Safiya Malik

A civil dispute concerning partition and separate possession of agricultural land in Pune district was adjudicated by the Bombay High Court. The court upheld the First Appellate Court’s findings while modifying the share distribution among legal heirs. The defendants’ claim of a prior partition was rejected, and mutation entries were held insufficient to establish severance of joint status. The exclusion of a portion of land from partition was also set aside.

The case involved agricultural land in Daund and Purandar, Pune, originally held by Waman. The plaintiffs, heirs of Waman’s second wife, sought partition, while the defendants, heirs from his first wife’s lineage, contended that a partition had already occurred in 1974. They relied on mutation entries to establish division of ownership and pointed to sales made by the plaintiffs as evidence of their acceptance of partition.

The Trial Court dismissed the plaintiffs’ claim, ruling that they had acted upon an earlier partition. However, the First Appellate Court overturned this decision, holding that the plaintiffs had not consented to partition by metes and bounds and that the property remained joint family property.

The Bombay High Court, in the Second Appeal, examined substantial legal questions, including the evidentiary value of mutation entries, the effect of financial contributions by a third party on ownership, and the proper determination of shares among legal heirs.

The High Court examined the evidence and determined that the suit properties were originally held by Waman and remained in joint possession after his death. It found no legally recognized partition, noting the absence of a registered partition document and non-compliance with statutory procedures. It stated:

"A mere entry in the revenue records does not confer title or effect partition by metes and bounds."

The court rejected the argument that financial contributions from defendant no. 2 toward the purchase price conferred ownership rights, stating:

"The theory of voluntary transfer of share lacks any documentary evidence, and consent alone does not suffice for a valid legal transfer."

It also examined the plaintiffs’ sale of portions of land and concluded that such transactions did not indicate partition, as the sales involved undivided shares. It recorded:

"The alienation of an undivided share does not, in itself, indicate the intention of severance of joint status."

Mutation Entry No. 112, presented by the defendants to prove prior partition, was also scrutinized. The court noted that the First Appellate Court had examined the entry and found it insufficient to establish partition by metes and bounds. It observed:

"Nothing is seen on record to indicate that either of the procedures is followed for recording Mutation Entry 112. Thus, a stray admission by plaintiff no. 1 that he and Nana were cultivating their share cannot be relied upon to conclude that there was partition by metes and bounds."

The court further held that the tenancy proceedings under the Maharashtra Tenancy and Agricultural Lands Act, 1948, were conducted in the name of defendant no. 1 as the Karta (manager) of the joint family and not in his independent capacity. It stated:

"The tenancy proceedings were decided in the name of defendant no. 1 as manager or Karta of the joint family."

Defendant no. 2’s claim to a portion of Gat No. 70A was also dismissed. The First Appellate Court had previously excluded 2 anas 4 paise in her favor, citing her financial contribution. However, the High Court set aside this exclusion, stating:

"Mere contribution, if any, by defendant no. 2 towards payment of purchase price under the Tenancy Act would not ipso facto create any right, title or interest in favour of defendant no. 2."

The determination of shares was revised in accordance with Hindu Succession Law. The court held that defendant no. 1, being the step-son of plaintiff no. 2, could not inherit from her under Section 15 of the Hindu Succession Act, 1956. It recorded:

"Defendant no. 1—Anna, being step-son of Hausabai-plaintiff no. 2, would not be entitled to receive any share in plaintiff no. 2’s undivided share."

The judgment and decree dated 30th March 2015 passed by the District Judge-1, Baramati in Regular Civil Appeal No. 127 of 1994 was confirmed, "save and except clause [5] of the operative part of the judgment and the findings thereon." Clause [5] of the judgment was substituted as follows:

1. The heirs and legal representatives of deceased defendant no. 1 would be jointly entitled to one-fourth share.
2. The heirs and legal representatives of deceased plaintiff no. 1 would be jointly entitled to his one-fourth share plus one-half share jointly in deceased plaintiff no. 2’s one-fourth share.
3. The heirs and legal representatives of deceased plaintiff no. 3, i.e., plaintiff nos. 4 and 5, would be jointly entitled to Nana’s one-fourth share plus one-half share jointly in deceased plaintiff no. 2’s one-fourth share.

"Cross objection is allowed in the aforesaid terms with no order as to costs."

The High Court also disposed of the pending interim applications, stating:

"In view of the disposal of the second appeal and the cross objection, Interim Application No. 16705 of 2022 and Civil Application No. 916 of 2015 are disposed of as infructuous."

Case Title: Sunil Anna Kakade & Ors. v. Laxmi Balu Kakade & Ors.

Neutal Citation:  2025:BHC-AS:9898

Case Number: Second Appeal No. 405 of 2015

Bench: Justice Gauri Godse

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