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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BHASKAR BHATTACHARYA and J.B.PARDIWALA, JJ.
RAMANBHAI PARSOTTAMBHAI PATEL - Appellant(s)
Versus
PARSOTTAMBHAI KUBERBHAI PATEL DECD. THRO' HEIRS GANGABEN - Defendant(s)
FIRST APPEAL NO. 4653 of 1998 WITH CIVIL APPLICATION No. 3549 of 2010
Decided On : 03/05/2013
State Ceiling Laws, Income-tax Act 1961 – Gift Tax Act, 1958 – Section 5 – Wealth Tax Act – Section 34B – Urban Land (Ceiling and Regulation) Act, 1976 – Trusts Act – Section 88 – Benami Transactions (Prohibition) Act, 1988 – Sections 4, 2 – Partition – Appeal is at the instance of unsuccessful defendants in a Suit proceedings for partition and is directed against the judgment and decree, passed by the 6th Joint Civil Judge (Senior Division), in Special Civil Suit, by which the Suit filed by the original plaintiffs was allowed, and it was held that the plaintiffs Nos. 1 to 8 and the defendants Nos. 1 and 2 each had 1/10th share with respect to the suit properties as mentioned in the plaint – Trial Judge also held that the deed of relinquishment executed by the plaintiff No.2 and the defendant Nos. 8 and 9, in favour of the defendant No.1, with respect to one of the suit properties, was void ab-initio, and accordingly, declared the same liable to be cancelled – Held, Court come to the conclusion that the plaintiffs have failed to prove that there was ancestral nucleus with the help of which the properties in question were acquired – Onus being on the plaintiffs in a suit for partition to establish how the family came to own considerable joint family properties, in our opinion, the plaintiffs have failed to discharge such onus – Court below proceeded on a wrong footing that the family was a joint Hindu Undivided Family and that the properties were joint family properties – Court is left with no other option but to set aside the judgment and decree passed by the Civil Court – Appeal Allowed (Paras 51, 52)
JUDGMENT :
J.B.PARDIWALA, J.
This appeal is at the instance of unsuccessful defendants in a Suit proceedings for partition and is directed against the judgment and decree dated 8th May, 1998, passed by the 6th Joint Civil Judge (Senior Division), Baroda, in Special Civil Suit No. 288 of 1996, by which the Suit filed by the original plaintiffs was allowed, and it was held that the plaintiffs Nos. 1 to 8 and the defendants Nos. 1 and 2 each had 1/10th share with respect to the suit properties as mentioned in the plaint. The learned trial Judge also held that the deed of relinquishment dated 17th September, 1982, Exh.191, executed by the plaintiff No.2 and the defendant Nos. 8 and 9, in favour of the defendant No.1, with respect to one of the suit properties, was void ab-initio, and accordingly, declared the same liable to be cancelled.
2. The appellants herein are the original defendants Nos. 1, 3, 4, 5 and 6, the respondents Nos. 1 to 8 are the original plaintiffs and the respondents Nos. 9 to 12 are also the original defendants.
The case set up by the original plaintiffs in their plaint may be summarized as under:-
2.1 The plaintiffs and the defendants are the legal heirs of one late Parsottambhai Kuberbhai Patel. The plaintiff No.1 is the widow of late Parsottambhai Kuberbhai Patel. The plaintiff Nos. 2 to 6 are the sons of late Parsottambhai Kuberbhai Patel. The plaintiffs Nos. 7 and 8 are the daughters of late Parsottambhai Kuberbhai Patel. The defendant No.1 is the elder son of late Parsottambhai Kuberbhai Patel. The defendant No.2 is the daughter of late Parsottambhai Kuberbhai Patel. The defendant No.3 is the wife of the defendant No.1. The defendant No.4 is the wife of the son of the defendant No.1. The defendant No.5 is the son of the defendant No.1. The defendant No.6 is the younger son of the defendant No.1. The defendant No.7 is the son of the plaintiff No.2. The defendant No.8 is the wife of the plaintiff No.3. The defendant No.9 is the wife of the plaintiff No.2. Parsottambhai Kuberbhai Patel died on 16th April, 1991 at village Sundalpura, Taluka Anand, Dist. Kheda.
2.2 During the life time of late Parsottambhai Kuberbhai Patel, he was in the ownership and possession of the following properties at village Sundalpura, Taluka Anand, Dist. Kheda.
| Survey Nos. | Acre-Guntha |
| 957 | 3--06 |
| 1152 | 1--17 |
| 634/2 | 1--09 |
| 978 | 0--21 |
| 944 | 0--27 |
| 658/2 | 1--02 |
| 660 | 1--12 |
| 656 | 0--14 |
| 944/1 | 1--21 |
| 959 to 961 | 2--26 |
| 951 to 953 | 0--34 |
| 1190 | 1--22 |
| 795 | 0--39 |
| 796/1 | 1--07 |
| 659 | 3--39 |
| 949/4 | 1--02 |
| 956 | 1--25 |
| 634/1 | 1--09 |
| 1190 | 1--23 |
| 912 | 0--29 |
| 805/2 | 0--31 |
| 789 | 1--33 |
| 57/5 | 2--27 |
| 850-A | 2--11 |
| 958, 961 | 3--01 |
| 971 | 0--28 |
| 661/5 | 1--20 |
| 662/5 | 1--12 |
| 959 to 991 | 1--12 |
| 962 | 1--15 |
| 777/778/779 | 1--06, 1, 0--39 |
| 951/2 | 0--24 |
| 805 | 0--31 |
| 57/5 | 2--27 |
| 964 | 1--19 |
| 965 | 1--23 |
| 377/778 | 2--00 |
| 978 | 0--12 |
| 797--1--2 | 0--36 |
| 661 Paiki | 1--20 |
| 662 Paiki | 1--13 |
2.3 The late Parsottambhai Kuberbhai Patel was also in ownership and possession of properties, namely plots and houses bearing property Nos. 28, 31, 41, 42, 43, 44, 45, 751, 771, 1470, 1471, 1472, 1212, 1213, 1214, 1215, 1531, 1708 and 1741, situated within the Panchayat boundaries of the village Sundalpura.
2.4 The late Parsottambhai Kuberbhai Patel was also in ownership of a plot bearing No.55, admeasuring 607 square meters and plot No.56, admeasuring 709 square meters, situated in Hari Bhakti Colony, Race Course, Baroda. The late Parsottambhai Kuberbhai Patel was also in ownership of plots Nos. 1 and 2 in Hari Bhakti Owners Lands, admeasuring 5000 sq. ft. The late Parsottambhai Kuberbhai Patel was also in ownership and possession of plots Nos. 70 and 71, admeasuring
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