Summary
The second widow of Maruti sued for partition of family properties against his children by both marriages. The courts below held that land at Nande, bought by the eldest son after Maruti's death, was not joint family property. On land at Pirangut, the Bombay High Court accepted that it was bought by Maruti's brother and gifted to the eldest son. The Court held that the High Court misread the evidence. A 1961 memorandum of partition among the four brothers, the 1970 mutation and a surviving brother's testimony showed Pirangut was ancestral land partitioned among the brothers. The eldest son held Maruti's share as karta, and no gift deed existed, so an oral gift of immovable property was untenable. Applying Vineeta Sharma, the widow and all nine children, daughters included, take equal one-tenth shares, and the appeal was allowed.
Issues
- Whether land at Pirangut was joint family ancestral property in which Maruti's heirs had a share, or the separate property of his brother gifted to Maruti's eldest son.
- Whether land at Nande, purchased by the eldest son after Maruti's death, was joint family property.
Held
- No pleading or proof showed that the land at Nande was bought from a joint family nucleus. The concurrent findings that it was the eldest son's own purchase after Maruti's death, and not joint family property, were not disturbed. (¶ 4)
- The High Court misread the evidence. A memorandum of partition dated 23.12.1961 signed among Balaji's four sons, the 1970 mutation giving effect to it, and the testimony of a surviving son of Balaji showed that the Pirangut land was ancestral land partitioned among the brothers. Its being entered in one brother's name did not make it his separate property. (¶¶ 9, 11, 12, 14)
- Maruti's eldest son was recorded for Maruti's share in 1970 only because Maruti had died, and he held that share as karta of Maruti's joint family. No gift deed was produced and immovable property cannot be gifted orally. No such suggestion was put to the plaintiff's witnesses, so the claimed gift was untenable. (¶¶ 12, 13)
- Applying Vineeta Sharma, the widow and all of Maruti's children by both marriages, including daughters, take equal one-tenth shares in the Pirangut and Lavale properties. The widow's share devolves by the applicable law of succession, and a purchaser takes only its vendor's interest. (¶ 15)
Result
Appeal allowed. A preliminary decree is granted for the Pirangut and Lavale properties in one-tenth shares, with the parties to seek a final decree from the competent court; the finding on Nande stands.