Research › Search › Judgment

Gujarat High Court · body

2023 DIGILAW 341 (GUJ)

Hemdeep Ambalal Patel v. Anilbhai Bholabhai Patel

2023-02-20

SANGEETA K.VISHEN

body2023
ORDER : 1. The present Second Appeal, has been filed challenging the judgment and order dated 30.03.2019 passed by the learned 6th Additional District Judge, Vadodara whereby, the appeal filed by the appellants – original plaintiffs, came to be partly allowed and the judgment and decree dated 18.06.2018 passed by the learned 7th Additional Senior Civil Judge, Vadodara, came to be confirmed. 2. The issue, revolves around survey no.37. It is the case of the appellants – original plaintiffs that the suit property (hereinafter referred the ‘disputed land’) was an ancestral property and was in the joint ownership of the original plaintiffs and original defendant nos.3 to 6 as it belonged to Gokalbhai Bhagwandas Patel, i.e. the grandfather of the original plaintiffs. According to the appellants, the disputed land was surreptitiously sold to original defendant nos.1 and 2 by executing a registered sale deed dated 31.07.2003. According to the appellants, at the time of the sale of the suit property, the appellant no.1 – original plaintiff no.1, was minor; whereas, the original plaintiff nos.2 to 5 were not aware about the said transaction, as the consent was not obtained despite the fact that the appellant nos.2 to 5 – original plaintiff nos.2 to 5 were major. With this background that a suit being Special Civil Suit no.629 of 2011 came to be filed, inter alia, challenging the sale deed dated 31.07.2003 with a further prayer of declaration, that the disputed land, is of undivided Hindu coparcenary property of the original plaintiffs – appellants. 3. The suit, came to be rejected vide order dated 18.06.2018 and the original plaintiffs were jointly and severally held liable to pay the cost of Rs.3,000/- each under the provisions of Section 35A of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘Code’). Being aggrieved, the appellants – original plaintiffs had preferred the appeal before the appellate Court, which came to be partly allowed insofar as the cost is concerned; and on merits, the judgment and decree dated 18.06.2018, came to be confirmed. Hence, the present Second Appeal. 4. Mr Amrish K. Pandya, learned advocate appearing for the appellants submitted that the Courts below have dismissed the suit as well as the appeal mainly on the ground that the appellants – original plaintiffs, have failed to prove that the disputed land, is an ancestral property. Hence, the present Second Appeal. 4. Mr Amrish K. Pandya, learned advocate appearing for the appellants submitted that the Courts below have dismissed the suit as well as the appeal mainly on the ground that the appellants – original plaintiffs, have failed to prove that the disputed land, is an ancestral property. The Courts below have failed to appreciate that the land, is the property of Gokalbhai; however, dismissed the suit on the ground that the property, belonged to defendant nos.3 to 6. It is submitted that it ought to have been appreciated that in the written statement filed by the defendant nos.1 and 2, there is a clear admission that the land was running in the name of Gokalbhai Bhagwandas Patel of which, there was revenue entry posted in the revenue record and when the factum of property being of Gokalbhai Bhagwandas Patel was admitted, there was no need for the plaintiffs to have proved the same by leading evidence. 4.1 It is further submitted that much weightage, has been given to entry no.1001 for coming to the conclusion that the land, was of the defendant nos.3 to 6 and not of Gokalbhai Bhagwandas Patel. It is submitted that when there was an admission, the said entry, ought not have been placed reliance inasmuch as, oral partition will not have any significance in the eyes of law. It is submitted that the grandfather of the original plaintiffs, i.e. Gokalbhai Bhagwandas Patel has acquired the suit property by way of succession which fact, is clear from the village form no.7/12 produced on record. It is submitted that the village form no.7/12 of the year 1953-54, makes a reference of entry no.60 which, was pertaining to the land being of the ancestors of Gokalbhai Bhagwandas Patel, and the land acquired by him was an ancestral property. 4.2 It is next submitted that the plaintiff no.1, undisputedly, was minor at the time of the execution of the sale deed. Further, without the consent, knowledge of the other plaintiffs, that the suit property was sold to the defendant nos.1 and 2 by the defendant nos.3 and 4. It is submitted that immediately, upon attaining the majority and acquiring the knowledge that the suit was filed. It has been the case of the plaintiffs that the suit property, was ancestral property and that the plaintiffs have undivided share in the said property. It is submitted that immediately, upon attaining the majority and acquiring the knowledge that the suit was filed. It has been the case of the plaintiffs that the suit property, was ancestral property and that the plaintiffs have undivided share in the said property. 4.3 It is submitted that the observation that the plaintiffs have not been able to prove that the suit property, is a coparcenery and Hindu Undivided Family property of late Gokalbhai Bhagwandas Patel and that the right of the original plaintiffs is involved in the suit property as a coparcener, in wake of the admission, is erroneous. It is further submitted that despite the fact that the land, was running in the name of Gokalbhai Bhagwandas Patel, the appellate Court, in the judgment has recorded contrary to the record that Gokalbhai Bhagwandas Patel was not the owner of survey no.37. 4.4 It is submitted that the present appeal qua other appellants, is not pressed but, is pressed only qua plaintiff no.1, who was minor at the time of execution of the sale deed. It is next submitted that it was incumbent upon the appellate Court to have formulated the points for determination as required under Order XLI Rule 31 of the Code. In absence of any points for determination, the judgment qua plaintiff no.1, deserves to be quashed and set aside. 4.5 Reliance is placed on the judgment of this Court in the case of State of Gujarat vs. Bhartiben Dineshbhai Tank reported in 2022 (0) AIJEL – HC 244756. It is submitted that this Court, while considering the various judgments, has held and observed that the appellate Court, was required to formulate the specific points in relation and only for formulating points for determination, it could have focused the discussion on merits. It is therefore, urged that in absence of any points for determination, the appellate Court, ought not to have decided the appeal against the appellants. 5. Per contra, Mr Abhisst K. Thaker, learned advocate appearing for the respondent nos.1 and 2 submitted that the defendant nos.3 to 6, have executed the registered sale deed in favour of the defendant nos.1 and 2 in the year 2003 and after the period of almost 8 years the suit has been filed in the year 2011 challenging the sale deed as well as seeking share in the property. It is submitted that when it is the case of the original plaintiffs that the land, is an ancestral property, the burden is upon them to prove that the land, was a Hindu undivided property. It is submitted that whether the property was Hindu undivided property, is also a question of law and the Courts below, after assessing the evidence in-depth, has concluded that the original plaintiffs, are unable to produce any evidence to substantiate that the disputed land, was the ancestral property and therefore, when the issue has been decided on facts as well as on law against the plaintiffs, there is no point of law involved in the captioned Second Appeal, requiring the consideration. 5.1 It is submitted that the Courts below, have rightly observed that the late Gokalbhai Bhagwandas Patel expired on 09.11.1990 and as per entry no.2329, the land had come in favour of defendant nos.3 to 6, i.e. before Gokalbhai Bhagwandas Patel passed away. It is submitted that as per Exh.27, i.e. copy of village form no.8A, the land, was running in the name of the defendant nos.3 to 6. It is submitted that in the cross-examination of the plaintiff, the names of the defendants, have been entered in the revenue record in the year 1970-71 to 1998-99. Even the plaintiff, has admitted in his cross-examination that how the disputed land, had come in favour of his grandfather, i.e. Gokalbhai Bhagwandas Patel. The plaintiff has not produced any document that in what capacity, the grandfather, was possessing the land. It is submitted that with these facts and the evidence that the Courts below have concluded that the disputed land, survey no.37, is of the coparcenary and Hindu undivided family property of late Gokalbhai Bhagwandas Patel and that the plaintiff, has right in the suit property as a coparcener. 5.2 It is submitted that when the plaintiffs, have not been able to prove or discharge their burden that the property was an ancestral property, the plaintiffs, cannot and could not have filed the suit seeking to challenge the sale deed and also their right over the property. 5.2 It is submitted that when the plaintiffs, have not been able to prove or discharge their burden that the property was an ancestral property, the plaintiffs, cannot and could not have filed the suit seeking to challenge the sale deed and also their right over the property. It is submitted that it is the case of the appellants – original plaintiffs that the property, was of Gokalbhai Bhagwandas Patel and if the said case is taken as it is, the plaintiffs, cannot have any right inasmuch as, the land had already come to defendant nos.3 to 6 way back in the year 1970. It is only when the plaintiffs, could have proved that the property, is an ancestral property and derived by Gokalbhai Bhagwandas Patel by way of a succession that the plaintiffs, can be said to have some right over the suit property. In absence of any evidence placed, the Courts below, have rightly rejected the suit and the appeal of the plaintiffs. 5.3 Reliance is placed on the judgment of the Apex Court in the case of Bhagwat Sharan (Dead through legal representatives) vs. Purushottam reported in (2020) 6 SCC 387 . It is submitted that it is by now well settled that the burden lies upon the person who alleges the existence of the Hindu Undivided Family to prove the same. It has also been held and observed that not only jointness of the family has to be proved but burden lies upon the person alleging existence of a joint family to prove that the property belongs to the joint Hindu family unless there is material on record to show that the property is the nucleus of the joint Hindu family or that it was purchased through funds coming out of this nucleus. 5.4 So far as the issue of points for determination is concerned, the appellate Court, in the judgment has discussed in detail each and every aspect, including the evidence. It is submitted that the Appellate Court, has appreciated the facts as well as the evidence and had given its independent findings that Gokalbhai Bhagwandas Patel, was grandfather and that the names of defendant nos.3 to 6 were posted after death of Gokalbhai Bhagwandas Patel. It is submitted that the Appellate Court, has appreciated the facts as well as the evidence and had given its independent findings that Gokalbhai Bhagwandas Patel, was grandfather and that the names of defendant nos.3 to 6 were posted after death of Gokalbhai Bhagwandas Patel. It is submitted that appellate Court, has clearly recorded that the sale deed produced by the plaintiffs, was with respect to survey no.39 and not with respect to survey no.37; whereas, the suit, was filed for cancellation of the document pertaining to survey no.37. It has been also recorded by the appellate Court that the survey no.37, i.e. the disputed land, is running in the name of Shankerbhai and Kantibhai – defendant nos.3 and 4 since the year 1970 and thereafter, in the name of other two brothers. Considering the whole evidence that the appellate Court, has concluded that the suit property, i.e. survey no.37, was not the Hindu undivided property and that the right of the plaintiffs, is not involved as co-owners or coparceners. Therefore, the Courts below, have clearly on the basis of evidence, concluded that the property, is a Hindu undivided property with no right of the plaintiffs involved as co-owners or coparceners. Therefore, there is a substantial compliance with the provisions of Order XLI Rule 31 of the Code inasmuch as, sufficient compliance and that the justice, has not suffered. 5.5 Reliance is placed on the judgment of the Apex Court in the case of G. Amalorpavam vs. R.C. Diocese of Madurai reported in (2006) 3 SCC 224 . It has been held and observed that noncompliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate Court is in a position to ascertain the findings of the lower appellate Court. It also has been held and observed if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient and therefore, considering the observations made by the Courts below in paragraphs 8 and 9, it stands clearly proved that there is substantial compliance and that no injustice has been suffered by the original plaintiffs – appellants. 6. 6. Heard the learned advocates appearing for the respective parties and perused the documents available on the record. 7. Briefly stated are the facts. The registered sale deed dated 31.07.2003 came to be executed in favour of the defendant nos.1 and 2 by the defendant nos.3 to 6. In the year 2011, i.e. after 8 years that the plaintiffs, have filed a suit challenging the registered sale deed on the ground that the same, has been executed by exerting undue influence and misrepresentation. It is also the case of the plaintiffs that the plaintiff no.1 was minor at the time of registration of the sale deed and immediately upon attaining the majority that the suit was filed seeking to challenge the sale deed; whereas, plaintiff nos.2 to 5 were major; however, their consent, was not obtained and they were not aware about the factum of execution of the sale deed in favour of the defendant nos.1 and 2. The suit, was rejected by the learned 7th Additional Senior Civil Judge, Vadodara whereby, the learned Judge in the judgment has observed that Gokalbhai Bhagwandas Patel, expired on 09.11.1990 and the disputed land has been posted in the name of defendant nos.3 to 6 vide entry no.2329. While rejecting the suit, it has imposed the cost to be paid by the plaintiffs, against which the appeal was preferred and the appellate Court, confirmed the judgment and decree dated 18.06.2018, except the cost. 8. The learned Judge, while rejecting the suit, has categorically concluded that as per the documentary evidence produced by the plaintiffs, i.e. village form no.7/12, Exhs.31 and 33, name of Shankerbhai Gokalbhai , has been posted in the revenue record since the year 1970-71 till the year 1998-99, which aspect has been admitted by the plaintiff in his cross-examination. The learned Judge, has also noted that the plaintiff, has not produced any evidence to suggest that how the land, has been obtained by the grandfather. Also, the names of the defendant nos.3 to 6 have not been entered into the revenue record by way of a succession after the death of Gokalbhai Bhagwandas Patel. The learned Judge, has also noted that the plaintiff, has not produced any evidence to suggest that how the land, has been obtained by the grandfather. Also, the names of the defendant nos.3 to 6 have not been entered into the revenue record by way of a succession after the death of Gokalbhai Bhagwandas Patel. Accordingly, it has been held and observed that the plaintiff has failed to prove that the disputed land, is a coparcenery and Hindu undivided family property of late Gokalbhai Bhagwandas Patel and that the right of the plaintiff, is involved in the suit property as a coparcenor. 9. While deciding the issue no. 6, discussing the facts, in paragraph 12, the learned Judge concluded that the suit has been filed by the plaintiffs after ten years of the sale transaction and after the execution of the sale deed, that the land has been converted into non-agricultural (hereinafter referred to as the ‘NA’). The learned Judge was also of the opinion that the suit, has been filed by the son in collusion with the defendant nos.3 to 6 only with a view to extracting the money from the purchaser. The learned Judge, therefore, dismissed the suit imposing costs. In the appeal, the appellate Court, has discussed the evidence produced by the plaintiffs. The factum of the execution of the sale deed has been noted. The appellate Court has also recorded that the suit has been filed for cancellation of the document with respect of survey no.37 which, was running in the names of Shankerbhai and Kantibhai, i.e. defendant nos.3 and 4 since the year 1970. The appellate Court, had also observed that evidence does not support the case of the plaintiff that disputed land is a Hindu undivided property and that the rights of the plaintiffs as co-owners or coparceners, is involved. In absence of any evidence produced, the appellate Court, has concluded that the land had come to the share of defendant nos.3 and 4 since the year 1970 and Gokalbhai was not the owner of the survey no.37 and therefore, the suit has rightly been rejected. In absence of any evidence produced, the appellate Court, has concluded that the land had come to the share of defendant nos.3 and 4 since the year 1970 and Gokalbhai was not the owner of the survey no.37 and therefore, the suit has rightly been rejected. However so far as the aspect of cost is concerned, the appellate Court, was of the opinion that if the plaintiff has not produced any reliable and cogent evidence, the suit can be dismissed, but at the same time it cannot be said that the suit was false and frivolous. Observing, inter alia, except the aspect of cost, the judgment and decree dated 18.06.2018 of the learned Additional Senior Civil Judge, Vadodara, was confirmed. 10. Therefore, both the Courts below were of the opinion that the plaintiff is unable to produce any evidence. This Court, therefore, confronted the learned advocate to point out as to whether the findings recorded by the Courts below can be said to be perverse or suffer from any material irregularity; however, the learned advocate fairly conceded that the entry no.60, which according to him suggest that the property was ancestral property, was not forming part of the record. The learned advocate also conceded that except the village form nos.7/12 and 8A, no other and further evidence was produced on record. 11. Pertinently, the sale deed has been executed on 31.03.2003 in favour of the defendant nos.1 and 2, i.e. respondent nos.1 and 2 and after almost a period of eight years that the suit came to be filed by the plaintiffs. So far as plaintiff no.1 is concerned, he claimed that he was minor and immediately upon attaining the majority, the suit was filed. However, so far as the other plaintiffs are concerned, they were major at the time of execution of the sale deed. The plaintiffs and defendant nos.3 to 4 are staying together. No steps were taken by the plaintiff nos.2 to 5 either challenging the sale deed or seeking any share in the said property. However, Mr Amrish K. Pandya, learned advocate, has declared before this Court that he is not pressing the Second Appeal qua the plaintiff nos. 2 to 5 and therefore, the claim in the Second Appeal would be restricted to the appellant no.1, i.e. original plaintiff. 12. Considering the deposition of the plaintiff no.1, Exh. However, Mr Amrish K. Pandya, learned advocate, has declared before this Court that he is not pressing the Second Appeal qua the plaintiff nos. 2 to 5 and therefore, the claim in the Second Appeal would be restricted to the appellant no.1, i.e. original plaintiff. 12. Considering the deposition of the plaintiff no.1, Exh. 22, plaintiff no.1 in paragraph 14 has stated that he has not produced any document to suggest that as to how the disputed land, i.e. survey no.37 had come to his grandfather. He has also not produced any document that the land, was being possessed by his grandfather at the time of the execution of the sale deed. The plaintiff has also stated that during the year 1970, the land was running in the joint name of defendant nos.3 and 4 and thereafter, by way of an oral agreement, the land, came to be recorded in the name of defendant no.3. Entry no.1001 dated 04.02.1970 as well as entry no.2329 were posted in the revenue record. He has also stated that by virtue of entry no.2329, the land has been entered in the name of defendant nos.3 to 6 and the land has come to the share of the brothers because of the demise of Gokalbhai Bhagwandas Patel. Therefore, the plaintiffs, for filing the suit seeking cancellation of the registered sale deed as well as the share, have been unable to point out a single document to suggest that the land, was a Hindu undivided property. 13. At this stage, the judgment in the case of Bhagwat Sharan vs. Purushottam (supra) is worth referring to. It has been held and observed that burden lies upon the person who alleges the existence of the Hindu undivided family to prove the same. It has been noted that not only jointness of the family has to be proved but burden lies upon the person alleging existence of the joint family to prove that the property belongs to joint Hindu family unless there is material on record to show that the property is the nucleus of the joint Hindu family or that it was purchased through funds coming out of the nucleus. Paragraph 10 of the said judgment, reads thus: “10. Paragraph 10 of the said judgment, reads thus: “10. At the outset we may note that a lot of arguments were addressed and judgments were cited on the attributes of HUF and the manner in which it can be constituted. In view of the facts narrated above, in our view, a large number of these arguments and citations need not be considered. The law is well settled that the burden is on the person who alleges that the property is a joint property of an HUF to prove the same. Reference in this behalf may be made to the judgments of this Court in Bhagwan Dayal vs. Reoti Devi ( AIR 1962 SC 287 ). Both the parties have placed reliance on the this judgment. In this case this Court held that the general principle is that a Hindu family is presumed to be joint unless the contrary is proved. It was further held that where one of the coparceners separated himself from other members of the joint family there was no presumption that the rest of coparceners continued to constitute a joint family. However, it was also held that at the same time there is no presumption that because one member of the family has separated, the rest of the family is no longer a joint family. However, it is important to note that this Court in Bhagwati Prasad Sah and Ors. vs. Dulhin Rameshwari Kuer and Ors., it held as follows:- “10. ... Except in the case of reunion, the mere fact that separated coparceners chose to live together or act jointly for purposes of business or trade or in their dealings with properties, would not give them the status of coparceners under the Mitakshara law.”” Therefore, as has been recorded in the order and fairly conceded by the learned advocate appearing for the appellants that the plaintiffs have not produced any evidence to suggest that the land, was an ancestral property of a Hindu undivided family. 14. In fact, if the appellants were claiming that the suit property was an ancestral property or joint family property, the burden lies upon the plaintiffs. Since the edifice, on which the suit has been filed, itself does not satisfy, it cannot be said that the judgments and decree of the Courts below, are perverse, arbitrary so as to warrant interference. In fact, if the appellants were claiming that the suit property was an ancestral property or joint family property, the burden lies upon the plaintiffs. Since the edifice, on which the suit has been filed, itself does not satisfy, it cannot be said that the judgments and decree of the Courts below, are perverse, arbitrary so as to warrant interference. Also, the concurrent findings arrived at by the Courts have remained undisputed and therefore, on both the counts, the appeal does not warrant interference and deserves to be dismissed. I see no merits in the Second Appeal, since no substantial questions of law are presented for the consideration of this Court. 15. So far as the contention raised by the learned advocate that the judgment is not in conformity of the provisions of Order XLI Rule 31 of the Code, as the appellate Court has not formulated the points for determination; however, reading the judgment and the observations made, the appellate Court has considered the evidence led by the plaintiffs. The appellate Court, as discussed hereinabove, has also considered the execution of the registered sale deed of the year 2003. It has also been observed that the sale deed produced by the plaintiffs was not pertaining to survey no.37, but was pertaining to survey no.39. It has also been taken note that the survey no.37, that is, disputed land, was running in the name of Shankerbhai and Kantibhai, i.e. defendant nos.3 and 4 since 1970. The aspect of death of Gokalbhai was also taken note of considering the fact that the suit property was already running in the name of defendant nos.3 and 4 since the year 1970 and also the fact that the plaintiff has failed to prove that the land was an Hindu undivided property and that the plaintiffs are co-owners or coparceners. This Court, hence, is of the opinion that there is sufficient compliance of Order XLI 41 Rule 31 of the Code inasmuch as, no injustice, has been meted out to the plaintiffs – appellants as the appellate Court, has considered the entire evidence on record and discussed the same in detail and on the basis whereof, it has come to the conclusion that the disputed land, was not an Hindu undivided property. The said contention does not warrant acceptance and deserves to be dismissed. 16. In view of the above, the Second Appeal, is dismissed. The said contention does not warrant acceptance and deserves to be dismissed. 16. In view of the above, the Second Appeal, is dismissed. No order as to costs. 17. In view of the dismissal of the captioned Second Appeal, the Civil Application (for Stay) also stands disposed of.