IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.585 OF 2007. APPEAL NO.585 OF 2007. APPEAL NO.585 OF 2007. Satgonda Bhimgonda Patil (since deceased) through his legal representatives: 1A) Balasaheb Satgonda Patil & Ors. ...Appellants Versus. Raigonda Ramgonda Patil (Enjagonda) and others. ...Respondents WITH WITH WITH SECOND SECOND SECOND APPEAL NO.605 OF 2007 APPEAL NO.605 OF 2007 APPEAL NO.605 OF 2007 Ramgonda Bhimgonda Patil (Enjagonda) and others. ...Appellants Versus. Raigonda Ramgonda Patil (Enjagonda) and others. ...Respondents --- Shri N.V.Walawalkar, Sr Counsel i/by Shri V.B.Rajure for the Appellants. Shri A.M.Kumbhakoni i/by Shri A.M.Kulkarni for the Respondent No.1 in both the Appeals. --- CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : 26th MARCH, 2008. : 26th MARCH, 2008. : 26th MARCH, 2008. P.C: P.C: P.C: 1. The submissions of the learned counsel appearing for the parties were heard yesterday. The appeals can be disposed of by a common judgment and order as the challenge in these two appeals is to the same impugned judgments and decrees. : 2 : 2 : 2 : 2. For the sake of convenience, the parties are hereinafter referred to with reference to their status in the trial Court. The first plaintiff is son of the first defendant and the second plaintiff is the wife of the first defendant. The second defendant is another son of the first respondent. The third defendant is the brother of the first defendant and fourth defendant is the son of the third defendant. The fifth defendant is the mother of the first defendant. A suit was filed by the plaintiffs for partition and separate possession of the properties mentioned in Appendix-A and Appendix-B to the plaint. The case made out by the plaintiffs is that after the demise of the first wife of the first defendant, he married to the second plaintiff. The second defendant is the son of the first defendant born to his first wife. It is the case of the plaintiffs that during the minority of the first plaintiff, the first defendant had driven the plaintiffs out of the matrimonial house and since then the plaintiffs have been residing alongwith brothers of the second plaintiff. 3. The case made out in the plaint is that in 1966 first to fifth defendants purported to partition the property in which a very small portion of the property : 3 : 3 : 3 : was allegedly allotted to the share of the first defendant. It is alleged that the said partition was inequitable and the only object of making the partition was to prevent the plaintiffs from obtaining their legitimate share in the suit properties. It is stated in the plaint that as Revenue Officers declined to accept the partition of the year 1966, a fresh Partition Deed was made in the year 1969 which was again an inequitable partition. It is alleged that in the partition of 1969 proper share was not allotted to the first defendant and all the joint family properties which could have been subjected to partition were not partitioned at the time of effecting the alleged partition. During the pendency of the suit, the fifth defendant expired and reliance was placed by the second to fourth defendant on a Will allegedly executed by the fifth defendant. By amending the plaint a challenge was incorporated to the said Will and a prayer was also made for distribution of the share of the fifth defendant. 4. The suit was contested by the first defendant and second defendant by filing written statement. The third to fifth defendants also filed their written statement. Reliance was placed on the partition of the year 1966 by contending that it was a legal partition. : 4 : 4 : 4 : It is contended that as said partition was not accepted by the Revenue Authorities on the ground that it was on insufficient stamp paper, a Deed of Partition was executed in the year 1969 which has been duly registered. It was contended that as the said partition was limited to the agricultural lands, in the year 1975 other properties were partitioned by the registered Deed. The defendants admitted that the first plaintiff was born in the year 1948. The defendants denied that the second plaintiff was ousted by the first defendant. It was contended that the properties mentioned in the Annexure-C to the plaint were never the joint family properties. Reliance was placed on a Will dated 15th November, 1985 executed by the deceased defendant No.5 who expired during the pendency of the suit. A contention was raised that the suit was not filed within the stipulated period of limitation. 5. The trial Court decreed the suit by holding that the plaintiffs were entitled to one half share each in the half portion of the suit properties mentioned in Schedules A, B and C. The trial Court held that the second and third defendants have failed to establish that there was a Will executed on 15th November, 1985 by the fifth defendant. The trial Court recorded a finding : 5 : 5 : 5 : that partitions of the year 1969 and 1975 were sham and bogus partitions. There were separate appeals preferred by the different defendants which have been decided by a common judgment by learned District Judge-1, Gadhinglaj. The appeals have been dismissed. Hence, these two Second Appeals have been preferred by the original 3rd to 5th defendant and original 1st and 2nd defendants respectively. 6. The learned senior counsel appearing for the appellants invited my attention to the fact that the only plea raised in the plaint was that the earlier partitions were inequitable and were made with a view to deprive the plaintiffs of their legitimate share. He pointed out that though there is no pleading in that behalf an additional issue was framed at the fag end of the trial by the learned trial Judge to the effect that whether the plaintiffs have proved that partitions effected in the year 1969 and 1975 were sham and bogus partitions. He submitted that apart from the fact that the said contention was not raised, prejudice has been caused to the defendants as they had no opportunity to lead evidence on the said aspect. The learned senior counsel further submitted that there is a clear finding recorded by the Appellate Court of the ouster of the : 6 : 6 : 6 : plaintiffs. He submitted that as the first plaintiff was born in 1948, he attained majority in 1966 and the suit was filed in the year 1984. He submitted that in view of Article 110 of the Limitation Act, 1963, even going by the findings recorded by the Appellate Court, the suit for partition was barred by limitation. He submitted that in any event there was no declaration claimed as regards the earlier partitions of the year 1969 and 1975 and therefore, there could not have been a decree for partition. He further submitted that the parties are governed by the Bombay School of Mitakshara and therefore, the first plaintiff-son could not have filed and maintained a suit for partition during the lifetime of his father. He submitted that in any event the second plaintiff could not have independently maintained a suit partition and therefore the suit itself was not maintainable. He submitted that the said contention goes to the root of the matter and therefore the same can be agitated in the Second Appeal. 7. The learned counsel appearing for the original plaintiffs supported the impugned judgments and decree by pointing out the findings recorded by the courts below. He invited my attention to a decision of the learned single Judge of this Court in the case of : 7 : 7 : 7 : Narayan Ramchandra Katkar and others Vs. Arjun Bhimrao Gore and others (1985 (2) Bombay Cases Reporter Page 247) and submitted that in view of law laid down by this Court, the first plaintiff could have maintained a suit for partition against his father. 8. The learned senior counsel appearing for the appellants invited my attention to a decision of the Apex Court in the case of Guramma Bhratar Chanbasappa Deshmukh Vs. Mallappa Chanbasappa (AIR 1964 Supreme Court Page 510). He submitted that the said decision of the Apex Court of a larger bench consisting of three Hon’ble Judges has not at all being considered by the learned single Judge in the case of Narayan Katkar and others (supra). He placed reliance on a decision of Division Bench of this Court in the case of Wasantrao Madhowrao Vs. Anandrao Ganpatrao etc (Vol.VI Bombay Law Reporter Page 925). Reliance was also placed on a decision of the learned single Judge of this Court in the case of Jivabhai Vadilal Vs. Vadilal Sakarchand & Co (Vol.VII Bombay Law Reporter Page 232). My attention was also invited to a decision of a Division Bench of this Court in the case of Tukaram Mahadu Tandel Vs. Ramchandra Mahadu Tandel and others (Vol.XLIX 1925 ILR 672). The submission of the learned senior counsel : 8 : 8 : 8 : appearing for the appellants is that the decision of the learned single Judge of this Court relied upon by the learned counsel for the original plaintiffs cannot be read as a binding precedent and the law which governs the Bombay School of Mitakshara is that a suit at the instance of a son against his father for partition is not maintainable when the father is not consenting for partition. 9. I have carefully considered the submissions. It will be necessary to refer to the decision of the learned single Judge in the case of Narayan Katkar and others (supra). The learned single Judge referred to a decision of Full Bench of this Court in the case of Apaji Narhar Kulkarni Vs. R.Ravji Kulkarni (ILR 16 Bombay 29) which lays down that during the lifetime of his father a son cannot maintain a suit for partition and separate possession when the father is not consenting for partition. The learned single Judge relied upon a decision of the Apex Court in the case of Puttrangamma Vs. Rangamma (AIR 1968 Supreme Court Page 1018) and held that in view of the decision of the Apex Court, the law laid down by the Full Bench in the case of Apaji Kulkarni (supra) cannot be considered as a good law. In paragraph No.3 the learned single Judge after : 9 : 9 : 9 : referring to the aforesaid decision of the Apex Court held thus: "In view of the above decision of the Supreme Court, the Full Bench judgment of this Court to the contrary can no longer be deemed as good law and binding on this Court A suit for partition and separate possession of ancestral joint family properties by one of the coparceners is maintainable even if their father is joint with his brother and is not willing and does not consent to such partition". 10. The criticism made by the learned senior counsel appearing for the appellants-defendants is that the Apex Court in the said decision in the case of Puttrangamma (supra) was dealing with the Mitakshara law applicable to a different school and the Apex Court has not dealt with the law as applicable to the Bombay School. As pointed out earlier, he has placed reliance on a decision of the Apex court in the case of Guramma Bhratar Chanbasappa Deshmukh (supra). He placed reliance on what has been held by the Apex Court in the concluding part of the judgment in paragraph No.21 : 10 : 10 : 10 : thereof. The relevant portion of paragraph No.21 reads thus: "...It is, therefore, manifest that in Bombay Presidency the rule accepted in Dattaka Chandrika has never been followed and the share of an adopted son in competition with a natural born son among sudras has always been 1/5th in the family property, i.e 1/4 of the natural born son’s share. Nothing has been placed before us to compel us to depart from the long established rule prevalent in the Bombay State. We, therefore, cannot accept the argument of Mr.Chatterji in this regard". 11. It must be stated that in the said decision in the case of Guramma the Apex Court was not at all considering the issue of maintainability of a suit filed by a coparcener for partition against his father when the father was not consenting. The issue before the Apex Court was completely different relating to an adoption. As pointed out earlier, the learned single Judge in the case of Narayan Ramchandra Katkar and others (supra) has held that the decision of the full bench of this Court in the case of Apaji Kulkarni : 11 : 11 : 11 : (supra) is no longer a good law and therefore reliance placed on decisions of a Division Bench of this Court will not help the appellants. It cannot be held that the decision of the learned single Judge in the case of Narayan Katkar (supra) is not a binding precedent. In so far as this Court is concerned, the said decision will have to be read as a binding precedent and therefore, there is no merit in the last contention of the learned senior counsel appearing for the appellants that the suit was not maintainable. 12. A grievance was made by the learned senior counsel appearing for the appellants that in paragraph No.23 of the judgment of the appellate Court a reference has been made to more than 50 documents which were exhibited on record by way of proof of earlier partitions and the learned Judge has not at all dealt with the contents of the said document. Therefore, it will be necessary to refer to the findings recorded by the learned District Judge in paragraph No.39 onwards. In paragraph No.39 the learned Judge has held thus: "....It is the contention of the learned counsel for the defendants that plaintiffs have admitted that partition had taken place : 12 : 12 : 12 : in the year 1966, thereafter in the year 1969 and thereafter in the year 1975 and there is also documentary evidence on the said aspect therefore, according to the learned counsel the suit is barred by limitation. But the trend and tenor of the contentions and grievance of the plaintiff if considered it would be seen that they have not admitted the said partition but they have come with specific grievance that only to defeat or deny their legitimate share the defendants did so but actually there was no separation and they continued to be joint. In this respect even the sequences of events substantiate the contentions of grievance of the plaintiffs. To illustrate the defendant’s claim that the partition of the year 1966 was genuine but only because it was not on stamp paper required for the same the said partition was not accepted. Such is not the case. If really this was the case then there was no reason for them to continue themselves till 1969 as members of the joint family. More over even in the said partition of the year 1969 there is no whisper of earlier partition. : 13 : 13 : 13 : It needs to be mentioned that it is their stand that in 1966, partition was effected and it was implemented but only because of legal flow it was not accepted at the time of mutation. It means at one side they claim that they got themselves separated vide partition of the year 1966, which is apparently not genuine and equitable and while effecting partition of 1969 they are totally silent as regards earlier partition or on the point of alleged lacuna that made them to come with subsequent partition. Further as has been pointed out, there is change in allotment of shares of property in the said partition and in the said document without reference of earlier partition it was shown that as they found themselves unable to pull on together, as members of joint family, they preferred to get them separated in respect of agricultural land. If this is to be accepted as gospel truth then again question arise as to why till 1975 they did not feel it necessary to have partition of residential houses and other properties. They have come with a case that they found themselves unable to remain united : 14 : 14 : 14 : in the year 1969 because of differences but surprisingly enough they want to suggest that despite of such differences which made them to have petition of agricultural lands they preferred to have joint residence till 1975. It is difficult to digest because if really there was such type of discord which found themselves to remain together the said discord would preferably start from the residence and not from the agricultural lands under their cultivation. Here again there is no whisper regarding partition of 1969 or 1966 and the trend and tenor is such till 1975 they were joint and were pulling on together without any grievance. In this back drop this court is of the opinion that the learned court of first instance did not commit any mistake in accepting the plaintiff’s case that these partitions are not partitions in real sense and evidence discussed by the learned Court of first instance which need not be reproduced certainly speaks of proper application of evidence on the said aspect...." These are the specific reasons recorded by the learned : 15 : 15 : 15 : District Judge for discarding the case of the defendants based on 1966, 1969 and 1975 partitions. Considering these reasons recorded by the learned Judge, it cannot be said that there is a perversity in the view taken by the learned District Judge only on the ground that contents of each and every document referred to in paragraph No.23 have not been specifically referred to. The learned first appellate Court has expressed a general agreement with the findings recorded by the trial Court. Hence, there is no merit in the said grievance. 13. It must be stated here that on 20th June, 1988 the learned trial Judge framed an additional issue which was deleted on 25th September, 1991 by consent of the parties and on the very day an additional issue was framed regarding the plea of the plaintiffs that the partitions of the year 1969 and 1975 were sham and bogus. Another additional issue was framed based on the alleged Will of the deceased defendant No.5 propounded by the defendants. The suit was decided on 09th January, 1992 and there was no effort made by the defendants either to challenge the framing of additional issues or to apply for deleting the additional issues. Therefore, the learned District Judge has rightly held : 16 : 16 : 16 : that no fault can be found with the framing of additional issues by the trial Court. 14. In my view, the learned District Judge was right in discarding the case made out by the defendants that partitions of the year 1969 and 1975 were legal and valid partitions. The reasons given by the learned Judge in paragraph No.39 for discarding the partitions of 1969 and 1975 are based on appreciation of oral and documentary evidence on record. There is no reason to interfere with the concurrent findings of fact on the said issue. When the plaintiffs had proved that the aforesaid partitions were bogus, it was not necessary to claim a relief of declaration as regards the said partitions. 15. As far as the contention raised regarding limitation is concerned, it must be noted here that the trial Court has not framed any issue on the said aspect. The Appellate Court in paragraph No.39 of the judgment has observed that the issue of limitation was never agitated before the trial Court. From the judgment of the trial Court it does appear that the plea of ouster which is a plea based on facts was not agitated before the trial Court. The learned senior counsel has relied : 17 : 17 : 17 : upon the observations made by the learned District Judge in paragraph No.39 of the judgment which note that there was an ouster of the plaintiff No.2 by the first defendant. The Appellate Court has noted the contention raised by the defendant No.1 that till 1968 or 1969 the plaintiffs were residing with him. It must be stated here that the issue of limitation in the present case is a mixed question of law and fact. Article 110 of the Limitation Act, 1963 states that the time of 12 years for filing a suit for partition starts when the ouster becomes known to the plaintiffs. In the present case, there is no factual foundation in the pleadings of the defendants for the contention that from a particular date the plaintiffs were ousted and their ouster became known to them on a particular date. Therefore, in absence of any pleadings in this behalf by the appellants, only on the basis observations made by the Appellate court regarding ouster in a totally different context, a plea of bar of limitation cannot be accepted. The observation made by the Appellate Court was in the context of allegations in the plaint that the first defendant drove away the plaintiffs from the matrimonial home of the second plaintiff. It is this contention which has been accepted by the Appellate Court on the basis of evidence. In absence of any pleading and : 18 : 18 : 18 : evidence adduced by the defendants that the plaintiffs were ousted on a particular date and the ouster was known to the plaintiffs, it cannot be held that the suit was barred by limitation. 16. In my view, no substantial question of law arises. There is no case made out to interfere with the concurrent decrees of the Courts below. Second Appeals are dismissed with no orders as to costs. On the prayer made by the advocate for the appellants for a period of 16 weeks from today, actual physical partition by metes and bounds shall not be effected. Judge. Judge. Judge.