Case Note & Summary
The dispute pertains to a suit for partition and separate possession of a house property situated in Wardha. The plaintiffs claimed that the suit property was ancestral Hindu joint family property and that they, being descendants of Vithoba, had a half share, while defendant Nos.1 to 10 were descendants of Krushnarao. The defendants contended that there was a prior partition in 1955 evidenced by Kabuliyat executed by Murlidhar and Nilkanth in favour of Vinayakrao, and that the joint family had ceased to exist. The trial court decreed the suit, holding that the joint family existed. However, the First Appellate Court reversed the decree, finding that the joint family was not in existence and that the plaintiffs had no share. The High Court, in second appeal, upheld the First Appellate Court's decision, holding that the findings of fact were based on evidence and not perverse. The court noted that the Kabuliyat, separate residence, and exclusive dealing with the property by Vinayakrao rebutted the presumption of jointness. The appeal was dismissed with no order as to costs.
Headnote
A) Hindu Law - Joint Family - Presumption of Jointness - The presumption that a Hindu family is joint can be rebutted by evidence of separation, such as execution of a Kabuliyat, separate residence, and separate dealing with property. In this case, the Kabuliyat executed in 1955, coupled with the fact that the brothers lived separately and Vinayakrao exclusively dealt with the suit property (mortgaging it, paying taxes, etc.), rebutted the presumption of jointness. (Paras 12-14)
B) Hindu Law - Partition - Kabuliyat - A Kabuliyat is a document evidencing relinquishment of share in property. The execution of Kabuliyat by Murlidhar and Nilkanth in favour of Vinayakrao in 1955, along with the conduct of parties, indicated a prior partition by metes and bounds. The plaintiffs failed to prove that the joint family continued after 1955. (Paras 12-14)
C) Civil Procedure - Second Appeal - Section 100 CPC - Interference with findings of fact - The High Court in second appeal cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. The First Appellate Court's finding that the joint family was not in existence was a finding of fact based on evidence, and no substantial question of law arose. (Para 15)
Issue of Consideration
Whether the plaintiffs have half share in the suit property as members of a Hindu joint family, and whether the Kabuliyat executed in 1955 by Murlidhar and Nilkanth in favour of Vinayakrao established separation, thereby negating the claim for partition.
Final Decision
The Second Appeal is dismissed. The judgment and decree of the First Appellate Court are confirmed. No order as to costs.
Law Points
- Hindu joint family
- partition
- Kabuliyat
- separation
- burden of proof
- presumption of jointness
- Section 103 CPC
Case Details
2024 LawText (BOM) (7) 220
Second Appeal No. 115 of 2020
Mr. Sachin Deshpande for Appellants, Mr. M. R. Joharapurkar for Respondent Nos.2 to 11, Mr. A.J. Thakkar for Respondent Nos.12 to 14
Milind S/o Narayanrao Ballal (Mitkari) and others
Smt. Nalini Wd/o Vinayakrao Ballal (Mitkari) and others
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Nature of Litigation
Civil suit for partition and separate possession of ancestral property, and for setting aside sale deeds.
Remedy Sought
Plaintiffs sought partition and separate possession of their half share in the suit property, setting aside of sale deeds executed in favour of defendant Nos.11 to 13, and mesne profits.
Filing Reason
Plaintiffs claimed that the suit property was ancestral Hindu joint family property and that they had a half share, but defendants denied their share and sold the property to third parties.
Previous Decisions
Trial court decreed the suit in favour of plaintiffs; First Appellate Court reversed and dismissed the suit.
Issues
Whether the plaintiffs have a half share in the suit property as members of a Hindu joint family?
Whether the Kabuliyat executed in 1955 by Murlidhar and Nilkanth in favour of Vinayakrao established separation, thereby negating the claim for partition?
Submissions/Arguments
Appellants (plaintiffs) argued that the suit property was ancestral joint family property and that the Kabuliyat was not genuine; the joint family continued as held in earlier civil suits.
Respondents (defendants) argued that there was a prior partition in 1955 evidenced by Kabuliyat, separate residence, and exclusive dealing with the property by Vinayakrao; the joint family was not in existence.
Ratio Decidendi
The presumption of Hindu joint family can be rebutted by evidence of separation, such as execution of a Kabuliyat, separate residence, and exclusive dealing with the property. The First Appellate Court's finding that the joint family was not in existence was a finding of fact based on evidence and not perverse, hence no substantial question of law arose under Section 100 CPC.
Judgment Excerpts
The learned First Appellate Court held that undivided Hindu joint family was not in existence. The plaintiffs are not entitled for share in the suit property.
The execution of Kabuliyat by Murlidhar and Nilkanth in favour of Vinayakrao in 1955, along with the conduct of parties, indicated a prior partition by metes and bounds.
Procedural History
The plaintiffs filed Special Civil Suit No.48 of 2005 before the 3rd Joint Civil Judge, Senior Division, Wardha, which was decreed on 31.01.2009. The defendants appealed to the District Judge-2, Wardha in Regular Civil Appeal Nos.212 of 2015 and 213 of 2015, which were allowed on 13.12.2019, dismissing the suit. The plaintiffs then filed the present Second Appeal No.115 of 2020 before the Bombay High Court, Nagpur Bench.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
