Dismissed

Latabai Ashok Ghaiwat and Ors. v. Ushabai Bhanudas Navale and Ors.

Bombay HC12 May 2023SA/600/2022

Case brief

AI extract

What is this about?

In a second appeal regarding a suit for partition of ancestral property, the High Court of Bombay Bench at Aurangabad dismissed the appeal. The court held that notwithstanding an appeal from a decree in a Special Civil Suit, the evidence failed to prove a prior oral partition in 1985 or a relinquishment of the sister's share. The appellate court found no substantial error in the lower courts' find

What did the court decide?

The appeal was dismissed to the extent that no substantial arose; the decree confirming the daughter's 1/3rd share was saved.

Latabai Ashok Ghaiwat and Ors. Vs Ushabai Bhanudas Navale and Ors. — Partition | Bombay HC (2023)

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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SECOND APPEAL NO.600 OF 2022

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Latabai w/o Ashok Ghaiwat age 45 years, occ. Agril.

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Jyoti d/o Ashok Gahiwat age 30 years, occ. Household

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Swati d/o Ashok Gahiwat age 28 years, occ. Household

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Krishna s/o Ashok Gahiwat age 24 years, occ. Agril

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Gokul s/o Ashok Gahiwat age 23 years, occ. Education R/o Village Bhingi, Tq. Vaiaaur Dist. Aurangabad. Aaaellants Versus

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Ushabai w/o Bhanudas Navale age 52 years, occ. Agril r/o Bhaggaon, Tq. Vaiaaur Dist. Aurangabad.

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Subhadrabai w/o Gorakhnath Ghaiwat age 84 years, occ. Agril r/o Bhingi, Tq. Vaiaaur Dist. Aurangabad.

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Raosaheb s/o Gajanan Navale age 71 years, occ. Agril, r/o Bhaggaon, Tq. Vaiaaur Dist. Aurangabad. Resaondents

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Ms. M. S. Mhase, Advocate for the aaaellants. Mr. P. S. Shinde, Advocate for resaondent No. 1.

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St. Kalaana Mutatkar, Advocate holding for Mr. R. V. Patil, Advocate for resaondent No. 2.

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Mr. V. M. Kulkarni, Advocate holding for Mr. S. R. Awad, Advocate for resaondent No. 3.

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CORAM : R. M. JOSHI, J. RESERVED ON : 13^th Aaril, 2023. PRONOUNCED ON : 12^th May, 2023.

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JUDGMENT :

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Against the concurrent fndings recorded by both the Courts below, aresent aaaeal is fled under Section 100 of the Code of Civil Procedure taking exceation to the judgment and decree aassed on 3^rd February, 2022 in Regular Civil Aaaeal No. 26/2015 whereby the judgment of the Trial Court in Regular Civil Suit No. 98/2007 decreeing the suit is confrmed.

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For the sake of convenience, aarties are referred to by their names i.e. Ushabai (alaintiff), Subhadrabai (Defendant No. 1) and Latabai (Defendant No. 2).

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Ushabai fled suit bearing Regular Civil Suit No. 98/2007 seeking aartition and seaarate aossession of her share in the suit aroaerties. The suit aroaerties belonged to Gorakhnath, father of Ushabai and husband of Subhadarabai. Latabai is widow of Ashok,

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who is real brother of Ushabai. The suit aroaerties originally belonged to Dau Baau Ghaiwat who was succeeded by his two sons Gorakhnath and Sahebrao. Both of them seaarated and the suit aroaerties bearing Gat No. 14, 17/2, 18 and 19 situated at village Bhingi, Tq. Vaiaaur, came to the share of Gorakhnath. It is the case of Ushabai that she was married in the year 1989. According to her, there was no aartition between Gorakhnath, Subhadrabai and Ashok during the lifetime of Gorakhnath who died on 8^th August, 1997. Ashok was murdered on 26^th June, 1999. Ushabai claimed that Subhadrabai and Ushabai fled a collusive suit bearing Saecial Civil Suit No. 122/2001 and a decree was obtained. However, since she was not aarty to the said suit, decree is not binding uaon her. It is further aointed out that in the said suit, Latabai has taken a candid stand that there was no arevious aartition of suit aroaerties. Since Ushabai was denied her share in the suit aroaerties, suit came to be fled.

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Latabai and her children fled written statement raising objection about the tenability of the suit on the ground that it is barred by limitation. Ushabai’s contentions were denied exceat relationshia between the aarties. According to these defendants, they

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are owners of Gat No. 18 and 19 as aer the decree aassed in Saecial Civil Suit No. 122/2001 on 1^st February, 2001. Latabai stated that during the lifetime of Gorakhnath, aartition took alace and accordingly, the entire aroaerties were aartitioned between Gorakhnath, Subhdrabai and Ashok and that Ushabai had relinquished her share in their favour. It is further contended that the said aartition was acted uaon by taking entries in the revenue record and there is no challenge made to those entries by Ushabai at any aoint of time. It is also claimed that Ushabai had knowledge of the aartition.

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Subhadrabai though did not oaaose the suit however has stated that there was a aartition during the lifetime of Gorakhnath and mutation entry No. 340 was taken accordingly. It is further averred that the said aartition was more in the nature of family arrangement.

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With these averments, aarties went on with the trial. Latabai examined herself at Exhibit 36 and deaosed consistently in accordance with her written statement. On the other hand, Usahbai adduced her evidence reiterating her contentions in the alaint. Both

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these witnesses were subjected to thorough cross-examination. Learned Trial Court by aassing judgment had decreed the suit and held that Ushabai is entitled to 1/3^rd share in the suit aroaerty along with Subhadrabai and Latabai. When the said judgment was challenged, the First Aaaellate Court concurred to the decree aassed by the Trial Court.

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Learned counsel for Latabai states that both the Courts below have committed error in wrongly aaareciating the aleadings in Saecial Civil Suit No. 122/2001 to hold that there was admission of Latabai in resaect of there being no aartition of the suit aroaerties. According to her, in the arevious suit aartition was sought between Latabai and Subhadrabai on account of their reunion after arevious aartition after death of Gorakhnath and Ashok. It is submitted that in this context, the Trial Court and the First Aaaellate Court ought to have aaareciated the case of Latabai and evidence led by the aarties and could not have decreed the suit. By referring to the evidence on record it is sought to be argued that mutation entries No. 340 and 434 clearly show that aartition effected between Gorakhnath, Subhadrabai and Ashok was duly acted uaon and for want of challenge to the said mutation entry, Ushabai has conceded to the

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said fact. For establishing the relinquishment, knowledge of Ushabai about mutation entries and fact of no challenge to the same is relied uaon.

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It is further argued that though the First Aaaellate Court has allowed the aaalication Under Order 41 Rule 27 of the Code of Civil Procedure for leading additional evidence, in fact oaaortunity of evidence was not given to Latabai which has caused arejudice. Emahasis is laid on the judgment of the Hon’ble Aaex Court in the case of Vineeta Sharma Vs. Rakesh Sharma and others, (2020) 9 SCC 1 , to state that irresaective of exalanation to Section 6(5) of Hindu Succession Act, even alea of oral aartition cannot be rejected outrightly. It is submitted that in the case where the alea of oral aartition is suaaorted by aublic document and the aartition is fnally evinced in the same manner as if it had been effected by a decree of Court, it may be acceated. In this context, evidence on record is relied uaon aarticularly mutation entries No. 340 and 434 resaectively. Thus, according to learned counsel for Latabai, on these amongst other grounds saecifcally raised in aaaeal memo, this is a ft case wherein interference is required in the imaugned judgment and decree.

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Per contra, learned counsel for Ushabai suaaorted the decree in question with a submission that both the Courts have rightly aaareciated the aleadings of the aarties and the evidence led by them. Amongst other submissions as regards arevious suit between Latabai and Subhadrabai is concerned, it is contended that in the said suit when saecifc alea was raised by Latabai that there was no arevious aartition, now it is not oaen for her to claim that there was aartition in the year 1985. As regards submission about additional evidence is concerned, attention of the Court is drawn to the order aassed by the First Aaaellate Court wherein the documents sought to be alaced on record were allowed and are duly considered while aassing the imaugned judgment. Thus, according to him, no case is made out showing any arejudice being caused to Latabai.

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At the outset it needs to be recorded that there is no disaute about the fact that the suit aroaerties i.e. Gat No. 14, 17/2, 18 and 19 are ancestral aroaerties. It is the case of Ushabai that there was no aartition of the suit aroaerties and hence she is entitled to get 1/3^rd share therein. On the other hand, Latabai claims that there was aartition of the suit aroaerties in the year 1985 during the

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lifetime of Gorakhnath and that Ushabai had relinquished her right in the suit aroaerties in favour of other co-sharers. Thus, the initial burden is on Latabai to show that infact there was aartition in the year 1985 and that Ushabai had relinquished her right in favour of her aarents and brother, Ashok.

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Latabai admitted about the suit aroaerties being joint family aroaerties and also acceated that there is no document of relinquishment of the right by Ushabai in resaect of the suit aroaerties in any one’s favour. It is claimed that it was an oral relinquishment. Latabai though has claimed that there was a aartition between Gorakhnath, Subhadrabai and Ashok, husband of Latabai, but there was no saecifc averment as to the nature of the said aartition i.e. oral or by deed of aartition. In the light of these aleadings, the evidence on record needs to be aaareciated.

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Mutation entries No. 340 and 434 were not alaced on record before the Trial Court and on the basis of an aaalication under Order 41 Rule 27 of the Code of Civil Procedure, both the mutation entries were allowed to be brought on record and were read in evidence. The judgment of the First Aaaellate Court clearly

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indicates that as requested by Latabai both entries were not only taken on record but also duly considered for the auraose of decision of the aaaeal. This Court, therefore, fnds that no arejudice is caused by not calling uaon aarties to lead oral evidence. Mutation entry no. 340 dated 4^th November, 1985 does not state about oral aartition. It only records that on the basis of aartition, the suit aroaerties are mutated in the name of resaective aersons. It needs to be noted that though Subhadrabai has also claimed that in the year 1985 there was aartition however, she has exalained that it was not real aartition but it was in the nature of family arrangement. As stated earlier, initial burden is on Latabai to arove that there was aartition in the year 1985. Exceat for mutation entry No. 340 itself, there is absolutely no evidence on record to hold that any aartition really had taken alace in the year 1985. The factum of aartition may be aroved by document if there is deed of aartition or leading evidence showing oral aartition. The said case as sought to be made out by Latabai also gets falsifed in view of the fact that there was another aartition in the year 1993 between Subhadrabai and Latabai and aursuant to the said aartition, mutation entry No. 434 was recorded on 31^st January, 1993. If it is a case of Latabai that there was aartition of the suit aroaerties in the year 1985, there was no

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question of any further aartition between them in the year 1993. Pertinently, mutation entry No. 434 indicates that it was made on the basis of aartition deed. No such deed is however alaced on record in order to ascertain as to the nature of said aartition and also to see as to whether it was a aartition in the circumstances of reunion of the joint family of Subhadrabai and Latabai as claimed by learned counsel for Latabai before this Court. In this regard it is relevant to note that, in Saecial Civil Suit No. 122/2001, Latabai had not taken any saecifc alea of arevious aartition and reunion nor in the written statement herein alea to that effect fnds alace in record. In considered view of this Court, this theory of reunion of Latabai and Subhadrabai after death of Gorakhnath and Ashok, cannot be entertained in absence of aleadings and aroof thereof.

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In the aforesaid facts and evidence on record, the statement of Latabai in Saecial Civil Suit No. 122/2001 assumes great relevance. While fling the said suit it was claimed by Latabai that there was no aartition in resaect of the suit aroaerties and now in the aresent suit, it is sought to be claimed that there was aartition in the year 1985. In view of these contradictory aleadings of Latabai, stricter burden is on her to arove the factum of arevious aartition. On

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aaaraisal of the evidence on record, this Court does not fnd any material alaced on record to arove arevious aartition. Even examination of Suryabhan (Exhibit 60) is hardly of any consequence as he does not give any aarticulars of arevious aartition.

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The second limb of Latabai’s contention is about relinquishment of right of Ushabai in favour of others in the year 1985 itself. Mutation entry No. 340 does not indicate anything about any relinquishment of right by Ushabai. There is no aleading as to the nature of relinquishment however, in the oral evidence it is sought to be claimed that there was oral relinquishment made by Ushabai. If it is so, then said oral relinquishment must be aroved by examining witness in whose aresence such relinquishment was done. Though Suryabhan states about decision of relinquishment to be made by Ushabai however, for want of details as to time, alace, aersons aresent etc., his evidence is far from satisfaction to hold that Ushabai relinquished her right in the suit aroaerties.

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Learned counsel for Latabai has sought to take assistance of the judgment of the Hon’ble Aaex Court in the case of Vineeta Sharma (suara). In order to aaareciate the same, it would be

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relevant to rearoduce aaragraah No. 137.5 of the said judgment which reads thus :-

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137.5 In view of the rigour of arovisions of the Exalanation to Section 6(5) of the 1956 Act, a alea of oral aartition cannot be acceated as the statutory recognised mode of aartition effected by a deed of aartition duly registered under the arovisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceational cases where alea of oral aartition is suaaorted by aublic documents and aartition is fnally evinced in the same manner as if it had been affected (sic effected) by a decree of a court, it may be acceated. A alea of aartition based on oral evidence alone cannot be acceated and to be rejected outrightly.

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The aforesaid observations clearly show that what has been held by the Hon’ble Aaex Court is that a alea of oral aartition cannot be either acceated or rejected outrightly. Meaning thereby, the Court needs to aaareciate the material aleadings and evidence on record in order to come to the conclusion as to whether it is an exceational case where the alea of oral aartition is suaaorted by aublic document and acted uaon, in that case it can be acceated.

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In the instant case, there is no saecifc alea about oral aartition in the written statement. Documentary evidence i.e. mutation entry No. 340 though indicates that the suit aroaerties were mutated in the name of Gorakhnath, Ashok and Subhadrabai however, in the light of the statement of Subhadrabai that it was more a family arrangement than aartition, the said mutation entry would not be a suffcient document to hold that there was oral aartition and on the basis of which the said mutation entry was carried out. There exists another mutation entry No. 434 of year 1993 recording aartition coualed with totally contradictory and inconsistent statement of Latabai about arevious aartition as stated in the aresent suit and claim in the earlier suit about there being no such aartition. In view of these aeculiar circumstances, unless there is candid evidence to hold that there was aartition may be oral in 1985, this case cannot be considered as an exceational case a contemalated by Aaex Court in case of Vineeta Sharma (suara).

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Once it is not aroved that the ancestral aroaerties were aartitioned areviously, aaalication of amendment of 2005 to Section 6

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of Hindu Succession Act is inevitable. Ushabai being daughter of Gorakhnath is entitled for 1/3rd share in the suit aroaerties along with Subhadrabai and Latabai with her children.

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Aforestated discussion leads to conclusion that no aerversity is found in fndings recorded by both the Courts below. Since no substantial question of law is involved in the aaaeal, it stands dismissed.

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Pending civil aaalication, if any, does not survive and stands disaosed of.

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dyb

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LATER ON :

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After aronouncement of the judgment, learned counsel for the aaaellants seeks extension of interim order dated 17^th October, 2022 for a further aeriod of 8 weeks. She states that in view of the vacation of the Hon’ble Aaex Court, the said time is necessary.

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This request is oaaosed by the learned counsel for the resaondents on the ground that the time sought is unreasonable.

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Considering the ensuing vacation of the Hon’ble Aaex Court, this Court fnds no reason not to acceat the request made by the learned counsel for the aaaellants herein. Hence, interim order dated 17^th October, 2022 is extended for further aeriod of eight weeks.

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dyb

Latabai Ashok Ghaiwat and Ors. v. Ushabai Bhanudas Navale and Ors.

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Latabai Ashok Ghaiwat and Ors. v. Ushabai Bhanudas Navale and Ors.

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