Allowed

Vijaykumar Alias Bhausaheb Bapurao Karpe and Ors. v. Putalabai Ramdas Karande

Bombay HC4 Dec 2021SA/699/2003

Case brief

AI extract

What is this about?

This second appeal consolidated with another challenged a decree granting the plaintiff a one-fourth share in suit property. The High Court held that a prior compromise gave exclusive ownership to the deceased's adopted son under Section 14 of the Hindu Succession Act, barring the plaintiff's claim and finding the suit time-barred.

What did the court decide?

Second Appeal No.699 of 2003 allowed; impugned judgment and decree set aside; suit decree confirmed; Second Appeal No.170 of 2006 dismissed.

Vijaykumar Alias Bhausaheb Bapurao Karpe and Ors. Vs Putalabai… — Partition | Bombay HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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SECOND APPEAL NO.699 OF 2003

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WITH

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CIVIL APPLICATION NO.3494 OF 2008

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WITH

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SECOND APPEAL NO.170 OF 2006

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VIJAYKUMAR ALIAS BHAUSAHEB BAPURAO KARPE AND OTHERS

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VERSUS

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PUTALABAI RAMDAS KARANDE

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Mr. A.B. Kale, Advocate for appellants

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Mr. V.D. Sapkal, Senior Advocate i/b Mr. S.R. Sapkal, Advocate for the sole

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respondent

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CORAM : SMT. VIBHA KANKANWADI, J. RESERVED ON : 14^th OCTOBER, 2021 PRONOUNCED ON : 04^th DECEMBER, 2021

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ORDER :

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1 Second Appeal No.699 of 2003 has been filed by the original

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defendants challenging the Judgment and Decree passed in Regular Civil Appeal No.11/1995 by 2^nd Additional District Judge, Beed, thereby the appeal

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was partly allowed by setting aside the Judgment and Decree passed by the

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Trial Court. The appeal filed by the present respondent was partly allowed

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and it was held that she is entitled to get ¼^th share in the suit property. Second Appeal No.170/2006 has been filed by original plaintiff to challenge the said Judgment and Decree passed by the First Appellate Court contending that, in fact, she has 1/3^rd share but the First Appellate Court has wrongly given her 1/4^th share. Since both the appeals are arising out of same Judgment and Decree they are taken up together. The parties are addressed as per their nomenclature before the Trial Court.

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2 Original plaintiff had filed Regular Civil Suit No.197/1993 for partition and separate possession. It was contended that the suit property bearing Gat No.27 admeasuring 05 H 31 R situated at village Takalgavan, Tq. Georai, Dist. Beed was originally owned by one Narsu Patil. Narsu died about 58 years prior to the suit. He had son by name Bapurao, daughters by name Reshmabai (original defendant No.2) and Putalabai (plaintiff). Bapurao pre-deceased Narsu. Prayagbai was the widow of Bapurao and after death of Narsu she was cultivating the suit land. She had filed Regular Civil Suit No.199/1970 against the defendant No.2 and plaintiff. It was compromised. The plaintiff Prayagbai in this case contended that in the said compromise it was agreed that the suit property would be kept with Prayagbai towards her maintenance and after her death it would be divided as per its shares. Prayagbai expired and plaintiff asked for partition, which

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was then refused and, therefore, suit for partition was filed.

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3 Defendants had filed their written statement at Exh.17. They admitted the relationship, however, it was denied that plaintiff has 1/3^rd share in the same. It was then contended that the suit property as well as some other properties were of the ownership of Prayagabai. Prayagabai had given certain properties to the plaintiff and then the plaintiff had relinquished her share. Such decree was passed in Regular Civil Suit No.199/1970. The suit property came to the share of Prayagbai and she was the exclusive owner and after her death it has devolved on her adopted son defendant No.1. There was no stipulation in the compromise decree that the suit property was given for maintenance only to Prayagabai. It was then contended that the plaintiff had no share in the property and the suit was also not within limitation.

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4 The learned Trial Judge after scanning the evidence had come to the conclusion that plaintiff has not proved that the suit land was given for maintenance to Prayagbai in the compromise that had taken place in Regular Civil Suit No.199/1970. It was further held that defendant had proved that the suit land went to the share of deceased Prayagbai. Plaintiff is not entitled to partition and separate possession and, therefore, the suit was dismissed.

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5 In the appeal, that was filed by the original plaintiff before the 2^nd Additional Sessions Judge, it was held that the plaintiff has 1/4^th share in the suit property and, therefore, both the parties, as aforesaid, have filed these two separate Second Appeals.

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6 It has been vehemently submitted on behalf of the original defendants that the learned First Appellate Court has not appreciated the evidence properly. The entire controversy revolved around term No.5 of the compromise decree, of which certified copy was produced at Exh.39. If the said term is considered, it was crystal clear that Gat No.27, which was the suit property in that suit as well as this suit, remained with Prayagbai. Learned Trial Judge had properly considered the provisions of Section 14 of the Hindu Succession Act and, therefore, the suit property had become exclusive property of Prayagbai. Defendant No.1 is her adopted son and, therefore, the property will go to him and not to sister-in-law of Prayagbai. The decree that has been passed by First Appellate Court deserves to be set aside and the decree passed by the Trial Court deserves to be confirmed.

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7 Learned Senior Counsel Mr. V.D. Sapkal instructed by learned Advocate Mr. S.R. Sapkal for original plaintiff supported the reasons given by the First Appellate Court to the extent that by the said compromise terms it

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was decided that the property would be kept with Prayagbai till her lifetime for her maintenance and thereafter it would be divided amongst the heirs. He has taken into consideration the mutation entries also and, therefore, in terms of term No.5 of the compromise decree the property was required to be divided. The compromise decree, which has been produced before the Trial Court at Exh.23, should be considered along with Exh.39. In Exh.23, which was in fact Exh.17 in Regular Civil Suit No.199/1970, term No.3 would show that the information in paragraph Nos.3, 4 and 5 of the suit was admitted to all the persons. The suit was within limitation; yet the Trial Court erred and, therefore, the appeal was filed. In fact, taking into consideration the fact that the property was left by Narsu, now, it has to be divided into three parts and thereby the plaintiff would receive 1/3^rd share. He, therefore, prayed for allowing the Second Appeal No.170 of 2006 and dismissal of Second Appeal No.699 of 2003. It will not be out of place to mention here that by order dated 23.02.2007 this Court admitted the Second Appeal No.699 of 2003 by framing following substantial questions of law.

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Whether in the facts and circumstances of the present case, the First Appellate Court misconstrued the purport of the compromise purshis rendered in the suit bearing R.C.S. No.190/1970 and hence the findings that the property was given to deceased Prayagbai towards her maintenance is

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perverse ?

Whether in the facts and circumstances of the present case, even assuming that the property in question was given to deceased Prayagbai towards her maintenance as a life estate, her rights were transformed into that of ownership in view of Section 14(1) of the Hindu Succession Act and as such plaintiff Putalabai could not have claimed any share therein ?

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Thereafter, in Second Appeal No.170 of 2006 a separate order was passed on 11.04.2007 admitting the said Second Appeal also, for same questions also, as enumerated in Second Appeal No.699 of 2003 and thereby both the appeals were tagged. Now, it is required to be seen, as to whether the interpretation of the compromise terms in compromise decree passed in earlier suit has been properly made by the Courts below. It is not in dispute that compromise had taken place. The question is only of interpretation and, therefore, it would be necessary to reproduce relevant part from the said compromise decree which is produced at Exh.39. Exh.23 is only the application to record the said compromise. In considering the compromise decree in Regular Civil Suit No.199/1970 relevant paragraphs from Exh.39 would be -

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“3½ ujlw ikVhy vankts 35 o’kkZiwohZ okjys vkf.k R;kpk eqyxk ckiqjko R;kps

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eR;wvxksnj okjyk- ujlw ikVhy ;kps eR;wiklwu oknh iz;kxckbZ e;r ujlw ikVhy ;kps feGdrhoj] Eg.kts oknxzLr feGdrhoj o brj feGdrhoj dkcht jkfgyh- ckjk o’kkZis{kk vf/kd dkGkiklwu dkcht jkfgyh- fganw lDls”ku vWDV] 1956 izek.ks oknh e;r ujlw ikVhy ;kps oknxzLr feGdr o brj feGdrhph fganw lDls”ku vWDV dye 14 izek.ks ,deso ekyd >kyh-

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5½ izfroknh iqrGkckbZ fgus oknhdMwu [kkyhy tehuh [kkyhy vVhoj [kjsnh dsY;k-

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losZ ua-	{ks=	vkdkj	ekStk
8	,- 7 & 32 xqaBs	:-12-53	VkdGxOgk.k] rjQ xsojkbZ
losZ u-9 e/khy	fofgjhr 1@2 fgLlk-
38	4 & 19	7 & 58	gs ,- 4 & 19 xqaBs if”pe
tqU;k fofgjhr	1@2 fgLlk-
18	5 & 20	3 & 13	ek.kdkiwj] rk- xsojkbZ]
			laiw.kZ losZ ua- 1@4 fgLlk

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iqrGkckbZ fgl e;r ujlw ikVhy ;kps feGdrhr gDd jkg.kkj ukgh- losZ ua-27@v VkdGxOgk.k O;frfjDr oknhph okjl ;k ukR;kus iqrGkckbZl gDd jkg.kkj ukghizfroknh iqrGkckbZ fgus ojhy vVh dcwy d:u lnjph tehu [kjsnh dsyh

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8 Therefore, it can be seen that even in the said compromise Prayagbai was certain to state that even after death of Narsu she was possessing all the properties for more than 12 years and, therefore, she has become the exclusive owner, but then she stated that she has sold two lands to defendant Subhadrabai on certain conditions. One of the conditions was that Subhadrabai will not ask for share in the estate left by Narsu Patil. In

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respect of present plaintiff Putalabai also the same condition was put and three lands were sold to her by Prayagabai. Now, the plaintiff cannot go back and say that those conditions were not acceptable to her. The statements from para No.5 of the compromise decree Exh.39, those could be harped upon, are the underlined part. It tries to state that Sy.No.27/A situated at Takalgavhan is given to Prayagabai. Plaintiff has not come with a case that she is asking partition as heir of Prayagbai. Therefore, the sentence that has been used that, lOgsZ ua-27@v VkdGxOgk.k O;frfjDr oknhph okjl ;k ukR;kus iqrGkckbZl gDd jkg.kkj ukgh- (Putalabai will not have right as heir of plaintiff except in Sy.No.27/A Takalgavhan). On the contrary, the plaintiff has come with a case that the suit property was given to Prayagbai towards her maintenance and was supposed to revert back to the family and then she was claiming it as heir of Narsu. Important point to be noted is that even after term 5, in term No.6 it has been stated that the plaintiff, that means Prayagabai, is the exclusive owner as per Hindu Succession Act. However, since defendants are challenging her ownership rights and disturbed her possession on 30.06.1970, the suit was filed. Therefore, from the compromise decree it cannot be stated that there was any such term disclosing that the suit property was given to Prayagbai towards maintenance.

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9 Exh.23, as aforesaid, states that the suit has been compromised

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on the terms as stated therein and in para No.3 it has been stated that the statements in para Nos.3, 4 and 5 are admitted to all the parties. Para Nos.3 and 5 are reproduced above. So, even if we read Exh.23 together with Exh.39, it does not state that the suit property was given to Prayagabai towards maintenance. Anyway, plaintiff could not be stated to be the heir of Prayagbai when Prayagbai had adopted defendant No.1. The date of adoption has not come on record, and further it appears that the said adoption was never challenged by anybody. Under such circumstance, sisterin-law cannot succeed to the property in preference to son and therefore, the learned Trial Judge had correctly held that defendant had proved that the suit land had come to the share of deceased Prayagbai. Plaintiff had no share in the suit property and, therefore, she was not entitled to claim partition and separate possession. The First Appellate Court has wrongly interpreted the terms and failed to consider that by any stretch of imagination plaintiff could not have been the heir of Prayagbai, in preference to or in addition to the son. Another fact which can be said that when there was documentary evidence in the form of Exh.23 compromise pursis and compromise decree Exh.39, the First Appellate Court allowed the oral evidence to prevail over the documentary evidence, which is not a proper legal position. In fact, the documentary evidence will prevail over oral.

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10 It is further to be seen that even for the sake of argument we accept that the property in question was given to Prayagbai towards her maintenance as a life estate; yet, definitely, in view of Section 14(1) of the Hindu Succession Act it would have become her exclusive property. While drafting the compromise, in fact, Prayagbai and her Advocate were well aware about the legal position and she, in fact, was claiming exclusive ownership over all the properties, those were left by Narsu. Then, whether she could have had any such intention to limit her rights, would be a question and the answer would be - ‘No’. In his cross-examination the husband of the present plaintiff has accepted that in the compromise decree there are no specific statements that parties had agreed that after death of Prayagbai the property would be partitioned. This aspect proves that after the said compromise has taken place Prayagbai was enjoying the property as exclusive owner thereof.

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11 First Appellate Court failed to consider the point, as to whether the suit was within limitation. No point to that effect is framed. When, in fact, the learned Trial Judge after framing a specific issue to that effect held that the suit was time barred, this was on the basis of the admission given by the husband of the plaintiff, whose oral evidence has been relied by the First Appellate Court. He has stated that Prayagbai expired about 13-14 years ago.

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It is to be noted that his testimony was recorded on 26.10.1994 when that statement was made by him and only a year ago i.e. on 11.06.1993 the suit was filed. That means, it was beyond the period of 12 years. Even if we accept for the sake of argument that by said compromise some right was given to plaintiff to inherit, that inheritance was never claimed by the plaintiff within that period. Defendant No.1 has specifically contended that during the lifetime of Prayagbai and after her he is cultivating the land in the capacity as her heir. Under these circumstances, in fact, the First Appellate Court ought not to have interfered with the findings given by the learned Trial Judge, which were based on proper appreciation of evidence as well as sound legal principles and, therefore, case is made out to set aside the Judgment and Decree passed by the First Appellate Court i.e. by allowing Second Appeal No.699 of 2003. Consequently, the Second Appeal No.170 of 2006 deserves to be dismissed, by answering both substantial questions of law in the affirmative. Hence, following order.

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ORDER

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1 Second Appeal No.699 of 2003 stands allowed.

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2 The Judgment and Decree passed by the 2^nd Additional District Judge, Beed in Regular Civil Appeal No.11/1995 dated 16.04.2002 stands set

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aside. The decree passed by learned 2^nd Joint Civil Judge Junior Division,

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Georai, Dist. Beed in Regular Civil Suit No.197/1993 on 12.12.1994 stands confirmed.

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3 Second Appeal No.170 of 2006 stands dismissed.

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4 Civil Application No.3494 of 2008 stands disposed of in terms of

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Second Appeal No.699 of 2003.

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5 Parties to bear their own costs of the proceedings.

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( Smt. Vibha Kankanwadi, J. )

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agd

Vijaykumar Alias Bhausaheb Bapurao Karpe and Ors. v. Putalabai Ramdas Karande

Case brief

What is this about?

What did the court decide?

Vijaykumar Alias Bhausaheb Bapurao Karpe and Ors. v. Putalabai Ramdas Karande

Case brief

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What did the court decide?

What the court decided

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