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.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7702 OF 2013
GITABAI MARUTI RAUT (DEAD) THROUGH LR.
PANDURANG MARUTI RAUT (DEAD)
THROUGH LRS. & ORS.
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
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
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
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
“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
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.
, Surendra Kumar v.
Phoolchand (D) through LRs. & Anr.
and Appasaheb Peerappa
Chamdgade v. Devendra Peerappa Chamdgade & Ors.
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
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
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
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
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
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.
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.
AUGUST 11, 2022.
4 (2020) 9 SCC 1