GITABAI MARUTI RAUT (DEAD) THROUGH LR. & ORS. versus PANDURANG MARUTI RAUT (DEAD) THROUGH LRS. & ORS.
[2022] 6 S.C.R. 1068, Supreme Court of India, 2022
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
A
B
C
D
E
F
G
H
1068
SUPREME COURT REPORTS
[2022] 6 S.C.R.
GITABAI MARUTI RAUT (DEAD)
THROUGH LR. & ORS.
v.
PANDURANG MARUTI RAUT (DEAD)
THROUGH LRS. & ORS.
(Civil Appeal No. 7702 of 2013)
AUGUST 11, 2022
[HEMANT GUPTA AND VIKRAM NATH, JJ.]
Suit – For partition – Joint Family ancestral property – A suit
for partition in the Joint Family Property was filed by plaintiff for
the properties situated in two villages-1 and 2 – ‘B’ was the common
ancestor and left behind four sons, ‘N’, ‘R’, ‘M’ and ‘S’ – ‘M’ is
predecessor of the parties in dispute and his share in ancestral
property is in dispute – ‘M’ married twice – First wife died in the
year 1948 leaving behind defendant no.1,2,3,4 – Second wife and
the original plaintiff, died during the course of proceeding leaving
behind her legal representatives (two sons and three daughters),
who are prosecuting the present case – In respect of property at
village-1, the High Court affirmed the finding that defendant no.1
had purchased the said property after death of ‘M’ – In respect of
property at village-2, the High Court held that in absence of any
evidence that the property in the hand of ‘R’ was ancestral property,
the plaintiff did not have share in the said property – Held: No
pleadings were raised regarding the property at village-1 that it is
being purchased from the income of the joint family property,
therefore is not joint ancestral property – All three Courts have
concurrently held that the property at village-1 was not
ancestral
property – With respect to Property at village-2 the evidence on
record including written memorandum of settlement (Ex.111) and
the mutation of the same (Ex.104) together with the evidence of
PW1 and PW2 suggest that the said property is Joint family property
– No evidence that ‘R’ was the sole owner or that he acquired the
disputed property from his income – There is no evidence to suggest
that the disputed property was gifted to defendant no.1 by ‘R’ –
Therefore, the plaintiff and defendants have equal share in the
property at village-2.
[2022] 6 S.C.R. 1068
1068
A
B
C
D
E
F
G
H
1069
Allowing the appeal, the Court
HELD:1. In respect of a property at village-1, the High
Court affirmed the finding that defendant No. 1, purchased the
property at village-1 vide sale deed dated 25.2.1969 after the
death of ‘M’. It was also held that the appellant neither pleaded
nor proved that there is sufficient nucleus of the income from the
joint family from which the property at village-1 could be
purchased. This Court does not find any pleadings regarding the
property at village-1 as purchased from the income of the joint
family property. All three Courts have concurrently held that the
property at village-1 is not a joint ancestral property. This Court
found no reason to interfere with the findings relating to the
property situate in Village-1. [Para 4][1071-E-G]
2. The High Court has misread the most important evidence
led by the appellants i.e., one of the brothers, ‘S’(PW-2), who had
deposed that the land at village-2 was ancestral land. The Mutation
No. 1274 itself shows that the land was partitioned amongst the
brothers. It was not a gift by ‘R’ in favor of defendant no.1, as
found by the High Court. The name of defendant no.1 in respect
of share of ‘M’ came after the death of ‘M’ in the year 1966 being
the eldest male member as Karta of the joint family of ‘M’.
Defendant no.1 held the property as Karta of the joint family
property fallen to the share of ‘M’ in terms of the settlement
arrived on 23.12.1961 (Ex.111). The settlement (Ex.111) is
with
‘M’ and not defendant no.1 as he was alive on that day.  Since,
when the revenue entry was being recorded in 1970, after ‘M’
had died,  defendant no.1 represented the estate of ‘M’ as Karta.
In view of the said fact, the findings recorded by the High Court
are not tenable. [Para 12][1074-A-C]
3. Since the evidence on record including written
memorandum of settlement dated 23.12.1961 (Ex.111) and the
mutation (Ex.104) show that village-2 was a joint family property,
therefore, the expression ‘partition’ has been used. There is no
evidence that the property at Village-2 was gifted to defendant
no.1 by ‘R’, the eldest son of ‘B’. There is no evidence that ‘R’
was the sole owner or that he acquired the property from his
GITABAI MARUTI RAUT (DEAD) THROUGH v. PANDURANG
MARUTI RAUT (DEAD) THROUGH
A
B
C
D
E
F
G
H
1070
SUPREME COURT REPORTS
[2022] 6 S.C.R.
income. The categorical statement of PW-1, the plaintiff is that
her father-in-law was the owner of the property at village-2. Even
PW-2 has also deposed to the same effect. He was examined as
the surviving son of ‘B’. In the absence of any evidence that ‘R’
had the capacity to purchase the property as the documentary
evidence in respect of partition of the property situated at Village-
2, the findings recorded by the High Court cannot be sustained.
The plaintiff and defendants including daughters of ‘M’ have equal
share in the village-2 property. [Paras 14 and 15][1075-A-B]
Vineeta Sharma v. Rakesh Sharma & Ors. (2020) 9 SCC
1 : [2020] 10  SCR 135; Mallappa Girimallappa Betgeri
& Ors. v. R. Yellappagouda Patil & Ors. AIR 1959 SC
906; Surendra Kumar v. Phoolchand (D) through LRs.
& Anr. (1996) 2 SCC 491 : [1996] 2 SCR 15;
Appasaheb Peerappa Chamdgade v. Devendra
Peerappa Chamdgade & Ors. (2007) 1 SCC 521 : 2006
(11) SCALE 184 – referred to.
Case Law Reference
[1996] 2 SCR 15
referred to                       Para 8
[2020] 10 SCR 135
referred to                       Para 15
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7702
of 2013.
From the Judgment and Order dated 01.10.2008 of the High Court
of Judicature at Bombay in Second Appeal No.167 of 2007.
Sudhanshu S. Choudhari, B. G. Parab, R. A. Sonawane, Mahesh
P. Shinde, Ms. Rucha A. Pande, Dilip Annasaheb Taur, Narayan
Babanrao Dhokale, Advs. for the Appellants.
P.
S. Patwalia, Pallav Sisodia, Siddharth Bhatnagar, Sr. Advs.,
Nirnimesh Dube, Ms. Ritika Khanna, Arvind S. Avhad, Krishankant
Todkar, Bhausahed Gadade, Ms. Pracheta Kar, Aditya Sidhra, Nadeem
Afroz, Sonal Anand, Anant Agarwal, Samarth Agarwal, Ms. Sweta Rani,
Advs. for the Respondents.
A
B
C
D
E
F
G
H
1071
The Judgment of the Court was delivered by
HEMANT GUPTA, J.
1. The plaintiff filed the present appeal against the judgment dated
01.10.2008 passed by the High Court of Judicature at Bombay dismissing
the second appeal filed by her. However, the plaintiff died on 18.12.2014
during the pendency of the appeal. Now, the legal representatives of the
deceased are prosecuting the present appeal.
2. The question for consideration herein is whether the properties
at villages Pirangut and Nande are joint family ancestral properties in
the hands of Maruti, the deceased son of Balaji, predecessor of the
parties in appeal. The admitted family tree shows that Balaji was the
common ancestor. He left behind his four sons, Narayan, Raghunath,
Maruti and Sopan. Maruti died on 13.7.1966. He married twice, both his
wives had a similar name, Geetabai. The first wife, Geetabai, died in the
year 1948 leaving behind the defendant Nos. 1, 2, 3 and 4, namely,
Pandurang, Krishnakant, Ramchandra and Muktabai. Geetabai, his second
wife and the original plaintiff, filed a suit for partition. She died during
the pendency of the proceedings leaving behind two sons and three
daughters, namely, Chandrakant, Ramesh, Uma, Shailaja and Sumitra.
3. There is no dispute in respect of the property situated at Lavale,
which has been held to be a joint family property wherein a finding has
been returned that the plaintiff would have a share in the estate.
4. In respect of a property at Nande, the
High Court affirmed the
finding that Pandurang/defendant No. 1, purchased the property at village
Nande vide sale deed dated 25.2.1969 after the death of Maruti. It was
also held that the appellant neither pleaded nor proved that there is
sufficient nucleus of the income from the joint family from which the
property at village Nande could be purchased. In the absence of any
proof, the claim of appellant for such property situated at Village Nande
was negated. 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.
5. Hence, the only question which survives for consideration is
whether the property situated at village Pirangut is an ancestral property,
in which the appellants had share.
GITABAI MARUTI RAUT (DEAD) THROUGH v. PANDURANG
MARUTI RAUT (DEAD) THROUGH
A
B
C
D
E
F
G
H
1072
SUPREME COURT REPORTS
[2022] 6 S.C.R.
6. The plaintiff has pleaded that land at Pirangut was purchased
by Hindu Undivided Family (HUF). The plaintiff and deceased Maruti
looked after and brought up defendant Nos. 1 to 4. The plaintiff along
with all defendants were living jointly and after the death of Maruti, the
joint family continued even thereafter, as the Defendant No. 1 assumed
the position of Karta of Maruti’s family. It is pleaded that there was a
partition of the properties during Maruti’s life time. The memo was
reduced in writing and signed by all the four sons of Balaji in the year
1961, but the mutation on the basis of family settlement was sought in
the year 1970, only after the death of Maruti.
7. In respect of the property at Pirangut, the High Court returned
the following findings:
“9. This takes me to consider the claim of the Appellant in the
property at Pirangut. The property at Pirangut was admittedly
purchased by Raghunath, uncle of Defendant no. 1 from one
Kanhu Dhondu Kudale on 19th August 1947. According to the
appellant by Mutation entry 1274 this property was partitioned,
and the land at Pirangut was given to Defendant no. 1. If that be
so the Appellant obviously has share in it.  Per contra it is the case
of the defendant no. 1 that this property was purchased by
Raghunath in 1947, which was latter on gifted in favour of
Defendant no. 1. In order to claim share in the property at Pirangut
it was for the appellant/plaintiff to
plead and prove that property
at Pirangut was ancestral property. Then and then only appellant/
Plaintiff would have share in it. In the absence of any evidence
that the property in the hand of Raghunath was ancestral property,
in my considered view, the appellant/plaintiff could not have relied
upon the Mutation entry no. 1274 to claim share in the suit
property.”
8. Mr. Sudhanshu S. Choudhari, learned counsel for the appellants
referred to judgments reported as Mallappa Girimallappa Betgeri &
Ors. v. R. Yellappagouda Patil & Ors.1, Surendra Kumar v.
Phoolchand (D) through LRs. & Anr.2 and Appasaheb Peerappa
Chamdgade v. Devendra Peerappa Chamdgade & Ors.3 to contend
that the property purchased by Raghunath was the property from the
1 AIR 1959 SC 906
2 (1996) 2 SCC 491
3 (2007) 1 SCC 521
A
B
C
D
E
F
G
H
1073
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 cross-
examination,
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.
GITABAI MARUTI RAUT (DEAD) THROUGH v. PANDURANG
MARUTI RAUT (DEAD) THROUGH [HEMANT GUPTA, J.]
A
B
C
D
E
F
G
H
1074
SUPREME COURT REPORTS
[2022] 6 S.C.R.
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
A
B
C
D
E
F
G
H
1075
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.4. Thus, Geetabai, the plaintiff, Pandurang, Krishnakant,
Ramchandra, Muktabai, defendant Nos. 1 to 4, and Chandrakant, Ramesh,
Uma, Shailaja and Sumitra, defendant Nos. 5 to 9 would have 1/10th
share each. The share of Geetabai would devolve according to law of
succession applicable. The purchaser shall be entitled to such interest in
the property as its vendor had in terms of the above decree.
16. The preliminary decree is ordered to be granted in the said
terms. The parties are directed to seek final decree from the competent
Court in accordance with law.
17. The appeal thus stands allowed in the above terms.
Ankit Gyan
Appeal allowed.
(Assisted by : Aarsh Choudhary, LCRA)
4 (2020) 9 SCC 1
GITABAI MARUTI RAUT (DEAD) THROUGH v. PANDURANG
MARUTI RAUT (DEAD) THROUGH [HEMANT GUPTA, J.]