Gujarat High Court
Shantilal Purshottamdas Patel Since … vs Deceased Ajitkumar Parshottamdas … on 7 May, 2026
NEUTRAL CITATION
C/FA/2/1991 ORDER DATED: 07/05/2026
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2 of 1991
==========================================================
SHANTILAL PURSHOTTAMDAS PATEL SINCE DECEASED THRO'HIS
HEIRS & ORS.
Versus
DECEASED AJITKUMAR PARSHOTTAMDAS PATEL THRO HIS & ORS.
==========================================================
Appearance:
MR VM PATEL, FOR VMP LEGAL for
MR DHAVAL SHAH(2354) for the Appellant(s) No.
1.1.1,1.1.2,1.1.3,1.1.4,1.2,1.3,1.4,1.5,2,3.1,3.2,3.3,3.4,4,5
ADVOCATE NOTICE NOT RECD BACK for the Defendant(s) No. 3.2
ADVOCATE NOTICE SERVED for the Defendant(s) No. 2,3.3,3.4
ADVOCATE NOTICE UNSERVED for the Defendant(s) No. 4,5
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Defendant(s) No. 3,8,8.3
DELETED for the Defendant(s) No. 3.1
MR PR NANAVATI(508) for the Defendant(s) No. 1.2,1.3,1.4
RULE SERVED for the Defendant(s) No. 1.1,1.5,6,7
==========================================================
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 07/05/2026
ORDER
1. The remarks in the cause list of this First Appeal belongs to
year 1991 shows that the Respondent No.3.1 is deleted, Advocate
Notice issued to Respondent No.3.2 is not received back, Advocate
Notice issued to Respondent Nos.4 and 5 remained unserved as
they are residing abroad and few of the respondents have expired.
1.1 Since appellants have not cleared procedural aspects, despite
given more than sufficient time and opportunity, as this appeal is
more than year 30 years old, it is kept up for final hearing on
request of learned advocates for both the sides.
2. This First Appeal filed under Section 96 of the Code of Civil
Procedure, 1908 (‘the Code’, for short) at the behest of original
plaintiff challenging the judgment and decree dated 31.08.1990
passed in Civil Suit No.155 of 1976 by the learned City Civil Court
Page 1 of 27
Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026
NEUTRAL CITATION
C/FA/2/1991 ORDER DATED: 07/05/2026
undefined
No.5 at Ahmedabad by which the plaintiff’s suit was dismissed.
3. The parties herein are referred to as per their original status
before the trial Court.
4. The facts gathered from the impugned judgment as well as
from the Records and Proceedings, in brief, are that;-
4.1 The original plaintiff nos.1 and 2 and the defendant no.1 are
real brothers. Plaintiff no.3 is wife of plaintiff no.1 and plaintiff
nos.4 and 5 are sons of plaintiff no.1. Defendant Nos.2 and 3 are
also alleged to be partners of firm in whose favour defendant no.1
executed Agreement to sale (‘ATS’, for short). The defendant nos.4
to 8 are persons who have alleged to have purchased the ‘suit land’
from defendant nos.2 to 3. Plaintiff filed the suit for the relief of
declaration that defendant no.1 is not a real owner but the
Benamidar holder of the plot no.17 of land bearing Survey No.41
(Final Plot No.9) of T.P. Scheme No.IV (Maninagar) , admeasuring
657 sq yards, situated at Mouje Danilimda, Ahmedabad [‘the suit
land’, for short], with a further relief of declaration that suit land is
property of one or more of the plaintiff and other ancillary reliefs.
The reliefs prayed by the plaintiff read thus:
“(a) That the Honourable Court will be pleased to declare
that the property more particularly described in para 2
hereinabove is the property of the Plaintiffs or any one
more of them and that the defendant is not the real owner
thereof but a benamidar.
(b) The defendant, his agents and servant and any person
claiming through him be resrained by a permanet
injunction from selling, mortgaging, transferring or
dealing with the said property or any part thereof in any
manner whatsoever.
Page 2 of 27
Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026
NEUTRAL CITATION
C/FA/2/1991 ORDER DATED: 07/05/2026
undefined
(c) Decree for possession be passed against all
Defendants directing them to handover the peaceful and
vacant possession of the suit property described in the
Plaint by removing all the superstructure that might have
been raised on the sauit land.
(d) Decree for damages for illegal use and occupation of
the suit land be passed against Defts. 4 to 8 at the rate of
Rs.400/- from 1-2-78 till handing over the possession of
the suit land.
(E) The cost of the suit be awarded.
(f) And such other and further relief as the Hon’ble Court
deemed fit be passed.”
Amongst aforesaid reliefs, few of them asked subsequently by
amending the plaint.
4.2 Bai Reva was the mother of plaintiff nos.1-2 and defendant
no.1. According to the plaintiff, she has been gifted the suit land by
her brother late Ratilal Chunilal Patel (now expired). However, for
sake of convenience, in revenue proceedings, the suit land was
mutated in the name of defendant no.1. It is the further case that
the land of Survey No.41 was purchased by late Ratilal Chunilal
Patel by executing sale-deed at Sr.No.485 in the office of Sub-
registrar on 25.07.1933. He has purchased the land of Survey
No.41 from Hiralal Trikamlal. Later on the land of Survey No.41
was divided into 38 plots, layout plan of which has been approved.
Out of love and affection, as well as considering the poor financial
situation of Bai Reva, her real brother late Ratilal Chunilal Patel
gifted sub-plot no.17 to her and was mutated in the name of
defendant no.1. In that factual situation, it is claimed that
defendant no.1 was holding the suit land as Benamidar for and on
behalf of entire family.
Page 3 of 27 Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026 NEUTRAL CITATION C/FA/2/1991 ORDER DATED: 07/05/2026 undefined 4.3 It is claimed that this factual scenario was within the
knowledge of the defendant no.1 and therefor he has never claimed
that the suit land is self-acquired and self-owned property.
Likewise, none of the brothers i.e. plaintiff nos.1 and 2 did claim
that the suit land is not the property of HUF family consisting of
three brothers i.e. plaintiff nos.1, 2 and defendant no.1. Plaintiff
then developed his case that Bai Reva, on 19.02.1952, executed
writing and prescribed suit land as her own property gifted by her
real brother, late Ratilal Chunilal Patel, whereby defendant no.1
agreed and also put the signatures on this writing and thereby such
writing executed by Bai Reva, in presence of some other persons
including defendant no.1, settled the dust and established that the
suit land is property of the joint family or undivided family. The
defendant no.1 since signed the document / writing dated
19.02.1952, also acknowledged that though suit land stands in the
name of defendant no.1, in all sense and reality, it is undivided
property of family.
4.4 Plaintiff put his case further that, Bai Reva, the mother of
plaintiff nos.1-2 and defendant no.1 executed a Will on 11.11.1962
and made arrangement of her property post her death. The
immovable property described in the Will also includes the suit
land. Plaintiff nos.1 and 2 were appointed Executor of the Will. The
Will of Bai Reva states that name of defendant no.1 is mutated in
the suit land at the instance of Bai Reva and, therefore, suit land
has to be administered as per her last wish described in the Will of
Bai Reva. Bai Reva died on 21.01.1967 and subsequent to her
death, all disputes started between the parties. Notices and letters
were exchanged and ultimately since the dust and dispute between
the parties could not be settled, the plaintiff filed suit for
Page 4 of 27
Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026
NEUTRAL CITATION
C/FA/2/1991 ORDER DATED: 07/05/2026
undefined
declaration and injunction claiming aforesaid reliefs against the
defendants.
4.5 The suit was hotly contested by defendant no.1 by filing
written statement at Exh.9. The averments and assertions made by
the plaintiff in the plaint are denied in toto with a specific
contention that Bai Reva, mother of contesting parties, at no point
of time, was the owner of the suit land and as such she had no
right, title or interest in the suit land. It is also contended that
possession of the suit land has been handed over to the defendant
nos.2 and 3 and subsequent thereto handed over to rest of the
defendants. It is claimed by defendant no.1 that he was sole
absolute owner of the suit land. Late Ratilal Chunlal Patel, who
could transfer the property in the name of any of the person of
family of Bai Reva or even name of Bai Reva, if it is gifted
property, has chosen to transfer the suit land in the name of
defendant no.1 and also mutated revenue entry thereof. This
indices of defendant no.1’s title theory of Benamidar is got up
theory and with a view to take away suit land.
4.6 Another contention raised by defendant no.1 is that he has
acquired the suit land as a partner of Vishwakunj Society, however,
since some difference and dispute arose between the partners of
Vishwakunj Society, Civil Suit No.959 of 1968 filed in the Civil
Court and it relates to dispute between the partners and that Civil
Suit being a former suit, since contained a dispute to decide title of
the suit land, the present suit deserves to be stayed as issue in
dispute in both the suits are same. It is further contended that late
Ratilal Chunilal Patel, who was the defendant no.1 in the Civil Suit
No.959 of 1968, the owner of land bearing Survey No.41 whereby
Page 5 of 27
Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026
NEUTRAL CITATION
C/FA/2/1991 ORDER DATED: 07/05/2026
undefined
the land has been divided into 38 plots and suit land is one of the
plots, in para:20 of the written statement, in unequivocal terms,
stated that the sub-plot no.17 of Final Plot No.9 of Town Planning
Scheme IV (Maninagar) is sold to defendant no.1 for sale
consideration of Rs.900/- on 23.06.1938. It is further contended
that the Village Form No.6, Entry No.491 recorded on 27.06.1938
supports the theory that the suit land was sold by late Ratilal
Chunilal Patel to the defendant no.1 and thereby with these
averments the defendant claims that he is absolute owner of the
suit land. The defendant no.1 further denies the right of Bai Reva
his mother or plaintiff nos.1 and 2 also denied his signatures on
alleged writing dated 19.02.1952 or execution of the writing and
also denied execution of the Will with the further contention that
Bai Reva had no whatsoever right to bequeath the suit land to any
other person as she was lacking the title of the suit land.
4.7 Other defendants also filed written statement in line of the
defense raised by the defendant no.1.
4.8 The learned City Civil Court, upon rival pleading framed the
in total 9 issues at Exh.40 on 08.07.1980 and after amendment in
the pleading, added Issue Nos.10 to 17 on 06.01.1991. Both the
parties led the evidence to prove their case. Learned City Civil
Court by comprehensive and detailed judgment, pleased to dismiss
the suit by impugned judgment and decree.
4.9 Being aggrieved, the plaintiff has filed the present appeal on
the grounds stated in appeal memo.
5. I have heard learned advocate Mr.V.M.Patel for V.M.P. Legal
for the appellant along with Mr.Dhaval Shah and Mr.P.R.Nanavati
Page 6 of 27
Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026
NEUTRAL CITATION
C/FA/2/1991 ORDER DATED: 07/05/2026
undefined
appearing for respondent nos.1.2 to 1.4.
6.1 In his vehement argument, learned advocate Mr.V.M.Patel
for the appellant assailing the impugned judgment and decree,
would mainly submit that the learned City Civil Court has
committer serious, manifest and apparent error and dismissed the
suit of the plaintiff. He would further submit that late Ratilal
Chunilal Patel was owner of the property had no reason to gift or
transfer the suit land in favour of defendant no.1 ignoring his real
sister Bai Reva. Learned advocate Mr.Patel taking this Court to the
factual situation would submit that Bai Reva, her husband and their
children were suffering poor and dire financial situation as husband
of Bai Reva being share broker lost his movable and immovable
property and even some of properties were also auctioned,
therefore, out of love, apathy and sympathy, late Ratilal Chunilal
Patel and his brother Mulji Chunilal Patel firstly purchased the
house owned by husband of Bai Reva from the Court’s auction and
allowed Bai Reva, her husband and entire family to stay there for
considerable long time and later on they also gifted the said house
to Bai Reva. It implies that late Ratilal Chunilal Patel and his
brother Mulji Chunilal Patel were taking care of Bai Reva and her
family. The transfer of the suit land in favour of defendant no.1 was
one of the such gift by late Ratilal Chunilal Patel. Therefore, though
suit land stands and remains in the name of defendant no.1, in
reality and substance it was property of the joint family which
consists right of plaintiff nos.1, 2 along with defendant no.1.
6.2 Mr.Patel, learned advocate for the appellant refers to
Exh.112 and submits that Bai Reva, by this writing clearly discloses
her intention and states that the suit land and other immovable
Page 7 of 27
Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026
NEUTRAL CITATION
C/FA/2/1991 ORDER DATED: 07/05/2026
undefined
property are joint property of family and those have to be
partitioned amongst three brothers consists of plaintiff nos.1, 2 and
defendant no.1. Mr.Patel, learned advocate also refers to signature
in document at Exh.112 and submits that defendant no.1 also
signed the said document and thereby, he has acknowledged this
family settlement declaring all the properties to be the properties
of family.
6.3 Mr.Patel, learned advocate further submits that learned trial
Court unnecessarily compared the signature of defendant no.1
upon Exh.112 and Exh.118, despite one of the signatories of
Exh.112 i.e. Vinayak Ratilal Patel deposed as P.W.2 at Exh.111 and
identified signatures of defendant no.1 on Exh.112. He would
further submit that deposition of P.W.-2 Vinayak Ratilal Patel since
went unimpeachable in cross-examination, in view of Sections 67
and 68 of the Evidence Act the writing at Exh.112 in nature of
family settlement was proved. It was direct evidence in regard to
document at Exh.112 which clearly depicts that the title of the suit
land was lying with three sons of Bai Reva. He would submit that
learned City Civil Court ignored the very legal facet and
unwarrantedly went on to compare signature of defendant nos.1 on
Exh.112 and Exh.118, to discard Exh.112.
6.4 In support of aforesaid submissions, learned advocate
Mr.V.M.Patel placed reliance on the following judgments.
(i) Ajit Savant Majagvai vs. State of Karnataka, (1997) 7 SCC
110; and
(ii) Disha Impex Pvt Ltd. vs. Srinivasa Minerals and Traders and
others, ILR 2011 Kar 4259 (2011 SCC OnLine Kar 72).
Page 8 of 27 Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026 NEUTRAL CITATION C/FA/2/1991 ORDER DATED: 07/05/2026 undefined 6.5 It is further argued by learned advocate Mr.Patel that the
late Ratilal Chunilal Patel, the uncle of the contesting parties and
real brother of Bai Reva, except Plot No.17 of the suit land,
transferred all the sub-plots of Survey No.41 by way of registered
sale-deed and plot no.17 was transferred in the name of defendant
no.1 by mutating his name in the revenue record. This transaction
itself infers that the suit land was gifted to the family of Bai Reva as
to meet with their poor financial condition and was never the
transfer of immovable property by recognise mode. The reading of
Exh.112 in corollary having signature of defendant no.1 thereof
without any ambiguity speaks and establish that it is the family
settlement and by such family settlement, parties have settled their
dispute and mother, being the head of the family, declared her wish
that her son should not fight and all of them should get share in the
property. The parties to the dispute have pre-existing title in the
plot no.17 on the suit land which makes it abundantly clear that
Exh.112 does not require any registration their family settlement is
executed generally to smoothen relationship within the family
invokes the antecedent title does not require registration. He refers
to Section 17(1)(b) read with Section 49 of the Registration Act and
by placing reliance upon the judgment in case of Korukonda
Chalapathi Rao & Ors. vs. Kurukonda Annapurna Sampath Kumar
reported in (2022) 15 SCC 475 as well as in the case of Dalip
Kaur (Dead) through Legal Representatives and Ors. vs. Ram
Kishan (Dead) through Legal Representatives and Ors. reported in
(2018) 18 SCC 807, submits that the Court should give true effect
to the family settlement or family arrangement avoiding technical
interpretation of the document. He would further submit that since
family arrangement / family settlement at Exh.112 has binding
effect and since it is signed by the defendant no.1, he is estopped
Page 9 of 27
Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026
NEUTRAL CITATION
C/FA/2/1991 ORDER DATED: 07/05/2026
undefined
from disputing the same and claiming that the suit land is his own
and personal and cannot be parted.
6.6 In line of the aforesaid argument, learned advocate Mr.Patel
submitted to allow this appeal and quash and set aside the
impugned judgment and decree and to grant the reliefs claimed in
the plaint or in the suit.
7.1 Mr.P.R.Nanavati, learned advocate appearing for the
respondents, as against the aforesaid submissions, in his concise
argument would submit that late Ratilal Chunilal Patel, in the suit
proceedings of Civil Suit No.959 of 1968, filed a written statement
and admitted in para:20 of the written statement that the suit land
has been sold to defendant no.1 at sale consideration of Rs.900/- on
23.06.1938. It is statement before the Court in regard to relevant
facts which is related to dispute between the parties. Since Ratilal
Chunilal Patel died on 05.12.1975, his statement in regard to the
dispute between the parties stating that defendant no.1 is the
purchaser of the suit land becomes relevant and such statement is
admissible as evidence under Section 32 of the Indian Evidence
Act. Such statement is sufficient to dislodge the suit of the plaintiff.
He would further submit that in Civil Suit No.959 of 1968, the
competent Civil Court declared Mr.Ajit Patel – defendant no.1 as
owner of the suit land. The findings arrived at by the Civil Court
has been carrying to challenge in First Appeal whereby contesting
parties have compromised the dispute, upholding title in favour of
Mr.Ajit Patel – Defendant No.1. However such findings of the Civil
Court is aframed in appeal proceedings and become judgment in
rem which equally binds to plaintiff nos.1 and 2. He would further
submit that though this judgment was available to the learned City
Page 10 of 27
Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026
NEUTRAL CITATION
C/FA/2/1991 ORDER DATED: 07/05/2026
undefined
Civil Court, at the time of passing the impugned judgment and
decree, yet learned City Civil Court has again examined the title of
the suit land independently and reached to the conclusion in favour
of defendant no.1 and thereby two different Civil Courts decided
the title of the suit land and held that it lies in favour of defendant
no.1.
7.2 It is also argued by learned advocate Mr.Nanavati that
branding Exh.112 document as family settlement is a theory first
time developed in the appeal. Learned advocate Mr.Nanavati,
taking this Court to the issues framed by learned trial Court,
submits that no such issue was framed by learned trial Court as
there was no specific pleadings of family settlement existed which
indicates that after loosing the suit at the level of the City Civil
Court, plaintiff developed new theory and claimed that Exh.112 is a
family settlement, has a binding effect and defendant no.1 since
signed the same is estopped from refuting it. Learned advocate
Mr.Nanavati submits that, be that as it may, by no whisper the
averments made in the Exh.112 document depicts it as a family
settlement. He would further submit that Exh.112 itself says that it
is an arrangement made by Bai Reva post her death and such
posthumous argument proved Exh.112 as Will. He would further
submit that Bai Reva was not holding any title of suit land and
cannot bequeath the same in her Will at Exh.112. Learned advocate
Mr.Nanavati further submits that signature at Exh.112 is denied by
defendant no.1. The deposition of Vinayakbhai Prosecution
Witness No.2 in regard to proving signature of defendant no.1 has
been thoroughly discussed by learned City Civil Court to discard
the same on the ground that P.W.No.2 is interested witness and
cannot be considered as witness of truth. Moreover, learned City
Page 11 of 27
Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026
NEUTRAL CITATION
C/FA/2/1991 ORDER DATED: 07/05/2026
undefined
Civil Court, in exercise of powers under Section 73 of the Evidence
Act, compared the signatures of defendant no.1 on Exhs.112 and
118 and rightly concluded that the signatures of the defendant no.1
on Exh.112 is doubtful.
7.3 Learned advocate Mr.Nanavati mainly on the basis of the
aforesaid arguments submits to dismiss the appeal and to confirm
the judgment and decree, impugned in this appeal.
8.1 Regard being held by rival submissions made by learned
counsel for both the sides and applying minds to Records and
Proceedings, at the outset, let me refer the issues framed by trial
Court. Firstly, in all, nine issues were framed and then Issue
Nos.10 to 17 were added. They read as under:
“(1) Whether the plaintiff proves that ant..v.ben was the
absolute owner of sub-plot No.17 in Pinal Plot No.9 of
Survey No.41 (Part) in Town Planning someme do.4
(Kaninar) udaeasuring about 657 sq.yards ?
(2) Whether the suit lana, in Goverment record, was
mutated in the name of defendant no.1 for the sake of
convenience only ?
(3) Whether def ndant no.1 was only a binsider of Bai
Reva and not the owner of the suit Land ?
(4) Whether defendants on 14.6.1975 executed agree
ment of sale in respect of the suit land in favour of
M/s.Shah Patel & Co. and handed over possession of the
suit land as the owners therof?
(5) Whether deceased Revaben was competent to bequsst
suit land by executing a Will dt. 11.11.1962 as alleged ?
(6) Whether the suit is false, frivolous and vexatious?
(7) Whether the defcadanta are entitled to compensatory
Page 12 of 27
Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026
NEUTRAL CITATIONC/FA/2/1991 ORDER DATED: 07/05/2026
undefined
costs under Section 36 () of Civil Procedure Code ?
(8) To what relief, if any the plaintiff is entitled to?
(9) What order and decree ?
(10) Is it proved that the defendants 2 and 3 were put in
physical possession of the suit land, by the defendant no.1
on 14th June, 1975, and that the defendants 2 ani 3
constructed three bungalows thereon spending
considerable amounts of money?
(11) Is it proved that the aforesaid trousfer of
possession by the defend at no.1 to defensant no.2 and 3
and the aforesaid construction of bungalows by
defendants 2 and 3 thereon was to the knwoledge of the
plaintiffs and that the plaintiff having not objected against
the same, can it be said that the suit is bad for delay,
lachies, acquiseance or sufference; can it be said that the
plaintiff is estoppad from seeking possession on the
aforesaid circumstances?
(12) Can it be said that in the aforesaid circumstances,
the agreement to sell entered into between the defendant
no.1 on the one hand and drendants 2 and 3 on the other
hand is binding upon the plaintiffs ?
(13) In case the conclusion is that the defendant no.1 had
no apetence to transfer the aforesaid circumstances call
for any equities in favour of the defendents 2 to 8; in such
contingency, what will be the just and equiteble order?
(14) Is it proved that the defendants 2 and 3 entered
into agreement for purchasing the suit Iand from
deft.no.1 in good faith believing that the defendant no.1
vas competent to transfer full ownership over the suit
land to the defendants 2 and 3; whether the said good
faith on the part of defaniants 2 and 3 vill give rise to any
equity in favour of defendants 2 to 8 and in such
contingency, what will be the just and equitable order. ?
(15) In the above connection, can the plaintiff be
directed to transfer the suit land to the defendants 2 to 3Page 13 of 27
Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026
NEUTRAL CITATIONC/FA/2/1991 ORDER DATED: 07/05/2026
undefined
or their nominees at the price agreed by and between the
delentant no.1 on the one hand and defendats 2 and 3 on
the other in the agreement to purchase entered into by
and between them?
(16) (a) Is it proved that defendant no.1 is in possession
of the suit land as an owner openly, peaceably and
without interference from anyone for more than 12 years
prior to the date of the suit and that the defendant no.1
became owner of the suit land by such adverse possession
?
(b) Is it proved that the period of foresaid 12 years should
be computed from the date the plaintiff sought
amendment in the plaint and prayed for possession of the
suit land in the present suit, as contended by defendants
2 and 3 ?
(17) Is it proved that by their conduct the Plaintiffs
allowed defendants 2 to 3 to believe that the plaintiffs
were not interest in claiming possession of the suit land
and that as a result, the plaintiffs are not entitled to claim
relief of possession ?”
8.2 Both the parties have led evidence orally and documentary.
The extensive and exhaustive analysis of the evidence was made by
learned City Civil Court to answer the Issue Nos.1 to 3 and Issue
Nos.5 to 7 ‘in negative’, Issue Nos.4, 10, 11 to 15, 17 as ‘does not
survive’ and Issue Nos.8 and 9 ‘as per order below’ and Issue
Nos.16A and 16B ‘in affirmative’.
8.3 While taking up the rival arguments of learned advocates for
both the sides, following points for consideration arise.
(i) Whether the suit land is joint property of the plaintiff
nos.1 and 2 and defendant no.1 ?
(ii) Whether suit land is proved as absolute property of
Page 14 of 27
Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026
NEUTRAL CITATION
C/FA/2/1991 ORDER DATED: 07/05/2026
undefined
defendant no.1 ?
(iii) Whether Exh.112 document is family settlement and
created binding effect ?
(iv) Whether Exh.112 if proved to be a Will, if so, does Bai
Reva had right to bequeath suit land ?
(v) What Order ?
8.4 In regard to aforesaid disputed questions, at the outset, let
me note that late Ratilal Chunilal Patel was the owner of the land of
survey no.41 admeasuring Acre 06.00 land of Final Plot No.9. He
had purchased land of Survey No.41 from earstwhile owner Harilal
Trikamlal by registered sale deed at Serial No.485 registered in
Sub Registrar Office on 25.07.1933. Late Ratial Chunilal Patel had
also one brother Muljibhai Chunilal Patel. Bai Reva was their real
sister. The land of Survey No.41 was divided into 38 plots and
become part of Vishwakunj Society. The suit land is Plot No.17, one
of the total 38 plots of land at Survey No.41. According to the
record, Plot No.17 was transferred by late Ratilal Chunilal Patel in
the name of defendant no.1 who is nephew (son of the sister). The
effect of transfer was given in the revenue record. The name of
defendant no.1 was mutated in Village Form No.6 and 7/12
extracts, in the year 1938-40 vide Entry No.491 (Exh.81 and
Exh.145). It is true that late Ratilal Chunilal Patel transferred other
plots by way of registered sale deed in favour of third party, but
transfer this suit land in favour of defendant no.1 by way of
mutating the entry in name of defendant no.1 in revenue record.
However, at no point of time, late Ratilal Chunilal Patel came out
from this transfer and resisted or raised contention that it is an
Page 15 of 27
Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026
NEUTRAL CITATION
C/FA/2/1991 ORDER DATED: 07/05/2026
undefined
illegal or not bona fide transfer, equally, neither defendant no.1 or
plaintiff nos.1 and 2 or Bai Reva, at no point of time, till executing
Exh.112 claims or asserted that late Ratilal Chunilal Patel illegally
transferred the suit land in name of defendant no.1.
8.5 It is in this background, the statement of late Ratilal Chunilal
Patel in Civil Suit No.959 of 1968 filed by Mr.Ajit Patel – defendant
no.1 (as plaintiff) as defendant no.1 made statement before the
Court of law in written statement, more particularly in para:20 of
that suit, that the land has been sold to Ajitkumar Parsottamdas
Patel (defendant no.1) for sale consideration of Rs.900/- on
23.06.1938 assumes significance. Revenue Entries in Village Form
6, Entry No.491 (Exh.81) also recorded said transaction and it
remains unchallenged and unrebuttal or recalled throughout the
life time of Shri Ratilal Chunilal Patel, who died on 05.12.1975.
Therefore, his statement before the Court of law in regard to
ownership and title of the suit land, under Section 32 of the Indian
Evidence Act, become relevant and admissible. In this factual and
legal situation, heavy burden lies upon plaintiffs to establish that
the suit land was a joint property of plaintiff nos.1 and 2 and
defendant no.1, whereby defendant no.1 acted as Benamidar.
8.6 It is settled principle that burden lies squarely upon plaintiffs
to establish the clear title of the suit land, by leading cogent
evidence. It is settled principle of law that the plaintiff must
succeed on its own strength and not on weakness of the defense.
The famous settled principle has been consistently reiterated by
the Hon’ble Supreme Court. In the case of Union of India & Ors. vs.
Vasavi Co.operative Society Limited reported in (2014) 2 SCC
269, Hon’ble the Supreme Court has held that ‘in a suit for
Page 16 of 27
Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026
NEUTRAL CITATION
C/FA/2/1991 ORDER DATED: 07/05/2026
undefined
declaration of title, the burden is always on plaintiff to establish his
title and if he cannot succeed on the weakness of the defendant’s
case’.
8.7 Learned advocate Mr.V.M.Patel, to discharge the burden
heavily relied upon Exh.112 and claimed that it is family settlement
whereby it was decided about the antecedent right of parties in
regard to the suit land and also signed by defendant no.1.
Therefore, he is estopped from reversing from the binding effect of
this document at Exh.112.
8.8 In view of above, it is incumbent for Court to refer Exh.112,
to find out whether it is a family settlement. True translation of
Exh.112 from Gujarati to English reads as under:
“Exhibit-112
Stamp of One Rupee Eight Annas
Rs. 2750 Mark-3/4On this Date: 13th February, 1952, Ms. Reva wd/o
Purshottamdas Damodardas, residing at: Sarangpur,
Ahmedabad (illegible)
sd/- illegible
Shantilal Purshottamdas and Ajitbhai Purshottamdas
and Ratilal Chunilal:-
I-the undersigned, Reva d/o Chunilal Kakubhai ,
residing at: Sarkivad, Sarangpur, Ahmedabad, hereby
inform you that administration of the below mentioned
cash and immovable property shall be handled by you
after my demise.
Rs. 2000.00 Deposited with Gopal Krishna Mill
Rs. 1000.00 Deposited with Bansi Flour Mill
Page 17 of 27
Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026
NEUTRAL CITATION
C/FA/2/1991 ORDER DATED: 07/05/2026
undefined
Rs. 1000.00
(illegible) Deposited with the firm
Union Traders
Deposited with Ajitbhai
Rs. 5000.00 Purshottamdas
Rs. 9000.00/- (Total)
The interest received from the said deposits of
Rs. 9000.00/- shall be managed by Reva during her
lifetime and after her demise, it shall be managed as
follows:
Rs. 2000.00/- shall be deposited on interest for the
clothes of Vidhya and the interest received shall be given
to Vidhya for her clothes.
Rs. 2000.00/- shall be deposited on interest for the
clothes of Indira and the interest received shall be given
to Indira for her clothes.
Rs. 5000.00/- kept with Ajitbhai, the same money shall be
accounted and given to Bhupendra.
The residential house of Sarkivad and plot unit-1 in
Vidhyakunj Society and the plot unit-1 near Kankariya
shall be distributed to Ajitbhai, Shantilal and Bhupendra
equally, when Bhupendra turns major in age.
Articles from the List of Articles annexed
herewith shall be handed over by you to Vidhya and
Indira when they become responsible enough to conserve
them, or when it comes to your attention and it shall be
managed by Shantilal Purshottamdas and Ajitbhai
Purshottamdas and Ratilal Chunilal until then:
It shall be implemented accordingly by you
after my lifetime as mentioned above.
Date: 19-2-1952
Witness Vinayak (Ratilal) Patel Revaben d/o Chunilal Kakubhai
Page 18 of 27
Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026
NEUTRAL CITATION
C/FA/2/1991 ORDER DATED: 07/05/2026
undefined
himself
Witness Muljibhai Chunilal Self attested
Patel himself
Witness Becharbhai Muljibhai Sd/- illegible
himself witness Shantilal
Purshottamdas Patel himself
illegible
Note: The above translation has been done from very old hand-
written content in illegible handwriting by deciphering text that
could be retrieved from the given handwritten content in the best
possible way.
Despite this, some part are still illegible which is marked as
illegible.
8.9 The aforesaid document has been pressed as a family
arrangement or settlement. What could be a family settlement or
family arrangement has been dealt with by Professor Mulla in
Hindu Law, 24th Edition.
8.10 It has been further held in Hindu Law, 24th Edition, by Sir
Dinshaw Fardunji Mulla that, “Family arrangement or family
settlement, as it is sometimes termed generally meets with
approval of the court and the court always leans in favour of a
transaction relating to any such arrangement, which ensures peace
and goodwill among the family members. This does not rest on any
special rule of Hindu law, but flows from general principles and
policy of law. It is governed by a special equity peculiar to itself
and where the terms are fair, taking into consideration the
circumstances of the case, the court makes every effort to
recognise and sustain it. Though, conflict of legal claims in
praesenti or in futuro generally regarded as a condition for the
validity of a family arrangement, it is not necessarily so. Even bonaPage 19 of 27
Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026
NEUTRAL CITATIONC/FA/2/1991 ORDER DATED: 07/05/2026
undefined
fide dispute, present or possible, which may not involve future
claims will suffice. Thus, for instance, members of a joint Hindu
family may, to maintain peace or to bring about harmony in the
family, enter into such a family arrangement. It is not against the
other. The prime factor is that it should be in the interest of the
family. A family arrangement or settlement occupies a position
different from a commercial one. Such a settlement generally
meets with the approval of the court, as such a settlement or
arrangement is governed by distinct equitable principles, where
the settlement is fair. Such a settlement should not be put to risk
when it enures for the benefit of the family. A settlement should
normally be accepted, even if it is subsequent to an award or other
judicial proceedings, and would prevail even over the award, when
there is a finding that it was entered into in order to amicably
resolve familial issues.”
8.11 In case of Tek Bahadur Bhujil vs. Debt Singh Bhujil,
1963 SCC Online SC 197, the Hon’ble Supreme Court held as
under:
“13. Family arrangement as such can be arrived at orally.
Its terms may be recorded in writing as a memorandum of
what had been agreed upon between the parties. The
memorandum need not be prepared for the purpose of
being used as a document on which future title of the
parties be founded. It is usually prepared as a record of
what had been agreed upon so that there be no hazy
notions about it in future. It is only when the parties
reduce the family arrangement in writing with the purpose
of using that writing as proof of what they had arranged
and, where the arrangement is brought about by the
document as such, that the document would require
registration as it is then that it would be a document ofPage 20 of 27
Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026
NEUTRAL CITATIONC/FA/2/1991 ORDER DATED: 07/05/2026
undefined
title declaring for future what rights in what properties the
parties possess. The document Exhibit 3 does not appear to
be of such a nature. It merely records the statements which
the three brothers made, each referring to others as
brothers and referring to the properties as joint property. In
fact the appellant, in his statement, referred to respondents
1 and 2 as two brother co-partners; and the last paragraph
said:
…
14. Learned counsel for the appellant laid great stress on what
this Court said in Sahu Madho Das v. Mukhand Ram, (1955)
2 SCR 22 at pp. 42-43 : ((S) AIR 1955 SC 481at pp. 490-491).
Reliance is placed on the following in support of the contention
that the brothers, having no right in the property purchased by
the mother’s money, could not have legally entered into a family
arrangement. The observations are:
“It is well settled that a compromise or family arrangement is
based on the assumption that there is an antecedent title of
some sort in the parties and the agreement acknow- ledges
and defines what that title is, each party relinquishing all
claims to property other than that falling to his share and
recognizing the right of the others, as they had previously
asserted it, to the portions allotted to them respectively. That
explains why no conveyance is required in these cases to pass
the title from the one in whom it resides to the person
receiving it under the family arrangement. It is assumed that
the title claimed by the person receiving the property under
the arrangement had always resided in him or her so far as
the property falling to his or her share is concerned and
therefore no conveyance is necessary.” these observations do
not mean that some Title must exist as a fact in the persons
entering into a family arrangement. They simply mean that
it is to be assumed that the parties to the arrangement had
an antecedent title of some sort and that the agreement
clinches and defines what that title is Similar assumptionPage 21 of 27
Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026
NEUTRAL CITATIONC/FA/2/1991 ORDER DATED: 07/05/2026
undefined
can be made in the present ease even on the basis that the
property was purchased with the moneys of the mother.
How they got some antecedent title in the property is not for
us to determine. The plaintiff alleged that the property
belonged to the family. The appellant did not allege that it
could not have belonged to the family as it was purchased
with the moneys of the mother but claimed that it was his self
– acquired property. In the circumstances, it can be assumed
that the parties recognized the existence of such antecedent
title to the parties to the property as was recognized by them
under the family arrangement. It is not so much an actually
existing right as a claim to such a right that matters”
Therefore, family settlement must exist some pre-existing or
antecedent title and it records writing in presentia the
arrangement done in the past to keep the harmony and peace in
the family.
8.12 In the famous judgment in case of Kale vs. Director of
Consolidation reported in (1976) 3 SCC 119, the Hon’ble
Supreme Court culled out the principle of family settlement as
under:
“10. In other words, to put the binding effect
and the essentials of a family settlement in a
concretised form, the matter may be reduced into the
form of the following propositions:
“(1) The family settlement must be a bona
fide one so as to resolve family disputes and
rival claims by a fair and equitable division or
allotment of properties between the various
members of the family;
(2) The said settlement must be
voluntary and should not be induced by
fraud, coercion or undue influence;
(3) The family arrangement may be Page 22 of 27 Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026 NEUTRAL CITATION C/FA/2/1991 ORDER DATED: 07/05/2026 undefined
even oral in which case no registration is
necessary;
(4) It is well settled that registration
would be necessary only if the terms of the
family arrangement are reduced into writing.
Here also, a distinction should be made
between a document containing the terms
and recitals of a family arrangement made
under the document and a mere
memorandum prepared after the family
arrangement had already been made
either for the purpose of the record or
for information of the court for making
necessary mutation. In such a case the
memorandum itself does not create or
extinguish any rights in immovable
properties and therefore does not fall
within the mischief of Section 17(2) of
the Registration Act and is, therefore,
not compulsorily registrable;
The members who may be
parties to the family arrangement must
have some antecedent title, claim or
interest even a possible claim in the
property which is acknowledged by the
parties to the settlement. Even if one of
the parties to the settlement has no title
but under the arrangement the other
party relinquishes all its claims or titles
in favour of such a person and
acknowledges him to be the sole owner,
then the antecedent title must be
assumed and the family arrangement
will be upheld and the courts will find no
difficulty in giving assent to the same;
(5) Even if bona fide disputes, present
or possible, which may not involve legal
claims are settled by a bona fide family
arrangement which is fair and equitable the
Page 23 of 27
Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026
NEUTRAL CITATION
C/FA/2/1991 ORDER DATED: 07/05/2026
undefined
family arrangement is final and binding on
the parties to the settlement.”
8.13 In case of Khushi Ram vs. Nawal Singh reported in (2021)
16 SCC 279 /32, in regard to the essential which constitutes the
family arrangement is as under:
“Before we answer the above issue, it is necessary to
find out what is the concept of family with regard to
which a family settlement could be entered. A three-
Judge Bench of this Court in Ram Charan Das v. Girja
Nandini Devi [Ram Charan Das v. Girja Nandini Devi,
1965 SCC OnLine SC 17 : (1965) 3 SCR 841 : AIR
1966 SC 323] had occasion to consider a family
settlement regarding the immovable property, this
Court laid down that every party taking benefit
under a family settlement must be related to one
another in some way and have a possible claim to
the property or a claim or even a semblance of a
claim. The following was laid down at SCR p. 851 :
(AIR p. 329, para 11)
“11. … In the first place once it is held that the
transaction being a family settlement is not an
alienation, it cannot amount to the creation of an
interest. For, as the Privy Council pointed out in
Hiran Bibi case [Hiran Bibi v. Sohan Bibi, 1914
SCC OnLine PC 28 : AIR 1914 PC 44] in a family
settlement each party takes a share in the property
by virtue of the independent title which is admitted
to that extent by the other parties. It is not
necessary, as would appear from the decision in
Rangasami Gounden v. Nachiappa Gounden
[Rangasami Gounde v. Nachiappa Gounden, 1918
SCC OnLine PC 95 : (1918-19) 46 IA 72] that
every party taking benefit under a family
settlement must necessarily be shown to have,
under the law, a claim to a share in the
property. All that is necessary is that the
parties must be related to one another in
some way and have a possible claim to the
property or a claim or even a semblance of aPage 24 of 27
Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026
NEUTRAL CITATIONC/FA/2/1991 ORDER DATED: 07/05/2026
undefined
claim on some other ground as, say,
affection.”
9. In line of the aforesaid law laid by Hon’ble the Supreme
Court, in regard to family settlement or family arrangement, if we
examine the documents at Exh.112, it is rather a document
executed by Bai Reva for arrangement of the property after her
death. In opening para itself she has stated that property has to be
administered post her death. Therefore, such posthumous
arrangement for administration of her property by no means would
be family settlement or family arrangement. The signature of
defendant no.1 even if proved on that document, it is at the most
signature of attesting witness nothing more than that. In light of
the aforesaid finding in tandem with the settled principles of Law, I
do not subscribe theory of learned advocate Mr.V.M.Patel for VMP
Legal that the document at Exh.112 is family settlement and has to
be given effect thereof giving holistic view to the document.
Argument raising such theory appears to be complete an
afterthought.
10. Exh.112 also raised the issue that whether Bai Reva had
legitimate right to bequeath the suit land. This document which
turned and proved to be an instrument of testament in succession
is produced in a Civil Court to claim the title. Section 30 of the
Hindu Succession Act, 1956 reads as under:
“30. Testamentary succession.–Any Hindu may dispose of
by will or other testamentary disposition any property,
which is capable of being so disposed of by him or by her,
in accordance with the provisions of the Indian
Succession Act, 1925 (39 of 1925), or any other law for
the time being in force and applicable to
Hindus.Explanation.–The interest of a male Hindu in a
Mitakshara coparcenary property or the interest of aPage 25 of 27
Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026
NEUTRAL CITATIONC/FA/2/1991 ORDER DATED: 07/05/2026
undefined
member of a tarwad, tavazhi, illom, kutumba or kavaru in
the property of the tarwad, tavazhi, illom, kutumba or
kavaru shall notwithstanding anything contained in this
Act or in any other law for the time being in force, be
deemed to be property capable of being disposed of by
him or by her within the meaning of this section.”
11. The expression “which is capable of being so disclosed by him
or her” assumes a significance and thereby if a Hindu intent to
make a testamentary succession or to dispose of property by way of
Will, he / she should be authorised and capable to dispose of the
same during his / her lifetime.
12. Therefore, notwithstanding the legality of Exh.112 in
absencia of title, Bai Reva had no capability or right to dispose of
the suit land even by executing the Will as she was not capable to
dispose of suit land during her life time. Lastly, it is to be noted
that in a Civil Suit No.959 of 1968, the Competent Civil Court
declared the defendant no.1 as an owner and occupier of the suit
land. That decision is carried to challenge in appeal but by consent
the parties have disposed of appeal and it conferred the title of suit
land in favour of defendant no.1.
13. In light of the aforesaid observations, according to this Court,
learned City Civil Court in its vividly discussion and reason and
comprehensive judgment touched all the issues; analyzed the
evidence in its true perspective. Since the learned City Civil Court
has correctly examined the issues in backdrop of the evidence both
oral and documentary and reached to the conclusion, this Court
finds no justifiable or warranted reason to interfere with the
impugned judgment and award. Therefore, this Court agreed with
findings recorded by learned trial Court. In view of above, the
appeal deserves no consideration. Before parting with judgment,
Page 26 of 27
Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026
NEUTRAL CITATION
C/FA/2/1991 ORDER DATED: 07/05/2026
undefined
this Court advantageously refers to judgment in case of Lailteshwar
Prasad Singh and others vs. S.P. Srivastava (dead) through Legal
Representatives reported in (2017) 2 SCC 415, whereby Hon’ble
Supreme Court held as under:
“14. The points which arise for determination by a court of
first appeal must cover all important questions involved in the
case and they should not be general and vague. Even though
the appellate court would be justified in taking a different view
on question of fact that should be done after adverting to the
reasons given by the trial Judge in arriving at the finding in
question. When the appellate court agrees with the views of
the trial court on evidence, it need not restate effect of
evidence or reiterate reasons given by the trial court;
expression of general agreement with reasons given by the
trial court would ordinarily suffice. However, when the first
appellate court reverses the findings of the trial court, it must
record the findings in clear terms explaining how the
reasonings of the trial court are erroneous.”
14. In wake of the aforesaid reasons alongside the provisions of
Law, the aforesaid points of determination are answered
accordingly.
15. There is no gainsaid that appeal is bereft of merits and
deserves to be dismissed. Accordingly, it is dismissed. The
judgment and decree impugned in this appeal stands confirmed
and upheld. Interim relief granted earlier, if any, shall stand
vacated forthwith. Records and Proceedings be sent back to the
concerned trial Court.
(J. C. DOSHI,J)
MISHRA AMIT V.
Page 27 of 27
Uploaded by MISHRA AMIT V.(HC00187) on Mon May 18 2026 Downloaded on : Fri May 22 22:19:45 IST 2026
