Shamgonda Shidgonda Patil v. Shivgonda Babgonda Patil

8. Learned counsel for the appellants submitted that in 1971, an application was filed by defendant no. 1 to enter the names of his sons; therefore, the 1974 document was not implemented and based on the application by defendant no. 1, Mutation Entry No. 199 was effected. In 1976, Mutation Entry No. 362, recording a regrant in the joint name, was given effect to. The statements of defendant nos. 2 and 3 were recorded before the learned Talathi objecting to the 1974 document on the ground that there was no release deed executed by defendant nos. 2 to

6. Hence, in view of the objection raised by defendant nos. 2 and 3, the statements were recorded by the learned Talathi. He submitted that, since there was an attempt to alienate the family property, the suit was filed in 1977. Learned counsel for the appellants, therefore, submitted that there was no substance in the objection raised that the suit was barred by limitation.

9. Learned counsel for the appellants further submitted that the document of 1957 executed by Dada as guardian of the plaintiff no. 1 made an unjust partition as a larger share was given to the branch of Babgonda. Even otherwise, when plaintiff no.1’s mother was alive, Dada had no authority to sign the document as his guardian. Hence, on a grievance made by plaintiff no. 2, i.e. the mother of plaintiff no. 1, Dada and Shivgonda executed the document in 1958. Thus, the 1957 document was not given effect to, and in the document of 1958, defendant no. 1 agreed to give an equal share to the plaintiffs. Thus, on the ground of reopening of the partition, the objection raised to the suit being barred by limitation would not be sustainable.

10. Learned counsel for the appellants submitted that once the 1957 document was not accepted and implemented, the joint family nucleus continues. Hence, the properties claimed to have been self-acquired properties of defendant nos. 2 and 3 cannot be accepted as their independent property, as there is no evidence on record to support their contention that the properties were purchased from their independent source of income. He submitted that the revenue entries and the receipts towards payment of land revenue relied upon by the plaintiffs support their contention that, from 1975, the plaintiffs started paying land revenue. Hence, the properties purchased in the name of defendant nos. 2 and 3 are also purchased from the joint family nucleus, and defendant nos. 1 to 3 cannot claim exclusive right over the said property.

11. To support his submissions, that when a partition effected between the members of the Hindu undivided family which consists of minor, it is proved to be unjust and unfair and is detrimental to the interests of the minor the partition can certainly be reopened irrespective of the length of time when the partition took place, learned counsel for the appellants relied upon the decision of the Hon’ble Apex Court in the case of Ratnam Chettiar & Ors vs S. M. Kuppuswami Chettiar & Ors[1].

12. Learned counsel for the appellants relied upon the decisions of the Hon’ble Apex Court in the case of Ganayya and another Vs Radhabai and others[2] and in the case of to support his submissions that Dada could not have acted as natural or defacto guardian of plaintiff no.1 (Shamgonda) when his mother and natural guardian was alive.

13. Learned counsel for the appellants, therefore, submitted that all the questions of law be answered in favour of the appellants. Submissions on behalf of the respondents:

14. Learned counsel for the respondents (defendant nos. 1 to 3) supported the impugned judgments and decrees. He referred to the pleadings in paragraph 3 of the plaint, where the plaintiffs alleged misrepresentation with reference to the document of 1958. He submitted that, according to the plaintiffs, the document was never acted upon; however, there is no pleading and prayer for the reopening of the partition. Though the document of 1957 is pleaded as executed on misrepresentation, there are no material particulars pleaded on fraud and misrepresentation. Admittedly, Dada was the Karta of the joint family; hence, he signed the document of 1957 on behalf of the plaintiffs. Thus, even if Dada is not accepted as the natural guardian of plaintiff no. 1, he was entitled to sign the document as Karta of the joint family, and he had the right to sign the document on behalf of plaintiff no.1 as he was a minor at the relevant time.

15. Learned counsel for the respondents submitted that under no circumstances could plaintiff no. 2, i.e., the mother of plaintiff no. 1, be appointed as legal guardian or natural guardian with respect to the undivided interest in the Hindu joint family property. Learned counsel for the respondents submitted that in the Hindu Law, severance of status is an important aspect while considering the nature of the property in dispute. He submits that the actual division of the properties by metes and bounds would not be relevant for deciding the severance of the status of the joint family. In the present case, the partition of the joint family property by metes and bounds would be irrelevant, as there is severance of the status of the joint family. He further submitted that the documents of 1974 relied upon by the plaintiffs to support their claim of partition and separate possession cannot be accepted in evidence as the document is an unregistered document.

16. Learned counsel for the respondents submitted that so far as the first document of 1957 is concerned, it is a registered document and therefore subsequent documents of 1974 cannot be read in evidence as the registered document of 1957 would prevail upon the unregistered document. He submitted that the partition document of 1974 relied upon by the plaintiffs was admitted subject to an objection raised on the non-registration of the document. Hence, merely exhibiting the document would not make it admissible in evidence.

17. Learned counsel for the respondents relied upon the particulars pleaded in paragraph 4 of the written statement of defendant nos. 1 to 3 and he submitted that in view of the specific pleading raising objection on the execution of the 1974 document, the plaintiffs failed to discharge their burden to support that the 1974 document would have been acted upon in the absence of defendant nos. 5 and 6 executing relinquishment deed.

18. Learned counsel for the respondents further relied upon the specific pleading regarding the sale of the flour mill belonging to the joint family after the document of 1957 was registered. He therefore submitted that there was a severance of the joint family status after registration of the 1957 document. He submitted that the order of regrant in the name of plaintiff no. 1 based on his independent share as per the 1957 document is sufficient to hold that there was severance in the joint family status and the partition was also effected by metes and bounds. He thus submits that the properties purchased subsequently by defendant nos. 1 to 3 cannot be termed as purchased from the joint family nucleus. He submitted that the entire claim of the plaintiffs is based on the unregistered document, which cannot substitute the registered document of 1957, which was never under challenge and was acted upon by the parties.

19. Learned counsel for the respondents further submitted that the plaintiff no. 1 became a major in 1967. Hence, if he intended to raise any dispute on the 1957 document executed by Dada on his behalf, the suit could have been within limitation only within three years of the plaintiff no. 1 attaining majority. Hence, the suit was hopelessly barred by limitation. Learned counsel for the respondents, therefore, submitted that dismissal of the suit as barred by limitation is required to be confirmed in this second appeal by answering all the questions of law in favour of defendant nos. 1 to 3.

20. Learned counsel for the respondents relied upon the decisions of the Hon’ble Apex Court in the cases of Bishundeo, Kale Vs Deputy Director of Consolidation 5 Ranganayakamma Vs K.S. Prakash[6]

M. R. Vinoda Vs M. S.

Susheelamma[7] Thamma Subbamma Vs thamma Tatamma[8], and Sri Narayan Bal Vs Shridhar Sutar 9. Submissions on behalf of respondent no. 4a[2] to 4b:

21. Learned counsel for respondent nos. 4a[2] to 4b (Parvatibai - daughter of Dada) supported the submissions on behalf of the plaintiffs. He submitted that even Parvatibai would be entitled to her separate share in the suit properties. Analysis and Conclusions:

22. The relationships between the parties are not in dispute. It is also not in dispute that the suit properties are ancestral joint family properties. The plaintiff no. 1 is the son of plaintiff no.2

6 (2008) 15 SCC 673, 7 (2021) 20 SCC 180, and Sidgonda, who was the adopted son of Dada. Sidgonda was the biological son of Babgonda, i.e. Dada’s brother. Sidgonda died on 27th November 1942. Hence, Dada, the paternal grandfather of plaintiff no. 1 and father-in-law of plaintiff no. 2, claims to have acted as guardian of plaintiff no. 1. Thus, based on a registered document dated 2nd February 1957, the respondents claim that there was a partition. Dada signed this document as the guardian of plaintiff no. 1, who was a minor at the relevant time. However, plaintiff no. 2, the mother and natural guardian of plaintiff no. 1, disputes the same and claims that she made a grievance about the document. Execution of the consent deed dated 5th November 1958 (Exhibit 258) by Defendant no. 1 supports the theory of the plaintiffs that the 1957 document was never acted upon and defendant nos. 1 to 3 accepted the half share of the plaintiffs. The 1958 document is proved by examining the attesting witness and is also admitted by defendant no. 2. Hence, I do not find any substance in the argument raised on behalf of the respondents that the 1957 document would prevail over the 1958 document only because the 1957 document is registered.

23. Defendant no. 5 (Shiubai) is the daughter of Babgonda, and her daughter is married to plaintiff no. 1. Defendant no. 6 is also the daughter of Babgonda. Thus, it is the case of appellants and defendants nos. 5 and 6 that, since as agreed in 1958, an equal share was not given to plaintiff no. 1, they did not execute the release deed. Hence, they even claimed that there was no partition. Defendant no. 5, i.e. Shivubai, and Defendant no. 6, Akkubai, filed their respective written statements and claimed 1/3rd share in the share of Babgonda.

24. Defendant no. 4, i.e. Parvatibai, is the biological daughter of Dada; thus, she claims an equal share along with Sidgonda (father of plaintiff no. 1) through Dada. Defendant NO. 4 filed her written statement and disputed the adoption of Sidgonda. However, she has not led any evidence to object to the adoption deed. In this second appeal, her heirs have supported the arguments made on behalf of the plaintiffs. She also disputed the partition deed dated 2nd February 1957. She contended that the document dated 2nd February 1957, executed without any consideration, is void and would not be binding upon her. Hence, Parvatibai claimed partition of her independent share.

25. The suit claim was opposed by defendant nos. 1, 2 and

3. They admitted execution of the MOU dated 25th May 1974 and 16th December 1974. According to them, Akkubai and Shivubai had never relinquished their share, and therefore, the MOU executed in 1974 automatically stood cancelled. They further pleaded that Dada had voluntarily executed the registered partition deed dated 2nd May 1957. In view of the registered partition deed, 1/3rd share was given to plaintiff no. 1 (Shamgonda) and 2/3rd share was given to Defendant no. 1 (Shivgonda). They further pleaded that the agreement executed between the plaintiffs and defendant no. 1, on 5th November 1958, the plaintiffs failed to comply with the terms and conditions in the agreement. Hence, the agreement did not subsist. They further pleaded that the agreement was not registered and thus the plaintiffs would not be entitled to claim any right based on the document of 1958. Defendant nos. 1, 2 and 3 further pleaded that the plaintiffs’ prayer for partition and separate possession filed by way of the present suit in the year 1977 was therefore barred by limitation.

26. Defendant nos. 1 to 3 contended that, as per the partition deed, the plaintiffs never objected to the separate occupation of defendant nos. 1 to 3. Thus, they have constructed water well and also laid pipe line in the land bearing Survey No. 130 and thus the suit property cannot be made subject matter of the dispute. With regard to the land bearing Gat No. 270A, they contended that it was inam land and when inam was abolished, plaintiff no. 1 was regranted 5 Anas 4 pai share. In regard to Gat No. 59 of village Dhulgaon and Survey No. 76/2 of village Miraj, they contended that the properties were self-acquired properties of defendant no.3. The land bearing Gat No. 245 and properties described at Sr. Nos. 8, 10, 11, 15 and 17 were claimed to be self-acquired properties of defendant no.1. Thus, defendant nos. 1 to 3 denied the suit claim of the plaintiffs for partition and separate possession of the suit properties.

27. The trial court accepted the contention on behalf of the respondents regarding the partition document of 1957 produced at Exhibit-151 and held that the same was not acted upon. Thus, the trial court held that in view of the agreement dated 25th May 1974 and the deed dated 16th December 1974, the earlier document stood cancelled. It was held by the trial court that as per the evidence of Shamgonda he has been enjoying income from the suit properties and being entitled to half share and the document at Exhibit 244 not being a registered document could not have been claimed by the plaintiffs to seek partition. The trial court therefore held that the property admeasuring 2 Acres which remained with Dada in view of the document of 1957 the evidence revealed that the same remained in possession of Shivgonda and the plaintiffs could not claim any right in the said property.

28. The trial court held that it cannot be concluded that the plaintiffs constructed the water well and the pipelines as a portion was in occupation of defendant no. 1. The trial court refused to rely upon the document at Exhibit 224, i.e. the agreement dated 16th December 1974, on the ground that it was not a registered document. Thus, the trial court concluded that there was ample evidence to show that the document dated 2nd May 1957 had been given effect to, and separate accounts and occupations were continued. Hence, the trial court held that the sale deed executed with regard to Survey Nos. 13/3 and 13/1 in favour of defendant no. 3 could not have been made part of the suit for partition and separate possession. The appeal court confirmed the findings recorded by the trial court on the separate possession and cultivation of the parties and thus confirmed the dismissal of the suit.

29. The appellants relied upon the documentary evidence to show that all the joint family properties were never partitioned. The Consent Deed of 5th November 1958 is relied upon to support that defendant no. 1 to divide the properties 50:50 with plaintiff no.1. The shares of the sugarcane factory were in the name of Shivgonda, though the cultivation was done jointly. Marriage expense of Shamgonda was done by Shivgonda. In the consolidation scheme, lands were not separately shown, and separate 7/12 extracts were not prepared by marking division. Plaintiff no. 1 (Shamgonda) was a minor till 1967. In M.E. NO. 963, the name of Shivgonda is recorded as the guardian of Shamgonda, which shows that the family was always joint. The two Acres land allotted to Dada continued to be in possession of the heirs of Shivgonda. The Conditional sale deed of 1968 for S.No. 1050 was in the name of Shamgonda. In the reconveyance of 1962 of Parvati, Shivgonda is shown as the guardian of Shamgonda. In the sale deed of 1962 of Hasan Magdum, Shivgonda is shown as the guardian of Shamgonda. S.No. 130/6 purchased in the name of Shivgonda.

30. The evidence reveals that Raygonda has admitted that till the death of Dada in 1958, Dada and Shivgonda were managing the properties. The 7/12 extracts (Exhibit 131-135) would make it clear that until 1970, Shivgonda alone was cultivating the lands at Sr. No. 1. Shivgonda submitted an application on 5th November 1971, to record the Anewari (shares) by deleting his name, which was recorded for 10 Ana 8 Pai (M.E. 199 – Pencil entry). On 20th November 1971, Shamgonda submitted an objection to the application dated 5th November 1971. On 14th December 1972, an application was filed by Shivgonda to the Sarpanch to record the name of Shamgonda to House No. 198. In 1973, Talathi made an entry of ½ share of the plaintiff no. 1 in the cultivation column. On 25th May 1974, Shivgonda, Shamgonda and Pirgonda executed an MOU at Exhibit-221 in the presence of Panch witnesses wherein ½ share of Shamgonda was admitted.

31. Thereafter, on 16th December 1974, Shivgonda, Shamgonda, Raygonda, Pirgonda, Shivubai and Akkubai executed an MOU in the presence of panch witness and accepted ½ share of Shamgonda [Exhibit-224]. The MOU records that the lands are in use and in occupation of the parties as per the shares provided therein. The MOU further records that Shivgonda has reduced his 2 Annas and 8 pai share and has allotted the same to Shamgonda (Plaintiff), and Shamgonda is cultivating the said lands. On 17th December 1974, Shamgonda submitted statements to record names as per the MOU dated 16th December 1974 before Awalkarkun, Tasgaon. A similar statement was given by Shivgonda, Raygonda and Pirgonda. Statement by Shivubai and Akkubai was also recorded, releasing their share.

32. On 3rd September 1975, Pirgonda (Defendant No. 3) executed a sale deed in favour of Smt. Savitribai Patil (Defendant No. 7) for the Survey No. 76/2. On 26th September 1975, (Exhibit-171), an application was made by Shivgonda to the Sarpanch to record the name of Shamgonda to House NO. 152. Thus, all these facts and evidence also support the plaintiffs’ case about the execution of the document dated 16th December 1974. Only because it is not registered, it cannot be discarded. The contents of the document only record the agreement between the parties about the division of the shares; there is nothing in the document that would make it compulsorily registrable.

33. The relationship between the parties is not in dispute; hence, both courts erred in holding that the genealogy was incorrect. Even in this second appeal, none of the parties has disputed the genealogy pleaded by the plaintiffs. The pleadings and the facts admitted by the parties regarding the relationships between the parties are completely misappreciated by both courts. Thus, both courts failed to adjudicate the dispute between the parties correctly. Hence, the questions of law framed in grounds (e) and (f) are answered accordingly.

34. The original holder was Malgonda, who was survived by two sons, that is, Dada and Babgonda. Thus, Dada and Babgonda were entitled to a half share each. Dada died on 1st April 1958, and Babgonda died on 3rd December 1956. Dada had one biological daughter, Parvati (defendant no. 4) and Babgonda’s son Ramgonda was adopted by Dada and was named Sidgonda. Shiubai (defendant no. 5), Akkubai (defendant no. 6) and Shivgonda (defendant no. 1) are children of Babgonda. Defendant nos. 2, 3 and 7 are children of Shivgonda. Plaintiff No. 1 is the son of Sidgonda and Plaintiff No. 2. Thus, on the death of Babgonda, defendant nos. 1, 5 and 6 would be entitled to his half share and on the death of Dada, defendant no. 4 and plaintiffs would be entitled to his half share as Sidgonda had predeceased Dada. Plaintiff no. 1, being the son and plaintiff no. 2, being the widow, would be entitled to the share of Sidgonda. Therefore, the respective branches of Dada and Babgonda would be entitled to a half share each. Thus, the document dated 2nd February 1957 (Exhibit 151), styled as a partition deed signed only by Dada and Shivgonda, thereby dividing some of the ancestral properties only amongst Dada, Shamgonda (plaintiff no. 1) and Shivgonda (defendant no.1), cannot be treated as a legal and complete partition between the two branches, that is, the respective branches of Dada and Babgonda.

35. In the decision of Ratnam Chettiar, the Hon’ble Apex Court held that, when, a partition effected between the members of the Hindu undivided family, which consists of minors is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can certainly be reopened after whatever length of time when the partition took place. It is also held that in such cases it is the duty of the Court to protect and safeguard the interests of the minors, and the onus of proof that the partition was just and fair is on the party supporting the partition.

36. In the case of Madhegowda, the Hon’ble Apex court held that Section 11 of the Hindu Minority and Guardianship Act, 1956 brings about a material change in the law relating to de facto guardians or de facto managers of a Hindu minor's estate by enacting in express terms that after the commencement of the Act, no person has the right or authority to do any act as a de facto guardian of such minor. It is further held that although the expression “de facto guardian” is often used in judgments, there is in law nothing like a de facto guardian and that the statute recognises a natural guardian or a testamentary guardian or a guardian appointed by the court.

37. In the decision of Ganayya, the Hon’ble Apex court held that Section 11 of the Hindu Minority and Guardianship Act, 1956 explicitly provides that after the commencement of the Act, no person is entitled to deal with the minor’s property on the ground of acting as de facto guardian. As per Section 6(a) of the Hindu Minority and Guardianship Act 1956, the father and, after him, the mother of a minor is the natural guardian. Hence, under no circumstances could Dada, who was the paternal grandfather, act as a natural guardian of plaintiff no. 1. The mother of plaintiff no. 1 was alive; hence, she was the only natural guardian of plaintiff no.1, as his father had expired. Hence, the legal principles discussed above, supports the case of the plaintiffs that the document of 1957 signed by Dada as guardian of plaintiff no.1 cannot be accepted as a valid document on behalf of the plaintiffs.

38. The decisions in the case of Bishundeo Narain and in the case of Kale are on the point of necessity of giving full particulars on allegations of fraud and undue influence while challenging a partition. In the decision of Ranganayakamma, the legal principles settled are on the issue of fraud and misrepresentation, rendering a consent deed for settlement of partition to be voidable.

39. In the decision of M. R. Vinoda, the concept of Karta and relinquishment of a minor’s share by a Karta or the minor’s mother as natural guardian were the issues decided. In the decision of Thamma Subbamma, the controversy involved was regarding the alienation of the coparcenary property without the consent of other coparceners to be void. In the decision of Sri Narayan Bal, the point decided was whether section 8 of the Hindu minority and Guardianship Act 1956, was attracted while disposing the minor’s share by a karta or adult member of the joint family.

40. However, in the facts of the present case, there are no such controversies to be decided; hence, the said decisions relied upon by the learned counsel for the appellants would not be relevant for deciding the questions of law framed in this appeal.

41. Apart from the document not being a legal and complete partition, it is also challenged on the ground that it is sham and bogus, as Dada had no authority to sign it as the natural guardian of Shamgonda (plaintiff no. 1), when his mother was the natural guardian. I do not find any substance in the argument on behalf of the respondents that the document would be binding upon the plaintiffs as Dada, in the capacity of the karta of the joint family, was authorised to take a decision on behalf of Shamgonda, who was a minor at the relevant time. Dada did not sign the document in the capacity of Karta, but he signed as the natural guardian of Shamgonda. When Shamgonda’s mother, who is his natural guardian, was alive, there was no reason for Dada, who is the paternal grandfather, to act as natural guardian.

42. The material on record does not show that the 1957 document was acted upon. Defendant no. 2 (Raygonda) in his deposition admitted that the land mentioned in the said document was never given to Dada, and he was not managing or cultivating the said land, and that even after his death, the land or any part thereof was never given to the branch of Dada. Hence, the questions of law framed in grounds (h) and (i) are answered accordingly by holding that the document at Exhibit 151 cannot be accepted as a legal document to conclude that there was a valid and complete partition by metes and bounds amongst all the sharers in respect of all the joint family properties. Therefore, the document at Exhibit 151 cannot be a ground to refuse the plaintiffs’ right to seek partition and separate possession.

43. The plaintiffs pleaded and proved by supporting evidence that in 1971, an application was filed by defendant NO. 1 to enter the names of his sons; therefore, the 1974 document was not implemented and based on the application by defendant no. 1, Mutation Entry No. 199 was effected but not certified as objection was raised by plaintiff no. 1. The document dated 25th May 1974 (Exhibit 221) was executed between Shivgonda (defendant no. 1), Pirgonda (defendant no. 3) and Shamgonda (plaintiff no. 1), admitting a half share of Shamgonda. By a document dated 16th December 1974 (Exhibit 224) signed by Shivgonda (defendant no. 1), Pirgonda (defendant no. 3), Raygonda (defendant no. 2), Shiubai (defendant no. 5), Akkubai (defendant no. 6) and Shamgonda (plaintiff no. 1), also a half share of Shamgonda was admitted. The statements of defendant nos. 2 and 3 were recorded before the learned Talathi objecting to the 1974 document on the ground that there was no release deed executed by defendant nos. 2 to 6. The prayers for partition and separate possession based on the document dated 16th December 1974 and the subsequent events, would therefore be the relevant factors to be considered for deciding the issue of whether the suit was within limitation. These facts show that there was a joint family nucleus and there was no separation by metes and bounds, although the parties had made some arrangements regarding dividing the properties. However, in view of the objections and the disputes between the parties as discussed above, there was never any partition effected by metes and bounds.

44. There was an attempt to alienate the family property by executing a sale deed dated 3rd September 1975 by defendant no. 3 in favour of defendant no. 7(daughter of defendant no. 1). Hence, the suit was filed in 1977. Despite this cause of action pleaded and proved to seek partition and separate possession, both the courts erred in holding that, in view of the 1957 document purportedly executed for partition, the suit was barred by limitation.

45. The suit was not filed to challenge the document dated 2nd February 1957. There is no material on record to show that this document was ever acted upon. The joint family nucleus was not disturbed. Therefore, there never arose any reason for the plaintiffs to challenge the document. The parties adopted corrective measures after the 1957 document. In 1958, various revenue mutations were effected that show that the parties accepted a half share of plaintiff no. 1. After Dada died in 1958, Shivgonda (defendant no. 1) even signed as guardian for plaintiff no. 1. Another important document is on record at Exhibit 258. It is a consent deed dated 5th November 1958, signed by defendant no. 1, accepting half share of plaintiff no. 1. Execution of this document is duly proved by examining attesting witness as PW 2, and defendant no. 2 admitted that it was signed by defendant no. 1. Thus, for deciding the issue of limitation, the date when plaintiff no. 1 attained majority was irrelevant. Hence, the first, second and third additional questions of law are answered in favour of the plaintiffs by holding that the suit is well within the limitation in view of Article 110 of the Schedule to the Limitation Act 1963.

46. The theory of partition and separate possession based on the document of 2nd February 1957 (Exhibit 151) pleaded by defendants nos. 1 to 3 is not proved. I have recorded reasons to accept the plaintiffs’ contentions that the joint family nucleus existed and there was no partition and separate possession by metes and bounds. There is no material on record to indicate any separate source of income of defendant nos.[1] and 3. Defendant Nos. 1 and 3 have failed to prove that the properties purchased in their name are from their separate income and not from the joint family nucleus. Hence, the suit properties acquired in the name of Shivgonda (defendant no. 1) and Pirgonda (defendant no. 3) are accepted as joint family properties, purchased using the funds of the Hindu Undivided Family. Hence, the fourth additional question of law is answered accordingly in favour of the appellants (plaintiffs).

47. The Hon’ble Apex Court in the case of Ratnam Chettiar, relied upon by the learned counsel for the appellants, dealt with the legal principles on reopening of partition. In the present case, the first prayer of the plaintiffs is for effecting partition as per the document dated 16th December 1974 (Exhibit 224) for partial partition and for effecting equal partition in the remaining properties. This document is executed by defendant nos. 1, 2, 3, 5 and 6 and plaintiff no. 1. I have recorded reasons to hold that even defendant no. 4 (Parvatibai – daughter of Dada) is entitled to the half share of Dada. This document ignores the share of defendant no. 4 and plaintiff no. 2. Plaintiff no. 2, who is the widow of Sidgonda (son of Dada who predeceased Dada), is a Class-I heir, and thus will also be entitled to a share in Dada’s half share. Hence, in the facts of the present case, the theory of partial partition as per the 1974 document or reopening of partition based on the 1957 document would not arise. Hence, the legal principles settled in the decision of Ratnam Chettiar would not apply.

48. In the above paragraphs, I have held that the 1957 document was never acted upon, and would not be binding upon the other co-sharers and thus the parties are held entitled to partition and separate possession in respect of all the suit properties as prayed in the suit as an alternative relief.

49. Thus, the aforesaid dates and events coupled with the supporting evidence reveal that there was never any partition effected by metes and bounds. Both courts got carried away with the document dated 2nd February 1957, by ignoring the subsequent major events as discussed in the preceding paragraphs, which shows that the parties accepted plaintiff no.1’s half share in the suit properties. Hence, all the questions of law are answered accordingly in favour of the appellants (plaintiffs).

50. For the reasons recorded above, the second appeal is allowed by passing the following order: a) The judgment and decree dated 30th April 1985, passed by the Joint Civil Judge (SD) Sangli in Special Civil Suit No. 78 of 1977, and the judgment and decree dated 3rd December 1994, passed by the III Additional District Judge Sangli in Regular Civil Appeal No. 219 of 1988, are quashed and set aside. b) Special Civil Suit No. 78 of 1977 is decreed for partition and separate possession for the suit properties described in the Schedules ‘A’ and ‘B’ of the plaint in the following terms:

(i) The respective heirs and legal representatives of

Plaintiff No. 1 and Defendant No. 4 brought on record, and Plaintiff No. 2 are jointly entitled to 1/2 share and separate possession.

(ii) The respective heirs and legal representatives of

(iii) The decree shall be drawn accordingly.

(iv) The decree for partition and separate possession for the suit properties, assessed to the payment of revenue, shall be executed by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, as per Section 54 of the Code of Civil Procedure 1908, in accordance with law.

(v) The suit properties, except the lands assessed for the payment of revenue, shall be executed by the concerned civil court by drawing a final decree.

(vi) There shall be no order as to costs.

51. The Civil Application No. 1383 of 2013 is partly allowed.

52. The second appeal is allowed in the aforesaid terms.

53. Any other civil application or interim applications are disposed of as infructuous. [GAURI GODSE, J.]