Shantilal Purshottamdas Patel Since … vs Deceased Ajitkumar Parshottamdas … on 7 May, 2026

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    Gujarat High Court

    Shantilal Purshottamdas Patel Since … vs Deceased Ajitkumar Parshottamdas … on 7 May, 2026

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                                    C/FA/2/1991                                  ORDER DATED: 07/05/2026
    
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                                         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.

    SPONSORED

    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

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    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.

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    (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.

    
    
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                           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

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    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

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    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

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    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

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    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).

    
    
    
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                           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

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    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

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    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

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    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

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    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 3

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    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
    
    
    
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                                 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

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    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

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    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-3/4

    On 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
    
    
    
    
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                                        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
    
    
    
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                            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 bona

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    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 of

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    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 assumption

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    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
    
    
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    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

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    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 a

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    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 a

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    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,

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    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.

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