Bombay High Court
Anusaya Ramkrushna Sathe & Ors vs Surekha Shashikant Sathe & Ors on 20 October, 2015
Bench: T.V. Nalawade
SA No. 1408/05
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
SECOND APPEAL NO. 1408 OF 2005
WITH
CIVIL APPLICATION NO. 9083 OF 2005
1. Smt. Anusaya W/o Ramkrishna Sathe
(Since deceased through L.Rs.)
1A) Subhash Bhagwat Lokhande,
Age 53 years, Occ. Agriculture,
1B) Chandrakant Bhagwat Lokhande,
Age 48 years, Occ. Agriculture,
Both R/o. Sawantsar, Tq. Kopargaon,
District Ahmednagar.
1C) Sau. Mandakini Raghunath Gaikwad,
Age 57 years, Occ. Household,
R/o Kokamthan, Tal. Kopargaon,
District Ahmednagar.
1D) Sau. Pushpa @ Kamal Bhikaji Aagare,
Age 50 years, Occu. Household,
R/o. Ekrukhe, Tal. Rahata,
District Ahmednagar.
(Amendment made as per order passed
in Civil Application No. 6451/2006 dated
25/1/2007)
2. Smt. Rakhamabai Bhagwat Lokhande,
(Since deceased through L.Rs.)
2A) Subhash Bhagwat Lokhande,
Age 53 years, Occ. Agriculture,
2B) Chandrakant Bhagwat Lokhande,
Age 48 years, Occ. Agriculture,
Both R/o. Sawantsar, Tq. Kopargaon,
District Ahmednagar.
::: Uploaded on - 23/10/2015 ::: Downloaded on - 23/10/2015 23:59:46 :::
SA No. 1408/05
2
2C) Sau. Mandakini Raghunath Gaikwad,
Age 57 years, Occ. Household,
R/o. Komamthan, Tal. Kopargaon,
District Ahmednagar.
2D) Sau. Pushpa @ Kamal Bhikaji Aagre,
Age 50 years, Occ. Household,
R/o Ekrukhe, Tal. Rahata,
District Ahmednagar,
(Amendment made as per order passed
in Civil Application No. 6450/2006 dated
25/1/2007)
3.
Shri. Chandrakant Bhagwat Lokhande,
Age 47 years, Occ. Agriculture,
R/o Savantsar, Taluka Kopergaon,
District Ahmdenagar. ....Appellants.
(Ori. Deft. Nos. 1 to 3)
Versus
1. Smt. Surekha Shashikant Sathe,
Age 43 years, Occ. Household,
2. Smt. Shakuntala Shivram Sathe,
Age 76 years, Occ. Agriculture,
3. Narendra Shivram Sathe,
Age 34 years, Occ. Service,
4. Rajendra Shivram Sathe,
Age 31 years, Occ. Agriculture,
Nos. 1 to 4 all R/o. Gokulpura, Agra Road,
Kalyan, District, Thane.
5. Smt. Lata W/o Vijay Kakad,
Age 29 years, Occ. Agriculture,
R/o. Chaudhari Chawl, Quality Factory,
Beturkar Wada, Kalyan, Dist.Thane.
6. Smt. Usha Vilas Mehendale,
::: Uploaded on - 23/10/2015 ::: Downloaded on - 23/10/2015 23:59:46 :::
SA No. 1408/05
3
Age 39 years, Occ. Service,
R/o. Fadkewada, Old Milk Naka,
Gupte Chauk, Kalyan,
District Thane.
7. Smt. Mandabai w/o Shivaji Sathe,
Age 44 years, Occ. Agriculture,
8. Dipak Shivaji Sathe,
Age. Minor through guardian mother
Mandabai Shivaji Sathe,
Nos.7 and 8 R/o. Naygaon,
Tal. Shrirampur,District Ahmednagar.
ig ....Respondents.
(Resp.No. 1 to 4 - Ori.
Plffs., resp. Nos. 5 to 8 -
Ori. Deft. Nos. 4 to 7)
Mr. S.K. Shinde, Advocate for appellants.
Mr. V.D. Hon, Advocate for respondent Nos. 1 to 8.
CORAM : T.V. NALAWADE, J.
DATED : 20th October, 2015.
JUDGMENT :
1) The appeal is filed against judgment and decree of
Regular Civil Appeal No. 40/1999, which was pending in the
Court of 2nd Ad-hoc Additional District Judge, Shrirampur,
District Ahmednagar. The first appeal was filed by plaintiffs of
Regular Civil Suit No. 520/1991, which was pending in the Court
of Civil Judge, Junior Division, Shrirampur for relief of partition
and separate possession of Joint Hindu Family Properties. The
suit was dismissed by the trial Court. The first appellate Court
has set aside the decision of trial Court and has given the relief
SA No. 1408/05
of partition and possession in favour of plaintiffs. The defendants
have challenged the decision. Both the sides are heard.
2) It is the case of plaintiffs that one Bapuji Sathe was
common ancestor of plaintiffs and defendants. Bapuji had two
sons by name Ramkrushna and Shivram. The plaintiffs are
successors of Shivram and defendants are successors of
Ramkrushna.
3) It is the case of plaintiffs that after the death of
Bapuji, Joint Hindu Family Properties left behind by Bapuji, were
entered in the name of Ramkrushna in the revenue record as he
was elder between the two sons of Bapuji. It is contended that
Ramkrushna died on 20.9.1977.
4) It is contended that after the death of Ramkrushna
on 20.9.1977, the defendants like defendant No. 1, widow of
Ramkrushna, took steps to enter the names of only successors
of Ramkrushna in the record of rights. It is contended that when
the properties were Joint Hindu Family Properties, the name of
Shivram was not entered and so, he applied to revenue authority
for entering his name in the record of rights of the properties
which were standing in the name of Ramkrushna on 26.11.1985.
SA No. 1408/05
It is contended that in the said proceeding, his name was
entered for 8 Ana share. The properties bearing Gat No. 235,
227, 276 and 12 were standing in the name of Ramkrushna and
in the record of these properties, the name of Shivram also came
to be entered in the year 1985.
5) It is the case of plaintiffs, successors of Shivram that
Shivram was in service in Indian Railways and he lived in
Mumbai along with family till his retirement. It is contended that
Shivram retired in the year 1972 and he shifted to the native
place in the year 1978. It is contended that Shivram started
cultivating Joint Hindu Family Properties along with Ramkrushna.
It is the case of plaintiffs that when Shivram was working in
Mumbai, he was helping Ramkrushna by giving money.
6) It is the case of plaintiffs that after the death of
Ramkrushna and after entering the name of Shivram for 8 Ana
share, separate portions of the shares of Ramkrushna and
Shivram were created by creating bandh between the two
portions in agricultural lands bearing Gat Nos. 235, 227, 276 and
12. It is contended that since then they started cultivating their
shares from the four properties separately.
SA No. 1408/05
7) It is the case of plaintiffs that property bearing Gat
No. 156, admeasuring 9 Hectors 35 R., also belongs to the Joint
Hindu Family. This property is described in plaint para 1/A. It is
contended that the house properties described as 1/B in the
plaint are also Joint Hindu Family Property. It is contended that
the agricultural land bearing Gat No. 156 was purchased by
Ramkrushna under registered sale deed dated 15.9.1943 in the
name of his wife - Sundarabai. Sundarabai was other wife of
Ramkrushna. It is contended that though the properties were
purchased in the name of Sundarabai, as they were purchased
from the income of Joint Hindu Family Properties, Shivram has
1/2 share in those properties also.
8) Defendant Nos. 1 to 3 i.e. widow of Ramkrushna,
daughter of Ramkrushna and grandson of defendant No. 1 filed
written statement. They admitted the relationship of plaintiffs
with them. They contested the suit by contending that
Ramkrushna was employed in Irrigation Department of the State
and he had separate source of income. They contended that
Ramkrushna never took money from Shivram. They contended
that land Gat No. 156 was purchased by Ramkrushna from his
separate source of income in the name of Sundarabai. It is
contended that Sundarabai was living separate from the family
SA No. 1408/05
which Ramkrushna was having from other wife. It is contended
that the properties described in plant para 1A and 1B were the
properties of Ramkrushna, though they were purchased in the
name of Sundarabai. They contended that partition had taken
place between plaintiffs and defendants in the year 1985 in
respect of all the Joint Hindu Family Properties and so, the suit is
not tenable.
9)
The submissions made and judgments of the Courts
below show that in the Courts below, both the sides had
submitted that they did not want to disturb the factual position
of properties mentioned in plaint para 1B like Gat Nos. 235, 227,
276 and 12. They had submitted that separate portions were
created for the two branches of these properties and there was
partition of these properties. So, the suit was prosecuted by the
plaintiffs only in respect of properties described in plant para 1A
and 1C i.e. Gat No. 156 and all the house properties. Both the
sides gave evidence.
10) The Trial Court considered the area of Joint Hindu
Family properties which was available as nucleus. The area of
these lands was around 7 Hectors 76 R. The trial Court held that
it was probably a dry land and it was not possible to purchase
SA No. 1408/05
Gat No. 156, having area of 9 Hectors 35 R., from the income of
Joint Hindu Family properties. The Trial Court also held that it was
not possible to purchase the house properties mentioned in
plaint para 1C from the income of Joint Hindu Family Properties.
The circumstance that in the year 1985 when the aforesaid
properties were divided, properties described in plaint para 1A
and 1C were not considered and not partitioned, was held
against plaintiffs. The circumstance that till the death of
Sundarabai, no steps were taken by the plaintiffs in respect of
property No. 1A and 1C is also considered against the plaintiffs.
The first appellate Court has held that when it is admitted that
the Joint Hindu Family had agricultural lands, the burden was on
defendants to prove that that the properties described in plaint
para 1A and 1C were acquired from separate income by
Ramkrushna and they were self-acquired properties of
Ramkrushna. The first appellate Court has held that there is no
convincing evidence in that regard and so, the relief of partition
needs to be given in respect of these properties to the plaintiffs.
11) When the appeal was admitted by this Court (Other
Hon'ble Judge), following substantial question of law was
formulated.
(i) "Whether the District Court was justified in
SA No. 1408/05
reversing finding of the Trial Court and holding that the
properties described in para 1A and 1C of the plaint are
joint family properties and as such, liable for
partition ?"
12) It can be said that it is necessary for appellants/
defendants to show that there is perversity in the judgment of
the first appellate Court and that may be due to circumstances
like not considering relevant material or committing mistake in
application of Hindu Law.
13) Before considering the evidence, following admitted
facts need to be kept in mind.
(i) Ramkrushna was elder than Shivram and his
name was entered in the revenue record after the death of
their father Bapuji as a person who was owner and who was
cultivating the lands. Admittedly, he was Karta of Joint
Hindu Family of plaintiffs and defendants. Admittedly, the
severance of status took place in the year 1985.
(ii) It is not disputed that Shivram was employed in
Indian Railway and till his retirement, he lived in Mumbai
with his family. Prior to 1985 he had probably no opportunity
SA No. 1408/05
to manage the properties. His name came to be entered in
the revenue record in the year 1985 and that too, in respect
of lands Gat Nos. 235, 227, 276 and 12 and since then, he
started getting separate income in respect of the portion of
his share from these lands.
(iii) As Shivram was living in Mumbai, after the
death of Ramkrushna, successors of Ramkrushna had got
entered their names in the revenue record and they had
avoided to inform that Shivram was also having share in the
aforesaid properties. This entry continued for many years.
(iv) The defendants are not disputing that
Ramkrushna had purchased the properties described in
plaint para 1A and 1C in the name of Sundarabai, his wife.
From this pleading, it can be said that they are not disputing
that Sundarabai had no separate source of income and so,
these properties were not self-acquired properties of
Sundarabai.
(v) During the lifetime of Sundarabai, one mutation
was made and some portion of Gat No. 156 was shown to
be given in partition to defendant No. 3, the heir of
Ramkrushna from other wife. Sundarabai has not left
SA No. 1408/05
behind any issue.
14) Evidence is given by plaintiff Nos. 3 and 4, son and
widow of Shivram, in support of aforesaid case. Though there are
some admissions given by widow of Shivram showing that the
property was of Sundarabai, those admissions cannot be
considered in view of the aforesaid pleadings of defendants.
15)
Defendant - Rakhmabai, who is daughter of other
wife of Ramkrushna has given evidence that it was self-acquired
property of Sundarabai. It is already mentioned that the pleading
was otherwise and defendants came with the case that
properties described in plaint para 1A and 1C were purchased by
Ramkrushna in the name of Sundarabai. Thus, the evidence of
Rakhmabai of this nature cannot be considered.
16) The record like service book of Ramkrushna was
proved by examining one employee of Irrigation Department by
the defendants. This record shows that in the year 1943,
Ramkrushna was confirmed in his service and in that year, he
started getting monthly salary of Rs. 33.12 ps. Admittedly, Gat
No. 156 was purchased in the year 1943 for consideration of Rs.
1500/-. Thus, there was no sufficient income of Ramkrushna
SA No. 1408/05
from salary and there is no record to show that he had
accumulated that much of amount prior to 1983 from other
source of income. On the other hand, there were agricultural
lands, which were ancestral and joint family properties,
admeasuring 7 Hectors 76 R. and so, there was the nucleus.
Ramkrushna was Karta of the joint family and so, the income
was coming in to his hands from the Joint Hindu Family
Properties. Though ordinarily, Karta is not expected to maintain
accounts and he is expected to spend on the members of the
Joint Hindu Family, at the time of partition and when there are
circumstances like present one like Karta purchasing property in
the name of his wife, it becomes necessary for Karta to explain
as to what was the income from Joint Hindu Family Properties,
what was spent and how families were maintained. In this
behalf, it needs to be kept in mind that both Ramkrushna and
Shivram were in service. Shivram was living in Mumbai. Though
his son has given admission that Ramkrushna was giving income
to Shivram, this admission cannot be used as it is not the case of
defendants that right from the beginning these two brothers
were dividing the income from agriculture and the income, which
was coming in to hands of Ramkrushna from agriculture was
used for purchasing the suit properties. The plaintiffs have come
with the case that Shivram was giving money to Ramkrushna by
SA No. 1408/05
way of help.
17) Ramkrushna was getting entire income of Joint Hindu
Family Properties. He had married two wives. Apparently, he was
keeping two wives in separate houses. Thus, from his salary
income, he was required to spend for his two families, from two
wives. There was no reason for him to spend for the family of
Shivram. In view of these circumstances, the burden was heavy
on the defendants to show that Shivram had a separate source
of income and from that income, he purchased properties
described in plaint para 1A and 1C.
18) Both the sides placed reliance on the observations
made by Apex Court in the cases reported as AIR 1969
SUPREME COURT 1076 [Mudigowda Gowdappa Sankh and
Ors. Vs. Ramchandra Revgowda Sankh (dead) by his L.Rs.
and Anr.] and 2003 SAR (Civil) 817 [D.S. Lakshmaiah and
Anr. Vs. L. Balasubramanyam and Anr.]. The Apex Court has
laid down as follows :-
"There is no presumption that a Hindu family
merely because it is joint, possesses any joint
property. The burden of proving that any particular
property is joint family property, is, therefore, in
the first instance upon the person who claims it as
SA No. 1408/05
a coparcenary property. But if the possession of a
nucleus of the joint family property is either
admitted or proved, any acquisition made by a
member of the joint family is presumed to be joint
family property. This is however subject to the
limitation that the joint family property must be
such as with its aid the property in question could
have been acquired. It is only after the possession
of an adequate nucleus is shown, that the onus
shifts on the person who claims the property as
self-acquisition to affirmatively make out that the
property was acquired without any aid from the
family estate."
19) There cannot be dispute over the proposition made
by the Apex Court in the case cited supra. Purchasing of property
by one coparcener, when he was living in joint family, is different
thing than purchasing a property by Karta in the name of his wife
when he was getting income from Joint Hindu Family Properties.
The burden is more on Karta and his successors to show that
Karta had separate source of income and from that income, he
purchased the properties in the names of his wife or children. In
view of peculiar facts and circumstances of the present case,
this Court holds that the initial burden was discharged by the
plaintiffs and it was up to the defendants to show that
Ramkrushna had separate source of income, which was
SA No. 1408/05
sufficient for purchasing the properties described in plaint para
1A and 1C and that he could have done that after spending on
his families from two wives. Thus, it is not possible to believe in
this case that properties described in plaint para 1A and 1C were
self-acquired properties of Ramkrushna and they were acquired
without any aid from the joint family estate.
20) From the evidence of parties, it can be said that
plaintiffs had no personal knowledge as everything was being
done behind their back and witness examined by the defendants
has also no personal knowledge. When there is the record of
aforesaid nature and there is evidence to show that there was a
nucleus and Ramkrushna was required to spend much on his two
families, there was no other alternative than to hold that the
properties were purchased from the income of joint family
estate. Thus, the first appellate Court has not committed any
error in giving decree in favour of plaintiffs. The first appellate
Court has considered the aforesaid material. On pre-ponderance
of probabilities, the decision is given.
21) The circumstance that some properties which were
standing in the name of Ramkrushna were partitioned in the
year 1985 cannot come in the way of plaintiffs to get share in
SA No. 1408/05
properties described in plaint para 1A and 1C. These properties
were standing in the name of Sundarabai and it can be said that
only after the death of Sundarabai, steps were taken by plaintiffs
to get share in those properties also. As the properties were
purchased by Ramkrushna and from joint family estate, the
plaintiffs are entitled to get share in these properties. In the
result, the point is answered against the appellants.
22)
So, the appeal is dismissed. Civil Application is
disposed of. The learned counsel for appellants requests for stay
and eight weeks time to challenge the present decision. Eight
weeks time is given as prayed.
[ T.V. NALAWADE, J. ]
ssc/
