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2023 Supreme(Bom) 1950
IN THE HIGH COURT OF BOMBAY
Gauri Godse, J.
Govind Manik Fule - Appellant
Versus
Venkat Manik Fule - Respondent
Second Appeal No. 20 of 2023, Civil Application No. 756 of 2023
Decided On : 09-02-2023
S.P. Urgunde, Advocate, Madhaveshwari Mhase, Advocate
IMPORTANT POINT
The court established that in partition suits involving joint family property, the burden of proof lies on the party claiming self-acquisition, and the issue of limitation must be considered even if not raised during trial.
Headnote:
PARTITION - JOINT FAMILY PROPERTY - Limitation Act, Sec. 3 - The court discussed the nature of joint family property and the rights of heirs in partition cases. It emphasized that the suit property was ancestral and that the defendant failed to prove it as self-acquired. The court interpreted Sec. 3 of the Limitation Act, asserting that the issue of limitation must be addressed even if not raised during trial, leading to the conclusion that the suit was not time-barred.
Fact of the Case:
The plaintiffs filed a suit for partition and separate possession of property originally owned by their father, Manik, claiming their rightful shares. The defendant, acting as Karta of the joint family, contested the claim, asserting that the property was self-acquired and that the suit was time-barred.
Finding of the Court:
Both the Trial Court and the District Court found that the property was ancestral and that the defendant did not prove his claim of self-acquisition. The courts confirmed the plaintiffs' entitlement to a share in the property and the compensation amount from land acquisition.
Issues: Whether the suit was time-barred and whether the property was self-acquired or ancestral.
Ratio Decidendi: The court held that the issue of limitation was a mixed question of law and fact, which was not adequately addressed by the defendant. The absence of evidence regarding the plaintiffs' knowledge of the compensation withdrawal was crucial in determining the limitation period.
Final Decision: The second appeal was dismissed, affirming the lower courts' decisions regarding partition and the plaintiffs' entitlement to compensation.
JUDGMENT/ORDER
1. This second appeal is preferred by original defendant for challenging the concurrent decree for partition and separate possession passed in favour of respondent nos.1 to 3.
2. By judgment and decree dtd. 11/10/2022, learned District Judge, Nilanga dismissed Regular Civil Appeal No.81 of 2013 preferred by the present appellant for challenging the judgment and decree dtd. 2/7/2013 passed by learned Civil Judge, Junior Division, Nilanga in Regular Civil Suit No. 250 of 2010. Respondent Nos.1 to 3 had filed the said suit for partition and separate possession by contending that the suit property was originally owned by their father Manik, hence, they had share in the suit property.
3. It is the contention of the plaintiffs that the present appellant, who is defendant no.1 in the suit was acting as Karta of joint family. After death of Manik, names of all the parties were entered as heirs and legal representatives of deceased Manik and name of defendant no.1 was entered as Karta of the joint family in the revenue record. The said mutation entry is produced at Exhibit-55 in the Trial Court. So far as the sale deed with respect to the suit property is concerned, the same was admittedly in the name of deceased Manik and the same was also produced on record at Exhibit-83. It is also not disputed that after the death of Manik, the names of all the heirs and legal representatives were entered in the revenue record and name of defendant no.1 was entered as Karta of the joint family.
4. Defendant no.1 denied the claim of the plaintiffs on the ground that he had purchased the suit property in the name of father i.e. Manik. He further contended that the part of the land was acquired in the land acquisition proceedings and the award was in his name and he had withdrawn the amount of compensation. It was thus submitted that it is his self acquired property, and therefore, the plaintiffs were not entitled to claim any share.
5. Trial Court framed issues with respect to the nature of the suit property and also with respect to the contention raised by defendant no.1 that it was his self acquired property. Trial Court after examining all the documents and evidence on record held that the plaintiffs proved that the suit property was ancestral property of the plaintiffs and defendants and that defendant no.1 failed to prove that it was his self acquired property. Thus, by accepting the case of the plaintiffs that deceased Manik was the owner of the suit property, and that, the name of defendant no.1 was entered as Karta of the joint family, the trial court decreed the suit and passed the decree directing that the plaintiffs and defendants were entitled to 1/6th share in the suit property as well as 1/6th share in the amount of compensation pursuant to the land acquisition award.
6. Feeling aggrieved by the decree passed by Trial Court, defendant no.1 preferred Regular Civil Appeal No. 81 of 2013 in the District Court. Learned District Judge also framed the points for consideration with respect to the status of the joint family and nature of the suit property and after examining all the documents and evidence on record confirmed the findings of the Trial Court that deceased Manik was the owner of the suit property, and that, the name of defendant no.1 was entered as Karta of the joint family after death of Manik.
7. Both the Courts have specifically disbelieved the case of defendant no.1 that it was his self acquired property. Thus, the first appellate Court confirmed the decree of partition and separate possession passed by the Trial Court. Hence, defendant no.1 has preferred present second appeal.
8. Learned counsel for the appellant submitted that the suit was time barred in view of the case made out by the plaintiffs in the suit itself. He further submitted that though there was a specific pleading raised by the appellant in the written statement that the suit is time barred, both the Courts failed to frame the issue with respect to limi
