1. This appeal under Section 100 of the Code of Civil Procedure is at the instance of the original defendant Nos.1,4,5,7 and 8 against whom as well as against other defendants, respondent Nos.1 to 4 herein- original plaintiffs filed Regular Civil Suit No.13 of 1978 for declaration and partition of the suit property situated in Ward No.8 bearing Nodh No.225 in Jaguvallabh Ni Pole, Gopipura, Surat.
2. It is the case of the plaintiffs that plaintiff No.1 is mother of plaintiff Nos.2,3 and 4 and wife of defendant No.2. Defendant No.1 is father-in-law of plaintiff No.1 and grandfather of the plaintiff Nos.2 to 4. Other defendants are sons of defendant No.1. It is further case of the plaintiffs that father of defendant No.1 and grandfather of other defendants, named Kalidas Jethabhai, died intestate leaving immovable property,bearing Nodh No.3896, situated in Ward No.3 of Navghadia Vad, Navapura, Surat. The plaintiffs have further averred that the defendants succeeded the said ancestral property and then sold away the said property. From the sale proceeds of the said property, defendants purchased suit property and thus in the suit property, the plaintiffs had their undivided share as the same was ancestral property. The plaintiffs have further averred that though defendant No. 2 had no right or authority to sell away the share of the plaintiffs in the suit property, defendant Nos.4 to 7 got one sale deed executed from defendant No.2 in respect of not only the share of defendant No.2 but also share of the plaintiffs and thereby the plaintiffs are deprived of their legal rights in the suit property. It is further case of the plaintiffs that the sale made by defendant No.2 was not for any legal necessity and the same was executed against the rights of the plaintiffs. The sale, therefore, made by defendant No.2 in favour of defendant Nos.4 to 7 was totally illegal and invalid in the eye of law. Such sale made by defendant No.2 is not binding to the plaintiffs and therefore, the same is required to be declared invalid and the plaintiffs since entitled to their share in the suit property, the suit property is required to be partitioned and the plaintiffs are required to be given their share in the suit property. The plaintiffs thus filed this suit for declaring the sale to be invalid and for decree of partition and consequential relief of giving possession of the part of the suit property to the extent that will be declared entitled.
3. The suit of the plaintiffs was resisted by the defendants, except defendant No.2. Defendant No.2 supported the case of the plaintiffs by stating that the original property held by great grandfather was ancestral property and the suit property was purchased from sale proceeds of the said ancestral property and in the suit property, the plaintiffs have also got equal share and if such share is given to the plaintiffs, defendant No.2 has got no objection.
4. After framing the issues, learned Trial Judge on appreciation of the evidence, came to the conclusion that the suit property was purchased from the amount of sale proceeds of the ancestral property originally held by great grandfather named Kalidas and as mentioned in document Exh.77, the suit property was purchased by adding Rs.1000/- to the sale proceeds of the ancestral property held by deceased Kalidas. Learned Trial Judge thus found that the suit property could also be said to be ancestral property, wherein the plaintiffs have got equal share with the defendants. Learned Judge also recorded finding of fact that defendant No.2, being husband of plaintiff No.1 and father of plaintiff Nos.2 to 4, had no right or authority to sell out the share of the plaintiffs in the suit property and in fact, there was no question of legal necessity for defendant No.2 in selling out his share and the share of the plaintiffs in favour of defendant Nos.4 to 7. Learned Trial Judge also found that the sale in favour of defendant Nos.4 to 7 was not valid and further found that the plaintiffs were entitled to have share in the suit property to the extent of 1/35 and thus all the plaintiffs together would be entitled to have share to the extent of 4/35 in the suit property. Learned Trial Judge, therefore, ordered appointment of Court Commissioner for partitioning the suit property and if partition is not possible in the suit property, in the alternative, for auction of the suit property for the purpose of giving share of the plaintiffs in the suit property.
5. The defendants, except defendant Nos.2 and 3, unsuccessfully carried the matter before the first Appellate Court by filing Regular Civil Appeal No.104 of 1984. Learned Appellate Judge on independent appreciation of the evidence found the suit property to be ancestral property, wherein the plaintiffs have equal share and also found that defendant No.2 had no right or authority to sell out the share of the plaintiffs in the suit property in favour of defendant Nos.4 to 7 and therefore, such sale to the extent of share of the plaintiffs was invalid. Learned Appellate Judge however came to the conclusion that plaintiff No.1, being wife of defendant No.2, could not have claimed share and partition in the ancestral property and therefore, part of the decree by which plaintiff No.1 was held entitled to the share in the ancestral property was required to be modified. Learned Appellate Judge thus partly allowed the appeal and declared that plaintiff No.1 has no share in the suit property and the suit of plaintiff No.1 was dismissed. To the aforesaid extent, judgment and decree passed by learned Trial Judge was modified and the judgment and decree for plaintiff Nos.2 to 4 was confirmed by learned Appellate Judge by judgment and decree dated 17.8.1988. It is this judgment and decree of the first Appellate Court which is under challenge before this Court in this appeal.
6. The appeal was admitted by order dated 5.12.1990 on the following substantial questions of law as framed in para 4 of the appeal memo:-
(1) Whether in the facts and circumstances of the case, the lower courts were right in law in holding that the suit property was the joint family property ?
(2) Whether in the facts and circumstances of the case, the lower courts were right in law in holding that the defendant No.2 was not competent to sell and dispose of his share in the property as guardian and manager of minors and also as manager of his Branch of the Hindu family ?
(3) Whether in the facts and circumstances of the case, the lower courts were right in law in holding that the sale executed by defendant No.2 would not bind the defendant Nos.4 to 7 ?
(4) Whether in the facts and circumstances of the case, the lower courts were right in law in granting the declaration sought for by the plaintiffs ?
7. I have heard learned advocates for the parties.
8. Learned advocate Mr. Gayakwad for Mr. Shelat appearing for the appellants submitted that finding of fact recorded by the Courts below that the suit property is ancestral property is on misreading of the evidence available on record. He submitted that the property left by deceased Kalidas- great grandfather, was sold by the defendants and the sale proceeds were equally divided amongst the defendants and since every defendants got his share in such sale proceeds, they have become absolute owner of such sale proceeds and the property then purchased being suit property by all the defendants together from their funds could not be said to be ancestral property. Mr. Gayakwad submitted that once sale proceeds were divided amongst the defendants, it came in the hands of co-parceners and co- parceners could not be treated as joint tenants in the suit property and therefore, even if the suit property was purchased by all the defendants by contributing their individual funds from the sale proceeds of the earlier property, such would never confer any title to the suit property as ancestral property. He submitted that the Courts below have committed serious error in relying on Exh.77 to come to the conclusion that since the suit property was purchased by sale proceeds of earlier property, the same could be taken as ancestral property. He submitted that in fact, the very document Exh.77 would support the case of the appellants that the defendants have got their share in the sale proceeds equally and from that very day, no property remained to be an ancestral property. He submitted that once the ancestral property was sold away and rightful persons had got their share in the sale proceeds of the ancestral property, such persons could not be said to have held property as ancestral property because it was not a case that after selling the ancestral property, the funds without division from the defendants were straightway utilized for the purpose of purchasing of the suit property. He thus submitted that the Courts below have misconstrued document Exh.77 and have exceeded in their jurisdiction in holding that the suit property was ancestral property. Mr. Gayakwad further submitted that it has come in evidence that defendant No.2, who had become entitled to have his share in the sale proceeds and who after contributing his share of the sale proceeds agreed to purchase property jointly. He then thought it fit to sell away his share to the extent of 1/7 in favour of defendant Nos.4 to 7 for legal necessity. He submitted that since the plaintiffs have failed to prove that defendant No.2 had failed to perform his duties and obligations towards the plaintiffs, the sale by defendant No.2 in favour of defendant Nos.4 to 7 was required to be believed for legal necessity of the plaintiffs. Mr. Gayakwad further submitted that in fact, it is a case of fraud played by the plaintiffs in collusion with defendant No.2 with other defendants to deprive defendant Nos. 4 to 7 of their rights to hold the property purchased from the defendant No.2. He submitted that defendant No.2 intentionally just to defeat the rights of defendant Nos.4 to 7 supported the case of the plaintiffs in the suit though defendant No.2 himself thought it fit to sell away his share in the suit property for legal necessity of his family. He thus submitted that the Courts below have committed material error in holding that the sale deed executed by defendant No.2 in favour of defendant Nos. 4 to 7 is invalid. He submitted that since the plaintiffs had no share in the suit property, as the suit property was not ancestral property, and since defendant No.2 had sold his share in the suit property for legal necessity, the plaintiffs were not entitled to any relief for partition in the suit. He thus urged to allow this appeal on the substantial questions of law framed by this Court.
8.1. Learned advocate Mr. Gayakwad also submitted that when the suit was filed, plaintiff Nos.2 and 3 were still minor. He submitted that minors are not entitled to file suit for partition and therefore, decree passed in favour of such minors could not stand scrutiny of law and such part of the decree in favour of the minors is required to be quashed and set aside.
8.2. In support of his argument, learned advocate Mr. Gayakwad also relied on the decision of the Hon’ble Supreme Court in the case of Hardeo Rai Vs. Sakuntaladevi and others reported in (2008)7 SCC 46 to point out that once the share of coparcener is determined, it ceases to be a coparcenary property and parties in such an event would not possess the property as joint tenants but as tenants-in-common. Relying on this judgment, learned advocate Mr. Gayakwad has urged to allow this appeal and to quash and set aside the judgment and decree passed by the Courts below.
9. As against the above-said arguments advanced by learned advocate Mr. Gayakwad, learned advocate Shri Uday N. Vyas appearing for learned advocate Shri Shelat for the respondents- original defendants submitted that the Courts below have rightly come to the conclusion that the suit property was ancestral property. He pointed out that there is no dispute about the fact that great grandfather deceased Kalidas was owner of the property bearing Nodh No.3896 and the said property was sold out by the defendants and the sale proceeds of the said property were utilized to purchase the suit property. He submitted that the Courts below have rightly come to the conclusion on construction of document at Exh.77 that after selling the earlier property, the sale proceeds were utilized for the purpose of purchasing the suit property by the defendants. He submitted that document Exh.77 clearly recites that all the defendants together sold out the earlier property and after adding Rs.1,000/- to the sale proceeds, the defendants jointly purchased the suit property. He further submitted that there is also nothing on record to establish that the sale proceeds were equally taken away by the defendants and then they subsequently came forward and contributed their individual money to purchase the suit property. He however submitted that even if the sale proceeds were divided amongst the defendants and thereafter they gave back their share in the sale proceeds for the purpose of jointly purchasing the suit property, then also, it would not make any difference because ultimately the fact remained that the suit property was purchased by utilizing the sale proceeds of the earlier property of deceased Kalidas. Learned advocate for the plaintiffs further submitted that plaintiff Nos.2 to 4 had acquired their rights in the suit property by their birth. Plaintiff Nos.2 to 4 would therefore, continue to have their share in such property purchased from the sale proceeds of the earlier property of deceased Kalidas. He submitted that even if defendant No.2 is to be taken to have sold out his share in the suit property for any legal necessity, then also, he had got no right or authority to sell the share of the plaintiffs in the suit property because the plaintiffs’ share in the suit property was by way of their inheritable right in the ancestral property and defendant No.2 was having no right to sell away the share of the plaintiffs in such ancestral property. He submitted that it would have been different case if defendant No.2 was holding joint property and for legal necessity as a Karta of joint family, he had sold out some portion of the property to maintain the family of the plaintiffs. But such is not a case and it is not established on record that in the suit property, defendant No.2 alone had his share. He submitted that the Courts below have arrived at a correct finding that the suit property was ancestral property and the plaintiff Nos.2 to 4 had their share in the suit property right from beginning when the earlier property was sold out by the defendants. He thus submitted that the Courts below having recorded finding of fact on appreciation of evidence available on record that the suit property is ancestral property, this Court may not interfere with such finding of fact recorded by the Courts below while exercising the powers under Section 100 of the Code of Civil Procedure. He thus urged to dismiss the appeal.
10. Having heard learned advocates for the parties and having perused the judgment and decree passed by the Courts below as also the record and proceedings, it appears that there is no dispute about the fact that the property which was originally held by deceased Kalidas, who was great grandfather of the parties, came into possession of the defendants as ancestral property. There is also no dispute about the fact that the suit property was sold out by the defendants. At this stage, it is required to be noted that after the ancestral property was sold out, plaintiff Nos.2 to 4, who had already their claim by birth in the suit property, were totally ignored by defendant No.2 while dealing with their share in suit property. It is also required to be noted that the defendants purchased the suit property by utilizing their sale proceeds of the ancestral property held by deceased Kalidas by adding Rs.1,000/-. The Courts below have on construction of Exh.77 found that the parties to the said document, the defendants, have jointly sold out the ancestral property and realized the sale proceeds therefrom and the said sale proceeds came to be utilized for the purpose of purchasing the suit property.
11. I have scanned through the document Exh.77. This document Exh.77 was signed by all the defendants. This document clearly recites that both the parties to the document had sold away the undivided family property and the suit property was purchased by adding Rs.1,000/- to whatever sale proceeds received from the said family property. It is further provided in the said document that in the suit property, defendant No.2 shall have his share as a member of the family and shall have some portion of the property on the west side. There is nothing from this document which would suggest that the sale proceeds were already divided equally amongst the defendants and the defendants then contributed their individual share for the purpose of purchasing the suit property. What clearly comes out from document Exh.77 is that the same sale proceeds, which were obtained by selling the earlier ancestral property, were utilized for the purpose of purchasing the suit property. Therefore, in my view, the Courts below have rightly come to the conclusion that the suit property was ancestral property and the plaintiffs had equal share in such ancestral property. In the facts of the case, therefore, the judgment in the case of Hardeo Rai (supra) relied on by learned advocate Shri Gayakwad would have no application. In the present case, there was no question of division of any coparcenary property. The claim of the plaintiffs is to the ancestral property and once the Courts below have found on appreciation of the evidence that the suit property was ancestral property, the plaintiffs would become entitled to have their share in the suit property.
12. The contention of learned advocate Shri Gayakwad that defendant No.2 passed on his share in the suit property in favour of defendant Nos.4 to 7 for legal necessity and therefore, the plaintiffs could not be made entitled to claim any share in the property, cannot be accepted because once it is found that the suit property is ancestral property, defendant No.2 cannot be said to have any right or authority to deal with the share of the plaintiffs in the suit property. Mr. Gayakwad however submitted that defendant No.2 had acted as a Karta of joint family and he was entitled and authorized to deal with his share and share of the plaintiffs for legal necessity of his family. This contention also cannot be accepted because once the property is found to be ancestral property, defendant No.2 was for all purposes divested of his right or authority to deal with the share of other family members in the ancestral property.
13. Learned advocate Mr. Gaykwad argued that the plaintiffs and defendant No.2 had collusively played fraud with other defendants and therefore, the plaintiffs were not entitled to any relief in the suit. For this purpose, as discussed above, he pointed out that defendant No.2 has supported the case of the plaintiffs by filing written statement in their favour and therefore, such being a collusive efforts on the part of the plaintiffs and defendant No.2 to defeat the rights of the defendant Nos.4 to 7, the plaintiffs cannot be made entitled to any relief in the suit. As regards this contention, I do not see any substance therein because what defendant No.2 has stated in written statement is about the rightful claim of the plaintiffs in the ancestral property. Even if we ignore such written statement of defendant No.2, the Courts below on appreciation of evidence have found that the suit property was ancestral property, with which this Court concurs and the plaintiffs have share in such ancestral property and therefore, there is no question of any fraud being committed by the plaintiffs in collusion with defendant No.2. Thus, from all angles, when issue about the right of the plaintiffs as claimed in the suit is examined on the basis of the evidence available on record, this Court finds that the Courts below have not committed any error in holding that the suit property is ancestral property and plaintiff Nos.2 to 4 have equal share in the ancestral property and consequently sale deed executed by defendant No.2 in favour of defendant Nos.4 to 7 was invalid. In view of above, as rightly held by learned Appellate Judge, the sale deed executed by defendant No.2 stands invalid to the extent of selling out the share of plaintiff Nos.2 to 4. in the suit property in favour of defendant Nos.4 to 7.
14. The contention raised by learned advocate Mr. Gayakwad that two of the plaintiffs, being minors, were not entitled to seek partition of the suit property, cannot be permitted to be raised for the simple reason that such contention was never raised before the Courts below. I have also gone through the memo of this appeal and found that the appellants in their appeal memo have not raised any substantial question of law on such issue. The above contention raised by learned advocate for the appellants is, therefore, not required to be dealt with.
15. In view of the above, the substantial questions of law are answered accordingly. The appeal is, therefore, required to be dismissed. Hence, the same is dismissed.
omkar Sd/-
(C.L. SONI, J.)