BHUJANG APPARAO SANAP AND ORS.VERSUSBHAGWAT APPARAO SANAP AND ORS.Mr v. M. Humbe

Legal Reasoning

IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 85 OF 2023WITH CIVIL APPLICATION NO. 2575 OF 2023BHUJANG APPARAO SANAP AND ORS.VERSUSBHAGWAT APPARAO SANAP AND ORS.Mr. V. M. Humbe, Advocate for the appellants Mr. K. R. Doke, Advocate for respondents.CORAM: R. M. JOSHI, J.DATE: 31st JANUARY, 2024P.C. :-1.This appeal takes exception under Section 100 of the Code of CivilProcedure to the judgment and decree passed by the First AppellateCourt in RCA No. 14/2019 whereby the judgment decree passed by theTrial Court of dismissal of RCS No. 87/2011 is reversed and the suit isdecreed.2.For the sake of convenience the parties are referred to as plaintiffsand defendants.3.There is no dispute about the fact that plaintiffs and defendants arereal brothers and blood relatives. Plaintiff has filed suit for seekingpartition of the suit properties with the averment that the suit properties907.sa85.23.odt1 of 6 were purchased out of the income and for the joint family but in thename of their mother. Undisputedly, the said transaction is dated 30thMarch, 1979. The plaintiff has specifically averred that out of the incomeof ancestral joint family properties as well as from independent income ofthe plaintiff and defendant No.2 the suit properties were purchased.There is also averment in the plaint to the extent of partition of otherjoint family properties in the year 1982 except for the suit properties.There is allegation against the defendant that by obtaining thedocuments from mother he has got the property transferred in his nameand also mutated his name in the revenue record. With these avermentsthe suit for partition is filed.4.The defendant No.1 opposed the said contention by claiming thatthe said properties are his self acquired properties but purchased in thename of his mother.5.Learned counsel for the defendant No.1 submits that in the instantcase the issue is before this Court is as to wether the suit is maintainablewhen the all properties of the joint family were not included therein. It ishis further contention that the First Appellate Court has committed errorin decreeing the suit by ignoring the evidence led by the defendant No.1with regard to his employment and that the proof regarding the purchase907.sa85.23.odt2 of 6 of suit properties by him is ignored by First Appellate Court. In order tosupport his submissions he has drawn attention of this Court to theevidence led before the Trial Court. According to him, the defendant No.1has led evidence that at the relevant time he was working at Pune.According to him plaintiff in cross-examination has accepted the fact thathe was employed after the purchase of the suit properties and thereforethere is no evidence to show that it is purchased from income of plaintiff.He further canvassed that there is no evidence to indicate income fromthe ancestral and joint family properties. To support his submission heplaced reliance on the judgment of the Hon’ble Apex Court in Case ofKenchegowda (Since deceased) by Legal Representatives Vs.Siddegowda alias Motegowda (1994) 4 SCC 294. He also placed relianceon the judgment in case of Shankar Sitaram Sontakke and another Vs.Balkrishna Sitaram Sontakke and others, AIR 1954 SC 352. Learnedcounsel for the plaintiff supported the impugned judgment and decreepassed by the First Appellate Court.6.Perusal of the pleadings clearly shows that plaintiff has specificallycome out with the case about purchase of the suit properties from jointfamily properties income from joint family properties as well as from hisand defendant No.2’s personal income. As far as the said contention isconcerned, the evidence on record sufficiently demonstrates that there907.sa85.23.odt3 of 6 were ancestral joint family landed properties. In fact the defendant No.1in cross-examination has given candid admission to that effect. Thoughhe denies the partition of the properties in respect of those properties,however, in the cross-examination he gives evasive answer in thisregard. There is no specific denial even in respect of the property in thesaid partition which came to his own share. Pertinently all sharers arehaving independent occupation of their respective shares in agriculturallands. It is not case of either side that these lands are barren/uncultivated lands. Independent cultivation of lands since 1982 clearlyindicates that income was derived from joint family lands. Thus, nucleuswas available for the joint family to purchase the land. Plaintiff’sevidence shows that in the year 1982 the properties were partitionedexcluding the properties standing in the name of mother. In the cross-examination it is suggested to defendant No.1 that at the time ofprevious partition the said land was not partitioned as it was left for themaintenance of the mother. Though this suggestion has been denied bythe defendant No.1, the plaintiff has shown probable reason for noninclusion of suit properties in the previous partition. In the light of thesefacts this Court finds no substance the contention of the learned counselfor the defendant No.1 that all the properties are not included in the suitand therefore suit is not maintainable. From perusal of the judgment ofthe Hon’ble Apex Court in case of Kenchegowda (Since deceased) by907.sa85.23.odt4 of 6 Legal Representatives (supra) shows that it is geneal rule that on thejoint family property should be included in the suit however, this rule issubject to exception. There cannot be any better case than the one inhand wherein there is evidence to indicate that the properties werepartitioned between the co-sharers in the year 1982 and they are inexclusive and independent possession of their respective part. In suchcircumstance, there was no question of including those properties in thepresent suit. Thus, this Court finds no substance in the objection soughtto be raised about the maintainability of the suit.7.Once it is admitted that there were ancestral properties of the jointfamily and nucleus was available for the purchase of the properties,there is presumption of jointness of the same. The defendant No.1 claimsthat the suit properties are self acquired properties. Thus, burden is onthe defendant No.1 to prove that he has purchased those properties outof his own income. In this regard evidence of the defendant shows thathe vaguely states about he being employed at Pune during the relevantperiod. However, in the cross-examination he was unable to give evenname of the person with whom he worked.8.Perusal of the evidence led by defendant No.1 sufficiently showsthat the defendant No.1 was unable to give any reliable evidence in order907.sa85.23.odt5 of 6 to hold that at the relevant time he was employed and was earningenough money to purchase the suit properties. Defendant therefore hasfailed to prove that the suit properties are his self acquired propertiesand he purchased the same in the name of his mother.9.Having regard to these facts, learned Trial Court was wrong indismissing the suit and the said error has been rightly corrected by theFirst Appellate Court. This Court finds no substantial question of lawbeing involved in this appeal. Hence, appeal stands dismissed. Pendingcivil application, if any, stands disposed of. (R. M. JOSHI, J.)ssp907.sa85.23.odt6 of 6