[1] This appeal under Section 100 of the Civil Procedure Code is at the instance of the original plaintiff, who filed the suit being Regular Civil Suit No.118 of 1984 for partition of land bearing survey No.84 admeasuring 1 Acre – 3 Guntha, situated in the sim of Village : Anandpura, Taluka : Kadi, District : Mehsana.
[2] As per the case of the appellant in the plaint, there was an agreement entered into between the parties for division of the ancestral property on 10.05.1976. The properties which were mentioned in the said agreement, are the ancestral properties. As regards the suit property, the appellant as well as respondent have equal share in the property after the death of their mother. Till the death of mother, both the brothers were to equal share in the expenses for looking after the mother. The mother of both the parties expired on 03.08.1981 and though on the basis of the agreement, the appellant was entitled to get one half share in the suit property, yet the respondent did not give one half share in the suit property to the appellant. On 14.07.1984, notice was given to the respondent to partition the suit property and to give share of the suit property to the appellant. Still, the respondent did not act pursuant to the notice and did not give one half share to the appellant in the suit property, therefore, the cause of action for filing the suit has arisen.
[3] The suit was resisted by the respondent on various grounds including that the appellant did not act and perform his part of the contract, that at no point of time, the appellant paid any amount towards expenses for looking after the mother as agreed between the parties, that since, the appellant committed breach of condition of the agreement of partition of the property, the appellant is not entitled to get share in the property. In the written statement, in paragraph No.10, the respondent has stated that if the appellant is ready and willing to act as per the condition of the agreement at Ex.45 and if he is ready to partition the other joint properties, the respondent was ready to give his share in the disputed suit property.
[4] The appellant examined himself at Ex.40 and his witnesses and also produced documentary evidence on record including agreement between the parties at Ex.45. The respondent examined himself at Ex.40.
[5] One of the issues framed at Ex.10 by the learned trial Judge is whether the appellant proves that the land bearing survey No.84 was jointly held for the purpose of maintaining the mother of the parties and to divide the said land after the death of the mother. As per the agreement at Ex.45, both the parties i.e. appellant as well as respondent were to share expenses for looking after their mother till she lived and the land bearing survey No.84 was to be kept intact till the mother remained alive.
[6] On the basis of the evidence available on record, the learned trial Judge dismissed the suit by judgment and decree dated 10.03.1986. The appellant unsuccessfully carried the matter before the Lower Appellate Court by filing Regular Civil Appeal No.24 of 1987 in the Court of Assistant Judge, Mehsana. Learned Appellate Judge has recorded that the suit, in his opinion was for specific performance of the contract dated 10.05.1976 and, therefore, it was necessary to find out whether the plaintiff was ready and willing to perform his part of contract before he was awarded the relief in the suit. The learned Appellate Judge further recorded that the appellant was not found ready and willing to perform his part of the contract and, therefore, he has no right to compel the respondent to perform his part of the contract. It is observed that since the appellant was not ready and willing to perform his part of the contract, he could not claim for partition of the suit field on the basis of the contract dated 10.05.1976. Mainly on the abovesaid grounds, the learned Appellate Judge dismissed the appeal of the appellant and confirmed the judgment and decree passed by the learned trial Judge. It is against the said judgment and decree, the appellant is before this Court.
[7] The appeal was admitted on the following substantial question of law -
“What is the effect of misconstruction of a document on the findings recorded and the conclusions reached by the Courts below ?”
[8] In response to the notice of admission of this appeal to the respondent, the respondent has chosen not to appear before the Court.
[9] Heard learned advocate Mr.Pravin Panchal for learned advocate Mr.P. K. Jani for the appellant.
[10] Learned advocate for the appellant has submitted that the sole substantial question framed by the Court at the time of admission of the appeal requires to be considered, as both the parties had agreed for division of the ancestral properties on the basis of the agreement at Ex.45. He submitted that on true construction of agreement at Ex.45, the appellant was entitled to one half share in the property bearing survey No.84 and right of the appellant was not conditional one because the property in question was ancestral property and under the agreement, the appellant was only required to share and to pay necessary amount spent by the respondent for the purpose of looking after the mother of the parties. Learned advocate for the appellant further submitted that both the Courts below have failed to correctly construe the document Ex.45 and have recorded contrary findings which are not supported by the evidence on record. Learned advocate for the appellant further submitted that the finding and conclusion recorded by the learned trial Judge is contrary to the purpose and intent of the parties recorded in the agreement at Ex.45. Learned advocate for the appellant further submitted that the learned trial Judge has committed grave error in coming to the conclusion that unless payment was first made as per the agreement, the appellant was not entitled to have one half share from the property on the basis of the agreement. He submitted that the correct interpretation of the agreement in question has not been recorded by learned Judge in his judgment and order. He has also assailed the judgment and order passed by the learned Appellate Judge by contending that the learned Appellate Judge has decided the appeal totally on wrong premises. He submitted that the finding recorded by the learned Judge to the effect that the suit was for specific performance of contract was contrary to the pleadings of the plaint on record. He has drawn attention of this Court to the relief clause in the plaint and pointed out that the appellant clearly prayed for partition of the suit land. He submitted that the learned Appellate Judge has not at all gone into the question of interpretation and construction of the document at Ex.45 and thereby has failed to exercise the jurisdiction vested with him. He further submitted that since the Second Appeal involves pure question of construction of document at Ex.45, the same is substantial question of law. Mr.Panchal, learned advocate submitted that the correct interpretation and construction of the agreement at Ex.45 would be that the property in question is ancestral property and the appellant is entitled to one half share after the death of the mother of the parties and the payment which was stated to be made in the agreement has nothing to do with inherent share of the appellant from the ancestral property. He, therefore, submitted that the Courts below have committed substantial error in not properly interpreting the document and in deciding the issues which germane for the purpose of deciding the right of the parties on the basis of the agreement at Ex.45. He, therefore, urged to allow this appeal.
[11] The appellant has also made available entire paper book. I have perused the record of the case including the contents of the agreement at Ex.45. The appellant has filed the suit with only prayer to partition the suit property. In the plaint, the appellant has referred to the agreement dated 10.05.1976 and based his claim in the suit for partition of the suit property. Therefore, it can be said that the learned Appellate Judge has committed error in recording that the suit is for specific performance of the contract.
[12] The suit was dismissed mainly on the ground that under the agreement, the appellant was required to make the payment towards expenditure to look after the mother of the parties and since the appellant has not made any payment, the appellant has not performed his part of the contract, therefore, the appellant was not entitled to get share in the property. Therefore, the observations and findings recorded by both the Courts below, are required to be examined in the context of the contents of agreement at Ex.45. As stated above, both the parties claimed their rights on the basis of the agreement at Ex.45. Ex.45 is a document which records division of various ancestral properties between the parties, who are real brothers. After agreeing for division in respect of the various properties in the said agreement, ultimately, for the suit property bearing survey No.84, the parties have agreed that the property of survey No.84 was to be kept jointly for maintenance of the mother till she lived and after her death, both the brothers were to spend for after death actual expenses of the mother. It is also recorded in the said agreement that both the brothers were to give Rs.100/- per year for expenses of mother Jhaverba and if mother wanted to go for pilgrimage, expenditure for such pilgrimage would be borne by both equally. The total expenses incurred of Rs.5,700/- is mentioned in the agreement at Ex.45 and it is stated that the accounts were to be settled for the said amount and the properties were to be exchanged. From the contents as stated above in the agreement, it is nowhere found that the appellant was entitled to have one half share in the suit property only on payment of amount as stated in the agreement. Though, it is stated that the payment of amount of Rs.5,700/- was to be made and the property was to be exchanged but such contents of the agreement cannot be taken as a precondition making the appellant disentitled to have one half share in the suit property. At this stage, it is required to be noted that the suit property along with all other properties were ancestral properties and both the parties who are real brothers have agreed to divide the ancestral property by executing document of agreement at Ex.45. If the properties were ancestral properties, the appellant was otherwise entitled to have his share in the property equally with the respondent, and such share in the ancestral property could not be defeated by virtue of his agreeing to bear expenses to look after his mother with the respondent. It was the case of the appellant that he had made payment to the respondent. However, even if no payment was made by the appellant as agreed in the agreement, his right to have his share in the said property could not be defeated. On true and correct interpretation of agreement at Ex.45, the claim of the appellant to have one half share in the property could not be defeated. In my view, even if the appellant had not made any payment as per the agreement at Ex.45, the suit filed by the appellant was not required to be dismissed in toto. Even if both the Courts were of the view that under the agreement, the appellant was equally responsible to make payment as claimed by the respondent, the Courts below could have simultaneously directed the appellant to make payment as per the agreement and passed decree to give his share as claimed by him in the suit on the basis of the agreement.
[13] In view of the aforesaid discussion, I am of the view that both the Courts below have committed serious error in dismissing the suit as well as appeal of the appellant. The appeal, therefore, is required to be allowed and the judgment and decree passed by the Courts below are required to be quashed and set aside. However, suit is required to be partly allowed qua relief No.1 for equal share and possession in the suit property and not for mesne profit and other relief as the appellant had not paid amount for the expenses of his mother to the respondent.
[14] In the result, the appeal is allowed. The judgment and decree passed by the Courts below are quashed and set aside. The suit of the appellant is hereby allowed and the appellant is held entitled to one half share in the suit property bearing survey No.84 admeasuring 1 Acre – 3 Guntha, situated in the sim of Village : Anandpura, Taluka : Kadi, District : Mehsana. Consequently, the appellant is held entitled to recover possession of 1/2 of the suit property. The appellant shall however pay Rs.5,700/- with interest at the rate of 6% per annum to the respondent from the date of filing of the suit i.e. 12.09.1984 till actual payment. Decree to be drawn accordingly.
[ C. L. SONI, J. ] (vijay)