produced on record nor the

immovable property could be gifted orally. Therefore, the stand of the

Pandurang that the land was gifted to him is untenable. Therefore, the

findings recorded by the High Court is without any evidence.

14. The principles of law enunciated in the above judgments are not in

dispute. Since the evidence on record including written memorandum

of settlement dated 23.12.1961 (Ex.111) and the mutation (Ex.104)

show that Pirangut was a joint family property, therefore, the

expression ‘partition’ has been used. There is no evidence that the

property at Village Pirangut was gifted to Pandurang by Raghunath, the

eldest son of Balaji. There is no evidence that Raghunath was the sole

owner or that he acquired the property from his income. The

categorical statement of Geetabai, the plaintiff is that her father-in-law

was the owner of the property at Pirangut. Even Sopan has also

deposed to the same effect. He was examined as the surviving son of

Balaji. In the absence of any evidence that Raghunath had the capacity

to purchase the property as the documentary evidence in respect of

7

partition of the property situated at Village Pirangut, the findings

recorded by the High Court cannot be sustained.

15. The plaintiff and defendants including daughters of Maruti have equal

share in the Pirangut and Lavale property in view of the judgment of

this Court reported as Vineeta Sharma v. Rakesh Sharma & Ors.

4

.

Thus, Geetabai, the plaintiff, Pandurang, Krishnakant, Ramchandra,

Muktabai, defendant Nos. 1 to 4, and Chandrakant, Ramesh, Uma,

Shailaja and Sumitra, defendant Nos. 5 to 9 would have 1/10th share

each. The share of Geetabai would devolve according to law of

succession applicable. The purchaser shall be entitled to such interest

in the property as its vendor had in terms of the above decree.

16. The preliminary decree is ordered to be granted in the said terms. The

parties are directed to seek final decree from the competent Court in

accordance with law.

17. The appeal thus stands allowed in the above terms.

.............................................J.

(HEMANT GUPTA)

.............................................J.

(VIKRAM NATH)

NEW DELHI;

AUGUST 11, 2022.

4 (2020) 9 SCC 1

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