Sarojani Chandrakant Tirhekar v. Smt. Yamunabai Sopan Zol

Judgment

1. This Second Appeal arises from the decree passed learned Civil Judge, Junior Division Barshi Regular Civil Suit No.365 1981 partition perpetual injunction confirmed Regular Civil Appeal No.625 1987 learned 3rd Addl. District Judge Solapur. Though admitting appeal substantial questions framed, subsequently written submissions placed record sometimes June 2000 following substantial questions of law have been framed by the appellant - original defendant : 2 (a) Whether unless a Certificate under Section 32-M of the Bombay Tenancy and Agricultural Lands Act is issued, the title does not vest in the tenant-purchaser, as held by the courts below? (b) Whether Sopan could have executed a will before obtaining the 32M certificate in respect of the entire tenanted property? (c) Whether the suit property obtained by the deceased Sopan in 1950 or thereabout as a tenant, of which he later on became a statutory purchaser by virtue of provisions of the Bombay Tenancy and Agricultural Lands Act, is a self-acquired property of the deceased Sopan or a joint family property? (d) Whether by way of a registered will dated 11th February, 1980, which is held as proved by the Courts below, the defendant has acquired ownership of the entire suit land to the exclusion of the plaintiffs? 3

2. Rajaram Zol, a resident of Pangari had three viz. Ambadas, Shankar Sopan. Sopan Zol cultivating agricultural Shri Ramchandra Kale admeasured 8 H. Rs. located Gat No.357. He possession a tenant sometimes 1951-52 cultivation 35 1/4/1957. Sopan, therefore, became a protected tenant consequently a statutory purchaser provisions Bombay Tenancy Agricultural Lands Act,

1948. He purchase and, therefore, ownership certificate Section 32-M Act issued favour. Sopan’s Regular Civil Suit No.365 1981 against Sopan’s daughter perpetual injunction partition property. The plaintiffs claimed entitled 35/36th land. The defendant Written Statement Exhibit 79 stated father Sopan executed a Will 11/2/1980 registered Exh.

223. As Will Sopan bequeathed entire property

defendant looked him, 4 medical treatment, attorney Court restore possession favour Sopan lastly account affection. She further claimed self-acquired property Sopan therefore, bequeath and, entirety choice. She further claimed plaintiffs Sopan acquired property. The plaintiffs amended plaint challenged legality validity Will Sopan various grounds. On behalf plaintiffs, plaintiff no.1 Yamuna (PW plaintiff no.3 Shivaji (PW 2), Arjun Godse (PW Ramchandra Kadam (PW 4) and Vitthal Mase (PW 5) were examined. The defendant examined herself. 1), 3),

3. Admittedly Sopan Zol died on 29/5/1982 and the defendant 1/6/1949 married 1969 Chandrakant Tirhekar, a resident Barshi. She completed Diploma Education. She amongst children plaintiff no.1 Sopan. Plaintiff no.2 Ganpat plaintiff no.3 Shivaji brothers defendant whereas plaintiff no.4 Arvind plaintiff 5 no.5 Shankar younger brothers. She residing husband 1972 children. It appears husband contracted second marriage and, therefore, instituted proceedings maintenance Section 125 Cr.P.C. initially amount Rs.60 granted of maintenance subsequently revised Rs.90 M.A. No.27 1979 thereafter revised Rs.275/- month. It admitted plaintiff no.3 Shivaji staying Barshi 1965 a job. In addition dispute Sopan possession 1961 proceedings (Tenancy Case No.116 initiated 1975) restoration same. Due attend proceedings and, therefore, appointed defendant attorney (Exh. 187 10/4/1975) prosecute obtained possession property 29/10/1976 Sopan’s attorney. The plaintiffs labourers cultivating land. On Sopan executed Will favour defendant (11/2/1980) plaintiff no.2 - 6 Ganpat 35 (born 1945) i.e. defendant, plaintiff no.4 Arvind 29 age, plaintiff no.5 Shankar 24 age. It was plaintiffs plaintiff nos.2 5 cultivating plaintiff no.4 working a labourer whereas plaintiff no.3 a Barshi earnings contributing investment cultivating land. In plaintiffs contended a family property though ownership father operation Tenancy Act and, therefore, father bequeath property his Will favour defendant. They contended the defendant could have 1/6th share along with the five plaintiffs on the demise of their father Sopan.

4. The trial Court on assessment of the evidence held that : (a) The plaintiffs proved their possession and occupation of the suit land. (b) The suit property could not be 7 exclusively owned by Sopan Zol by operation of law. (c) The defendant had proved the Will dated 11/2/1980 and by the said Will the suit property was bequeathed to the defendant. (d) The defendant could not prove that she had become exclusive owner of the suit property by the said Will after the death of her father Sopan. (e) The plaintiffs are entitled to get 1/6th share each in the suit property.

5. Mr. Kumbhakoni, the learned counsel appearing appellant - defendant submitted presumptions Courts property a family property because a family Sopan Zol apparent record presumption cannot drawn. On a proved cogent evidence parties particularly property property thrown 8 common holding free will shared members family. Self-acquired property cannot family property unless admitted specifically proved otherwise acquisition, (a) existed a nucleus ancestral family property, (b) nucleus adequate property a acquired (c) Hindu acquired property possession nucleus. And conditions required a proved conjunctively. In absence "common stock" question throwing a separate property a non-existent "common stock" existence a coparcenery absolutely necessary before a coparcener common acquired property. The doctrine "throwing common stock" a separate property Hindu, inevitably postulates separate property a coparcener coparcenery property desires separate property coparcenery property. holding a separate property family property, specifically pleaded proved interest In 9 existed exists a family property commonly "common stock" "hotch-potch". He further submitted a Hindu a separate property voluntarily common existing property, separate property specific intention obtaining separate such property. In support of these contentions the learned counsel relied upon the following decisions: (1) G. Narayana Raju v. G. Chamaraji [AIR[AIR[AIR 1968 19681968 SC SC SC 1276] 1276] 1276] (2) Goli Eswariah v. Commissioner Gift Tax, A.P. [AIR [AIR [AIR 1970 1970 1970 SC SC SC 1722] 1722] 1722] (3) K.V. Narayanan v. K.V. Ranganadhan [AIR[AIR[AIR 1976 19761976 SC SC SC 1715] 1715] 1715] (4) Lakkireddi Chinna Venkata Reddi v. Lakkireddi Lakshmama [AIR [AIR [AIR 1963 1963 1963 SC SC SC 1601] 1601] 1601] (5) D.S. Lakshmaiah v. L. Balasubramanyam [AIR[AIR[AIR 2003 2003 2003 SC SC SC 3800]. 3800] 3800] It further contended Sopan become acts, 10 statutory land, ownership coparcenery and, therefore, a acquired property Sopan. By voluntary Sopan either common actions voluntarily and, therefore, bequeath property choice 11/2/1980 executed favour defendant. According learned counsel Courts committed a patent illegality holding property a family property and, therefore, could not be willed by Sopan as per his choice.

6. In all the decisions relied upon by the plaintiffs coparcenery family property either between brothers cousins i.e. different branches. The "joint family property" common parlance property dispute between brothers parents. In instant required considered whether become a family property Sopan executed Courts answered affirmative. As 11 learned counsel for the defendant this finding is not supported from the evidence.

7. As per the Hindu Law there is no dispute that issues acquire interest separate property acquired property a male Hindu whether property immovable or movable. A male Hindu may acquire possess individual separate property member undivided family, Hindu incapable (while a State Union) holding property family property. Hindu Law recognises separate property individual members a family as well separated members. A Hindu a entire property a stranger disinherit heirs. The expression "separate property" different expression "self acquired property". The "separate property" distinguish individual property a Hindu property family rather interest family property. A separate property would, therefore, include property howsoever acquired family property 12 reason another. Thus property acquired a male Hindu inheritance property acquired labour exertions a separate property. Self-acquired property, hand, a self-acquisition properly called. Thus property acquired person labour exertions self-acquired property, acquired, say, inheritance not. Hence self-acquired property a species separate property. In family parents children without inheritance ancestral property, possible father members family would property acquired father a family property actions cultivation etc. has become a family property, it cannot be willed and disposed by the father as per his choice.

8. In the instant case admittedly Sopan did not agricultural except possession 1961 possession 29/10/1976 earlier. It necessary examine whether agricultural become a family property 13 November

1976. Date the Will 11/2/1980 burden substantially plaintiffs. In that regard let us examine the evidence adduced by the parties.

9. PW 1 Yamuna stated in her examination- in-chief husband spending amount cultivation amount earned selling agricultural produced. Plaintiff no.3 working a spending amount cultivation agricultural paying household expenses. She further stated daughter (defendant) married 18 20 residing separately marriage. All plaintiffs looking Sopan defendant involved cultivation land. In cross-examination admitted residential father-in-law denied was working a boarding Barshi residing Male Galli a Khade building Barshi. She further admitted Plaintiff no.3 Shivaji residing Barshi a Raut Galli Barshi 14 residing Pangari. She stated amount defendant complete amount was paid. PW Shivaji examination-in-chief stated 2 he, father sister submitted a application Bank India obtain cultivation bullocks etc. A promissory signed 28/7/1978 agreement executed borrowers jointly. Documents Exhibits 68/44. Bullocks purchased Bazar Barshi receipt Exhibit 98 brought record singed him. He further reiterated plaintiffs jointly spending amounts cultivation defendant residing Barshi husband marriage 1969 Kisa. Apart maintenance amount receiving, defendant source income contributed expenditure required cultivation land. The borrowed Bank jointly repaid defendant resided father. defendant physically cultivated The through servants. He further 15 stated plaintiff nos.1 cultivated 2 father. In cross-examination admitted restored 1976 though present taking possession, possession receipt. He admitted defendant obtained possession a attorney holder father. He stated cross-examination 1981-82 purchased bullocks a private obtained receipt Pangari village. PW 3 Arjun Godse, a neighbouring holder stated before Court plaintiffs possession Sopan plaintiffs cultivating during time. Plaintiffs jointly staying with Sopan at Pangari. Thus the evidence of PW 1 was supported by PW 4 and PW 5. . The defendant in her depositions before the Court stated attorney Exhibit 187 executed favour Sopan, staying at Barshi he met accident

1978. She admitted hospital treatment. Her father executed Will 11/2/1980 favour (Exh. 16 223) signed witnesses presence viz. Maruti Mahadu More Solwad. Her father present signed witnesses health time. She reiterated possession father receipt injunction order. She relied Mutation no.499 Exhibit 104/6. admitted Exhibit 224 She plaintiffs entered rights column preferred appeal against same. She claimed become plaintiffs concern same. She admitted cross-examination herself, jointly father plaintiff no.3 application Bank 1978 (Exh.68/1/) sanctioned. She admitted signed plaintiff no.3 (Exhibit 236). She admitted hypothecation signed borrowers. She identified signature Exh. nos.237, 238, 239

245. She further stated 1979-80 father possession further stated demise father cultivating through 17 Maruti More, Vithal Jadhav, Suryabhan Kadam, Gaibinath Jagdale Dyanoba Jagadale, written document support same. She further stated agricultural her. She admitted ownership certificate under Section 32M of the Bombay Tenancy Act was not received in respect of the suit land. . In her depositions in Criminal Application No.77 of 1979 she had stated as under : father My The brothers 1975 "Since (younger) I strength brothers litigation illiterate brothers It I minor. land Gat No. land Gat No.357 to my father me. of my attorney. 357. etc." . Whereas Devidas Jagadale who was the second witness examined Criminal Misc. Application No.77 of 1979 filed by the defendant stated before the Court on oath as under: "I know Sopan Rajaram Zol. He has cultivate Shanker daughter. land. My Sopan Sopan Rajaram Sopan Rajaram adjacent Zol. Rajaram Zol Ganpu Zol 18 bullocks Zol The cultivates husbandry. Sopan 10 enjoyed 15 Rajaram years. Sopan sons..."

10. The evidence so adduced before the Court and rightly Court as well Appellate Court, cultivated a family property Sopan family plaintiffs members family. The defendant married staying children Barshi. Even admitted plaintiff - Shivaji staying Barshi he was working there, contributing family requirements cultivation Pangari loan was obtained Bank i.e. Sopan, Plaintiff No.3 defendant. Plaintiff no.3 defendant stated before Court while witness purchased bullocks cultivation land. The inescapable conclusion evidence Sopan accepted family property plaintiffs family members Courts holding family property 19 bequeathed Sopan the Will Exhibit 223 favour defendant entirety. The Will having valid, Courts rightly accepted respect Sopan’s the Will i.e. 1/6th share. The contentions learned counsel defendant self-acquired property Sopan become a family property cannot accepted. On execution the Will, become a family property Sopan other members family. Though plaintiff no.3 staying separately Barshi, evidence record proved financially contributing family requirements as well as towards the expenditure needed for the cultivation of the suit land.

11. The learned counsel for the defendant was submission non-issuance purchase certificate Section 32M Bomaby Tenancy Act tenant purchaser finding otherwise recorded Courts entitle defendant Sopan’s 20 land. Both Courts accepted Will valid Will accepted respect Sopan’s bequeathed shares plaintiffs. Issue no.(b) answered. The defendant acquired ownership entire exclusion plaintiffs 11/2/1980 become a family property remain exclusive property of Sopan so as to bequeath in its entirety and to the exclusion of the plaintiffs as on 11/2/1980.

12. In the premises this Second Appeal fails and the same is hereby dismissed. (B.H.MARLAPALLE,J.)