The Bombay High Court dismissed a second appeal challenging an appellate decree that reversed a trial court's limitation-based dismissal of a partition suit, holding that mere exclusion from joint family property without the plaintiff's knowledge does not trigger limitation under Article 110 of the Limitation Act, 1963, and validating the marriage between Baburao and Banubai through evidence of cohabitation, progeny, and a will.
Background & Facts
The Dispute
Banubai Baburao Saste (Plaintiff No. 1) claimed to be the legally wedded wife of Baburao and sought partition of Ganpati Balaji Saste's joint family property along with her sons Yashwant and Bhanudas (Plaintiff Nos. 2 and 3), alleging she and Baburao had four sons born out of wedlock. Defendant Narayan (brother of Baburao) resisted the suit, claiming sole ownership via survivorship after alleging Baburao was ousted from the joint family property by their father Ganpati.
Key Facts
- Ganpati Balaji Saste had three sons: Baburao, Haribhau (adopted away), and Narayan
- Ganpati Saste died in 1949, leaving Baburao and Narayan as surviving sons
- Baburao's first wife Geetabai died; he subsequently married Banubai (Plaintiff No. 1)
- Banubai and Baburao had four sons: Jagannath, Digambar, Yashwant, and Bhanudas
- Jagannath and Digambar died unmarried during Baburao's lifetime
- Baburao executed a Will dated 5 June 1953 bequeathing property to Banubai and their four sons
- Baburao died at Pune on 5 July 1953
- Banubai filed Regular Civil Suit No. 202 of 1976 in Pune seeking partition and separate possession of one-half share
- Suit properties described in Schedule to plaint: paragraphs A (house), B (house), C (landed property)
- Trial Court framed 23 issues; held Banubai not legally wedded wife of Baburao; dismissed suit by judgment and decree dated 28 March 1983
- First Appellate Court (Additional District Judge, Pune) allowed Civil Appeal No. 837 of 1993 by judgment and order dated 22 June 1999; partly decreed suit declaring plaintiffs entitled to one-half share; directed landed property (para C) partitioned by Collector; house properties (para A, B) partitioned by Court Commissioner
- During appeal pendency: legal heirs of Narayan (Appellant No. 2) and Plaintiff No. 2 (Yashwant) died and were brought on record
Procedural History
- 28 March 1983: Trial Court dismissed suit (Regular Civil Suit No. 202 of 1976)
- 22 June 1999: First Appellate Court allowed appeal (Civil Appeal No. 837 of 1993), reversed Trial Court's decree, decreed plaintiffs' one-half share
- 24 April 2000: Second Appeal (SA 598 of 1999) admitted; substantial question framed: whether Appellate Court justified in reversing Trial Court's limitation finding without referring to evidence
- 27 July 2026: Hon'ble Apex Court granted liberty to Respondent to move application for expeditious hearing (SLP (C) Diary No. 19274 of 2026)
- 21 September 2026: RESD. ON (respondent's submissions completed)
- 13 October 2026: PRON. ON (judgment pronounced)
Relief Sought
Appellants (Narayan's legal heirs) sought: (1) reversal of First Appellate Court's decree; (2) restoration of Trial Court's dismissal; (3) costs of appeal.
The Legal Issue
The central questions were: (1) Whether the First Appellate Court was justified in reversing the Trial Court's finding that the suit was barred by limitation under Article 110 of the Limitation Act, 1963 without referring to the evidence; (2) Whether Banubai could be treated as the legally wedded wife of Baburao and Plaintiff Nos. 2 and 3 as legitimate children; (3) Whether Defendant-Narayan became sole owner of suit property by virtue of survivorship.
Arguments Presented
For the Appellants
Appellants contended the suit was barred by limitation as Baburao was excluded from joint family property from 1949, known to him by 1950, requiring suit filing by 1962; suit filed in 1976 was thus time-barred. They argued Banubai's marriage was invalid as mere garlanding at Alandi did not constitute lawful wedding; she admitted during cross-examination the wedding was performed only by garlanding; no evidence of public recognition as husband and wife; she failed to produce birth extracts of sons despite hospital deliveries; her silence from 1953 to 1976 in not filing suit contradicted prudent legally married wife behavior. They asserted Baburao could not bequeath share via Will as Hindu co-parcener's share passes by survivorship; Will clearly ousted Baburao from property; Narayan became sole owner after Baburao's death in 1953 as sole surviving co-parcener prior to Hindu Succession Act, 1956.
For the Respondents
Respondents argued there was no evidence Baburao was ousted from joint family property; he applied to Mamlatdar for separation and executed Will, indicating intent to claim share; ouster requires open assertion of hostile title with exclusive possession to knowledge of excluded heir, which was absent; Trial Court negatived Defendant's adverse possession plea, yet held suit time-barred, creating inconsistency. They proved marriage validity via: Banubai's deposition of marriage at Devachi Alandi by garlanding; cohabitation for years; four sons born; Baburao entered as father in Remand Home records; Will treating Banubai as wife and children as his children; judicial notice of marriages performed daily at Devachi Alandi. They contended once valid marriage proven, survivorship plea became academic as other co-parceners existed.
The Court's Analysis
The Court examined three questions sequentially. On limitation (Q.1), it held Article 110 requires twin conditions: (a) exclusion from joint family property, and (b) such exclusion made known to the plaintiff. Mere exclusion is insufficient; positive act or conduct must make exclusion known to plaintiff. Citing Gulabrao Maruti Bhagat v. Bhagwan Nana Bhagat, the Court noted: "In the present case, there is absolutely no evidence to suggest that the Appellant has been excluded from the property of the joint family more than 12 years prior to the institution of the suit." Baburao's 1953 application to Mamlatdar and Will execution indicated intent to claim share, contradicting ouster theory. The Court found: "Despite knowing his exclusion from joint family properties, if Plaintiff acquiesces in such overt or positive act and does not bring a suit for claiming his share within a period of 12 years after acquisition of such knowledge, his remedy to file suit for partition is extinguished under Section 28 of the Limitation Act." Since no overt act of exclusion occurred and Baburao asserted rights via application and Will, limitation did not bar the suit.
On marriage validity (Q.2), the Court rejected Trial Court's expectation of additional evidence beyond oral deposition. It found: "Banubai has examined herself and she stated that her marriage was performed with Baburao at Devachi Alandi and at that time they had garlanded each other and thereafter their marriage was performed." Crucially, "Banubai and Baburao were residing together as husband and wife at Pune for years together" and "plaintiff Nos. 2 & 3 and their deceased brothers were admitted in Remand Home at Pune and the name of Baburao Saste was shown as their father in the record." The Will dated 5 June 1953 treating Banubai as wife and children as his children provided contemporaneous evidence. Applying Badri Prasad v. Director of Consolidation, the Court held: "A perusal of the evidence on record clearly shows that Banubai and Baburao resided together as husband and wife for some years and during that period Banubai has delivered four sons... strong presumption regarding wedlock of Banubai and Baburao can safely be drawn."
On survivorship (Q.3), the Court held the plea became academic once marriage validity was established: "Once the marriage between Baburao and Banubai is held to be performed and once Plaintiff Nos. 2 and 3 are held to be legitimate children of Baburao, the issue of Narayan acquiring sole ownership in respect of suit properties by survivorship is rendered academic." It cited P. Lakshmi Reddy v. L. Lakshmi Reddy: "possession of one co-heir is considered in law as possession of all the co-heirs. Ouster of non-possessing co-heir by the co-heir in possession must be specifically made out." Mere exclusivity of possession by Narayan did not establish ouster under Article 110.
The Verdict
The Second Appeal (SA 598 of 1999) was dismissed with costs. The Court upheld the First Appellate Court's decree dated 22 June 1999, which declared plaintiffs entitled to one-half share in suit properties, directed partition of landed property (Schedule para C) by Collector and house properties (paras A, B) by Court Commissioner. No monetary compensation or interest was awarded as the suit sought partition only; costs were imposed on appellants.
What This Means For Similar Cases
Limitation Requires Plaintiff's Knowledge of Exclusion
Under Article 110 of the Limitation Act, 1963, a suit by a person excluded from joint family property to enforce a right to share is barred only if exclusion is made known to the plaintiff within 12 years prior to suit filing. Mere exclusion or denial of yield is insufficient; positive acts like public declaration, partition, or revenue mutation must communicate exclusion to the plaintiff. Practitioners must prove both exclusion and its communication to defeat limitation defenses.
Marriage Validity Presumed from Long-Term Cohabitation
Where spouses cohabit for years, have children born and acknowledged as such in official records (e.g., Remand Home), and execute wills treating each other as spouses, a strong presumption of valid marriage arises under Section 114 of the Evidence Act. The burden shifts to the challenger to disprove marriage through cogent evidence; oral admission of marriage coupled with corroborative circumstances suffices for validity.
Survivorship Plea Defeated by Proof of Other Co-Parceners
A survivorship claim over joint family property fails if other co-parceners (including those through valid marriage) are proven to exist. Possession by one co-heir is legally presumed to be on behalf of all co-heirs; ouster requires open assertion of hostile title with exclusive possession and enjoyment to the knowledge of the excluded heir. Mere exclusivity of possession without such elements does not establish survivorship.
