1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.598 OF 2009 Shri Chandrakant B. Motkari & Others ..Appellants versus Shri Gotiram L. Motkari & Others ..Respondents Mr.G.S.Godble with Mr.Nitin Mule for the appellants. None for respondents. CORAM : R.Y.GANOO, J. DATE : 8TH JUNE, 2009. P.C: 1. The appellants instituted Special Civil Suit No. 148 of 2003 in the Court of learned Civil Judge, Senior Division, Nashik (hereinafter referred to as the learned trial Judge) for partition in respect of two pieces of land more particularly set out in the plaint. 2. The learned trial Judge after considering the record, dismissed the suit by Judgment and decree 2 dated 4.2.2009, against which this First Appeal is filed. 3. I have extensively heard learned Advocate Mr. Godbole on behalf of the appellants. The learned trial Judge has recorded finding that the suit lands are not ancestral and Hindu Joint Family properties of the appellants and the respondents and that is how the suit has been dismissed. In so far as the record is concerned, it is seen that in the year 1944, the owner of the suit lands by name Mr. Phadke executed Kabuliyat in the nature of tenancy agreement for the period of five years from the period 16.5.1944 in the names of Mr.Nivrutti and two others, and it is pertinent to note that Laxman, forefather of the present appellants had acted as witness for that. The document at Exhibit 80 was in the name of Nivrutti and two others in their personal capacity and it could not be pointed out even before this Court that the said document was executed in favour of 3 Nivrutti showing him as Karta of Joint Family consisting of Nivrutti and Laxman and others. After 1944, in the year 1956 the owner Mr. Phadke purported to execute Agreement of Sale in favour of 6 persons in three groups, each group consisting of two persons and Laxman and Nivrutti were clubbed together so far as one group is concerned. However, said agreement of sale did not culminate in regular sale deed and therefore ownership could not be passed on to Nivrutti and Laxman. Before completion of the sale deeds the Bombay Tenancy & Agricultural land Act, 1948 (hereinafter referred to as the said Act) came into force and on the basis of the Kabuliyat Nivrutti and others were treated as persons entitled to the benefit of the provisions of the said Act and the final documentation was made in favour of Nivrutti and Others. It is required to be noted that during the pendency of proceeding under Section 32G, neither Laxman nor his heirs appeared before the concerned authorities and 4 contended that the tenancy in favour of Nivrutti was not in his personal capacity, but in his capacity as Karta for the benefit of all, namely Laxman and or his heirs. With this, 32M Certificate came to be issued in favour of Nivrutti and others and that is how Nivrutti and others started claiming themselves to be owners of the suit properties. With this development, the learned trial Judge has appreciated the document, namely 32M Certificate and arrived at conclusion that there was no joint family between Nivrutti and Laxman and others that is how recorded finding so far as issue No.1 against the present appellants. 4. I have extensively heard learned Advocate Mr. Godbole in support of the first appeal. Learned Advocate Mr. Godbole contended that once the question before the trial Judge was as to who is the ultimate beneficiary in respect of the property in question and whether 32M Certificate 5 standing in favour of Nivrutti was in his capacity as Manager of HUF or in his personal capacity, the learned Trial Judge could not have gone into that aspect of the matter. A reference could have been made to appropriate Revenue Authorities to determine the said question. Learned Advocate Mr. Godbole submitted that the exercise carried out by the learned trial Judge in referring the document namely 32M Certificate and arrive at the conclusion that the said 32M Certificate was in favour of Nivrutti in his personal capacity was wrong and that according to learned Advocate Mr. Godbole, that was not in consonance with the well established view of the Supreme Court decided in Mudakappa v/s.Rudrappa and others reported in (1994) 2 SCC 57. 5. Learned Advocate Mr.Godbole contended that it ought to have been held by the learned trial Judge that the suit properties were for the benefit of the HUF including Laxman and his heirs after his 6 death and that merely because 32M Certificate stood in the name of Nivrutti simplicitor would not go to mean that it was in his personal capacity. 6. Learned Advocate Mr. Godbole contended that the very fact that the owner of the suit properties Mr Phadke had executed agreement to sale in favour of in all six persons with two persons in one group to the extent of 1/3 rd would clearly go to show that the suit lands were for the benefit of all persons including Laxman and others. According to him learned trial Judge erred in ignoring the fact of agreement of sale in favour of those six persons including Laxman. According to him, the fact that the agreement to sale was executed in favour of six persons along with Laxman, was in favour of appellants. He submitted that the learned Judge has erred in deciding the matter. After having considered the entire record, I am not inclined to accept the points raised by 7 learned Advocate Mr.Godbole. The point raised by learned Advocate Mr.Godbole whereby he relied upon the judgment in the case of Mukadappa could not be disputed. In the present case it is clear that in the year 1944, the owner of the land executed tenancy agreement in favour of Nivrutti and two others and the names of others were not included in the said agreement. Even otherwise the said agreement was not in favour of Nivrutti in his capacity as Manager of HUF. If said Tenancy Agreement was to be in favour of Nivrutti in his capacity as Manager of HUF, then surely there could have been some reference to say that the said agreement was in favour of Nivrutti in his capacity as Karta of HUF. In the absence of such reference in the Kabuliayat, it is to be treated that the said Kabuliyat was in favour of Nivrutti and two others in their personal capacity. 7. It is seen that after coming into force of the Bombay Tenancy and Agricultural Land Act, the 8 Tenancy Authorities conducted the proceeding under Section 32G and issued Certificate under Section 32M in favour of Nivrutti and others in their personal capacity. The learned trial Judge has perused the said 32M Certificate and has read the said Certificate and he came to the conclusion that the said Certificate does not show Nivrutti as Manager of the HUF and the land stood in his name in his personal capacity. In my view, this exercise carried out by the learned trial Judge was by reading document 32M Certificate and he has not decided whether the tenancy was in favour of HUF or individual capacity. When Nivrutti s heirs produced the 32M Certificate in support of their case that the said Certificate stood in the name of Nivrutti in his personal capacity, there was nothing wrong in considering the document and arriving at the conclusion. In my view, the learned trial Judge has not violated the observations of the Supreme Court in the case of Mudakappa. Thus the finding recorded by the 9 learned trial Judge that the suit properties were in favour of Nivrutti and others in their personal capacity will have to be confirmed. 8. It is true that the owner Phadke executed agreement in favour of six persons, however, those agreement to sale were never confirmed by appropriate sale deeds. The learned trial Judge has given no importance to this development. That could not be faulted. On record, apart from these two important circumstances, nothing else could be shown so as to say that prior to 1944 i.e. before execution of Kabuliyat the parties treated themselves as the members of joint family so as to say that the properties were enjoyed by all the members of the family showing one person, namely Mr.Nivrutti as Karta of the Hindu Undivided Family. Nothing is placed on record to show as to why the final conveyances were not executed in favour of the three groups. 10 9. In my view, the learned trial Judge has given correct finding with reference to issue No.1 and once that issue is found to be correctly decided, the final judgment arrived at by the learned trial Judge cannot be interfered with and the same will have to be confirmed. Hence I pass the following Order. ORDER 1. First appeal is dismissed with no Order as to costs. 2. In view of the dismissal of the first appeal, Civil Application No.1840 of 2009 does not survive and the same is dismissed with no Order as to costs. (R.Y.Ganoo, J.)