High Court
Legal Reasoning
1768.2018SAIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD940 SECOND APPEAL NO. 768 OF 2018(WITH CIVIL APPLICATION NO.11561/2018) 1.Laxman Dhondiba Dhawale Age : 59 years, Occ : Agriculture, R/o Nighoj, Taluka Parner, District Ahmednagar. 2.Kamal Prabhakar DhawaleAge : 59 years, Occ : Agriculture, R/o As above. 3.Santosh Prabhakar DhawaleAge : 38 years, Occ : Agriculture, R/o As above. 4.Sampat Prabhakar DhawaleAge : 37 years, Occ : Agriculture, R/o As above. 5.Arun Prabhakar DhawaleAge : 40 years, Occ : Agriculture, R/o As above. 6.Sadashiv Dhondiba DhawaleAge : 41 years, Occ : Agriculture, R/o As above. 7.Shankar Dhondiba DhawaleAge : 55 years, Occ : Agriculture, R/o As above. 8.Lalita Raghunath Dhawale@ Lalita Shahaji Bhosale Age : 36 years, Occ : Agricculture, R/o As above. ..APPELLANTS 2768.2018SA-VERSUS-1.Veenabai Sudam NarwadeAge : 57 years, Occ : Household, R/o Nighoj, Taluka Parner, District Ahmednagar. 2.Vijay Raghunath DhawaleAge : 48 years, Occ : Service, R/o As above. At present serving in Indian Military ..RESPONDENTS...Advocate for Appellants : Mr. Badakh Vishal S.Advocate for Respondent No.1 : Mr.Hemant U. Dhage …..CORAM :ROHIT W. JOSHI, J. Dated:5th MARCH, 2025ORAL JUDGMENT :-.Heard finally with the consent of parties. 2.The parties were made aware about the questionsof law that fall for consideration during the course of hearing.Both the learned advocates requested to frame the questionsand decide the same finally today itself. Both the learnedadvocates stated that they could visualize the questions thatmay arise for consideration and were fully prepared to arguethe appeal finally. In view of the above, the substantialquestions were framed and decided finally today itself. 3768.2018SA3.The present second appeal filed by the originalplaintiff nos.1 to 7 and 9. Plaintiff no.8 is arrayed asrespondent no.2. The plaintiffs and defendant are sons anddaughters of late Dhondiba Dhawale, who died intestate on03.08.1999. During his life time, deceased Dhondiba hadexecuted two sale deeds dated 02.06.1994 and 12.11.1997 infavour of defendant, who is his daughter, thereby transferring0.23 HR and 0.73 HR land respectively in Gat No.2688 ofvillage Nighoj, Tq. Parner, Dist. Ahmednagar. Plaintiffs whoare other sons and daughters of Dhondiba filed Regular CivilSuit No.497/2001 challenging the sale transaction on theground that the said properties were ancestral properties andthe father had sold the same in favour of the defendantwithout any legal necessity. The plaintiffs claimed that saletransactions were not binding on them, and therefore, notvalid to the extent of their share in the said properties. Apartfrom the aforesaid properties, three other properties bearingGat Nos.1471, 2683 and 2695 were included in the suit anddecree for partition and separate possession was sought inrespect of these properties. 4768.2018SA4.The defendant filed written statement opposingsuit contending that there was partition in the family in theyear 1968 and the father Dhondiba and sons were placed inseparate possession of their respective shares as per the saidpartition. It was stated that mutations were also effected inthe names of respective persons as per the said partition. It iscontended that the suit property bearing Gat No.2688 hadfallen to the share of the father and as such he becameabsolute owner thereof. It was claimed that after partition, thesons and daughters of Dhondiba could not have claimed anyright, title or interest as also share in the said property.5.After framing issues, the learned trial Courtrecorded evidence of respective sides and after hearing thearguments was pleased to decree suit in its entirety videjudgment and decree dated 02.09.2013. The learned trialCourt has held that there was no partition in the family asalleged by the defendant. It is held that there was familyarrangement in the family which cannot be said to be apartition. In view of such findings, it is held that Dhondibawas not entitled to sell the property to the defendant since the 5768.2018SAlegal necessity was not proved. Thus, the learned trial Courtheld that sale deed was not binding on the plaintiffs and notvalid to the extent of their shares and accordingly, the decreefor partition and separate possession was passed by thelearned trial Court with respect to all the suit propertiesincluding the suit property, which was sold by Dhondiba tothe defendants.6.Aggrieved by the said decree, the defendant filedfirst appeal, being Regular Civil Appeal No.280/2013. Thelearned First Appellate Court has allowed the appeal videjudgment and decree dated 08.06.2018. The learned FirstAppellate Court has held that there was partition in thefamily, which was evidenced by mutation entries. The learnedFirst Appellate Court has also referred to sale deeds executedby plaintiff no.1-Laxman, plaintiff no.2 – Komal, plaintiff no.3– Santosh, plaintiff no.4 – Sampat, plaintiff no.5 – Arun,plaintiff no.8-Vijay and plaintiff no.9 – Lalita whereunderthese plaintiffs had also sold properties that fell to theirrespective shares in the partition. In view of the above, thelearned First Appellate Court has held that Dhondiba was 6768.2018SAabsolute owner of property, which had fallen into his shareand was therefore entitled to sell the same at his absolutediscretion. In the light of above, the learned First AppellateCourt has held that the sale deed was binding on theplaintiffs. The learned First Appellate Court has thus allowedthe appeal with costs by reversing the judgment and decreepassed by the learned trial Court. However, having held thatthe sale deed with respect to one of the suit properties waslegal and valid, the learned First Appellate Court has reversedthe entire decree thereby reversing decree by the learned TrialCourt granting partition with respect to other properties aswell.7.In the aforesaid backdrop, plaintiff nos.1 to 7 and9 have filed the present Second Appeal. The plaintiff no.8 isarrayed as respondent no.2. Respondent no.1 is originaldefendant.8.After hearing the parties, the followingsubstantial questions of law arise for consideration in myopinion :-
Legal Reasoning
7768.2018SA(i)Whether there was partition in the family asheld by the learned First Appellate Court andconsequently was the deceased Dhondiba entitled tosell the suit property bearing Gat No.2688 as hisseparate property ?(ii)Was the learned First appellate Court correct inreversing the entire decree on recording a findingthat the sale deed with respect to one of the suitproperties was legal and valid and as such, prayer forpartition with respect to the same could not begranted ?Question No.(i) :- 9.Learned counsel for the appellant Mr.V.S. Badakhhas vehemently argued that there is no evidence on record inorder to support the finding recorded by the learned FirstAppellate Court with respect to partition in the family. Hecontends that mutation entries by themselves cannot confirmany title since they are merely recorded for fiscal purposes. Hesubmits that there must be some document/s evidencingpartition and in the absence of such document/s, the findings 8768.2018SArecorded by the learned Trial Court that there was nopartition but merely family arrangement between the familymembers regarding distribution of the family properties oughtto have been accepted by the learned First Appellate Court. Heplaces reliance on the judgment of this Court in the matter ofMahadu Appa Wanjole Vs. Laxman Veerappa Wanjole andothers reported in 2008(5) Mh.L.J. 680, wherein it is held thatmutation entries cannot be read as proof of partition sincethey are merely for fiscal purpose.10.Per contra, Mr.Hemant Dhage, learned Advocateappearing for respondent No.1 opposes the contentions statingthat the partition had in fact taken place in the family andaccordingly mutation entries were recorded in the year 1968.He contends that long standing entries of mutation havestrong presumptive value of correctness. According to him,these mutation entries clearly establish the fact of partition inthe family. He further contends that an act of separation ofproperty in the family may be called partition or familyarrangement. Nomenclature of mode of separation does notmatter. What is material is that there must be some 9768.2018SAarrangement under which the severance takes place. Hecontends that the family arrangement cannot be said to be anadhoc or temporary arrangement by any stretch ofimagination having regard to the fact that the mutationentries regarding the separate possession are recorded wayback in the year 1968. He further contends that thearrangement of separation of properties is acted upon by allthe parties, in as much as the plaintiffs have themselvesadmitted that plaintiff nos.1, 2, 3, 4, 5, 8 and 9 have soldsome portion of the properties that had fallen to their sharesafter severance of joint family property, either by partition orby family settlement. He also argued that having sold theproperties themselves, the plaintiffs are estopped fromcontending that father Dhondiba could not have sold theproperties which are fallen to their share.11.The contention of Mr. Bora is true that normallythere should be documentary evidence in order to substantiatepartition in the family. However, each case is required to beviewed in a peculiar backdrop of facts. In the present case,mutation entries regarding the separate possession are 10768.2018SArecorded in the year 1968. These mutation entries are notdisbelieved by the learned trial Court as well. By placingreliance on these mutation entries, learned trial Court hasheld that the mutation entries reflected a family arrangementunder which the properties of the Joint Hindu Family weregiven in possession of different coparceners albeit withoutseverance. The learned trial Court then records that suchfamily arrangement cannot be construed as partition in thefamily, and therefore, despite separate possession, the statusof properties will be joint. The learned First Appellate Courthas reversed this finding principally relying upon the saledeeds executed by different members of the family. Thelearned First Appellate Court holds that the fact that differentfamily members sold properties which were placed in theirpossession is sufficient to hold that there was partition in thefamily by metes and bounds.12.Having heard respective submissions and havinggone through the judgments delivered by the learned Courts, Iam of the considered opinion that the learned First AppellateCourt is right in holding that there was partition in the family 11768.2018SAunder which different properties were placed in possession ofdifferent coparceners. This partition is completely acted uponand accepted by all the family members, in as much as, theproperties which had fallen to the share of different membershave been sold by them. Admittedly, sale deeds executed bydifferent plaintiffs have not been challenged. Those propertiesare also not included as suit properties in the suit. In that viewof the matter, I cannot find any fault with the findingsrecorded by the learned First Appellate Court that there wasindeed partition in the family which is evidenced by mutationentries recorded in the year 1968 itself. I am also inagreement with the arguments advanced by learned AdvocateMr.Hemant Dhage for respondent no.1 that having sold theproperties that had fallen to their share in the partition, theplaintiffs are estopped from challenging the sale deedsexecuted by the father with respect to property, which hadfallen to his share in the partition. Reliance in this regard isplaced to the judgment of the Hon’ble Supreme Court in thecase of Kale and others Vs. Deputy Director of Consolidationand others reported in AIR 1976 SC 807. In the said case, afamily arrangement was arrived at which was an unregistered 12768.2018SAdocument. The question which fell for consideration beforethe Hon’ble Supreme Court was as to whether an unregisteredfamily settlement could be read in evidence. The Hon’bleSupreme Court has held that unregistered document of familysettlement can be read in evidence for collateral purpose ofdeciding nature of possession. Likewise, it is also held thatwhen parties enter into an arrangement regarding distributionof property which is accepted and acted upon by all theconcerned, they will be estopped from questioning the same.It is also held that such documents even if unregistered orinadequately stamped cannot be ignored if the same areaccepted and acted upon. The judgment of the Hon’bleSupreme Court is squarely applicable to the facts of the case.Just as Registration Act and Stamp Act are provisions of law,the rule of estoppel statutorily recognized by Section 115 ofthe Evidence Act is also a legal provision, which cannot bedisregarded.13.In that view of the matter, substantial question oflaw at Sr. No.1 will have to be answered against theplaintiffs/appellants and in favour of defendant no.1 – 13768.2018SArespondent. I hold that there was partition or familyarrangement in the family in the year 1968 by virtue of whichseverance in Joint Hindu Family property was effected andtherefore, Dhondiba was entitled to alienate the suit propertybearing Gat No.2688 since it was his separate property. Thesale deeds executed by Dhondiba in favour of defendant no.1are legal, valid and binding on all the plaintiffs. The saidproperty cannot form a subject matter of partition sincedefendant no.1 is true, lawful and absolute owner of thesame.Question No.(ii) :- 14.Admittedly Dhondiba had sold only one property.Other three properties also belong to Dhondiba. Dhondiba hasexpired in the year 1999. Dhondiba is survived by six class-Ilegal heirs namely plaintiff no.1 – Laxman, deceasedPrabhakar/husband of plaintiff no.2 and father of plaintiffnos.3, 4 and 5, plaintiff no.6-Sadashiv, plaintiff no.7-Shankar, deceased Raghunath, father of plaintiff no.8 andplaintiff no.9 and defendant no.1 Veena. The learned FirstAppellate Court probably has lost sight of the fact that decree 14768.2018SAfor partition and separate possession is also passed in respectof other properties and therefore, has dismissed suit in itsentirety. The learned First Appellate Court was error indismissing suit for partition with respect to three propertiesbearing Gat Nos.1471, 2683 and 2695. The judgment anddecree passed by the learned First Appellate Court warrantsinterference to this extent. It is held that the above threeproperties held by deceased Dhondiba should be partitionedinter se between the plaintiffs and defendant in accordancewith the judgment and decree dated 02.09.2013 passed by thelearned Civil Judge, Junior Division, Parner in Regular CivilSuit No.479/2001.15.In view of the aforesaid second appeal is partlyallowed.16.The parties to bear their own costs.17.Civil Application, if any stands disposed of.( ROHIT W. JOSHI, J )sga/2025