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2017 Supreme(Bom) 330
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. DHANUKA, J.
Smt.Geeta Kumarchand Shah - Appellants
Versus
Shri Damodar Hirachand Shah
SECOND APPEAL NO. 708 OF 2008 ALONGWITH SECOND APPEAL NO. 38 OF 2009, SECOND APPEAL NO. 386 OF 2009
Decided on : 21-03-2017
Advocate Appeared:
For the Petitioner:Mr.A.A.Kumbhakoni, Senior Advocate, a/w. Mr.Akshay Shinde, i/b. Mr.Sagar Talekar, Mr.S.M.Kamble
For the Respondents: Mr.S.M.Kamble, Mr.Jay Savla, a/w. Mr.Prantik Majumdar, Mr.Rahul Theckedath, i/b. M.P.Savla & Co., Mr.Jay Savla, a/w. Mr.Prantik Majumdar and Mr.Rahul Theckedath
Important Points:- Once the written statement contains an admission in favour of the plaintiff, the amendment of such admission of the defendants cannot be allowed to be withdrawn which would totally displace the case of the plaintiff and which would cause him irretrievable prejudice. If the power of attorney holder has rendered some “acts” in pursuance to the power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Where the Courts find that the family arrangement suffers from a legal lacuna or a formal defect, the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. If bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable, the family arrangement is final and binding on the parties to the settlement.
Headnote:Oral Partiton---Registration Act, 1908--- section 17(b), section 49---- Code of Civil Procedure, 1908---Section 54--- Once the written statement contains an admission in favour of the plaintiff, the amendment of such admission of the defendants cannot be allowed to be withdrawn which would totally displace the case of the plaintiff and which would cause him irretrievable prejudice. ---No additional written statement should set up a totally new case or state facts at direct variance with the original written statement so as to completely change the issue in the case.---If the power of attorney holder has rendered some “acts” in pursuance to the power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him.---He cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.---Where the Courts find that the family arrangement suffers from a legal lacuna or a formal defect, the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits.---The family arrangement may be even oral in which case no registration is necessary.--- If bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable, the family arrangement is final and binding on the parties to the settlement.---The record indicates that the parties had treated the properties allotted to them on oral partition as their own properties and some of the properties were also dealt with by some of the parties and consideration was received by them exclusively.---The parties having taken an advantage of allotment of such properties on oral partition thus cannot challenge such oral partition and would be estopped from challenging such oral partition.---The learned trial Judge could not have ordered partition of those properties once again. ---The first appellate Court has rightly set aside the decree in so far as the properties at serial nos.8 to 17 are concerned.--- Properties described at Serial Nos.1 to 6 and 18 of the plaint were not the ancestral properties on the date of filing suit. The defendant nos.1 and 2 are entitled to 1/3rd share therein each. The defendant nos.3 to 7 being legal heirs of Kumarchand Shah are jointly entitled to one third share therein. These properties are liable to be partitioned by metes and bounds.--- Property described at Serial No.7 of the plaint is owned by the defendant nos.3 to 7 exclusively. --- Property described at Serial No.16 of the plaint is owned by the defendant no.1 exclusively. --- Properties described at Serial Nos.19 to 21 of the plaint are declared as ancestral properties of late Hirachand Shah and shall be partitioned by metes and bounds.
Result:- Second Appeal Disposed
By these three appeals filed under section 100 of the Code of Civil Procedure, 1908, the appellants have impugned the judgment and decree dated 10th July, 2008 passed by the learned District Judge, Ratnagiri at Alibaug allowing the Civil Appeal Nos. 56 of 2006 and 57 of 2006. By consent of parties, all three appeals were heard together and are being disposed of by a common judgment. Some of the relevant facts for the purpose of deciding these three appeals are as under :-
2. The parties in this judgment are described as per their original status in the Regular Civil Suit No.103 of 1996. Second Appeal No.708 of 2008 and Second Appeal No.38 of 2009 are filed by the original defendant nos. 3 to 7. Second Appeal No.386 of 2009 is filed by the original plaintiff.
3. Mr.Hirachand Shah had two wives Mrs.Motiben was the first wife and Mrs.Devkibai was the second wife. The said Mrs.Devkibai was the original defendant no.10 in the suit. Mrs.Motiben and the said Mr.Hirachand Shah had three sons, viz. (1) Mr.Kumarchand, (2) Mr.Mohan and (3) Mr.Purshottam and one daughter viz. Ms.Sulochana. Mr.Kumarchand died sometime in the year 1990 leaving behind him his widow Mrs.Geeta, one son viz. Mr.Manoj and three daughters viz. Neelam, Sadhana and Nutan. The aforesaid widow, son and three daughters of the said Mr.Kumarchand were the original defendant nos. 3 to 7 in the suit and are the appellants in the Second Appeal No.708 of 2008 and Second Appeal No.38 of 2009. Mr.Mohan who was one of the son of Mrs.Motiben was the original defendant no.1. Mr.Purshottam who was also one of the son of Mrs.Motiben was the original defendant no.2. Mrs.Sulochana who was one of the daughter of the said Mrs.Motiben had three children viz. Ms.Induben, Mr.Bipin and Mr.Kantilal. The said Ms. Induben, Mr.Bipin and Mr.Kantilal were impleaded as defendant nos. 8, 9 and 16 respectively in the suit.
4. Insofar as second wife of the said Mr.Hirachand Shah i.e. Mrs.Devkibai is concerned, she had two sons Mr.Damodar and Mr.Shivlal and four daughters viz. Ms.Kesar, Ms.Leela, Ms.Pushpa and Ms.Laxmi were impleaded as original plaintiff, defendant no.12, defendant no. 13, defendant no.11, defendant no.14 and defendant no.15 respectively in the suit.
5. On 5th November, 1941 Mr.Damodar who was the original plaintiff was born out of the wedlock between Mr.Hirachand Shah and Mrs.Devkibai. It is the case of the defendant no.1 that on 9th February, 1939, Mr.Hirachand Shah executed a sale deed and alienated the properties mentioned at serial nos. 1 to 7 and 18 in the plaint to Mr.Chotelal Brajgovind and others.
6. Sometime in the year 1941 those purchasers of the properties mentioned at serial nos. 1 to 7 and 18 filed a civil suit (319 of 1941). On 13th March, 1942, the said civil suit (319 of 1941) was decreed in favour of those purchasers. In the year 1952, those purchasers filed a Special Darkhast (10 of 1052) for implementation of the said decree in the Alibaug Court. In the year 1952, the original defendant nos. 1,2 and 3 made a complaint that they were the owners of the said suit property and were accordingly impleaded as party. In the execution proceedings, the compromise took place. It is the case of the defendant no.1 that insofar as properties at serial nos.1 to 7 and 18 of the plaint are concerned, those properties were given to Mr.Mohan (original defendant no.1), Mr.Purshottam (original defendant no.2) and Mr.Kumarchand (original defendant no.3). The purchasers retained rest of the properties.
7. It is the case of the defendant no.1 that an amendment was accordingly carried out in the original suit as well as in the decree and Mr.Mohan, Purshottam and Mr.Kumarchand became absolute owners in respect of those properties i.e. properties at serial nos.1 to 7 and 18 described in the plaint. On 7th June, 1956, those properties were transferred in the name of Mr.Mohan, Mr.Purshottam and Mr.Kumarchand in the revenue record after issue of notices and after following due procedure
