There is plaintiff's own admission that the suit property was self-acquired property of Pithuji. Since it was self-acquired property of Pithuji it was certainly not a joint family property. If it was not a joint family property, Pithuji could not relinquish/surrender the property in favour of the plaintiff and defendant No. 2 without registered instrument at all. The law is well settled that a co-parcener or a sharer in joint family property can surrender his share orally at the time of partition. In a decision cited by the leaned counsel for the appellant, reported in 1964 Mh.L.J.736 (Ramdas Chimna v. Pralhadj Deorao), it is held that oral relinquishment of share in a joint family property is valid. As; said earlier, the plaintiff's case is of oral surrender and that too of self-acquired property. Such alleged surrender, if any, of self acquired property was therefore invalid and Pithuji continued to be the owner and no title under the alleged surrender ever vested in the plaintiff or defendant No. 2.
“If an immovable property is the self acquired property then it can be transferred only by way of registered instrument and cannot be transferred by oral agreement but if it is a joint family property then the co-sharer can surrender/relinquish his share orally at the time of partition.”
Bombay High Court
Shri Gangadhar Pandhari Harde vs Uttam S/O Pandhari Harde And ... on 14 January, 2008
Equivalent citations: 2008 (2) BomCR 1, 2008 (110) Bom L R 489, 2008 (2) MhLj 334
1. The plaintiff, who failed in both the courts below has preferred this appeal. The parties shall hereinafter be referred to as plaintiff and defendants.
2. The facts shorn of details are as under The property in suit was acquired by Pithuji the grandfather of plaintiff and defendant No. 2 Bhaskar. Since it was so acquired by Pithuji, it was his self-acquired property. Out of love and affection said Pithuji in the year 1957 relinquished the entire land in favour of plaintiff and defendant No. 2 and their names came to be recorded in the revenue record. The father of the plaintiff and defendant No. 2 namely Pandhari had consented to such transfer. Pithuji the grand-father died in 1958. The plaintiff's mother Girjabai is still alive. Pandhari father of the plaintiff had brought one Parvatibai as his keep in the house. This was against the wishes of Pithuji. The plaintiff submits that it is for this reason that Pithuji relinquished the property in favour of the plaintiff and defendant No. 2. defendant No. 1 is a son born to said Parvatibai. Pandhari was living separately and was running a cloth and a fair price shop. However, due to the vices, said Pandhari suffered losses in the business and it was difficult for him to manage the family. Pandhari requested the plaintiff and defendant No. 2 to give some agriculture land to him for his maintenance. The plaintiff and defendant No. 2 agreed and gave the two fields at Manegaon and Makardhokada to Pandhari with a clear understanding that after his death the property would go back to plaintiff and defendant No. 2. However, Pandhari executed a partition-deed on 14/12/1987 and transferred the entire land at Makardhokada in favour of defendants No. 1 and 2. Similarly, he gifted the property at Manegaon to defendant No. 1. Plaintiff submits that both gift-deed as well as the partition- deed are void and defendants have no right whatsoever in the suit property. The plaintiff, therefore, sought a decree of declaration and possession.
3. The defendant No. 1 filed a written statement and admitted the relationship. Defendant denies that Pithuji had relinquished the property in favour of plaintiff and defendant No. 2. On the other hand, it is the contention of the defendant that there was a partition in the year 1962 between Pandhari and his sons and each one of them is given a separate share in the said partition. In the year 1987, Pandhari had given only that property to defendants No. 1 and 2 which had fallen to his share in the partition. He denies that any property was given back by the plaintiff and defendant No. 2 to Pandhari and it was to remain with Pandhari till his death and to revert back to the plaintiff and defendant No. 2. It is also his contention that Girjabai had filed Civil Suit No. 262 of 1974 for partition against Pandhari, his sons and the purchasers of the property. That suit came to be dismissed and even an appeal came to be dismissed. It was held that there was a partition in 1962 and Pandhari had become the owner of the said property.
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4. The learned judge of the trial court found that there was a partition in the year 1962 and Pandhari had become the full owner of the property and he had every right to dispose of the said property. He, therefore, dismissed the suit. The appellate court confirmed those findings.
5. This second appeal was admitted by Kulkarni, J. with the following substantial question of law.
The learned advocate for the appellant, therefore, raises a substantial question of law to the effect that the oral transfers could be there unless law requires a transfer to be effected in writing or by registration under Section 9 of the Transfer of property Act to that effect clearly shows so as relied upon by the learned advocate. There is also further authority from the case of Ramdas v. Pralhad 964 Mh.L.J.736 of this Court, re-emphsising the nature, extent and implication of Section 9 of the Transfer of Property Act and the oral relinquishment of interest in the joint family property as a valid course of relinquishing the rights in favour of other members. What is urged is that the appellate court committed a legal error in not accepting the very theory of oral relinquishment and searching for a legal transfer or document or other formalities which the transaction did not at all have or required. In view of this substantial question of law raised, admit the appeal for final hearing. Notices to the respondents. Call R. & P.
6. I have heard the learned Counsel for the appellant and the respondents.
7. The plaintiff's contention is that the suit property belonged to his grand-father Pithuji and same was his self-acquired property. The plaintiff also pleads that Pithuji his grand-father had relinquished the suit property in favour of plaintiff and defendant No. 2 and it is so recorded in revenue record. It is also the contention that at the request of their father. Pandhari they gave the suit land to Pandhari with an understanding that upon his death it would revert back to plaintiff and defendant No. 2.
8. There is plaintiff's own admission that the suit property was self-acquired property of Pithuji. Since it was self-acquired property of Pithuji it was certainly not a joint family property. If it was not a joint family property, Pithuji could not relinquish/surrender the property in favour of the plaintiff and defendant No. 2 without registered instrument at all. The law is well settled that a co-parcener or a sharer in joint family property can surrender his share orally at the time of partition. In a decision cited by the leaned counsel for the appellant, reported in 1964 Mh.L.J.736 (Ramdas Chimna v. Pralhadj Deorao), it is held that oral relinquishment of share in a joint family property is valid. As; said earlier, the plaintiff's case is of oral surrender and that too of self-acquired property. Such alleged surrender, if any, of self acquired property was therefore invalid and Pithuji continued to be the owner and no title under the alleged surrender ever vested in the plaintiff or defendant No. 2.
9. The plaintiff's pleadings show that Pithuji died in the year 1958 and he died intestate. The property, therefore, devolved upon Pandhari -the only son of Pithuji. After death of Pithuji, the property had acquired the status of a joint family property in the hands of Pandhari.
Page 0494
10. Now the case of defendant No. 1 is that there was partition in the year 1962 between Pandhari and defendants. According to defendants, the partition took place on 26/12/1962 and it was registered deed. Exh.99 is the certified copy of the partition deed. This is a registered partition-deed. It shows that entire property i.e. the joint family as well as self-acquired was partitioned amongst Pandhari, the plaintiff and the defendants. It further shows that plaintiff Gangadhar, defendant No. 2 Bhaskar and defendant No. 1 Uttam and their father Pandhari were allotted separate property each. In the said partition, two fields of Survey No. 83/2 and 90 of Manegaon had fallen to share of Pandhari and two fields survey No. 61/2 and 62/4 of Makardhokada had fallen to the share of defendants No. 1 and 2 together and S. No. 75/3, 58/1, 63/1 and 1/4th of out of S. No. 76 fell to share of plaintiff. It is, therefore, clear that the plaintiff got share in the property under registered partition to which he himself was a party. Even Pandhari was allotted separate fields. He does not say that this registered document of partition is not valid or void for any reason. It is, therefore, binding upon the plaintiff.
11. Further it is also clear that plaintiff's mother Girjabai had filed Civil Suit No. 262/74 for partition in which plaintiff himself was party. The suit was dismissed and the appeal was also dismissed. As can be seen from the judgment (Exh.127), one of the issues related to partition of 1962 and it was held that the partition had taken place in 1962 itself. The present plaintiff was party to that suit also. Thus that finding has assumed finality and would operate as res-judicata. It was, therefore, rightly concluded by the first appellate court that there was partition and plaintiff got his own share and the suit fields fell to the share of Pandhari and Uttam. Each of the parties to the partition-deed (Exh.99) of 1962 became separate owner of the property allotted to his share. Each of them, therefore, got a right to independently deal with his own property. We have seen that Pandhari got the fields at Manegaon. He gifted that field to defendant No. 1 Uttam by registered gift-deed (Exh.74). The gift-deed in favour of defendant No. 1 of Manegaon field is, therefore, quite valid. Similarly, it appears from 1987 partition-deed (Exh.73) that Pandhari did not take share himself and gave field Gat No. 106 of Makardhokada to defendant No. 2 Bhaskar. So what Pandhari did is that he gifted one field to Uttam and gave in partition another field to defendant No. 2 Bhaskar. None of these two fields had fallen to the share of the plaintiff in partition. He, therefore, has no right whatsoever to challenge that the disposition made by Pandhari his father, since Pandhari was the exclusively owner and the plaintiff had no right.
12. It was contended that in 1962 itself Pandhari had agreed that the property would go back to the plaintiff and defendant No. 2. Except the bare word of the plaintiff, there is no evidence that there was any such agreement. The partition-deed does not show any such condition. Even otherwise there was, in fact, no question of the plaintiff and defendant No. 2 giving the land back to Pandhari gratuitously since they themselves were not the exclusive owner at all. The plaintiff cannot overcome the registered partition deed and he is in fact estopped from pleading and proving contrary to the contents Page 0495 of that partition-deed since he does not seek to set aside that partition. The courts below, therefore, did not commit any error in dismissing the suit and the appeal. This appeal, therefore, has no merit. It is, therefore, dismissed with costs.
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