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SUPREME COURT OF INDIA
R.S. SARKARIA AND D.A. DESAI JJ.
Smt. Krishnabai Ganpatrao Deshmukh, Appellant
Versus
Appasaheb Tuljaramrao Nimbalkar and others, Respondents.
Civil Appeal No. 54 of 1969,
D/- 31-7-1979.
Advocates appeared
Mr. B. D. Bal Sr. Advocate (Mrs. S. Bhandare and A. N. Karkhanis and Miss M. Pedival, Advocates, with him), for Appellant; Mr. V. S. Desai Sr. Advocate (Mr. N. Nettar Advocate with him), for Respondents.
Constitution of India, 1950 – Article 133 – Indian Trusts Act – Section 90 – Bombay Pargana and Kulkarni Watans (Abolition) Act, 1950 – Land Issue – Partition – By a registered document, executed by Narayanarao, six Desgat lands situated in villages Nanandi, Umarani and Nandikurli, totalling about 120 acres, were received by Ramchandrarao, for separate living and maintenance of himself and his male lineal descendants – Out of the lands covered by the said deed, three lands comprised in Survey are subject-matter of suit, out of which this appeal has arisen – Respondents herein, who are grandsons and great grandsons of Narayanarao, instituted Suit in Court of Civil Judge, against Smt. Krishnabai, appellant, for possession of said lands and for recovery of past and future mesne profits, with these allegations: (i) that suit lands were Desgat Watan lands and were part of Desgat Watan estate of Nanandi; (ii) that by virtue of an ancient and immemorial family and territorial custom, Desgat estate of Nanandi was impartible and descended from generation to generation to seniormost member by rule of primogeniture while junior members of the family were only given some lands for their maintenance by holder of Desgat for the time being; (iii) that till his death, appellants father continued to be an undivided member of Joint family consisting of himself and plaintiffs; and (iv) that a partition by metes and bounds has taken place between plaintiffs inter se under a partition deed – Trial judge by his judgment, dismissed respondents suit – Aggrieved, plaintiffs preferred an appeal in the High Court of Mysore – High Court affirmed finding of trial Court, that custom pleaded by plaintiffs with regard to impartibility of property had not been established – It observed that "the onus of proving partition is on the defendant," but "the only evidence in support of her case that Ramchandrarao was divided, is Exhibit No. 39." – High Court construed deed with aid of its translations into English, one made by trial judge and other by High Court Translator – It then took note of these features in support of theory of partition – Held, Once it is found that division of joint status preceded execution of deed, then disposition made thereunder could only be a step towards implementation of that division and in recognition of Ramchandraraos right to have his share, wholly or partly demarcated and specified for separate enjoyment as an absolute and exclusive owner thereof – While giving land measuring 118 or 120 acres to Ramchandrarao in recognition of letters equal right in this court Narayanarao had no power to impose, futile condition that land was being given to Ramchandrarao and his male lineal descendants for maintenance. – This insertion by executant from an ulterior self-serving motive, was devoid of sub-stance; it could not be attached any greater importance and reality than phantasmic assumption, from which it was conjured up; a fortiori, when in the deed, there is no stipulation that in event of Ramchandraraos male line becoming extinct, land would revert to the Desgat, and Narayanarao or his descendants would have a right of re-entry – Court is in agreement with trial court that expressions "Potgi" (maintenance) or "Nirwahkrit" in deed cannot be construed as conferring an estate with restricted rights of ownership, limited to lifetime of Ramchandrarao and his lineal male descendants – Deed evidences a permanent transfer or allotment of about 118 or 120 acres of land to Ramchandrarao to be enjoyed from generation to generation to the entire exclusion of Narayanarao and his descendants – In terms, Narayanarao did not reserve any right of reversion in favour of himself and his branch in any circumstances – Irrigation rights also with regard to the land transferred or allotted under this deed, were divided – It was further provided that from the date of the deed, payment of Joodi to the Government in respect of this land, shall also be the exclusive liability of Ramchandrarao and his descendants. – Court is of opinion (i) that there was partition or division of joint family status sometime prior to execution of deed, and (ii) that disposition of about 118 or 120 acres made under that deed was, in substance, an absolute allotment of that land to Ramchandrarao, towards implementation of that division or partition in recognition of the latters right to have his share demarcated by metes and bound to be enjoyed exclusively, in severalty – Appeal Allowed
Certainly. Here are the key points derived from the provided legal document:
The case involves a dispute over the partition and division of joint family property, specifically relating to Desgat lands inherited through a family arrangement (!) (!) .
The original deed, executed by Narayanarao, allocated certain lands to Ramchandrarao for his separate living and maintenance, with the intention of recognizing his right to enjoy those lands independently (!) (!) (!) .
The deed was styled as a maintenance arrangement, but evidence suggests it was intended as a step towards partition and the absolute allotment of land to Ramchandrarao, indicating a prior division of joint family status (!) (!) (!) .
There was a longstanding belief that the family estate was impartible and vied by primogeniture; however, this custom was not proven, and the evidence pointed towards a division of the joint family property prior to the deed (!) (!) (!) .
The court found that Ramchandrarao had clearly intimated his intention to separate from the joint family, which resulted in a division of the joint family status before the execution of the deed (!) (!) (!) .
The execution of the deed reflected the recognition of Ramchandrarao's separate ownership of the allotted lands, which he enjoyed exclusively for an extended period, further supporting the conclusion of a prior partition (!) (!) .
The court emphasized that the land transferred to Ramchandrarao was in pursuance of an absolute allotment following the division of the joint family, and not merely a maintenance arrangement or a conditional gift (!) (!) .
The evidence, including revenue records and subsequent conduct of the parties, corroborated the view that the property was in Ramchandrarao's exclusive possession as a result of a prior partition (!) (!) .
Based on these findings, the court held that at the time of Ramchandrarao’s death, the property was his separate, divided estate, and his heirs (including the appellant) inherited it accordingly, excluding the plaintiffs who claimed joint family rights (!) (!) .
The appeal was allowed, and the suit filed by the respondents for possession was dismissed, affirming the prior partition and separate ownership of the property (!) .
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Judgment
SARKARIA, J.:- This appeal by the defendant, on certificate, is directed against a judgment, dated October 23, 1968, whereby in First Appeal, the High Court of Mysore set aside the judgment and decree passed by the Joint Civil Judge, Senior Division, Belgaum.
2. The pedigree of the family given below will be helpful in understanding the facts leading to this appeal :
3. By a registered document, dated July 25, 1902 (Ex. 39), executed by Narayanarao, six Desgat lands situated in villages Nanandi, Umarani and Nandikurli, totalling about 120 acres, were received by Ramchandrarao, for separate living and maintenance of himself and his male lineal descendants. Out of the lands covered by the said deed, three lands comprised in Survey Nos. 114 (26 acres 30 gunthas), 115 (9 acres 38 gunthas) and 116 (26 acres 34 gunthas), totalling about 63 acres and 22 gunthas, situate in the area of village Umarani, Taluka Chikodi, are the subject-matter of the suit, out of which this appeal has arisen.
4. The respondents herein, who are the grandsons and great grandsons of Narayanarao, on July 24, 1960, instituted Suit No. 26/60 in the Court of Civil Judge, Belgaum against Smt. Krishnabai, appellant, for possession of the said lands and for recovery of past and future mesne profits, with these allegations: (i) that the suit lands were Desgat Watan lands and were part of the Desgat Watan estate of Nanandi; (ii) that by virtue of an ancient and immemorial family and territorial custom, the Desgat estate of Nanandi was impartible and descended from generation to generation to the seniormost member by the rule of primogeniture while the junior members of the family were only given some lands for their maintenance by the holder of the Desgat for the time being; (iii) that till his death, the appellants father continued to be an undivided member of the Joint family consisting of himself and the plaintiffs; and (iv) that on July 31, 1956, a partition by metes and bounds has taken place between the plaintiffs inter se under a partition deed.
5. The suit was resisted by the defendant-appellant. She denied the alleged ancient, family and territorial custom of primogeniture. She denied that the property formed part of the Desgat Watan estate of Nanandi. She further denied that her father, Ramachandrarao, came into possession of the suit land for his maintenance. She further pleaded that Ramchandrarao and his brother Narayanarao had separated during their lifetime and the suit lands and some other lands were given to Ramchandrarao in the partition between the two brothers towards a part of his share, and it was agreed that the share of Ramchandrarao in other family properties would be separated and settled at some future convenient time. She further stated that since 1902, Ramchandrarao was in separate possession and enjoyment of the suit lands till his death on January 20, 1955, and that at the time of his death he was not an undivided member of the joint family of himself and the plaintiffs. She further pleaded that on her fathers death she succeeded to the suit lands, which were his separated property. She further relied on the Bombay Pargana and Kulkarni Watans (Abolition) Act, 1950 (Bombay Act No. 60 of 1950), (for short, called the Act), and the regrant of the land made in favour of her father under that Act.
6. The learned trial judge by his judgment, dated September 29, 1962, dismissed the respondents suit with these findings:
(a) that the alleged custom of impartibility and devolution of property by the rule of primogeniture had not been proved;
(b) that there was a severance of the joint family consisting of the two brothers, in 1902, when they had agreed to separate, that since then for about 53 years till his death in 1955, Ramachandrarao was living separately and enjoying the suit land as his separate property;
(c) that the suit lands were originally Watan lands, but they were not so at the date of the suit because the Bombay Act 60 of 1950, whi
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