Bombay High Court
Trimbak N.Yadav(Decd.) By His Heirs vs Laxmibai G. Yadav And Ors on 16 June, 2025
2025:BHC-AS:23501
2-SA-579-1988.doc
rrpillai IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 579 OF 1988
Trimbak Nivruti Yadav
Since deceased through Legal Heirs
a. Smt. Vijya Vilas Yadav
Age : 72 years, Occ.: Agriculture
b. Shri. Satywan Trimbak Yadav
Age : 72 years, Occ.: Agriculture
c. Laxman Trimbak Yadav
Age : 68 years Occ.: Agriculture
d. Sugriv Trimbak Yadav
Age : 60 years Occ.: Agriculture
e. Smt. Draupadibai Trimbak Yadav
Age : 75 Occ. : Agriculture
All R/at: Bhutashthe
Tal : Madha, Dist. Solapur
f. Sou. Yamuna Gyandev Vyavahere
Age : 85 years, Residing at : Asthi,
Tal: Madha, Dist: Solapur
g. Sou. Mandodari Navnath Patil
Age : 70 years, R/at. Padsali
Tal. Madha, Dist. Solapur
h. Sou. Sojar Raghunath Kadam
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Age : 62 years, R/at/Post : Ropale ... Appellants
(BK), Tal. Pandharpur, Dist. Solapur Defendant No.1
Versus
1. Smt. Laxmibai Genu Yadav
Age : 95 years, Occ.: Agriculture
2. Sopan Genu Yadav
Age : 90 years, Occ.: Agriculture
since deceased through LRs
2(a) Shri Popat Sopan Yadav
Age: 71 years, Occ.: Agriculture
2(b) Shri Bapurao Sopan Yadav
Age : 65 years, Occ.: Agriculture
since deceased through LRs
2(b)(i) Santosh Bapurao Yadav
Age : 43 years, Occ. : Agriculture
2(b)(ii) Mangal Bapurao Yadav
Age: 59 years, Occ.: Agriculture
All Adult, R/o. Bhutashte
Tal - Madha, Dist. Solapur
2(b)(iii) Jayshree Dattatraya Bhosale
Age : 40 years,Occ.: Agriculture
R/o. Ropale (BK)
Tal. Pandharpur, Dist. Solapur
2(c) Shri Dilip Sopan Yadav, Adult
Age : 68 years, Occ : Agriculture
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All R/at/Post : Bhutashtre
Tal. Madha,Dist. Solapur
3. Shri. Gorakh Genu Yadav
Age: 90 years, Occ.: Agriculture
Since deceased through LRS
3(a) Smt. Kantabai Gorakh Yadav
Age: 85 years, Occ.: Agriculture
3(b) Shri. Abhiman Gorakh Yadav
Age: 68 years, Occ.: Agriculture
3(c) Shri. Sandip Gorakh Yadav
Age: 58 years, Occ.: Agriculture
3(d) Smt Ramanbai Gorakh Yadav
Age: 55 years, Occ.: Agriculture
3(e) Smt, Suman Gorakh Yadav
C/o. Suman Dhanaji Vyavahare
Age: 45 years, Occ.: Agriculture
3(f) Smt. Ladubai Dhanaji Vyavahare
R/at C/o. Ladubai Dilip Vyavahare
Age: 42 years, Occ.: Agriculture
4(a) Shri Shivaji Baba Patil
Age 90 years, R/at/Post: Rapale
Tal. Madha, Dist. Solapur
Since deceased through her LRs
4(a)(i) Smt. Narmada Shivaji Patil
Age: 80 years Occ.: Agriculture
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4(a)(ii) Shri. Dashrath Shivaji Patil
Age: 60 years Occ.: Agriculture
4(a)(iii) Shri. Balasaheb Shivaji Patil
Age: 46 years Occ.: Agriculture
4(a)(iv) Shri. Vilas Shivaji Patil
Age: 44 years Occ.: Agriculture
All R/ at/Post: Ropale (BK)
Tal. Pandharpur, Dist. Solapur
4(a)(v) Sou. Rajabai Sarjerao Pawar
Age: 52 years Occ.: Agriculture
R/at/Post: Mendhapur
Tal. Pandharpur, Dist. Solapur
4(a)(vi) Sou. Vijaya Bhaskar Patil
Age: 42 years Occ.: Agriculture
R/at/Post: Rahatewadi
Tal. Mangalwedha, Dist. Solapur
4(b) Mrs. Manodhari Sopan Atkale
Age 94 years, R/at: Shegaon
Dumala Tal. Pandharpur, Dist.
Solapur Since deceased through
her LRS
4(b)(i) Dnyaneshwar Sopan Atkale
Age 87 years, R/at: Shegaon
Dumala
Since deceased through legal heirs
4(b)(ia) Malan Dnyaneshwar Atkale (widow)
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Age 62 years, R/o at: Shegaon
Dumala,
Tal. Pandharpur, Dist. Solapur
4(b)(ib) Kiran Dnyaneshwar Atkale
Age 42 years, Occ.: Agriculture
R/at: Shegaon Dumala
Tal. Pandharpur, Dist. Solapur
4(b)(ic) Uddhav Dnyaneshwar Atkale
Age 40 years, Occ.: Agriculture
R/o at: Shegaon Dumala,
Tal. Pandharpur, Dist. Solapur
4(b)(id) Pratiba Netaji Dalavi
Age 35 years, Occ.: Agriculture
R/o at: Yavli, Tal: Mohol,
Dist: Solapur.
4(b)(ii) Balkrishna Sopan Atkale
Age 58 years, Occ.: Agriculture
4(b)(iii) Audumbar Sopan Atkale
Age 56 years, Occ.: Agriculture
4(b)(iv) Pandharinath Sopan Atkalre
Age 55 years, Occ.: Agriculture
All R/at post: Shegaon Dumala,
Tal. Pandharpur, Dist. Solapur
4(b)(v) Sunita Rajendra Nagane
Age 56 years, Occ.: Agriculture
R/at: Post Pachora, Chalisgaon Dist-
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Jalgaon
4(b)(vi) Janabai Ramesh Nagare
Age 53 years, Occ.: Agriculture
R/oat: Upari, Tal-Pandharpur
Dist-Solapur
4(b)(vii) Pushpa Bhaskar Patil
Age 49 years, Occ.: Agriculture
R/o at: Vaddegaon Tal- Mohol
Dist-Solapur
5 Gopalbai Bhagwan Chavan
Age 89 years, Occ.: Agriculture
Since deceased through her LRs.
5(a) Shri. Digambar Bhagwan Chavan
Age 88 years, Occ.: Agriculture
Since deceased through his LRs.
5(a)(i) Smt. Rukmini Digambar Chavan
Age 85 years, Occ.: Agriculture
5(a)(ii) Dattatray Digambar Chavan,
Age 50 years, Occ.: Agriculture
R/o. Babhulgaon, Tal. Pandharpur,
Dist. Solapur.
5(a)(iii) Smt. Vimal Vaijanath Kadam
Age 55 years, Occ.: Agriculture
5(a)(iv) Kamal Tukaram Mutkule
Age 65 years, Occ.: Agriculture
R/o Padyali Tal. Madha, Dist.
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Solapur
5(a)(v) Sou. Sharda Tukaram Mutkule,
Age 45 years, Occ.: Agriculture
R/o at:, Padsali,
Tal. Madha, Dist. Solapur
5(a)(vi) Shamal Tanaji Dubal
Age 57 years, Occ.: Household
R/at: Narayan Chincholi,
Tal. Pandharpur, Dist. Solapur
5(b) Shri. Dagadu Bhagwan Chavan
Age 85 years, Occ.: Agriculture
Since Deceased through legal heirs.
5(b)(i) Rahibai Dagadu Chavan
Age 75 years, Occ.: Agriculture
5(b)(ii) Shankar Dagadu Chavan
Age 45 years, Occ.: Agriculture
5(b)(iii) Hanumant Dagadu Chavan
Age 40 years, Occ.: Agriculture
All r/o at: Babhulgaon,
Tal: Pandharpur, Dist: Solapur.
5(b)(iv) Sunita Raosaheb Makhar
Age 45 years, Occ.: Agriculture
R/o at: Mendhapur, Tal: Pandharpur
Dist: Solapur.
5(b)(v) Kavita Alias Janabai Dilip Korake
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Age 43 years, Occ.: Agriculture
R/o at: Bhose(k), Tal: Pandharpur
Dist: Solapur.
5(b)(vi) Anita Sanjay Pawar
Age 48 years, Occ.: Agriculture
R/o at: Ankoli, Tal: Mohol
Dist: Solapur
5(b)(vii) Ashabai Uddhav Bedare
Age 50 years, Occ.: Agriculture
R/o at: Batalin, Tal: Magalvedha
Dist: Solapur.
5(c) Shri. Abhimanyu Chavan
Age 72 years, Occ.: Agriculture
R/at: Babhugaonk,
Tal. Pandharpur, Dist. Solapur
6. Smt. Rakhmabai Hariba Gaikwad
Age 56 years, Occ.: Agriculture
R/at: Bahndgaon,
Tal. Indapur, Dist. Pune
Since Deceased through legal heirs
6(a) Jitu Hariba Gaikwad
Age 80 years, Occ.: Agriculture
6(b) Popat Hariba Gaikwad
Age 70 years, Occ.: Agriculture
(Since decdthrough his legal heirs)
6(b)(i) Kamal Popat Gaikwad
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Age : 67 years, Occ.: Agriculture
6(b)(ii) Satish Popat Gaikwad
Age : 44 years, Occ.: Agriculture
6(b)(iii) Dilip Popat Gaikwad
Age: 40 years, Occ.: Agriculture
All 6(b)(i) to 6(b)(iii)
R/o at: Bahndgaon, Tal.
Indapur, Dist. Pune
6(b)(iv) Suvarna Mukund Pol
Age: 39 years, Occ.: Agriculture
R/o at: Shetphal (Nagoba)
Tal. Karmala, Dist. Solapur
6(c) Shivaji Hariba Gaikwad
Age 65 years, Occ.: Agriculture
All Nos a to c R/o at: Bahndgaon,
Tal. Indapur, Dist. Pune
6(d) Sojar Popat Yadav
Age: 67, Occ: Household,
R/at/: Bhutashte,
Tal.Madha, Dist. Solapur
7. Smt. Bhamabai Kashinath Anbhule
Age 50 years, R/at: Dhavalas,
Tal. Madha, Dist. Solapur
Since Deceased through legal heirs.
7(a) Haridas Kashinath Anbhule
Age 72 years, Occ.: Agriculture
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7(b) Dada Kashinath Anbhule
Age 68 years, Occ.: Agriculture
7(c) Bharat Kashinath Anbhule
Age 65 years, Occ.: Agriculture
All R/o- Dhavlas, Tal: Madha,
Dist: Solapur.
7(d) Indumati Sandipan Patil
Age 71 years, Occ.: Agriculture
R/o-Shedshinge, Tal: Madha,
Dist: Solapur.
7(e) Prabhavati Laxman Lokare
Age 60 years, Occ.: Household
7(f) Usha Popat Lokare
Age 55 years, Occ.: Household
Nos-e and f R/o- Shiral,(Tembhurni),
Tal: Madha, Dist: Solapur.
7(g) Sudamati Mahadeo Survase
Age 53 years, Occ.: Household
R/o-Survase Vasti, Tal; Barshi,
Dist: Solapur.
8 Smt. Sitabai Bhagwat Vyavahare
Age about 70 years, R/at:
Bhutashte,
Tal. Madha, Dist. Solapur
Since expired through her legal heirs
8(1) Bhagwat Namdev Vyavahare
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Age 75 years, Occ.: Agriculture
8(2) Shahaji Bhagwat Vyavahare
Age 65 years, Occ.: Agriculture
8(3) Balasaheb Bhagwat Vyavhare
Age 64 years, Occ.: Agriculture
8(4) Dhanaji Bhagwat Vyavhare
Age 62 years, Occ.: Agriculture
8(5) Uttam Bhagwat Vyavhare
Age 59 years, Occ.: Agriculture
All R/at: Bhutashte, Tal. Madha,
District Solapur
8(6) Sou. Chhya Nagnath Yadav
Age 55 years, Occ.: Agriculture
R/at: Siddheshwar Chawl No. 2,
Vagri vada, Datt Mandir Road,
Santacurz (E), Mumbai - 400 055
9 Shri. Bhagwat Murlidhar Yadav
Age 51 years, R/at: Bhutashte,
Tal. Madha, Dist. Solapur
Since Deceased through legal heirs
9(a) Dattatray Bhagwat Yadav
Age 58 years, Occ.: Agriculture
9(b) Shivram Bhagwat Yadav
Age 60 years, Occ.: Agriculture
Since deceased through legal heirs
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9(b)(i) Rukmini Shivram Yadav
Age 42 years, Occ.: Household
R/at: Bhutashte, Tal. Madha, Dist.
Solapur
9(b)(ii) Ganesh Shivram Yadav
Age 32 years, Occ.: Agriculture
R/at: Bhutashte,
Tal. Madha, Dist. Solapur
9(b)(iii) Balaji Shivram Yadav
Age 27 years, Occ.: Agriculture
R/at: Bhutashte,
Tal. Madha, Dist. Solapur
9(b)(iv) Sonali Devidas Karale
Age 25 years, Occ.: Household
R/o at: Nalgaon, Tal: Paranda,
Dist: Usmanabad
9(b)(v) Madhuri Hanumant Garad
Age 23 years, Occ.: Household
R/o at: Kandar, Tal: Karmala
Dist: Solapur.
9(c) Bharat Bhagwat Yadav
Age 45 years, Occ.: Agriculture
9(d) Sakharabai Bhagwat Yadav
Age 50 years, Occ.: Agriculture
9(e) Shalan Narhari Pawar
Age 69 years, Occ.: Agriculture
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Nos-9(a) to 9(e) R/at: Bhutashte,
Tal. Madha, Dist. Solapur
9(f) Malan Digambar Ingale
Age 65 years, Occ.: Agriculture
R/at: Dhawalas,
Tal. Madha, Dist. Solapur
10. Shri. Devidas Trimbak Yadav
Age 85, R/at: Bhutashte,
Tal. Madha, Dist. Solapur
Since deceased through legal heirs.
10(a) Kantilal Devidas Yadav
Age 68 years, Occ.: Agriculture
R/at: Bhutashte,
Tal. Madha, Dist. Solapur
10(b) Rajkumar Devidas Yadav
Age 52 years, Occ.: Agriculture
R/at: Bhutashte,
Tal. Madha, Dist. Solapur
10(c) Champabai Navnath Deshmukh
Age 63 years, Occ.: Household
R/at: Gursale,
Tal. Pandharpur, Dist. Solapur
10(d) Anita Shivaji Shelke
Age 63 years, Occ.: Household
R/at: Mallkhambi, Tal. Malshiras,
Dist. Solapur
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10(e) Savita Dattatraya Nalawade
Age 50 years, Occ.: Household
R/at: Haldivadi, Tal. Sangola,
Dist. Solapur. ... Respondents
Mr. Umesh Mankapure a/w. Mr. Rupesh K. Bobade and Ms.
Shradha K. Nakadi for the Appellants.
Mr. Sharad T. Bhosale i/b. Mr. Dilip Bodake for Respondent
Nos.2a, 2c, 2b(i) to 2b(ii), 3A to 3E, 4G, 5b, 5c, 6a to 6d, 7a,
7b, 7c, 7f, 7g, 8(2), 8(4), 8(6), 9a to 9c, 9e and 9f.
Mr. Raghavendra Kulkarni for Respondent nos. 10(a) to
10(e).
CORAM: GAURI GODSE J
RESERVED ON: 6th MARCH 2025
PRONOUNCED ON: 16th JUNE 2025
JUDGMENT:
BASIC FACTS:
1. This second appeal is preferred by the heirs and legal
representatives of the deceased defendant no. 1 to challenge
the concurrent judgments and decrees granting a 1/3 rd share
in the suit land jointly to the plaintiffs, and 1/3 rd each to the
defendants. Respondent nos. 1 to 8 are original plaintiffs,
respondent no. 9 is original defendant no. 2 and respondent
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2-SA-579-1988.docno. 10 is one of the heirs of defendant no.1. The second
appeal is admitted by order dated 3 rd July 2014 on the
following substantial questions of law :
“(i) Whether grant of suit land was in individual
capacity of Nivruti or on behalf of joint family ?
(ii) Construction of lease deeds dated 24 th June
1912, 27th February 1917 ?
(iii) Whether decree in Suit No. 81 of 1968 barred
the present suit ? ”
2. One Bapu Yadav was the ancestor. He was survived
by three sons, Nivruti, Genu and Murlidhar. Genu’s heirs
have filed suit for partition and separate possession.
Defendant no. 1 is the son of Nivruti, and defendant no. 2 is
the son of Murlidhar. Nivruti expired sometime in 1917, Bapu
expired sometime in 1928, Murlidhar expired sometime in
1948, and Genu expired sometime in 1972. The suit property
was allotted in the name of Nivruti by executing a
Kabulayatnama dated 24th June 1912 (“the lease”) and then
an order of regrant dated 27 th February 1917 (“the regrant
order”).
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3. Defendant no. 1 – Trimbak is the son of Nivruti.
According to defendant no. 1, Bapu was alive on the date of
the lease and the regrant order in the exclusive name of
Nivruti. According to defendant no.1, after the death of
Nivruti, there was a partition between Trimbak, Genu and
Murlidhar in respect of the joint family properties. Since the
suit property was not part of the joint family properties, the
same was not included in the partition that took place in the
year 1933. According to defendant no.1, it was only in 1968
that Genu filed a suit for a simple injunction against Trimbak
regarding the suit property. However, the suit was dismissed
on 4th October 1971. After the death of Genu, his heirs and
legal representatives, for the first time, prayed for partition
and separate possession against Trimbak and Murlidhar’s
son Bhagwat by filing the present suit.
4. The suit for partition was dismissed; however, the first
appellate court allowed the appeal preferred by the plaintiffs
and remanded the matter to the trial court. After remand, the
suit was decreed granting a 1/3rd share jointly to the plaintiffs
and a 1/3rd share each to the defendants. The first appeal
preferred by Trimbak, i.e. defendant no. 1, was dismissed,
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and the trial court’s decree is confirmed. Hence, this second
appeal. 1.
5. The plaintiffs contended that the suit property was
Bapu’s joint family property and was leased in the name of
Nivruti on behalf of the joint family. The plaintiffs did not
dispute the 1933 partition; however, they contended that
since the land was regranted, necessary permission was
required before effecting the partition. Hence, it was not
made part of the partition that took place in 1933.
6. The plaintiffs contended that Nivruti had no
independent source of income and thus the land was
regranted on behalf of the joint family in the name of Nivruti
by making a payment towards nazrana. The plaintiffs
contended that the original suit land belonged to the Forest
Department, and it was granted in the name of Nivruti on a
tenancy agreement for a period of four years. Thereafter, on
payment of nazrana, the land was regranted in the name of
Nivruti on a new tenure basis. The suit claim was opposed by
defendant no. 1 on the ground that the land was
independently taken on lease by Nivruti, and he never acted
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as Karta of the joint family. Defendant no. 1 contended that
the suit for injunction filed on the ground that the suit land
was joint family property was dismissed; hence, the plaintiffs
were not entitled to seek partition and separate possession
on the same ground.
7. Based on the evidence on record, the trial court
accepted the plaintiffs’ contention that the suit land, though
granted in the name of Nivruti, was granted on behalf of the
joint family, and Nivruti was acting as Karta of the joint family.
Based on the revenue record placed before the trial court,
the plaintiffs’ contention was accepted that the suit property
was cultivated by and on behalf of the joint family members.
8. Defendant no. 1’s contention that the suit property was
exclusively granted in the name of Nivruti was disbelieved for
want of any evidence to indicate that there was a separation
between the joint family and the land was independently
taken by Nivruti in his individual capacity. The earlier suit was
dismissed only because the plaintiffs could not prove that
1/3rd portion of the suit land was in their exclusive possession
as they claimed in view of the family arrangement. Hence,
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the suit for a simple injunction to protect their possession
was dismissed. In the absence of any supporting evidence,
the trial court disbelieved defendant no.1’s contention that
the suit land was his exclusive property and held that the
land was granted to Nivruti on behalf of the joint family. This
decree was confirmed by the first appellate court.
SUBMISSIONS ON BEHALF OF THE APPELLANTS:
9. Learned counsel for the appellants submitted that when
the suit property was taken on lease by Nivruti, Bapu, i.e.,
the father of Nivruti, Genu and Murlidhar, was alive. Hence,
there was no reason for granting the lease in the name of
Trimbak as the Karta of the joint family. Even if it is assumed
that Nivruti was acting as Manager, the land was granted in
the independent name of Nivruti. The partition that was
effected in 1933 is not disputed by the parties. Thus, it
supports the case of defendant no.1 that, as the suit land
was an independent property of Nivruti, it was not included in
the partition of 1933. Since Bapu was alive when the
document of lease and the order of regrant were made in
favour of Nivruti, it is clear that the document of lease and
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the order of regrant were not in the name of Nivruti as
Manager of the joint family.
10. Learned counsel for the appellants submits that a party
cannot be presumed to be acting as a Manager without any
supporting pleading and evidence. To support his
submissions on presumption of joint family nucleus and the
burden to prove it, learned counsel for the appellants relied
upon the decision of the Hon’ble Apex Court in the case of
D.S. Lakshmaiah and Another vs. L. Balasubramanyam and
Another.1 On the proposition that a party cannot be
presumed to be acting as Manager, learned counsel for the
appellants relied upon the decision of the Hon’ble Apex Court
in the case of Narendrakumar J.Modi vs. Commissioner of
Income Tax, Gujarat II, Ahmedabad 2 and Tribhovandas
Haribhai Tamboli vs. Gujarat Revenue Tribunal and Others 3.
11. Learned counsel for the appellants further submitted
that the plaintiffs never pleaded that Nivruti was acting as the
Manager of the joint family. Hence, in the absence of any
pleadings and evidence, it cannot be presumed that Nivruti
1 (2003) 10 SCC 310
2 AIR 1976 Supreme Court 1953
3 (1991) 3 SCC 442
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was acting as the Manager of the joint family. To support his
submissions that evidence without pleading cannot be relied
upon, learned counsel for the appellants relied upon the
decision of the Hon’ble Apex Court in the case of Srinivas
Raghavendrarao Desai (Dead) by Lrs vs. Kumar Vamanrao
alias Alok and Others.4
12. Learned counsel for the appellants submitted that the
document of lease is in the name of Nivruti and not on behalf
of the Hindu Undivided Family. Hence, the document, if read
as it is, shows that it is only in the individual name of Nivruti.
The supporting evidence led by defendant no. 1 indicates
that Nivruti exclusively and independently cultivated the land
since 1912, when it was granted on lease in his name. When
the document of lease and the order of regrant were in the
individual name of Nivruti, it cannot be presumed that Nivruti
was acting as Karta of the joint family and the lease and the
regrant order were on behalf of the joint Hindu family. During
Bapu’s lifetime, there was no reason for Nivruti to act as
Karta of the Joint family. Hence, the undisputed facts
regarding the date of death of Bapu, the lease document and
4 2024 SCC OnLine SC 226
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the order of regrant only in the name of Nivruti support the
case of defendant no. 1 that the suit property is the
independent property of Nivruti. Learned counsel for the
appellants, therefore, submits that the first question of law
must be answered in favour of defendant no. 1.
13. Learned counsel for the appellants submits that both
impugned judgments proceed on the presumption that Nivruti
was acting as Karta of the joint family. However, there is no
evidence supported by any pleadings that Nivruti was acting
as Karta of the joint family. The receipts for payment of land
revenue were also issued in the name of Nivruti. Therefore,
the payment of land revenue, if paid by the plaintiffs on a few
occasions on behalf of Nivruti, will not make the suit land a
joint family property. The plain reading of the terms and
conditions of the lease document and the order of regrant
produced at Exhibit 94, exclusively in the name of Nivruti, is
sufficient to hold that the suit land was an independent
property of Nivruti. The terms of lease and the regrant order
indicate that the same is in the individual name of Nivruti.
Hence, according to the learned counsel for the appellants,
without supporting evidence that the suit land belonged to
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the joint family, the plaintiffs would not be entitled to a decree
of partition and separate possession. He therefore submits
that even the second question of law must be answered in
favour of the appellants.
14. Learned counsel for the appellants submits that the
earlier suit filed simplicitor for injunction on the ground that
the suit land belongs to the joint family was dismissed. The
earlier suit was filed on the ground that the plaintiffs’
possession over part of the suit land was obstructed by
defendant no. 1. Therefore, the cause of action to seek a
prayer for partition and separate possession arose at the
time of filing the first suit. However, the plaintiffs failed to
reserve their right under Order II Rule 2 of the Code of Civil
Procedure,1908 (“CPC“) to seek partition at a later stage.
Hence, the present suit is barred by Order II Rule 2 of the
CPC, and thus, the present suit for partition and separate
possession on the same cause of action would not be
maintainable. Learned counsel for the appellants, therefore,
submits that even the third question of law must be answered
in favour of defendant no. 1.
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SUBMISSIONS ON BEHALF OF RESPONDENT NOS. 1 TO 9(f):
15. Learned counsel for the plaintiffs and defendant no. 2
(“respondents”) submits that the earlier suit for a simplicitor
injunction was dismissed, and the issue regarding the nature
of the suit property was answered in the affirmative. Since
the issue answered in the affirmative in the earlier suit was
never under challenge, it attained finality, and hence it was
not open for defendant no. 1 to contend that the suit property
does not belong to the joint family and was independent and
individual property of Nivruti. The issue nos. 7 and 8 in the
present suit are therefore rightly decided in favour of the
plaintiffs. The receipts produced at Exhibits 21 to 26 and at
Exhibits 66, 87, 89, 92 and 93 support the plaintiffs’ case that
the suit land belonged to the joint family. All the payment
receipts would indicate that the payment towards land
revenue for the suit land was at times paid by Nivruti and at
times by Genu or Murlidhar. Hence, the fact that the land
revenue was paid by all three brothers from time to time
supports the plaintiffs’ contention that though the lease
document and the regrant order were in the name of Nivruti,
the same was granted on behalf of the joint family. Both
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courts have rightly held that the suit land belongs to the joint
family, and thus, all three sons of Bapu would be entitled to
one-third share each.
16. Learned counsel for the respondents submitted that the
present suit is based on a different cause of action. Hence,
the bar under Order II Rule 2 of the CPC would not be
applicable. He therefore submits that all three questions of
law be answered in favour of the respondents.
ANALYSIS AND CONCLUSIONS:
17. To consider the rival submissions made on behalf of
the parties, I have carefully perused the papers of the second
appeal and the record and proceedings. The initial facts
regarding the relationship between the parties, the date of
death of the respective parties, except the date of death of
Bapu, are not disputed. The lease document and regrant
order at Exhibit 94 issued in the name of Nivruti are not in
dispute. There is also no dispute that in the earlier suit filed
by the plaintiffs for a simplicitor injunction, issue no. 1 was
answered in the affirmative by holding that the suit land
belonged to the joint family.
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18. In the Regular Civil Suit No. 81 of 1968, Genu, i.e.
predecessor in title of the present plaintiffs, pleaded that he
and his brothers, i.e. present defendants, were cultivating
their respective share of the land; however, defendant no. 1
started obstructing his cultivation. Hence, the suit was filed
for a simple injunction to protect his exclusive possession
and cultivation of his share. Genu died during the pendency
of the suit, and the present plaintiffs were brought on record
as his heirs. The suit was dismissed holding that the suit land
was granted by the government to the family of the plaintiff
and the defendants. It was also held that the plaintiff could
not prove his separate exclusive possession of the 1/3 rd
portion of the suit land; hence, the prayer for injunction was
refused. The judgment and decree in the said suit was not
challenged.
19. In the present suit, the plaintiffs pleaded that in view of
the dismissal of the said suit, defendant no. 1 started
obstructing the plaintiffs’ joint possession; hence, the suit
was filed for partition and separate possession. The trial
court framed issue nos. 2 and 4 as under:
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“2. Is the suit time barred?
4. Is not the contention res-judicata in view of the
judgment in suit no. 81/1968 ?”
20. Both these issues were deleted. The trial court
decreed the suit by holding that the suit lands belonged to
the joint family and the plaintiffs are entitled to their 1/3 rd
share. The appeal court confirmed the trial court’s findings on
the suit land belonging to the joint family, and thus the
plaintiffs were entitled to 1/3rd share in it. The appeal court
referred to the findings in the RCS No. 81 of 1968, which
held that the suit land belonged to the joint family and that
the suit for simple injunction was dismissed only because the
plaintiffs could not prove their exclusive possession on
independent 1/3rd area in the middle of the land as pleaded
by them.
21. A different cause of action is pleaded in the present
suit. The cause of action pleaded in the present suit is based
on the obstruction to joint possession, in view of the
dismissal of the suit for injunction. In the first suit for simple
injunction, the plaintiffs pleaded that they were in exclusive
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possession of 1/3rd the area in the middle of the suit land
described in the plaint. Their claim of exclusive possession
was disbelieved in that suit, and it was held that the suit land
belongs to the joint family. Thereafter, the present suit was
filed by pleading that after dismissal of the earlier suit for
simple injunction, defendant no. 1 started obstructing their
joint possession; hence, they claimed partition and separate
possession. To attract the bar under Order II Rule 2 of the
CPC, the cause of action is a cause of action which gives
occasion for and forms the foundation of the suit. In the
present case, the cause of action pleaded in the present suit
was unavailable when the first suit for simple injunction was
filed on a foundation that the plaintiff was cultivating a portion
of the land described in the plaint. Therefore, the bar of
Order II Rule 2 of the CPC would not apply, as argued on
behalf of the appellants. Therefore, the decree in RCS No.
81 of 1968 would not bar the present suit. Hence, the third
question of law is answered in favour of the plaintiffs.
22. There is no dispute that there was a joint family of
Babu, Genu, Murlidhar and Nivruti. The nucleus of the joint
family is accepted, and the partition effected in 1933 of the
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joint family properties, excluding the suit land, is not in
dispute. Once jointness is accepted, the presumption of the
existence of a joint family can be rebutted only by proof of
the separation of the joint family. Therefore, the burden
would be upon defendant no.1 to prove that the lease and
the order of regrant of the suit land executed in the name of
Nivruti was his self-acquired property. An important aspect
that needs to be considered is that on the date of executing
the lease document in the name of Nivruti and the order of
regrant, the existence of a Hindu joint family is not disputed.
The partition in respect of the other joint family properties is
admittedly effected in 1933. Hence, a subsequent partition
effected in 1933 cannot be a ground to hold that the suit land
was exclusive property of Nivruti.
23. A perusal of the record and proceedings indicates that
the receipts dated 21st February 1913 were issued in the
name of Nivruti. The receipts at Exhibits 22 and 23, dated
26th February 1914, also stand in the name of Nivruti.
However, after Nivruti’s death on 27 th February 1917, the
receipt dated 29th March 1928 at Exhibit 24 is issued in the
name of Trimbak Nivruti, and the amount is shown to have
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been paid by Genu. Receipts at Exhibits 21, 22 and 23 are
also in the name of Nivruti and are shown as paid by Nivruti.
A subsequent receipt of 1932 at Exhibit 25 is issued in the
name of Trimbak; however, the amount is shown to have
been paid by Genu. Similarly, there are two other receipts at
Exhibits 26 and 27, which are issued in the name of Trimbak;
however, the amount is shown to have been paid by
Bhagwat, i.e., son of Murlidhar. Other receipts on record at
Exhibits 28, 77, 76, 69, 88, 87 and 83 indicate that the
payment was made either by Genu or the son of Genu. Thus,
the record indicates that the lease and grant were in the
name of Nivruti; however, no material is placed on record to
show that the payments towards lease rent and revenue
were paid exclusively by Nivrutti from his independent
income.
24. It was contended on behalf of the defendant no. 1, i.e.
Trimbak, that though in the earlier suit the issue regarding
the nature of the suit land was answered by holding that the
suit land belonged to the joint family, the suit for a simple
injunction was dismissed. Hence, according to the learned
counsel for the appellants, there was no occasion for
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defendant no. 1 to challenge the findings recorded in the
earlier suit filed by the plaintiffs. Hence, the findings recorded
on the nature of the suit land in the earlier suit would not
create any bar of res judicata in the subsequent suit.
However, in my view, a perusal of the impugned judgments
indicates that the issue of the status of the suit land is
independently decided based on the evidence on record, and
it is not decided on the ground of the findings recorded in the
earlier suit.
25. It was argued on behalf of the plaintiffs that the
contents of the Kabulayatnama and the regrant order
indicate that it was an order on behalf of the joint family. It is
submitted that 7/12 extracts produced at Exhibit 26 show that
the joint family members jointly cultivated the suit land. The
plaintiffs relied upon receipts to show that there was a joint
family nucleus. There is no dispute that the stamps on the
receipts of payments made regarding the suit land show that
Genu, Murlidhar and their sons paid the amount on the
respective dates. Thus, the evidence on record supports the
contention of the plaintiffs that though the lease in respect of
the suit land was executed in the name of Nivruti and the
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regrant order was also in the name of Nivruti, the same was
on behalf of the joint family. The partition effected with
respect to the other properties in 1933 would not change the
status of the joint family that existed on the date of issuing
the lease and the regrant order. Thus, the admitted fact that
joint family properties existed on the date of the lease and
when the regrant order was passed coupled with the fact of
the partition effected in 1933 excluding the suit land supports
the plaintiffs’ contention that a joint family nucleus existed on
the date of the grant of lease and the regrant order in the
name of Nivruti.
26. The lease was issued in the name of Nivruti on
payment of land revenue. Even on the order of the regrant,
the amount of land revenue was required to be paid. It is
neither pleaded nor proved that Nivruti had an independent
source of income. Thus, the grant of lease and the regrant
order in the name of Nivruti would not make the suit land
independent property of Nivruti, in the absence of any
pleadings and proof that Nivruti had his own independent
source of income and the payments made on account of
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lease and the regrant order, were paid by Nivrutti from his
independent income.
27. Thus, the submissions made by the learned counsel for
the appellants that the findings recorded in the earlier suit
could not be challenged as the final decree was in favour of
the appellants is not relevant, in as much as, the issues in
the present suit are decided by examining the independent
evidence on record to support the plaintiffs’ case that the suit
land belongs to the joint family. Hence, the first question of
law is answered in favour of the plaintiffs.
28. A plain reading of the lease document and the regrant
order at Exhibit 94 indicates that the same is in the individual
name of Nivruti. However, considering the findings recorded
on the existence of the joint family nucleus on the date of the
lease and the date of the regrant order, the interpretation of
the construction of the lease deed is not necessary. Nothing
is argued by the parties on the construction of the lease
deed. The findings on the existence of a joint family nucleus
on the dates of the lease and the regrant order are sufficient
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to hold that the suit land belonged to the joint family. Hence,
the second question of law is answered accordingly.
29. The date of death of Bapu is disputed. Neither of the
parties produced any evidence to indicate the exact date of
death of Bapu. However, in view of the existence of a joint
family nucleus and in the absence of any proof of Nivruti
having an independent source of income, the grant of lease
and the order of regrant are rightly presumed by both the
courts to be on behalf of the joint family. It is not uncommon
that the eldest son’s name is entered as the karta of the joint
family. It is common for the family’s eldest son to act as Karta
or manager of the joint family. The Hon’ble Apex Court in the
case of Narendrakumar Modi, held that so long as the family
members remain undivided, the seniormost member is
entitled to manage the properties and is presumed to be
manager until contrary is proved and a senior member may
give up the right of management and a junior member may
be appointed manager. Thus, in the present case, Nivruti
being the eldest son, both the courts have rightly presumed
that he acted as Karta or Manager of the joint family. No
material is produced to prove the date of death of Bapu or
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that at the relevant time Bapu was acting as karta. The legal
principles settled in the decision of Tribhovandas Haribhai
Tamboli are in the context of the right to sell the property in
question as a manager, so long as the father is alive. In the
facts of the case before the Hon’ble Apex Court, the father
was under disability due to lunacy; hence, it was held that an
order from the court under the Indian Lunacy Act had to be
obtained to manage the joint family property. Thus, it was
held that the managership of the joint family property goes to
a person by birth and is regulated by seniority and the karta
or the manager occupies the position superior to that of the
other members and therefore the junior member cannot deal
with the joint family property as manager so long as the karta
is available. Thus, in the facts of the present case, and the
controversy involved, the legal principles settled in the
decisions relied upon by the learned counsel do not support
the appellants’ arguments.
30. The decision of the Hon’ble Apex Court in the case of
Srinivas Raghavendrarao Desai is relied upon to contend
that no evidence could be led beyond pleadings. There can
be no debate on the legal proposition that the evidence led
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by the party has to be supported by pleadings. In the
present case, the plaintiffs pleaded that the suit land belongs
to the joint family, though the lease and the regrant order are
in the name of Nivrutti alone. The Hon’ble Apex Court in the
case of D.S.Lakshmaiah and Another, held that if it is proved
that there was nucleus with which the joint family property
could be acquired, there would be presumption of the
property being joint, and the onus would shift on the person
who claims it to be self-acquired property to prove that he
acquired it with his own funds and not from joint family
nucleus. In the present case, it is not disputed that joint
family property existed on the date the suit land was
acquired, on payments made on account of the lease terms
and the regrant order. The joint family nucleus at the relevant
time is not disputed; hence, the burden would be upon
defendant no. 1 to plead and prove that Nivrutti had his
independent source of income and that the suit land was
acquired from his independent income.
31. Hence, the legal principles settled in the decisions
relied upon by the learned counsel for the appellants are of
no assistance to the arguments made on behalf of the
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appellants. The evidence on record supports the plaintiffs’
contention that though the lease document and the order of
regrant were in the name of Nivruti, the same was on behalf
of the joint family. Hence, all the questions of law are
answered accordingly in favour of the plaintiffs.
32. For the reasons recorded above, no interference is
therefore warranted to reverse the impugned judgments and
decrees. Hence, the second appeal is dismissed.
[GAURI GODSE, J.]
Digitally
signed by
RAJESHWARI
RAJESHWARI RAMESH
RAMESH PILLAI
PILLAI Date:
2025.06.16
02:45:53
+020037/37
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