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.
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 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 Village2, 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.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.