Bombay High Court
Shankar Bapuji Tawade And Ors vs Kavalabai Shankar Tawade And Ors on 7 July, 2016
Bench: T.V. Nalawade
1 S.A. 362.2000 - [J]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 362 OF 2000
1. Shankar /o Bapuji Tawade
Age : 61 Yrs., Occ. Agril.,
R/o : Talani, Tq. Hadgaon
Dist. : Nanded.
2. igKamalabai W/o Shankar Tawade
Age : 52 Yrs., Occ. Agril.,
R/o : Talani, Tq. Hadgaon
Dist. : Nanded.
3. Digambar S/o Shankar Tawade
Age : 27 Yrs., Occ. Agril.,
R/o : Talani, Tq. Hadgaon
Dist. : Nanded.
4. Punjab S/o Shankar Tawade
Age : 28 Yrs., Occ. Agril.,
R/o : Talani, Tq. Hadgaon
Dist. : Nanded.
5. Datta S/o Shankar Tawade
Age : 28 Yrs., Occ. Agril.,
R/o : Talani, Tq. Hadgaon
Dist. : Nanded.
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2 S.A. 362.2000 - [J]
6. Manjulabai W/o Bapuji Tawade
died, Thr. L.Rs. Appellant .... APPELLANTS/
No.1]. [ORI. DEFENDANTS]
V E R S U S
1. Sow. Kevalabai W/o Shankar Tawade
(Died Thr. L.Rs. - R - 2 & 3)
2. igMaroti S/o Shankar
Age : 20 Yrs., Occ.
R/o : Pawdewadi, Tq. and
Dist. Nanded.
3. Bapuji S/o Shankar
Age : 12 Yrs., u/g of his
real brother R.No. 2 -
Maroti S/o Shankar
Age : 20 Yrs., Occ.
R/o : Pawdewadi, Tq. and .... RESPONDENTS/
Dist. Nanded. [ORI. PLAINTIFFS]
4. Baby D/o Shankar Tawade } .... RESPONDENT
Age : 16 Yrs., Minor, }[Added as per order
u/g of real uncle } passed by the
Haribhau S/o Tulshiram } Hon'ble Court on
Tawade, Age : 60 Yrs., Occ. } 04/09/2008 in
Agril., R/o : Pawade Wadi, } C.A. No. 4004 of
Tq. & Dist. : Nanded. } 2002 ].
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3 S.A. 362.2000 - [J]
.....
Mr. M.V.Deshpande, Advocate for Appellants.
Mr. V.D.Patnoorkar, Advocate for R - 2 & 3.
.....
CORAM : T.V.NALAWADE, J.
DATE OF JUDGMENT : 07/07/2016
JUDGMENT :
ig The Appeal is filed against the Judgment
and Decree of Spl. Civil Suit No. 117/1991 which was
pending in the Court of the Civil Judge [Sr. Division],
Nanded and also the decision of R.C.A. No. 8/1994 which
was pending in the Court of the 3rd Additional District
Judge, Nanded. The Suit filed by the respondents for
relief of partition and separate possession was decided by
the trial Court in their favour and 1/5th share was given
to each of the plaintiff and also to each of defendant No.
1 and defendant No. 6. During pendency of the Appeal,
plaintiff No. 1 and defendant No. 6 died and so the first
appellate Court has altered the shares to make it 1/3rd
for each of the 2 plaintiffs and remaining 1/3rd for
defendant No. 1. Heard both sides.
4 S.A. 362.2000 - [J]
2. Plaintiff No. 1 Kevalabai was the wife of
defendant No. 1 Shankar and plaintiff Nos. 2 and 3 are
her issues born from defendant No. 1. Defendant No. 6
Manjulabai was mother of defendant No. 1. It is the case
of plaintiffs that defendant No. 2 is the second wife of
defendant No. 1 and defendant Nos. 3 to 5 are issues of
defendant No. 2 born from defendant No. 1.
ig The Suit was filed for relief of partition and
separate possession of in all 8 agricultural lands and 3
house properties. It is the case of plaintiffs that the suit
properties are ancestral and joint family properties of
plaintiffs and defendant No. 1 and so they are entitled to
get share by partition in the property.
4. The marriage between plaintiff No. 1 and
defendant No. 1 took place in the year 1969. The parties
are Hindus. It is contended that after the marriage,
illtreatment was given to plaintiff No. 1 by defendant No.
1 and then she was deserted by defendant No. 1 till the
year 1971. It is contended that she had filed proceeding
for maintenance against her husband. It is contended
that behind her back and without her consent, defendant
5 S.A. 362.2000 - [J]
No. 1 performed second marriage with defendant No. 2.
It is contended that subsequently there was compromise
and plaintiff No. 1 was taken back to her matrimonial
house. It is contended that after cohabitation, plaintiff
Nos. 2 and 3 were born to plaintiff No. 1. It is the case of
the plaintiffs that after the birth of second issue, she was
again driven out of the house by defendant No. 1. It is
contended that due to second wife and issues from her,
defendant No. 1 is not taking care of plaintiffs and,
therefore, the properties needs to be partitioned. They
had claimed that they are entitled to get 3/8th share in
the lands and house property No. 334 situated at village
Talani.
5. Defendant Nos. 1 to 6 filed joint Written
Statement and contested the matter. Defendant No. 1
admitted his relationship with plaintiffs. It was
contended that defendant No. 1 is the absolute owner of
lands G.Nos. 856, 72 and 1 as they are acquired by him
from his separate income. The contentions with
reference to other properties is not disputed.
6. In view of the pleadings, issues were framed
6 S.A. 362.2000 - [J]
by the trial Court. Both sides gave evidence. Defendant
No. 1 had taken the defence that the aforesaid 3
properties are his self-acquired properties and so burden
was on him to prove this contention, as all other
properties are admittedly ancestral properties. He has
contended that he was working was contractor and from
that business he made separate income and he purchased
3 properties under sale deeds. The sale deeds are on
record and they are proved.
7. The total area of the ancestral agricultural
lands was around 16 H. 86 R. Thus, there was more than
sufficient area which can be called as nucleolus. As the
lands were being cultivated by defendant No. 1, the
burden was on him to prove the exact income from these
lands. The 7/12 extract shows that in the ancestral lands,
crops like Hybrid, Toor, Cotton, etc. were taken and
defendant No. 1 was cultivating these lands personally.
The evidence of defendant No. 1 shows that he is not
disputing that some lands were entered in the name of
his issues from second wife to see that the lands are saved
from the Ceiling Act. So, the circumstance that some
lands are entered in the names of issues from second
7 S.A. 362.2000 - [J]
wife, need not be considered in detail in favour of the
defendants. Even in Examination-in-Chief, no particulars
of business are given and defendant No. 1 has no record
at all to show that he was working as contractor. When
there was an area of more than 16 H. 8 R. with him for
cultivation, it was not probable that he could have paid
attention to any other work. He was personally
cultivating these lands. In view of these circumstances, it
can be said that the plaintiffs have discharged the burden
to prove that all the properties are ancestral and joint
Hindu family properties.
8. The other contention of both the sides
regarding desertion, etc. need not be considered.
Learned counsel for the appellants submitted that in the
plaint the plaintiffs had claimed 3/8th share each and so
they were not denying the share of the issues from the
second wife and so both the Courts below ought to have
given shares to the issues from second wife of defendant
No. 1. This Court [other Hon'ble Judge] admitted the
Appeal by Order dated 31/07/2000 by holding that
substantial questions of law need to be formulated on
ground Nos. (ii), (vi) and (vii) mentioned in the Appeal
8 S.A. 362.2000 - [J]
memo. They are as under.
[ii] First substantial question of law involved in
this matter is whether Courts are empowered
to grant more share in a Suit for partition
that claimed by the plaintiffs.
[vi] The plaintiffs did not either challenge the
marriage of defendant Nos. 1 and 2 nor
ig pleaded or sought declaration that the
marriage being void, children and second
wife are not entitled for any share, therefore,
under these circumstances whether the
defendant Nos. 2 to 5 can be denied the
legitimate share in ancestral property.
[vii] The pleading and relief sought by plaintiffs
amounts to acquisance of the fact that the
marriage of defendant No. 2 with defendant
No. 1 and children born out of that wedlock
being legitimate, whether lower appellate
Court can be said to have jurisdiction to
record finding against undisputed question of
fact.
9. Admittedly, defendant No. 2 is the second
wife of defendant No. 1. The marriage of plaintiff No. 1
had taken place with defendant No. 1 in the year 1969
9 S.A. 362.2000 - [J]
and so there was no question of treating defendant No. 2
as the legally wedded wife of defendant No. 1. In view of
the provisions of the Hindu Marriage Act, the issues born
from second wife also can not be treated as legitimate
issues of defendant No. 1. They are entitled to get share
only in the property of father, defendant No. 1, and they
can not be treated as co-parceners along with plaintiff
Nos. 2 and 3. This position of law is considered by the
Courts below. As plaintiff No. 1 and defendant No. 6
died during pendency of the Appeal, the remaining
members of joint Hindu family, who are entitled to
succeed to the properties of plaintiff No. 1 and defendant
No. 6 are considered by the Courts below. The first
appellate Court has corrected the shares in view of the
subsequent development and 1/3rd share is given to
defendant No. 1. His legitimate issues will get similar
share.
10. There was no need of challenging the status
of defendant No. 2 and the issues born to her from
defendant No. 1. Admittedly, defendant No. 2 is the
second wife of defendant No. 1 and there are aforesaid
circumstances. The learned counsel for the appellants
10 S.A. 362.2000 - [J]
submitted that the principle of equity needs to be
considered and the circumstance that the issues of second
wife were born first needs to be considered in their
favour. When there are specific provisions of law
prohibiting the Court from doing something, this Court
can not use the principle of equity in favour of defendant
No. 2 and her issues. There is no question of use of
principle of equity in the matter like present one. In this
regard, the rival contentions with regard to the dispute
which was prevailing between plaintiff No. 1 and
defendant No. 1 also needs to be kept in mind.
11. So, all the points are answered against the
appellants and Second Appeal stands dismissed. In view
of dismissal of the Second Appeal, all the Civil
Applications stand disposed of.
[T.V.NALAWADE, J.]
KNP/S.A. 362.2000 - [J]
