Case: GITABAI MARUTI RAUT (DEAD) THROUGH LR. &amp; ORS Vs. PANDURANG MARUTI RAUT (DEAD) THROUGH LRS. &amp; ORS

Ors. v. R. Yellappagouda Patil & Ors. AIR 1959 SC 906 , Surendra Kumar v. Phoolchand (D) through LRs. & Anr. (1996) 2 SCC 491 and Appasaheb Peerappa Chamdgade v. Devendra Peerappa Chamdgade & Ors. (2007) 1 SCC 521 to 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 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 property. 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. (2020) 9 SCC 1 .

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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.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 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 property.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. (2020) 9 SCC 1 .