GITABAI MARUTI RAUT (DEAD) THROUGH LR. & ORS. versus PANDURANG MARUTI RAUT (DEAD) THROUGH LRS. & ORS.

Citation: [2022] 6 S.C.R. 1068 · Decided: 11-08-2022 · Supreme Court of India · Bench: HEMANT GUPTA · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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1068
SUPREME COURT REPORTS
[2022] 6 S.C.R.
GITABAI MARUTI RAUT (DEAD)
THROUGH LR. & ORS.
v.
PANDURANG MARUTI RAUT (DEAD)
THROUGH LRS. & ORS.
(Civil Appeal No. 7702 of 2013)
AUGUST 11, 2022
[HEMANT GUPTA AND VIKRAM NATH, JJ.]
Suit – For partition – Joint Family ancestral property – A suit
for partition in the Joint Family Property was filed by plaintiff for
the properties situated in two villages-1 and 2 – ‘B’ was the common
ancestor and left behind four sons, ‘N’, ‘R’, ‘M’ and ‘S’ – ‘M’ is
predecessor of the parties in dispute and his share in ancestral
property is in dispute – ‘M’ married twice – First wife died in the
year 1948 leaving behind defendant no.1,2,3,4 – Second wife and
the original plaintiff, died during the course of proceeding leaving
behind her legal representatives (two sons and three daughters),
who are prosecuting the present case – In respect of property at
village-1, the High Court affirmed the finding that defendant no.1
had purchased the said property after death of ‘M’ – In respect of
property at village-2, the High Court held that in absence of any
evidence that the property in the hand of ‘R’ was ancestral property,
the plaintiff did not have share in the said property – Held: No
pleadings were raised regarding the property at village-1 that it is
being purchased from the income of the joint family property,
therefore is not joint ancestral property – All three Courts have
concurrently held that the property at village-1 was not ancestral
property – With respect to Property at village-2 the evidence on
record including written memorandum of settlement (Ex.111) and
the mutation of the same (Ex.104) together with the evidence of
PW1 and PW2 suggest that the said property is Joint family property
– No evidence that ‘R’ was the sole owner or that he acquired the
disputed property from his income – There is no evidence to suggest
that the disputed property was gifted to defendant no.1 by ‘R’ –
Therefore, the plaintiff and defendants have equal share in the
property at village-2.
[2022] 6 S.C.R. 1068
1068
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Allowing the appeal, the Court
HELD:1. In respect of a property at village-1, the High
Court affirmed the finding that defendant No. 1, purchased the
property at village-1 vide sale deed dated 25.2.1969 after the
death of ‘M’. It was also held that the appellant neither pleaded
nor proved that there is sufficient nucleus of the income from the
joint family from which the property at village-1 could be
purchased. This Court does not find any pleadings regarding the
property at village-1 as purchased from the income of the joint
family property. All three Courts have concurrently held that the
property at village-1 is not a joint ancestral property. This Court
found no reason to interfere with the findings relating to the
property situate in Village-1. [Para 4][1071-E-G]
2. The High Court has misread the most important evidence
led by the appellants i.e., one of the brothers, ‘S’(PW-2), who had
deposed that the land at village-2 was ancestral land. The Mutation
No. 1274 itself shows that the land was partitioned amongst the
brothers. It was not a gift by ‘R’ in favor of defendant no.1, as
found by the High Court. The name of defendant no.1 in respect
of share of ‘M’ came after the death of ‘M’ in the year 1966 being
the eldest male member as Karta of the joint family of ‘M’.
Defendant no.1 held the property as Karta of the joint family
property fallen to the share of ‘M’ in terms of the settlement
arrived on 23.12.1961 (Ex.111). The settlement (Ex.111) is with
‘M’ and not defendant no.1 as he was alive on that day.  Since,
when the revenue entry was being recorded in 1970, after ‘M’
had died,  defendant no.1 represented the estate of ‘M’ as Karta.
In view of the said fact, the findings recorded by the High Court
are not tenable. [Para 12][1074-A-C]
3. Since the evidence on record including written
memorandum of settlement dated 23.12.1961 (Ex.111) and the
mutation (Ex.104) show that village-2 was a joint family property,
therefore, the expression ‘partition’ has been used. There is no
evidence that the property at Village-2 was gifted to defendant
no.1 by ‘R’, the eldest son of ‘B’. There is no evidence that ‘R’
was the sole owner or that he acquired the property from his
GITABAI MARUTI RAUT (DEAD) THROUGH v. PANDURANG
MARUTI RAUT (DEAD) THROUGH
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SUPREME COURT REPORTS
[2022] 6 S.C.R.
income. The categorical statement of PW-1, the plaintiff i

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