The Bombay High Court has clarified that a former Karta of a Joint Hindu Family, after partition, cannot alienate the entire ancestral property as a trustee or manager, and any such sale binds only his undivided share. The judgment also reinforces that an unproved Will cannot override the presumption of joint family ownership, and limitation cannot be presumed from constructive notice where concealment is established.
Background & Facts
The Dispute
The dispute centers on the ownership and alienation of a 1490.50 square meter plot (Plot No.383/3, House No.791/K, Khasra No.22, 23/1 and 30/1) in Laxmi Nagar, Ajni Khurd, Nagpur. The plaintiffs, Jyoti Buty and Kiran Buty, claimed the property was ancestral joint family property of the Buty family, and that it was illegally sold by defendant No.1, Deepak Buty, to defendants Nos.7, 8 and 9 without their consent. The defendants, including purchasers and family members, contended the property belonged to a private family trust created by the Will of late Shri Atmaram Amrutrao Buty dated 09.05.1930, and that Deepak Buty, as Vahivatdar (manager), had authority to sell it.
Key Facts
Late Shri Atmaram Amrutrao Buty died prior to 1956, leaving behind immovable properties.
His son, late Bhaskarrao Buty, died on 08.10.1983, survived by four Class-I heirs: wife Pramilabai (predeceased), daughter Jyoti Buty (plaintiff No.1), and three sons: Kiran Buty (defendant No.1), Deepak Buty (defendant No.2), and Sachit Buty (defendant No.4).
The family owned extensive properties in and around Nagpur, some held in the name of a purported family trust named "Shri Dev Balkrishna Devghar Devasthan".
A prior partition suit (Spl.C.S.No.350/1986) was filed by defendants Nos.3 to 6 and plaintiff No.2 against defendant No.1 and others, seeking partition of family properties. The suit was compromised on 10.08.1988, and several trust properties were partitioned.
The suit property in question was not included in the 1988 compromise.
Defendant No.1 executed three sale deeds in favor of defendants Nos.7, 8 and 9 on 25.08.1989, 28.08.1989 and 07.09.1989.
The plaintiffs were not informed of the sale until 2001, when they received a legal notice.
The original Will dated 09.05.1930 was not produced in court. Only a photocopy was relied upon.
Plaintiff No.1 admitted in cross-examination that she knew of the Will’s existence but never challenged it.
Plaintiff No.2 admitted awareness of the trust’s existence but claimed he saw the Will for the first time during litigation.
Defendant No.1 admitted in cross-examination that he did not consult other family members before executing the sale deeds and that he ceased to be Karta after the 1988 compromise.
No attesting witness to the Will was examined. No proof of handwriting of attesting witnesses was offered.
The sale deeds were registered, but no consideration was paid by defendants Nos.7 to 9.
Procedural History
1930: Will executed by late Atmaram Amrutrao Buty creating a private family trust.
1968: Sale of trust property by Bhaskarrao Buty as Vahivatdar (Exhibit 92).
1975: Exchange deed executed by Bhaskarrao Buty with Nagpur Improvement Trust (Exhibit 91).
1983: Death of Bhaskarrao Buty.
1986: Suit for partition filed (Spl.C.S.No.350/1986).
10.08.1988: Compromise decree passed in the 1986 suit; some trust properties partitioned.
25.08.1989, 28.08.1989, 07.09.1989: Three sale deeds executed by defendant No.1 in favor of defendants Nos.7, 8 and 9.
2001: Suit filed (Special Civil Suit No.621/2001) seeking declaration of joint family ownership, cancellation of sale deeds, and partition.
17.03.2018: Trial Court dismissed the suit, holding property belonged to the family trust.
09.07.2021: First Appellate Court allowed the appeal, holding property was joint family property and sale was void except to extent of defendant No.1’s share.
27.04.2026: Second Appeal decided by Bombay High Court.
The Parties' Positions
Plaintiffs (Jyoti and Kiran Buty): Argued the property was ancestral joint family property, not trust property. Contended the sale was unauthorized, concealed, and void. Asserted they had no knowledge of the sale until 2001.
Defendants (Deepak Buty and purchasers Nos.7-9): Argued the property was dedicated to a private family trust by Will. Claimed defendant No.1 was competent Vahivatdar with authority to sell. Asserted plaintiffs had constructive notice from 1989 and suit was barred by limitation.
Relief Sought
The plaintiffs sought:
Declaration that the suit property is joint Hindu family property.
Declaration that the sale deeds dated 25.08.1989, 28.08.1989 and 07.09.1989 are illegal and void.
Decree for partition and separate possession.
Costs.
The Legal Issue
The central questions were: (1) Whether an unproved Will can establish that ancestral property became trust property, thereby overriding the presumption of joint family ownership? (2) Whether a former Karta, after partition, can validly alienate the entire joint family property as trustee of a trust? (3) Whether the suit for partition is barred by limitation where concealment of the property is established? (4) Whether the purchaser of an undivided share in joint family property acquires the share as it existed at the time of sale or at the time of final decree?
Arguments Presented
For the Appellant/Petitioner
Dr. R.S. Sundaram, Advocate for appellants (defendants Nos.7-9), argued:
The Will dated 09.05.1930, though unproduced, was admitted by plaintiffs in cross-examination and thus could be read in evidence under Section 70 of the Evidence Act.
The property was dedicated to a family idol, making it trust property, and plaintiffs, as beneficiaries, had no right to seek partition.
The suit was barred by limitation under Article 65 of the Limitation Act, as the sale deeds were registered in 1989 and plaintiffs had constructive notice from that date.
Section 90 of the Evidence Act applied to the 96-year-old Will, raising a presumption of due execution.
The share of defendant No.1 should be determined as of the date of the sale, not the date of final decree, citing Sakarchand Satidas v. Narayan Sawala Wani.
The Hindu Succession (Amendment) Act, 2005, did not apply retroactively to alter the share calculation.
For the Respondent/State
Mr. V.V. Bhangde, Advocate for respondents (plaintiffs), argued:
The Will was not proved under Sections 63, 68 and 69 of the Indian Succession Act and Evidence Act. No attesting witness was examined.
The presumption under Section 90 of the Evidence Act does not apply to Wills, as held in Ramesh Verma v. Lajesh Saxena and M.B. Ramesh v. K.M. Veeraje.
The property was joint family property, as evidenced by its origin from Bhaskarrao Buty and the absence of any valid dedication.
The 1988 compromise decree did not dissolve the trust, but the trust’s existence was never legally established.
The plaintiffs had no knowledge of the sale until 2001; concealment by defendant No.1 negated constructive notice.
The suit for partition is governed by Article 110 of the Limitation Act, and the burden of proving ouster lies on defendants.
The share of defendant No.1 must be calculated as of the date of final decree, as per Vineeta Sharma v. Rakesh Sharma and Ganduri Koteshwaramma v. Chakiri Yanadi.
The Court's Analysis
The Court undertook a rigorous analysis of the competing claims, beginning with the foundational issue: the nature of the property. The Court noted that while the property originally belonged to Atmaram Buty, the burden lay on the defendants to prove its dedication to a trust. The Will, the sole basis of this claim, was not produced. No attesting witness was examined. No proof of handwriting of attesting witnesses was offered. The Court held that Section 68 of the Evidence Act mandates examination of attesting witnesses for Wills, and Section 69 requires proof of handwriting if witnesses are unavailable. The Court rejected the argument that Section 90 of the Evidence Act could cure this defect, citing Ramesh Verma and M.B. Ramesh, which hold that Section 90 does not apply to Wills.
"The mandate of Section 68 of the Evidence Act is mandatory and cannot be dispensed with merely because the document is old or admitted. The absence of proof of attestation renders the Will inadmissible."
The Court further held that even if the property were trust property, the Vahivatdar had no power to sell it under the unproved Will, and Section 36 of the Indian Trusts Act prohibits alienation without court sanction. The Court relied on Ramabai Govind v. Raghunath Vasudeo to affirm that a trustee without express power cannot alienate trust property, and such alienation is void, not voidable.
The Court then addressed the status of defendant No.1 after the 1988 compromise. The Court accepted his admission that he ceased to be Karta after the compromise. Thus, the sale was not by a Karta acting for legal necessity, but by a coparcener selling his undivided share. The Court held that under the Bombay School of Mitakshara Law, a coparcener may sell his share, and the purchaser acquires that share as it existed on the date of sale, not the date of decree. The Court affirmed the Full Bench decision in Sakarchand Satidas v. Narayan Sawala Wani, rejecting the argument that shares crystallize only at decree.
The Court calculated defendant No.1’s share as of 1989 using notional partition under the unamended Section 6 of the Hindu Succession Act, 1956. Bhaskarrao Buty’s estate was divided equally among his four heirs. His share (1/4) devolved equally among his four heirs, giving defendant No.1 a 1/4 + 1/16 = 5/16 share.
On limitation, the Court held that the plaintiffs were not parties to the sale deeds and had no reason to suspect concealment. The Court accepted the finding of the First Appellate Court that the property was deliberately concealed from the plaintiffs during the 1988 compromise. The Court rejected reliance on Umadevi and Rattan Singh, distinguishing them on facts. The Court held that Article 110 of the Limitation Act applied, and the burden of proving ouster lay on defendants, which they failed to discharge.
The Verdict
The Second Appeal was partly allowed. The Court modified the decree of the First Appellate Court as follows:
Defendant No.1 had a 5/16th share in the suit property as on the dates of the sale deeds (25.08.1989, 28.08.1989 and 07.09.1989).
Defendants Nos.7 to 9 are entitled to the 5/16th share of defendant No.1.
Plaintiff No.1 is entitled to an 11/48th share.
Plaintiff No.2 and defendants Nos.3 to 6 together hold an 11/48th share, with plaintiff No.2 (i) and (ii) each holding 11/480th and defendants Nos.3 to 6 each holding 11/240th.
Defendants Nos.2(a), 2(b) and 2(c) together hold an 11/48th share, each holding 11/144th.
All other declarations and directions in the First Appellate Court’s decree were maintained.
Parties to bear their own costs.
The prayer for stay of execution was rejected.
What This Means For Similar Cases
Sale by Former Karta Post-Partition Is Limited to His Share
Practitioners must distinguish between alienation by a Karta (for legal necessity) and by a former Karta acting as a coparcener.
A sale by a former Karta after partition binds only his undivided share, not the entire property.
The purchaser acquires only the vendor’s share as it existed on the date of sale, not as recalculated at decree.
This principle applies even if the property is later found to be joint family property.
Unproved Wills Cannot Override Joint Family Presumption
A Will must be proved strictly under Sections 63, 68 and 69 of the Indian Succession Act and Evidence Act.
Mere admission of a Will’s existence by a party does not satisfy the legal requirement of proof.
Section 90 of the Evidence Act cannot be invoked to presume due execution of a Will.
Courts will not presume trust creation without clear, proved evidence.
Concealment Negates Constructive Notice in Partition Suits
Constructive notice under Section 3 of the Transfer of Property Act applies only to subsequent purchasers, not to co-parceners.
Where a property is deliberately concealed during a prior partition, limitation cannot be presumed from the date of registration of a subsequent sale.
The burden of proving ouster or adverse possession lies on the defendants.
Plaintiffs in partition suits need not challenge sale deeds; they may seek partition independently under Article 110 of the Limitation Act.
Share Calculation Must Reflect Law at Time of Alienation
The share of a coparcener sold must be calculated as of the date of alienation, not the date of decree.
The Hindu Succession (Amendment) Act, 2005, does not affect alienations prior to 20.12.2004, as per the proviso to Section 6(1).
Courts must apply the law as it stood on the date of sale to determine the vendor’s share.
