Bombay High Court
Smt Tarabai Shivram Kopul vs Swaminath Malleshwar Kopul 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.130 of 1996
And
Second Appeal No.151 of 1996
Second Appeal No.130 of 1996
*1. Smt. Tarabai wd/o Shivram Kopul,
Age 60 years, Household work.
(*Appellant No.1 deleted vide Registrar's
Order dated 3-5-2012).
2. Ravindra Shivram Kopul,
since dead, through his
legal representatives :
2(i) Laxmibai w/o Ravindra Kopul,
Aged about 58 years,
R/o Old Alsi Plot,
Near B.R. High School,
Akola.
2(ii) Sau. Sunita Bhupendra Ghanwtekar,
Aged about 35 years,
R/o Shyam Talkies, Khamgaon,
Dist. Buldhana.
2(iii) Ku. Leena Ravindra Kopul,
Aged about 32 years,
R/o Old Alsi Plot,
Near B.R. High School,
Akola.
2(iv) Amit Ravindra Kopul,
Aged about 29 years,
R/o Old Alsi Plot,
Near B.R. High School,
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Akola.
3. Yelraj Sivram Kopul,
Age 43 years,
Occupation - Service.
4. Dilip Shivram Kopul,
Age 30 years, ... Appellants/
Occupation - Service.
5. Umesh Shivram Kopul,
Age 30 years,
Occupation - Motor Mechanic.
6. Chitralekha w/o Balkrishna Damle,
Age 45 years,
Occupation - Household work.
Nos.1 to 6 resident of Akola.
7. Maya w/o Harish Padgil,
Age 34 years,
Occupation - Household,
R/o Indore (M.P.). ...Appellants/
Ori.Plffs.Nos.1 to 7
on R.A.
Versus
Swaminath Malleshwar Kopul,
Age 65 years,
Occupation - Nil,
R/o Near B.R. High School,
Akola,
(deceased, through LRs.)
**Ushabai wd/o Swaminath Kopul,
Aged 70 years,
Occupation - Household.
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(**Deleted as per Court's Order
dated 1-7-2009)
***i)Surendra s/o Swaminath Kopul,
Aged 52 years,
Occupation - Motor Mechanic.
(***Deleted as per Registrar (J)'s
Order dated 2-7-2015)
ii) Hemendra s/o Swaminath Kopul,
Aged 45 years,
Occupation - Retired (Voluntary).
iii) Rajesh s/o Swaminath Kopul,
Aged 41 years,
Occupation - Motor Mechanic.
iv) Krishna s/o Swaminath Kopul,
Aged 30 years,
Occupation - Labour.
All Nos.i to v r/o Alsi Plots,
Near B.R. High School, Akola.
v) Meena w/o Prakash Pille,
(d/o Swaminath Kopul),
Aged 43 years,
Occupation - Household,
R/o Prakash Pille,
Godhni Road,
Prakash Nagar, Nagpur.
vi) Lata wd/o Arvind Swaminath
Kopul,
Aged 45 years,
Occupation - Household,
C/o Arvind Kopul, Old Alsi Plots,
Near B.R. High School,
Akola (MS).
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vii) Miss Nita Arvind Kopul @
Mrs. Nita Vikas Shital,
C/o Bnsilalji Shital,
Near Hanuman Mandir,
Indira Nagar, Ratlam (MP).
viii)Jay s/o Arvind Swaminath Kopul,
Aged 36 years,
C/o Arvind Kopul,
Old Alsi Plots,
Near B.R. High School,
Akola (MS).
ix) Vijay s/o Arvind Swaminath Kopul,
Aged 35 years,
Occupation - Not Known,
C/o Arvind Kopul,
Old Alsi Plots, Near B.R. High School,
Akola (MS).
x) Mrunali Nandu Bhendekar,
R/o Panchsheel Nagar,
Railway Quarter,
At Post - Washim,
Dist. Washim.
xi) Sau. Alka w/o Dharmendra Reddy,
Aged 28 years,
(d/o Arvind Swaminath Kopul),
Occupation - Household,
R/o Zingabai Takali,
Godhani Road,
Nagpur. ... Respondents/
Ori. Defts.
Second Appeal No.151 of 1996
1. Smt. Trabai wd/o Shivram Kopul,
Aged 60 years,
Household work.
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2. Ravindra Shivram Kopul,
Since dead, through his
legal representatives -
2(i) Laxmibai w/o Ravindra Kopul,
Aged about 58 years,
R/o Old Alsi Plot,
Near B.R. High School,
Akola.
2(ii) Sau. Sunita Bhupendra Ghantekar,
Aged about 35 years,
R/o Shyam Talkies, Khamgaon,
Dist. Buldhana.
2(iii) Ku. Leena Ravindra Kopul,
Aged about 32 years,
R/o Old Alsi Plot,
Near B.R. High School,
Akola.
2(iv) Amit Ravindra Kopul,
Aged about 29 years,
R/o Old Alsi Plot,
Near B.R. High School,
Akola.
3. Yelraj Shivram Kopul,
Aged 36 years,
Occupation - Service.
4. Dilip Shivram Kopul,
Age 30 years,
Occupation - Service.
5. Umesh Shivram Kopul,
Age 27 years,
Occupation - Motor Mechanic.
6. Chitralekha w/o Balkrishna
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Damaganthe,
Age 45 years,
Occupation - Household Work.
No.1 to 6 R/o Akola.
7. Maya w/o Harish Padgil,
Age 34 years,
Occupation - Household,
R/o Indore (M.P.). ... Appellants/
Ori. Defts. Nos.1 to 7
on R.A.
Versus
1. Swaminath Malleshwar Kopul,
Age 65 years,
Occupation - Nil,
R/o Near B.R. High School,
Akola,
(deceased through LRs.)
****i) Ushabai wd/o Swaminath Kopul,
Aged 70 years,
Occupation - Household.
(****Respondent No.1(i) deleted as
per Court's Order dated 10-7-2009).
*****ii)Surendra s/o Swaminath Kopul,
Aged 52 years,
Occupation - Motor Mechanic.
(*****Respondent No.1(ii) deleted vide
Court's order dated 5-8-2015).
******iii) Kailash s/o Swaminath Kopul,
Aged 51 years,
Occupation - Cycle Shop (business).
(******Respondent No.1(iii) deleted as per
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Registrar's order dated 25-7-2013).
iv) Hemendra s/o Swaminath Kopul,
Aged 45 years,
Occupation - Retired (Voluntary).
v) Rajesh s/o Swaminath Kopul,
Aged 41 years,
Occupation - Motor Mechanic.
vi) Krishnan s/o Swaminath Kopul,
Aged 30 years,
Occupation - Labour.
All Nos.1 to 6 r/o Alsi Plots,
Near B.R. High School, Akola.
vii) Meena w/o Prakash Pille,
(d/o Swaminath Kopul),
Aged 43 years,
Occupation - Household,
R/o Prakash Pille,
Godhni Road,
Prakash Nagar, Nagpur.
viii)Lata wd/o Arvind Swaminath Kopul,
Aged 45 years,
Occupation - Household.
ix) Neeta Vikas Shital,
Near Kabrasthan and railway gage,
Hanuman Mandir,
Indira Nagar,
Ratlam (M.P.).
x) Jay s/o Arvind Swaminath Kopul,
Aged 23 years.
xi) Vijay d/o Arvind Swaminath Kopul,
Aged 23 years.
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xii) Mrunali w/o Nandu Bandekar,
Aged about ______,
Occupation - Housewife,
Panchasheel Nagar,
Railway Quarter,
At Post Washim,
Tah. & District - Washim.
xiii) Sau. Alka w/o Dharmendra Reddy,
Aged 28 years,
(d/o Arvind Swaminath Kopul),
Occupation - Household,
R/o Zingabai Takali,
Godhani Road, Nagpur.
2. Vishambar s/o Maleshwar Kopul,
Since dead, through his legal
representatives :
2(a) Smt. Sushilabai Vishwambhar Kopul,
Aged about 65 years, Old Alsi Plot,
Near B.R. High School, Akola.
2(b) Shri Sushil Kumar Vishwambhar Kopul,
Aged about 36 years,
Occupation -
R/o near B.R. High School,
Akola.
2(c) Smt. Madhvi Prakash Uprellu,
Aged about 37 years,
R/o Chaprasipura,
Labor Colony,
Amravati.
2(d) Smt. Jaya w/o Devendra Swami,
Age about 39 years,
R/o Bhusawal,
R/o Lokhandi Pul,
Near Satara Hanuman Mandir,
Bhusawal.
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*******3. Gauribai wd/o Balraj Kopal,
Age 63 years,
Occupation - Household Work,
R/o Purna Junction,
District Parbhani.
(*******Deleted as per Court's Order
dated 2-3-2005).
4. Dipak Balraj Kopul,
Since dead, through his
legal representatives :
4(a) Saroj wd/o Dipak Kopul,
Age about 55 years,
Occupation - Household.
4(b) Mrs. Arpana w/o Raju Malap,
Age about 30 years,
Occupation - Household.
4(c) Sou. Jyoti w/o Sandeep Thakur,
Age about 28 years,
Occupation - Household.
4(d) Mrs. Dipali w/o Raju Thorat,
Age about 26 years,
Occupation - Household.
Respondent No.4(a) to 4(d),
all C/o Jyotiprakash s/o Balraj Kopul,
Goods Shed, Railway Shed,
Railway Station, Dhulia, Dist. Dhulia.
5. Jyotiprakash Balraj Kopul,
R/o Goods Shed, Railway Quarter,
Dhule, Dist. Dhule (M.S.).
********6. Balkrishna Anantram Damle,
Age 51 years,
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Occupation -
R/o Akola.
(******** Respondent No.6 deleted vide
Court's order dated 23-4-1997).
7. Sushilabai w/o Ramesh Madipal,
Adult, Resident of Revenue
Colony, Akola,
since dead, through her
legal representatives :
i. Ku. Madhuri R. Madipal,
Aged 35 years,
Occupation - Nil.
ii. Anand R. Madipal,
Aged 30 years,
Occupation - Service.
All residents of (both) Darshan
Apartment, Block No.9,
Ramdaspeth, Akola,
Distt. Akola.
8. Rahmatkhan Ahmedkhan,
since dead, through his
legal representative :
8(a) Mohd. Iqbal Mohd. Rahamatkhan,
Near Vaid Pura, Mohammad Ali Road,
Akola (M.S.).
9. Mahboobkhan Ahmadkhan,
Age 48 years,
Cultivator of Baidpura,
Akola. ... Respondents/
Ori. Plff. & Deft.
No.8 to 15 on RA
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Shri V.R. Choudhary, Advocate for Appellants.
Coram : R.K. Deshpande, J.
Dated : 13 July, 2016.
th
Oral Judgment :
1. Regular Civil Suit No.992 of 1986 filed the plaintiffs for
recovery of possession of two rooms and open Nazul plot against the
sole defendant-Swaminathan s/o Malleshwar Kopul was decreed by
the Trial Court on 4-4-1991. The defendant-Swaminathan was
directed to deliver the possession of the suit property to the plaintiffs.
The defendant-Swaminathan filed Special Civil Suit No.50 of 1987 for
partition, separate possession, recovery of damages and setting aside
the alienation, and by the separate judgment and decree
dated 4-4-1991, the said suit was dismissed by the Trial Court.
2. The defendant-Swaminathan preferred Regular Civil Appeal
No.214 of 1991 challenging the judgment and decree passed in
Special Civil Suit No.50 of 1987, and filed another Regular Civil
Appeal No.154 of 1991 challenging the judgment and decree passed in
Regular Civil Suit No.992 of 1986. By the common judgment and
order dated 7-11-1995, the lower Appellate Court has allowed both
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the civil appeals, and the judgments and decrees passed in both the
suits are set aside. Regular Civil Suit No.992 of 1986 was dismissed,
whereas Special Civil Suit No.50 of 1987 for partition and separate
possession filed by Swaminathan has been decreed.
3. The plaintiffs in Regular Civil Suit No.992 of 1986 have
preferred Second Appeal No.130 of 1996 challenging the judgment
and order passed in Regular Civil Appeal No.154 of 1991 dismissing
Regular Civil Suit No.992 of 1986. Second Appeal No.151 of 1996 has
been filed challenging the judgment and order passed by the lower
Appellate Court in Regular Civil Appeal No.214 of 1991 allowing
Special Civil Suit No.50 of 1987. In both the suits, the common
evidence was led, as the parties were common and the issues involved
were also common. Though the Trial Court delivered two separate
judgments, the lower Appellate Court has delivered a common
judgment.
4. The main controversy involved before the Courts below was
whether the suit properties were the self-acquired properties of
Shivram or were acquired with the nucleus of the joint family
properties. The Trial Court holds that the suit properties were the
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self-acquired properties of Shivram and, therefore, passed a decree in
favour of the appellants directing the defendants to deliver the
possession. The lower Appellate Court reverses the finding of the Trial
Court and holds that the suit properties were acquired with the
nucleus of the joint family properties.
5. This Court had admitted both these second appeals and the
substantial questions of law, as are stated in ground nos.3, 4, 6, 7, 10,
14 and 17, were framed in Second Appeal No.130 of 1996. The only
substantial question of law, which arises for consideration by this
Court, is as under :
Whether the lower Appellate Court was right in reversing the
findings of the Trial Court and holding that the suit
properties were acquired by Shivram from the nucleus of the
joint family properties?
6. Undisputedly, the registered sale-deeds are in the name of
Shivram, which raises a presumption as to its genuineness and that
the same were the self-acquired properties of Shivram. The only
reason putforth by the lower Appellate Court is that the said
properties were sold by Shivram to incur marriage expenses of the
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defendant-Swaminathan, the elder brother. The lower Appellate
Court holds that if the suit properties were the self-acquired properties
of Shivram, there was no reason for him to sell the same and incur the
marriage expenses. The reason is hardly of any relevance. It is based
on conjectures and surmises and cannot be sustained.
7. The lower Appellate Court, after taking into consideration
the oral evidence of the parties, including the another brother
Vishwambhar, has recorded the finding that Shivram was engaged in
the business and he was the only earning member of the family and
Swaminathan was not the earning member. The suit properties have
been acquired by Shivram out of his self-earnings, and this is the oral
evidence brought on record, apart from the fact that the properties by
way of registered sale-deeds stand in the name of Shivram. The
findings of the lower Appellate Court are, therefore, perverse and
cannot be sustained. The substantial question of law is answered
accordingly.
8. In the result, both these appeals are allowed. The common
judgment and order dated 7-11-1995 passed by the lower Appellate
Court in Regular Civil Appeal Nos.154 and 214 of 1991, is hereby
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quashed and set aside. The judgments and decrees passed by the Trial
Court in Regular Civil Suit No.992 of 1986 and Special Civil Suit
No.50 of 1987 are restored. No order as to costs.
JUDGE.
Lanjewar, PS
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CERTIFICATE
"I certify that this Judgment uploaded is a true and
correct copy of original signed Judgment."
Uploaded by : Uploaded on :16-7-2016
P.D. Lanjewar,
PS to Hon'ble Judge
