Bombay High Court
Smt. Yamunabai Wd/O Manoharrao ... vs Kamalabai Jageshwarrao Joshi & 9 ... on 13 July, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 263 OF 2002
1] Smt. Yamunabai wd/o Manoharrao Joshi,
aged about 81 years, Occ. Nil,
R/o. 5/7, Ujjwal Nagar, Wardha Road,
Nagpur.
2] Sau. Vijaya Sharadrao Darvekar,
aged about 58 years, Occ. Household,
R/o. Plot No. 34, Telecom Nagar,
Nagpur.
3] Kiran Manoharrao Joshi
(deceased through L.Rs)
3-a] Smt. Jyotsna wd/o Kiran Joshi,
aged about 48 years, Occ. Household,
3-b] Ku. Chinmay d/o Kiran Joshi,
aged about 9 years,
through her Guardian mother
applicant No.1.
Both R/o. 34, Central Excise Colony,
Telecom Nagar, Nagpur.
4] Raju Manoharrao Joshi,
aged about 48 years, Occ. Business,
R/o. Vivekanand Nagar, Amravati.
5] Charudatta Manoharrao Joshi,
aged about 46 years, Occ. Service,
R/o. C.T.P.S. Colony, Chandrapur.
6] Sau. Smita w/o. Kishanrao Rangnekar,
aged about 42 years, Occ. Household,
R/o. Plot No.122, Laxminagar, Nagpur APPELLANTS
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...VERSUS...
1] Kamlabai wd/o Jageshwarrao Joshi
(deleted)
2] Bhalchandra s/o Jageshwarrao Joshi,
aged about 32 years, Occ. Business,
3] Hemant s/o Jageshwarrao Joshi,
aged about 37 yers, Occ. Business,
4] Moreshwar s/o Jageshwarrao Joshi,
aged about 28 years, Occ. Service.
5] Dr.Mrs. Vidya w/o Vasant Telang,
aged about 42 years, Occ. Service.
6] Pradnya w/o Prakash Gowardhan,
aged about 37 years, Occ. Household.
7] Vanita w/o Vilas Kotwaliwale,
aged about 34 years, Occ. Household,
8] Kalyani w/o. Subhash Buty,
aged about 27 years, Occ. Houasehold.
9] Purnima w/o Govind Shirpurkar,
aged about 23 years, Occ. Household.
All R/o. C/o. B.J.Joshi, 93, Canal Road,
Ramdaspeth, Nagpur.
10] Shrikant s/o Jageshwarrao Joshi,
aged about 42 yeas, Occ. Lawyer,
R/o. Butiwada, Near Model High School,
Sitabuldi, Nagpur....... RESPONDENTS
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Shri S.R.Deshpande, counsel for Appellants.
Shri B.G.Kulkarni, counsel for Respondent nos. 1, 2 and 4
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CORAM: R. K. DESHPANDE, J.
th
DATE : 13
July, 2016 .
ORAL JUDGMENT
1] The trial Court dismissed the Special Civil Suit
No. 750 of 1987 for partition and separate possession on
01.01.2001. The lower appellate Court has dismissed
Regular Civil Appeal No. 117 of 2001 by judgment and order
dated 07.01.2002. The original plaintiff is before this Court
against the concurrent findings of fact.
2] This Court on 07.12.2005 passed an order as
under, framing the substantial question of law.
"Heard.
Admit the appeal to consider the following question.
Was the learned trial Judge in error in failing to deal
with the question of production of an important piece of
secondary evidence, namely, an alleged admission of
respondents' predecessor Shri Jageshwar in his
deposition in the suit filed by Shri Martandrao Jog
against him and Manohar.
Office to ensure that the record is properly preserved."
3] Both the Courts have concurrently held that the
plaintiff has admitted that the sale deed in respect of the suit
property stands in the name of Jageshwarrao. The learned
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counsel for the appellants could not point out the averments
in the plaint to the effect that the suit property was purchased
by Jageshwarrao from the aid of nucleus from joint family
property. Thereafter at subsequent stage, the application for
amendment was made in the trial Court incorporating such a
plea and that application was rejected and the decision is
confirmed.
4] The lower appellate Court has held that though
the fact that the sale deeds are in the name of Jageshwarrao
has been admitted by the plaintiff, it holds that the sale deed
is not produced to indicate that Jageshwarrao purchased the
suit property as a Karta of the joint family. In paragraph 19,
the lower appellate Court records the finding as under.
"19............................. In the present case at the out
set the statement Exh. 163 does not show that the
concerned witness Jageshwar was cross-examined
which may be one of the requirement to treat it as legal
evidence. Secondly all the parties in the present
disputes were not the parties in the execution case in
which the deposition is recorded which was the
circumstances in the case before the Hon'ble High
Court. Thus, the ratio as laid down would be
distinguishable. Apart from this, the effect of the
statement has also to be considered and appreciated in
the light of the circumstances in which it is recorded, it
may be mentioned that the primarily responsibility to
prove that the property was a joint property lies on the
plaintiff. In the execution proceeding/case both
Jageshwar as well as Manoharrao were litigating
against the third party by the name of creditor
Martandrao and would not have been more concerned
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to save the property. Thus, by itself and on the basis of
the statement which is not cross examined, it cannot be
said that the property was a joint property."
5] The lower appellate Court has thus considered
the so called admission of Jageshwarrao given in the
execution proceeding filed by one Martandrao Jog to execute
a mortgage decree passed in Civil Appeal No. 14A of 1954.
6]
The suit property was mortgaged by
Jageshwarrao with Martandrao Jog and a loan was obtained.
In order to recover this loan amount, the Mortgage Suit No.
14A of 1954 was filed, in which the appellant/plaintiff in the
present case and Jageshwarrao, the real brothers, were
joined as defendants. In the said suit, an issue was
adjudicated as to whether the property was owned
exclusively by Jageshwarrao or it was purchased by him as
Karta of joint family out of nucleus of joint family property. In
the said suit, specific finding is recorded that Jageshwarrao
was exclusive owner of the suit property. In the proceedings
for execution of the said decree, an objection was also raised
by the plaintiff Manohar to the effect that it was the joint
family property in the hands of Jageshwarrao as Karta. In
the execution proceedings, Jageshwarrao led oral evidence
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and stated that appellant Manohar in the present case had
share in the said property. The objection was rejected by the
executing Court and ultimately decree was put to execution
and it was satisfied by Jageshwarrao.
7] Shri Deshpande, the learned counsel appearing
for the appellants has invited my attention to certain
admissions said to have been given by Jageshwarrao to his
friends namely one Shri Jamthe and another Shri Paturkar at
Mahur on 29.12.1964 while on pilgrimage that he desires to
effect the partition of the land as well as the compensation
received to avoid further complications. The lower appellate
Court has taken into consideration this evidence and the
finding is recorded that both the family friends have died and
as such could not be examined as witnesses.
8] In view of above, it cannot be said that the
decision of the lower appellate Court was vitiated on the
ground that there was failure to consider the admission given
by Jageshwarrao in his deposition recorded in the execution
proceedings instituted by Shri Markandrao Jog. The
substantial question of law is answered accordingly.
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9] In the result, the second appeal is dismissed.
No order as to cost.
JUDGE
Rvjalit
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C E R T I F I C A T E
"I certify that this Judgment/Order uploaded is a true and correct copy
of original signed Judgment/Order.
Uploaded by : R.V.Jalit, P.A. Uploaded on : 20 July, 2016
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