Case Note & Summary
The appeal before the Bombay High Court, Nagpur Bench arose from a partition suit filed by the original plaintiff, the daughter of deceased Jagoji Khandare, claiming a half share in three agricultural lands. The defendants were the son and grandsons of Jagoji. The dispute centered on whether the suit properties were joint family or self-acquired. Jagoji Khandare died on 12 December 2001. The genealogy showed Jagoji and his brother Champatrao; Jagoji's daughter was the plaintiff, and his son and grandsons were defendants. The suit lands included Survey No.51/1 (Gat No.286), Survey No.51/3 (Gat No.280), and Survey No.77/3 (Gat No.145). The plaintiff pleaded that Jagoji had purchased lands from ancestral field and that all were mutated in his name. The defendants in their written statement denied that the properties were ancestral, but admitted that Survey No.51 was purchased by Jagoji and Champatrao out of their joint family income in the name of Jagoji as per Madhya Pradesh Act, 1958 Rule 24 Vidarbha Patte Bill. They also stated that the property was self-acquired. A partition between Jagoji and Champatrao took place in 1958, and a registered partition deed dated 29 October 2001 was executed among the defendants. The trial court partly decreed the suit, granting the plaintiff a share only in Survey No.77/3 in her father's share and excluding Survey No.51 lands as self-acquired. The first appellate court dismissed the plaintiff's appeal, leading to the second appeal. The High Court admitted the appeal on 23 March 2007 and framed a substantial question of law on whether the courts below were justified in holding the suit property self-acquired despite the written statement admission of purchase from joint family income. The appellant contended that the admission proved joint family property and she was entitled to an independent share. The respondents argued that the scope of second appeal was limited, concurrent findings should not be disturbed unless perverse, and the admission could not be read in isolation; they submitted that joint family income referred to income of both brothers and did not make the property ancestral. The Court examined the scope of second appeal, relying on Keshar Bai v. Chhunulal and Shivaji Kashiram Jamdar through LRs. & Others v. Punja Kashiram Jamdar & Others, and observed that the High Court cannot re-appreciate evidence or convert itself into a third court of fact finding. The Court also considered the effect of admission in a written statement, noting that it must be read along with the entire pleading. The trial court had given weight to the admission but also examined other reasons. The substantial question of law was answered in the affirmative, indicating that the courts below were justified in their finding; additional substantial questions of law were noted to be considered as per paragraph 19 of the judgment. The final operative order was not fully stated in the provided text, but the Court's reasoning shows limited interference in second appeal and a holistic reading of pleadings.
Headnote
A) Civil Procedure - Second Appeal - Scope of Interference - Code of Civil Procedure, 1908 (Second Appeal provisions) - High Court cannot re-appreciate evidence or act as a third court of fact finding; concurrent findings can be set aside only if perverse - Relied on Keshar Bai v. Chhunulal and Shivaji Kashiram Jamdar through LRs. & Others v. Punja Kashiram Jamdar & Others - Held that the exercise of second appeal jurisdiction is limited and the Court will not reopen the entire case on facts unless there is perversity (Paras 4-5). B) Evidence/Pleadings - Admission in Written Statement - Effect of Admission - Code of Civil Procedure, 1908, Order VIII (Written Statement) - Admission contained in a written statement must be read along with the entire pleading and cannot be considered in isolation - Defendants admitted purchase from joint family income but also denied ancestral nature of properties - Held that the admission cannot be isolated from other averments in the written statement, and the trial court's approach of giving weight to the admission while also considering the whole pleading was examined (Paras 6-14). C) Property Law - Joint Family Property vs Self-Acquired Property - Classification of Suit Lands - Madhya Pradesh Act, 1958, Rule 24 Vidarbha Patte Bill - Pleading mentioned purchase under this Act; issue whether lands were joint family or self-acquired - Trial court excluded Survey No.51 lands as self-acquired while granting share in Survey No.77/3 - Held that the substantial question of law on this classification was answered in the affirmative, indicating that the courts below were justified in their finding on self-acquired nature (Paras 8-13).
Issue of Consideration
Whether the courts below were justified in holding that the suit property was the self-acquired property of Jagoji when the defendants pleaded in paragraph no.2 of the written statement that the property was purchased by late Jagoji and his brother Champatrao out of joint family income in the name of late Jagoji; whether such admission can be read in isolation; scope of interference in second appeal against concurrent findings of fact.
Final Decision
Substantial question of law answered in the affirmative; additional substantial questions of law to be considered as per paragraph 19. Final operative order not fully stated in the provided text.
Law Points
- Admission in written statement must be read as a whole and cannot be isolated from other averments
- Scope of second appeal is limited to substantial questions of law and interference only on perversity
- Concurrent findings of fact by lower courts should not be disturbed unless perverse
- Plea of purchase from joint family income does not by itself convert property into joint family property without considering entire pleading.
