IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No 269 of 1999 For Approval and Signature: Hon'ble MR.JUSTICE K.M.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- MULJI KANJI MAVJI GORASIA Versus KANJI MAVJI GORASIA,DECD.THRO HIS HEIRS HIRBAI WD/O RAMJI -------------------------------------------------------------- Appearance: 1. First Appeal No. 269 of 1999 MR YS MANKAD for Petitioner No. 1 MR CH VORA for Respondent No. 1,3 .......... for Respondent No. 1/1,1/4-1/8 NOTICE SERVED for Respondent No. 1/2-1/3,2 -------------------------------------------------------------- CORAM : MR.JUSTICE K.M.MEHTA Date of decision:28/2/2003 C.A.V. JUDGEMENT 1. Mulji Kanji Mavji Gorasia - appellant original plaintiff has filed this First Appeal under Section 96 of the Code of Civil Procedure, against the judgment and decree dated 19-12-1998 passed by the learned Civil Judge (SD), Kachchh at Bhuj in Special Civil Suit No. 204 of 1991 whereby the suit of the plaintiff has been dismissed. The pedigree of the parties is as under : PEDIGREE Hira Vasta -------------------------------------------------------- | | | | | Meghji Parbat Mavji Devraj Naran | | | Kurji | (witness on behalf of | P.1) Ex.69 | ------------------------------------------------- | | | | | | | | Govind Jadva Kanji (Def. Harji | | No.1) (witness on | | beh.of P.1) Kalyanbhai (Ex.78) | | Ex. 66 witness on behalf of | P.1 | | Died on 3/5/97 | ---------------------------------- | | | | Dhanbai (1st wife) Meghbai (2nd | | wife) | | D.1/8 | ----------------------------------------- | | | | | | | Mulji Ramji Hirbai Prembai Valbai | (pltff.) (def.No.2) D.1/1 D.1/2 D.1/3 | | ------------------------------------------ | | | | Jasuben Nanbai Premji Hirji def.No.1/4 D.1/5 D.1/6 D.1/7 2. As per pedigree Hira Vasta has five sons Meghji, Parbat, Mavji, Devraj and Naran. Out of that Mavji had four sons Govind, Jadva, Kanji (def. No. 1) and Harji. Govind had one son Kalyanbhai. Kanji had first wife Dhanbai and their sons were Mulji (plaintiff), another son Ramji (defendant No.2). Kanji had during the first marriage had also relation with another woman named Meghbai which has been described as a second wife in the suit. Out of that alleged relationship, Kanji had Jasuben who has been described as defendant No.1/4, Nanbai defendant No.1/5, Premji defendant No.1/6 and Hirji defendant No.1/7. Megbai as shown as defendant No.1/8. Kanji died on 3.5.97 during the pendency of the suit and his heir via his daughters, Hirbai, widow of Ramji Khimji Ruda, was brought on record as defendant No.1/1 and Prembai Bhimji & Valbai daughter of Kanji has been brought on record as defendant No.1/2 & 1/3. Mulji Kanji Mavji Gorasia is the plaintiff who happens to be a son of Kanji through first wife Dhanbai. Kanji Mavji Gorasia is the original defendant no. 1 who happens to be the father of Mulji. Ramji Kanji Gorasia is brother of Mulji who is the defendant no. 2. All other relationship have been shown while describing the pedigree in this behalf. 3. The following ancestral properties belonging to the family of Kanji Mavji were situated at village Mankuva Taluka Bhuj-Kachchh. -------------------------------------------------------- Old Survey No. New Survey No. Area A - Gs. ======================================================== A 109-1 110/1 4 - 22 B 113 111/3 0 - 01 C - 113/3 1 - 02 D 301/1 115/2 0 - 33 E 301/2 115/3 0 - 25 F - 363 10- 38 G - 365/1 9 - 18 ====== Total 27-19 ------------------------------------------------------- 4. In the plaint it was stated that Mavji Hira grand father died without making any will and therefore the aforesaid properties inherited to Kanji Mavji father of the plaintiff. After his death, all the properties are ancestral Properties in which the plaintiffs and the defendants have common rights, title and interest in this behalf. It has been stated that since 10 to 15 years ago Kanji asked first wife Dhanbai to leave his matrimonial home. Thereafter Kanji married to another woman Meghbai who is the defendant no. 1/8 to the suit. Out of this alleged relation with Meghbai, issues namely Jashuben, Nanbai, Premji and Hirji were born. It is stated in the plaint that the plaintiff has 1/3 share in the suit properties. With a view to defeat the right of the plaintiff the defendants had transferred the suit properties and therefore the plaintiff filed the suit on 22-10-1991 for obtaining 1/3 share in the suit properties. The plaintiff has prayed that the suit properties be divided and out of the same his 1/3 share may be given to him and the defendants may be restrained from transferring the suit properties to any one in any way. 5. Defendant no. 1 Kanji Mavji field written statement vide exh. 11/B stating therein that the plaintiff has not joined necessary parties to the suit and hence the suit be dismissed on account of non-joinder of necessary parties. He has denied the contention raised by the plaintiff in this behalf. He has further submitted that it is true that Mulji happens to be his son. However, now they are staying separately since 20 years. According to him, all the properties belong to Meghbai and he has acquired the properties of his own earning and the plaintiff and the defendant no. 2 have no right, title or interest in the suit properties. It is further stated that originally the properties were inam lands. In the year 1962 the Government had given the the suit lands to the defendant no. 1 and he is enjoying the same since 1962 onwards and the suit properties have been entered into record of rights in his name and therefore the plaintiff has no right to interfere with the suit properties. 6. The trial Court has framed the issues at exh. 13 in this behalf. 7. So far as oral evidence is concerned, the plaintiff has examined himself at exh. 53 wherein he has clearly stated that the suit properties are ancestral properties and he is entitled to get 1/3 share along with his mother who is staying with him. In the cross-examination, the plaintiff has denied that the suit lands were "Inami" lands and the defendant no. 1 has been given right, title and interest in the same. He has stated that the plaintiff and his mother have right, title and interest in the suit properties. 8. The plaintiff has also examined Harji Mavji Gorasia (Kanji's brother) vide exh. 66. He has stated that the properties in question was the ancestral property and originally the suit property belong to grand father Hira Vasta and today said Hira Vasta is not alive. He has also stated that some properties belonged Kanji also. He has admitted that there was no relationship between him and Kanji since long time. He has produced certain documents in this behalf. 9. The plaintiff has also examined another witness Kurji Devraj Halai at exh. 69 who is son of Devraj who happens to be son of Hira Vasta - a close family member. This witness also says that he was also family member of Manji Mavji. He has stated that when his grand father had died, all the properties were joint Hindu family properties and death of his grand father Hira Vasta some properties were purchased for which he has produced certain documents in this behalf. In cross-examination, he has admitted that some criminal proceedings were initiated against him. 10. The plaintiff has also examined another witness Kalyanbhai Govindbhai Gorasia vide exh. 78 who is another grand child of MavjiHira Vasta. He also happens to be family member of Kanji Manji. He has stated that the suit properties were ancestral properties. In the cross-examination he has stated that some criminal proceedings were initiated against him by Manji Mavji. 11. The plaintiff has produced following documents in support of his case. Exh.54 pertains to land Survey No.42 and regarding the land survey No. 301/1 and 301/2 there is no order of Mamlatdar dated 26-9-1962 which has been passed u/s 7/3 of the Bombay Inams (Kutch Area) Abolition Act, 1958. The said entry was made on 16-11-1961. He has also produced certain documents at exh. 54, 55 and 56 which show the lands admeasuring 27 Acres and 18 gunthas as ancestral properties by making suitable entries in this behalf. Exh. 57 is the record of right by which Kanji Mavji Gorasia is shown in possession through the old tenure. He has also relied on exh. 58 which shows the entry in the name of Kanji Mavji and Laxman Kanji was made in connection with land survey No. 301. It is also stated that right from 1952-53 to 1961-62 necessary revenue assessment was done on the property and the Mamlatdar had passed necessary order for the year 1961-62. He has also relied on exh. 59 which shows that Kanji Mavji was occupier of the lands survey no. 109/1, 113 and 301 (Paiki). Similarly, exh. 60 also shows measurement of various survey numbers right from 1967 and there also the name of occupier of the said lands is shown as Kanji Mavji. He has also relied on exh.. 61, 62 and 63 which are record of rights which show the relevant entries and various orders and there also the name of occupier is shown as Kanji Mavji. He has also relied on exh. 65 which refer to the purchase of suit "wadi" by ancestral Hira Vasta and others. He has also relied on exhs. 70 and 71 which also substantiate his case and the fact as to how the property was divided between them and how he got the property. 12. On behalf of the defendant no.1, Kanji Mavji defendant no. 1 himself is examined at exh. 88 wherein he has stated that he owns the suit land admeasuring 22 Acres - 7 gunthas. He has also stated that when he was 14 to 18 years old, the Government had given the suit properties to him. He has denied that the suit properties were ancestral properties. He has further denied that the properties documents mentioned by the plaintiff at exh. 65, 70 and 71. He has admitted that the suit properties were "Inami" properties. He has stated that somewhere in the year 1946 the Government had given the land to him. However, he has not produced any order of the Government in support of his said statement. he has also stated that the divorce proceeding had taken place between him and Dhanbai. But he has not produced any document or evidence in support thereof. 13. The defendant no.1 has examined one Kamal Abbas Mahebubkhan at exh. 90 who was working as Talati at the relevant time. He has stated that Kanji Mavji was the owner of the land somewhere in the year 1963 and the Mamlatdar has passed the order on 26-9-1962 by which the property was given to Manji Mavji. However, the said order has not been produced by him on the record of the case. He has admitted that in the record of right the name of "Inamdar" is not mentioned. He has also stated that he has no personal knowledge regarding Entry No. 42 and he has not produced the order passed by the Mamlatdar in that connection. 13A The learned trial Judge after considering the oral and documentary evidence by his judgment and decree dated 19th December, 1998, held that: (1) plaintiff failed to prove that he is entitled to get 1/3rd share in the suit property. (2) The plaintiff failed to prove that he is entitled to get permanent injunction as prayed for. The defendants were able to prove that the suit is barred by the law of non-joinder of necessary parties. (3) The defendants proved that plaintiff is residing separately since 20 years after taking his share in cash from the defendant No.1. (4) The learned trial Judge further held that after the death of the defendant No.1 as heir as per the provisions of Hindu Law as son has a right of a share in the ancestral property since his birth. (5) In the suit of partition of the coparcenary property they are absolutely necessary parties and they are not joined as necessary parties in the suit. Defendants have been brought on record after the death of the defendant No.1 as heirs they were necessary parties right from the inception of the suit and as they were not joined as co-parceners, the suit suffers from non-joinder of necessary parties. (6) The learned trial Judge further held that even though subsequently they were joined but the legal defect cannot be cured by impleading the sons as the heirs of the defendant No.1 as they were not joined as the parties initially, this would fatal to the suit. (7) The Inam Abolition Act came into force in 1958 and the entry has been based on the said law. (8) The ownership of the field has been conferred on him under the Inam Abolition Act and therefore the said field cannot be considered as an ancestral property. The Survey No.301 can not be considered as an ancestral property. The said fields are in occupation and possession of defendant no.1 since long time and the entries in the revenue records have never been challenged. (9) The plaintiff has waived his right to ask for his share in the property of the defendant No.1 and ultimately dismissed the suit. CONTENTION OF MR.MANKAD, L.A. FOR THE APPELLANT 14. Learned advocate for the appellant submitted that in this case the plaintiff No.1 is a son of Kanji Mavji. He submitted that plaintiff had therefore inherited the suit properties (which has been described in the earlier para 3 of the judgment which is extracted from the plaint) as ancestral property. Therefore plaintiff is entitled to obtain 1/3rd share in the suit properties. He has submitted that the question in the present appeal is about the ancestral properties and not joint family properties. He has submitted that the plaintiff has led oral evidence of himself at Exh.66 in support of the said contention. He has also submitted that the plaintiff had examined Kurji Devraj who happens to be a son of Devraj Hira Vasta who happens to be a family member who can depose about the ancestral properties. He has also stated that the plaintiff has also examined Kalyanbhai Ex.78 who happens to be a son of Govind Mavji. He also happens to be a close family members in support of his contention that the plaintiff is entitled to obtain ancestral properties. 14.A As regards documentary evidence, he has relied upon Exh.54 which pertains to Survey No.42 and regarding the land Survey No.301/1 and 301/2. He has also relied upon Exh.55 and 56 which shows that the land ad-measuring 27A 18 Gunthas were ancestral properties and for which a suitable entries have been made. Exh.57 is the record of right by which Kanji Mavji Gorasia is shown in possession through the old tenure. He has also relied upon Exh.58 which shows the entry was made in connection with Survey No.301. It was also stated that right from 1952-53 to 1961-62 necessary revenue assessment was assessed on the property and the Mamlatdar had passed necessary order for the year 1961-62. He has also relied upon Exh.59 which shows that Kanji Mavji was occupier of the lands Survey Nos.109/1, 113 and 301 (paiki). Similarly, he has also relied upon Exh.60 which also shows measurement of various survey numbers right from 1967 and there also the name of occupier of the said lands is shown as Kanji Mavji. He has also similarly relied upon Exhs.61, 62 and 63 which are record of rights which shows the relevant entries and various orders and there also the name of occupier is shown as Kanji Mavji. He has also relied on Exh.65 which refer to the purchase of suit "wadi" by ancestral Hira Vasta and others. He has also relied on Exhs.70 and 71 which also substantiate his case that the properties was of an ancestral properties. He submitted that the person who has a personal knowledge have been examined to show that the properties were of an ancestral properties and the persons examined were his uncle, cousins and other co-parceners who had personal knowledge about the same. He further submitted that the suit properties being ancestral properties and their ultimate devolution upon defendant No.1 was proved and title was traceable through documents. These ancient documents came from proper custody of uncles and cousins. They were the copies of certified copies duly signed by the authorities. CONTENTION OF MR.C.H.VORA, L.A. FOR THE RESPONDENTS 15. Mr. C.H. Vora, learned advocate for the respondents - defendants has pointed out pedigree of the family members of the parties. He has also referred to the plaint and documentary evidence produced by the plaintiff in this behalf. He submitted that the plaintiff has contended that the suit property is an ancestral property and by virtue of that, he become the owner and occupier of the property in question. He submitted that the plaintiff has not properly pleaded his case and no adequate proof has been given in support of his contention. There is variance between the pleadings and proof and if there is variance between the pleadings and proof, the case of the plaintiff may not be accepted. In support of his aforesaid contention, he has relied on the decision of this Court in the case of VASUDEV DHANJI VASU VS. BHAGILAL M.VAISHNAV reported in 1998 (1) G.L.H. 728. In that case at para 9 of the judgment this Court has relied on the decision of the Apex Court reported in AIR 1956 SC 593 and in para 9 & 10, the Court has observed as under : "para 9 - The well known exception to above rule is whether parties, notwithstanding pleadings goes on trial of an issue involving the facts and pleaded without demur and led evidence on it. Explaining the principle enumerated in Siddik Mahomed's case, Supreme Court observed in Nagarjibhai V. Sharma Rao AIR 1956 SC 593. "The true scope of the rule in that evidence led it on issues in which parties actually went to trial should not be made foundation for decision of another and different issue which was not present to the minds of the parties and on which, they had no opportunity of adducing evidence. But that rule has application to a case where parties to go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon and adduced evidence thereto." 16. The next contention of learned advocate for the respondents is that in this case the plaintiff has asserted about acquisition of joint family property and hence the plaintiff must prove the same by sufficient evidence but he has failed to do the same and the Court may not presume about the same. In support of this contention, he has relied on the decision of the Hon'ble Supreme Court in the case of Shrinivas Krishnarao Kango Vs. Narayanan Devji Kango and others reported in AIR 1954 SC 379 wherein the Apex Court has observed on page 382, as under : "The evidence is that Siddopant was a Tahsildar in the State of Hyderabad, and was in service for a period of 40 years before he retired on pension. Though there is no precise evidence as to what salary he was drawing, it could not have been negligible, and salary is the least of the income which Tahsildars generally make. The lower courts came to the conclusion that having regard to the smallness of the income from the ancestral lands and the magnitude of the acquisition made, the former could not be held to be the foundation for the later, and on the authority of the decision of the Privy Council in "Appalasswami - Vs. Suryanarayanamurti", AIR 1947 PC 189 at p.192 (C) - held that the initial burden which lay on the plaintiff of establishing that the properties of which a division was claimed were joint family properties had not been discharged. The law was thus stated in that case : "The Hindu Law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that the property held by any member of the family is joint, and the burden rests upon any one asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the parties alleging self acquisition to establish affirmatively that the property was acquired without the aid of the joint family property: See - "Babubhai Girdharlal V. Ujjamlal Hargovinddas", AIR 1937 Bom. 446 (D); "Venkataramayya V. Seshamma", AIR 1937 Mad 538 (E); Vythianatha V. Varadaraja, AIR 1938 Mad 841." 17. The learned advocate for the respondents has also relied on the decision of the Calcutta High Court in the case of Rajendra Nath Majhi V. Tustu Charan Das and another, reported in AIR 1979 CALCUTTA 105, wherein the Court has observed as under (para 5 - page 106) : "Reference may be made to the Bench decision of Mr. Justice Paul and Mr. Justice Akram in 46 Cal WN 239 at p. 243 (AIR 1942 Cal. 553 at p.555) to show that when there is a Hindu joint family the onus of proof is on the person to prove that a separate acquisition by an individual member of the family is really joint property, He is to prove that whether property was acquired there was sufficient nuleaus of the joint family fund with which the acquisition could have been made and also that such fund was actually available to the acquirer. This case was followed in the case in (1954) 58 Cal WN 980. Following the decision of the Judicial Committee in the case in AIR 1947 PC 189 at p. 192 it has been held stated by Mr. Justice Venkatarama Ayyar in AIR 1954 SC 379 at p.382 to show that proof of existence of a joint family does not lead to the presumption that the property held by any member of the family is joint family property and the onus is on the person who asserts that any item of the property is his joint property to prove the same. Where it is found that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which that property may have been acquired, the burden shifts to the party alleging that it was a self-acquired property. The important thing to be considered is the income which the nucleus yields. This principle was also followed in the case of Narayana Swami V. Ramkrishna in AIR 1965 SC 289 and also in the case of Mudi Gauda V. Ramchandra in AIR 1969 SC 1076. Let the aforesaid principles of law be applied to the facts of this case. 18. The learned advocate for the respondents next contended that the plaintiff has failed to prove that the suit property is joint family property. He has relied on the Mulla Hindu Law (17th Edition) Page 339 para 230., which reads as under : "230 - Separate property - Property acquired in any of the following ways is the separate property of the acquirer, it is called "self-acquired" property, and is subject to the incidents mentioned in para 222 above. (1) Obstructed heritage - Property