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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.217 OF 2003
APPELLANTS: 1. Narayan Patilba Bhonde,
Aged 75 years,
2. Sau. Bhagubai Narayan Bhonde,
Aged 65 years,
3. Sakharam Narayan Bhonde,
Aged 45 years,
4. Dinkar Narayan Bhonde,
Aged 35 years,
5. Rangubai Sakharam Bhonde,
Aged about 40 years,
6. Mandabai Dinkar Bhonde,
Aged 30 years,
7. Ramrao Santosh Bhonde,
Aged 35 years,
8. Gajanan Sakharam Bhonde,
Aged 32 years,
9. Motiram Dinkar Bhonde,
Aged 11 years, Minor through
natural Guardian father -
Appellant No.4, All agriculturists,
R/o Mhsala, Tah. Buldana,
District - Buldana.
-VERSUS-
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RESPONDENT: Sangita D/o Motiram Bhonde, Aged
about 24 years, Occupation-Household,
R/o C/o Prakash Omkar Thombare,
Palaskhed (Daulat), Tah. Chikhali,
District - Buldana.
Shri P. B. Patil, Advocate for the appellants.
Shri Tushar Darda, Advocate for the respondent sole.
CORAM: A.S. CHANDURKAR, J.
DATED: 12 th JUNE, 2017.
ORAL JUDGMENT :
1. The appellants are the original defendants in a suit for partition and separate possession of ancestral property filed by the respondent. The trial Court partly decreed the suit and granted 1/5 th share to the respondent in Gut Nos.136 and 139 and refused relief in so far as Gut No.121 and Gut No.140 were concerned. The plaintiff as well as the defendant filed two separate appeals and by the impugned judgment, the appellate Court partly allowed the appeal preferred by the respondent and granted her share in Gut No.121 and 140 also. The appeal preferred by the present appellants came to be dismissed. Being aggrieved, the present appeal has been filed.
2. It is the case of the respondent that she is the grand daughter of the original defendant Nos.1 and 2 and the niece of the defendant nos.3 & 4. Her father Motiram who was also the son of ::: Uploaded on - 17/06/2017 ::: Downloaded on - 18/06/2017 00:31:26 ::: sa217.03.odt 3/6 defendant Nos.1 & 2 expired on 14-8-1982. The defendant Nos.1 and 2 were in possession of the ancestral property and hence the suit for partition of the same came to be filed. Gut Nos.136 and 139 along with Gut Nos.141 and 121 were the agricultural fields that were the subject matter of the suit. The trial Court after considering the evidence on record held Gut Nos.136 and 139 to be ancestral properties and granted the plaintiff 1/5th share therein. Though it was found that Gut No.121 was also ancestral property, no share was granted on the ground that it was a small piece of land. As noted above, the appellate Court has modified the decree of the trial Court.
3. The appeal was admitted on the following substantial question of law:-
(1) Whether the Courts below have erred in law in not considering the legal position on record that the mother of deceased Motiram, being class one heir was equally entitled to get a share in property to the extent that would fall in the share of deceased?
4. By order dated 9-6-2017, two other questions of law were also framed.
(1) Whether the lower appellate Court is justified in granting 1/5th share each out of 1/4th share in Gat No.140 which is admeasuring only 62 Rs and, therefore, the same is not liable for partition. Thus, the ::: Uploaded on - 17/06/2017 ::: Downloaded on - 18/06/2017 00:31:26 ::: sa217.03.odt 4/6 equity would have been done by awarding compensation?
(2) Whether the lower appellate Court is justified in shifting the burden on defendants/appellants to prove that Gat No.121 is co-parcenary property?
5. Shri P. B. Patil, learned Counsel for the appellants submitted that the respondent was not entitled for 1/5 th share in the ancestral property. He submitted that the plaintiff was the daughter of Motiram who had already expired in the year 1982 and, therefore, the suit property ought to have been divided amongst the remaining co- parceners. He submitted that the appellate Court was not justified in directing partition of Gut No.140 on the ground that it was measuring only 62R. He further submitted that in so far as Gut No.121 is concerned, the same was self acquired property of appellant Nos.5 and 6 as the sale deeds at Exhibits 74 and 75 stood in their name. These fields could not have been the subject matter of partition. He, therefore, submitted that the impugned judgment was liable to be set aside.
6. Shri Tushar Darda, learned Counsel for the respondent supported the impugned judgment. According to him, the plaintiff being the daughter of Motiram, she was entitled for her father's share in the joint family property. Merely because Gut No.140 was a small piece of land, it could not be said that it was not liable for partition. He further submitted that the evidence on record clearly indicated that Gut No.121 ::: Uploaded on - 17/06/2017 ::: Downloaded on - 18/06/2017 00:31:26 ::: sa217.03.odt 5/6 had been purchased by the joint family after selling Gut No.241. As Gut No.241 was joint family property, the appellant Nos.5 and 6 could not be treated as exclusive owners of Gut No.121.
7. I have heard the learned Counsel for the parties at length and I have also perused the records of the case.
8. In so far as the respective shares of the parties are concerned, it is to be noted that Narayan who is defendant no.1 was married with Bhagubai - defendant No.2. They had three sons Sakharam, Dinkar and Motiram. Motiram was the father of the original plaintiff. The trial Court in paras 21 and 22 of its judgment has rightly found that there were five sharers and the plaintiff was entitled for 1/5 th share in the ancestral property being daughter of Motiram. This finding has been confirmed by the appellate Court in paras 19 and 20 of its judgment. It can thus be seen that shares of the parties have been rightly calculated and the plaintiff has been held entitled for 1/5th share.
9. In so far as Gut No.121 is concerned, the appellate Court in para 16 of its judgment has found that initially Gut No.241 was sold by Narayan and immediately thereafter on 16-12-1993 Gut No.121 was purchased under two sale deeds at Exhibits 74 and 75. The deposition of the defendant no.6 Mandabai clearly indicates that she was doing labour work and was earning Rs.120/- per day. Amount of Rs.31,000/- was paid in cash for purchasing said field. The deposition of Sakharam who was ::: Uploaded on - 17/06/2017 ::: Downloaded on - 18/06/2017 00:31:26 ::: sa217.03.odt 6/6 Narayan's son also supports the finding of the appellate Court in view of his admission that defendant Nos.5 & 6 had no separate source of income. Hence, said finding recorded by the appellate Court does not call for any interference.
10. In so far as Gut No.140 is concerned, the trial Court refused to grant any relief with regard to that land only on the ground that it was admeasuring 62R. The appellate Court in para 21 of its judgment has clearly observed that even if said land was of smaller area, it was a matter of execution. The grant of 1/5th share out of total 1/4th share in Gut No.140 is, therefore, justified. By observing that the aspect regrading smallness of its area is a matter to be considered by the executing Court the right of the plaintiff therein stands recognized. Same cannot be a ground to refuse the relief of partition.
11. In view of aforesaid discussion, the substantial questions of law as framed are answered against the appellants. The judgment of the appellate Court accordingly stands confirmed. The second appeal stands dismissed with no order as to costs.
JUDGE //MULEY// ::: Uploaded on - 17/06/2017 ::: Downloaded on - 18/06/2017 00:31:26 :::