Joint family property is presumed until proven otherwise; prior partition must be established by metes and bounds to be valid.

JUDGMENT:

1. This Second Appeal is preferred by the original defendants to challenge the judgments and decrees passed by the First Appellate Court granting partition and separate possession to the plaintiffs. Respondents had filed a suit for partition and separate possession, claiming one-fourth share in the suit property. The suit was dismissed. The first appeal preferred by the plaintiffs is allowed, and the suit is decreed granting one-third share to plaintiff no.1, legal heirs of deceased Nana and defendant no. 1 each excluding the land already sold by defendant no. 1 to defendant no. 2 to the extent of 2 anas 4 paise out of suit land bearing Gat No. 70A. Being aggrieved by the decree for partition and separate possession the defendants filed the present Second Appeal. Being aggrieved by the determination of shares and exclusion of the land given to defendant no. 2, plaintiffs have filed cross-objections.

2. By order dated 22^nd March 2024, the Second Appeal is admitted on the following substantial questions of law:

(I) Whether it was permissible for the Appellate Court to disregard the partition between the parties for the reason that the partition was an unequal partition?

(II) Whether the Appellate Court committed an error in law by ignoring the subsequent conduct of the parties dealing with their individual shares and alienating the same in favour of the third parties which indicated the clear intention of severance of joint status?

(III) Whether the alienation of the properties as individual properties subsequent to the Mutation Entry- Exh.“37”supports the theory of previous partition ?

3. By order dated 26^th September 2024 following substantial questions of law were framed in the cross objection:

(I) Whether defendant no. 2 would be entitled to get any share in the suit property?

(II) Whether the First Appellate Court erred in excluding the area from Gat No. 70A to an extent of 2 annas 4 paise on the ground that it was sold by defendant no.1 to defendant no.2 in as much as it was never the case of defendants that the said area sold to defendant no.2?

(III) Whether the area to an extent of 2 annas and 4 paise out of Gat No. 70A can be excluded on the ground as pleaded by defendant no.1, stating that by consent the said share was given to defendant no.2, as she had contributed towards amount of purchase price paid at the time of issuing 32M certificate in the name of defendant no.1?

Facts in brief:

4. The suit was filed for partition and separate possession with respect to Gat No. 46 (old Survey No. 14) and half share of Gat No. 70A (old Survey No. 24, 30 and 31). The plaintiffs are claiming partition and separate possession through Waman. Waman had two wives, both by the name of Hausabai. After the demise of the first wife, Waman married Hausabai (plaintiff no.2). Waman had one son, Anna (Defendant no. 1), from his first wife. Waman had two sons from his second wife, Nana and Balu (Plaintiff no.1). Nana expired in 1984. Nana’s wife, Sushilabhai (Plaintiff no.3) and their sons are plaintiff nos. 4 and 5. Plaintiffs claimed that the suit properties were ancestral joint family properties of Waman, and thus, plaintiffs claimed one-fourth share in the suit properties. Plaintiff no. 2, i.e. Waman’s second wife, expired during the pendency of the suit. Since her heirs and legal representatives were already on record, her name was deleted in the trial court.

5. There is no dispute that the common ancestor of the parties was Waman, who had two wives. The relationship between the parties is not in dispute. The dispute between the parties is whether the suit properties are self-acquired properties of defendant no. 1- Anna, or is it the ancestral property through the common ancestor Waman?

Submissions on behalf of the Appellants (Original defendants)

6. Learned counsel for the appellants submitted that;

a) Waman died sometime in the year 1942. Gat No. 70A was the self-acquired property of Anna. There was a partition between the parties, and plai