Bombay High Court
Rambhau Shankar Badgujar vs Laxman Shanakr Badgujar And Ors on 15 July, 2016
Bench: T.V. Nalawade
SA No. 354/2002
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
SECOND APPEAL NO. 354 OF 2002
WITH
CA 6368/2002 IN 354/2002 WITH CA 4588/2003 IN SA 354/2002
WITH CA 1188/2015 IN SA 354/2002
1] Rambhau S/o Shankar Badgujar
Since deceased through his L.Rs
1-A] Pramod S/o Rambhau Badgujar
Age: 52 Years, Occu: Retired Service
& Agriculture, R/o Sarvodaya Colony,
Plot No 9, Varkhede Road
Subhash Nagar, Old Dhule, Dhule
Tq & Dist Dhule.
1-B] Sau. Vijaya W/o Madhukar Badgujar
Age: 63 Years, Occu: Household
R/o Laxminarayan Nagar, Opposite
Gajanan Maharaj Temple, Bhusaval,
Tq Bhusaval, Dist Jalgaon.
1-C] Sau. Usha W/o Shantaram Badgujar
Age: 65 Years, Occu: Household
R/o Plot No 30, Gat No 94/1, Jaihind Colony
Khote Nagar, Jalgaon Tq & Dist Jalgaon.
1-D] Sau. Shakuntala W/o Mukund Badgujar
Age: 60 Years, Occu: Household
R/o B-202, Laxmi Nagar, Saphale
Tq. Palghar Dist Thane.
1-E] Sau. Shaila W/o Diwakar Badgujar
Age: 58 Years, Occu: household
R/o Pimpalgaon Hareshwar, Manumata Nagar,
Pachora, Tq Pachora Dist Jalgaon.
1-F] Sau. Pramila @ Saraswati W/o Subhash Badjugar
Age: 56 Years, Occu: Household
R/o Plot No 60, Gat No 138, Shiv Colony
Near Ganpati Temple, Jalgaon
Dist Jalgaon.
::: Uploaded on - 22/07/2016 ::: Downloaded on - 30/07/2016 09:29:25 :::
SA No. 354/2002
2
1-G] Sau. Mangala W/o Subhash Badgujar
Age: 54 Years, Occu: Household
R/o G-Wing, Om Datta Appartment
Parnaka Dahanu Tq Dahanu Dist Thane ....Appellants
Versus
1] Shri. Laxman Shankar Badgujar,
Age: 58 Years, Occu: Retired,
Resident of Salve, Tq. Sindkheda,
Dist. Dhule.
2] Shri. Pundlik Shankar Badgujar,
Age: 56 Years, Occu: Agril,
R/o Salve, Tq. Sinkdheda,
Dist. Dhule (Since deceased
through his L.Rs.)
2] 1] Smt. Dagubai W/o Pundlik Badgujar
Age: 60 years, Occu: Household,
2] Shri. Lotan Pundlik Badgujar,
Age: 32 Years, Occu: Agri,
3] Shri Chhagan Pundalik Badgujar
Age: 30 Years, Occu: Agril,
4] Shri. Ishwar Pundali Badgujar,
Age: 28 Years, Occu: Agril,
5] Shri. Ramkrishna Pundali Badgujar,
Age: 26 Years, Occu: Agril,
6] Shri. Ashok Pundali Badgujar,
Age: 24 Years, Occu: Agril,
7] Shri. Sanjay Pundali Badgujar,
Age: 28 Years, Occu: Agril,
1 to 7 resident of Salve
Tq. Sindkheda, Dist. Dhule.
3] Shri. Vithal Shankar Badgujar,
::: Uploaded on - 22/07/2016 ::: Downloaded on - 30/07/2016 09:29:25 :::
SA No. 354/2002
3
Age: 53 Years, Occu: Agril,
Resident of Salve, Tq. Sindkheda,
Dist. Dhule (deceased through L.Rs.)
3] A] Smt. Leelabai W/o Vithal Badgujar,
Age: 52 years, Occu: Household,
B] Shri. Vinod Vithal Badgujar,
Age: 30 Years, Occu: Agril,
C] Shri. Kishor Vithal Badgujar,
Age: 26 Years, Occu: Agril,
3 (A) to (C) resident of Salve,
Tq. Sindkheda, Dist. Dhule.
D] Sau. Ratan Bhagwan Badgujar,
Age: 32 Years, Occu: Household,
Resident of Sakali Tq. Yawal
Dist. Jalgaon.
E] Sau. Vandana W/o Arun Badgujar
Age: 24 years, Occu: Household,
Resident of Palanpur Tq. Renapur,
Dist. Ahemadabad (Gujart)
(Dismissed vide Registrar
Order dtd. 28-11-2007)
4] Smt. Dwarkabai W/o Jankiram Badgujar
Age: 63 Years, Occu: Household,
Resident of Dhule Road, Old Police
Line, Amalner, Dist. Jalgaon.
5] Smt. Lallubai W/o Murlidhar Bagujar,
Age: 46 Years, Occu: Household,
C/o Murlidhar Vedu Badgujar
Police Jamadar Police Line,
Mahasana, Dist. Mehsana (Gujrat)
6] Smt. Jadabai W/o Hiralal Badgujar
Age: 54 years, Occu: Household
R/o Warkhedi Road, Subhash Nagar
Dhule.
7] Smt. Vimalbai W/o Baliram Badgujar,
::: Uploaded on - 22/07/2016 ::: Downloaded on - 30/07/2016 09:29:25 :::
SA No. 354/2002
4
Age: 25 years, Occu: Household,
Resident of Piloda (Gandhali),
Tq. Amalner, Dist. Jalgaon. ....Respondents
Mr. C. R. Deshpande, Advocate for appellants
Mr. S. P. Brahme, Advocate for respondents Nos. 2(1) to 2(7), 4, 5
& 6, 7.
CORAM : T.V. NALAWADE, J.
DATED : 15th July, 2016.
JUDGMENT :
1)
The appeal is filed against judgment and decree of
Regular Civil Appeal No. 38/1994, which was pending in the
Court of Additional District Judge, Dhule. The appeal was filed by
plaintiff of Regular Civil Suit No. 56/1992, which was pending in
the Court of Civil Judge, Junior Division, Shindkheda. The suit
filed for relief of partition was dismissed by the Trial Court and
the First Appellate Court has set aside that decision and decree
is given in favour of plaintiff. Both the sides are heard.
2) In short, the facts leading to the institution of the
appeal can be stated as follows :-
The suit was filed in respect of four agricultural lands
bearing Gat Nos. 176, 105 and 181 situated at Salve and Gat No.
171 situated at Hatnur and house properties bearing house Nos.
22, 23, 271, 272, 273, 274 and 256 situated at village Salve,
SA No. 354/2002
Tahsil Shindkheda.
3) Plaintiff is real brother of defendant Nos. 1 to 3.
Defendant Nos. 4 to 7 are sisters of plaintiff and defendant Nos.
1 to 3. It is the case of plaintiff that suit properties were
ancestral properties of their father Shankar and partition has not
taken place amongst the co-parceners of the suit properties. It is
contended that plaintiff was staying out of station due to his
service and so, the defendants were enjoying the fruits of the
properties, but their possession was for plaintiff also as he was
co-parcener.
4) It is the case of plaintiff that on 1.4.1992 he gave
notice to defendant Nos. 1 to 3 and asked them to partition the
suit properties. It is contended that defendant Nos. 1 to 3 did not
reply the notice and they are avoiding to partition the suit
properties. It is the case of plaintiff that he has 9/40th share in
the properties and he prayed for partition and for separation of
his share. His sisters admitted the claim.
5) Defendant No. 1 filed written statement and
contested the matter. Defendant admitted that the properties
were with their father as ancestral properties. Defendant No. 1
SA No. 354/2002
contended that the father had partitioned the properties
amongst his sons and so, at the time of death of his father, there
was no joint family in existence.
6) Defendant No. 1 contended that defendant Nos. 4, 5
and 6, sisters are not entitled to get any share and so, the suit is
bad for mis-joinder of parties. Defendant has also contended
that there are heirs of three deceased sisters of plaintiff and
defendant Nos. 1 to 3 and they are necessary parties to the suit.
He contended that Shankar had four sons and seven daughters.
7) It is the case of defendant No. 1 that prior to 1966
partition had taken place and the parties have been enjoying
their shares separately since then. It is contended that the house
properties are also partitioned as per the oral partition and as
per the partition, the sharers are in separate possession.
8) It is the case of defendant No. 1 that in the year
1961 the joint family, plaintiff, defendants and their father had
taken loan and this loan was to be repaid by all the successors of
Shankar. It is contended that plaintiff avoided to share his
responsibility and defendant Nos. 1 to 3 repaid this loan. It is
contended that the amount of Rs. 15,000/- was repaid by
SA No. 354/2002
defendant Nos. 1 to 3. It is contended that as plaintiff did not
give amount of his share, the properties were not entered in his
name. He also contended that in the year 1966, the will deed
was prepared by Shankar and as per the will document,
defendant No. 1 has partitioned even the share of Shankar
amongst the successors of Shankar.
9) The Trial Court had made order of dismissal of the
suit for default in respect of defendant Nos. 2 and 3. Exparte
order was made as against defendant No. 6, sister. On the basis
of aforesaid pleadings, issues were framed. Both the sides gave
evidence. The Trial Court held that the suit is bad for non-joinder
of necessary party, for not making the legal heirs of three
deceased sisters party to the proceeding and for not joining
defendant Nos. 2 and 3 in the suit against whom the suit was
dismissed. The Trial Court further held that Shankar had effected
partition before 1966. The First Appellate Court has held that the
suit summons was duly served on defendant Nos. 2 and 3 and
one advocate was representing them and so, the order of
dismissal of the suit could not have been made by the Court. The
First Appellate Court held that defendants failed to prove that
partition was effected by their father prior to 1966. The First
Appellate Court held that plaintiff is entitled to 9/40th share in all
SA No. 354/2002
the suit properties.
10) This Court had admitted the appeal in 2004, but no
substantial questions of law were specifically formulated. From
the reasoning given, it can be said that following two points are
expected to be considered in the present appeal as substantial
questions of law.
(i) Whether there is sufficient material to prove that
partition was effected prior to 1966 ?
(ii) Whether the suit ought to have been dismissed
for non-joinder of necessary parties ?
11) It is not disputed that plaintiff was staying out of
station due to his service. The oral and documentary evidence
show that the name of plaintiff - Laxman is not entered in the
revenue record of agricultural lands. The 7/12 extracts at Exhs.
37, 38 show that both the lands were having total area of more
than 10 H. and are standing in the name of defendant No. 1 and
he is shown in possession of these lands. Similarly, Exh. 40
shows that land admeasuring 2.33 H. is standing in the name of
defendant - Pundlik and he is shown in the possession of the
property. This record is of the year 1991-92 and so, it can be said
that the so called partition was not shown in the revenue record.
SA No. 354/2002
There is no mutation of partition.
12) Some assessment lists in respect of house properties
are produced. The assessment list at Exh.31 shows that two
house properties are shown to be entered in the name of
Laxman - plaintiff and remaining house properties are shows to
be entered in the name of defendant Nos. 1 to 3. No record is
produced to show that plaintiff had taken steps to enter his
name in assessment record. Thus, the entry in the assessment
record of the name of plaintiff cannot lead to inference that
partition had taken place. Admittedly, he was out of station and
whatever record was prepared was on the basis of applications
given by mainly defendant No.1. Admittedly, notice of partition
was given by plaintiff dated 1.4.1992 and receipt is produced at
Exh. 54. This notice was not replied by the defendants. Thus, the
record is consistent with the case of plaintiff and there is also
substantive evidence of plaintiff to the effect that partition had
not taken place. All his sisters are supporting him.
13) The burden to prove the partition was on defendants.
The oral evidence of defendant No. 1 shows that he is mainly
relying on document at Exh. 51, which according to him, is the
will executed by his father Shankar. In the evidence given by this
SA No. 354/2002
witness, this document was given exhibit, but due to execution
will was not proved. Even if this document is treated as
document showing that Shankar wanted to partition the
properties or partition was effected, this document cannot make
any sense. The particular portions of survey numbers allotted to
the shares of sons are not mentioned. In any case, this
document was not used for any purpose by defendant No. 1. In
written statement also defendant No. 1 did not come with
specific case that any particular portion was given to plaintiff in
the partition. First time in the evidence, he tried to say that in
one land, some portion was given to plaintiff, but his name was
not entered as plaintiff refused to pay the proportionate amount
of loan. Such evidence cannot be used as it has no base of
pleading. It was necessary for defendant No. 1 to prove that
properties were partitioned by Shankar and particular property
was given to defendant No. 1 by Shankar. There is no such
evidence on record. On the contrary, the land which was shown
to be given to plaintiff as per the oral version of defendant No. 1,
still stands in the name of defendant No. 1. His name is
appearing in the crop cultivation column. Defendant No. 1 has
tried to contend that the house property which was given to the
share of plaintiff, was given by him on lease basis, but no
evidence is given to prove that contention also. In view of these
SA No. 354/2002
circumstances, there was no other alternative before the Courts
below than to hold that defendant No. 1 had failed to prove that
partition was effected prior to 1966.
14) Much was argued by the learned counsel for
appellant on the circumstance that order of dismissal of the suit
was made by the Trial Court in respect of defendant Nos. 2 and
3. The First Appellate Court has considered the relevant record
which include the filing of pursis by one advocate who was
representing defendant No. 1 also to the effect that he was
appearing for defendant Nos. 1 to 3. He has filed address memo
in respect of defendant Nos. 1 to 3. Adjournment was sought to
file written statement by defendant Nos. 2 and 3 by this
advocate and there was one more advocate along with him. It
appears that due to this circumstance, no further steps were
taken, but the Trial Court dismissed the suit as against defendant
Nos. 2 and 3. These defendants were made parties in the appeal
also by plaintiff and in the appeal, they were duly served, but
they preferred not to appear in the appeal. This circumstance
also needs to be considered against defendant Nos. 2 and 3. It
can be said that defendant Nos. 1 to 3 are on one side and they
want to see that plaintiff does not get any share in the
properties. Due to these circumstances, it cannot be said that
SA No. 354/2002
the suit was bad for non-joinder of two brothers like defendant
Nos. 2 and 3 in the suit.
15) It appears that three sisters of plaintiff had died prior
to Shankar and they have left behind some heirs. Shankar died
in the year 1975 and so, as per the provisions of Hindu
Succession Act, 1956, the successors of three predeceased
daughters of Shankar are entitled to get share in the properties
of Shankar. If the properties are partitioned amongst Shankar
and his four sons, then Shankar would get 1/5 th share and in this
share, all the successors of Shankar like sons, daughters and
daughters of predeceased daughters are entitled to get equal
share. Though this circumstance is there, the shares of the said
daughters of predeceased daughters are fixed and the decision
of the suit is not against them and they will be getting some
share. The other sisters have admitted the claim of plaintiff and
admittedly, the properties were ancestral properties of Shankar.
Due to this circumstance, the suit could not have been dismissed
for non-joinder of legal heirs of three predeceased daughters of
Shankar.
16) The learned counsel for appellant placed reliance on
some reported cases like 2010 AIR SCW 5071 [Budh Ram
SA No. 354/2002
and Ors. Vs. Bansi and ors.], order made by this Court (by
other Hon'ble Judge) in Second Appeal No. 1/2010
decided on 26th February, 2010 (between Vishwambhar
Swami Vs. Mahadev Swami) and order made in review
application No. 77/2010 by this Court (other Hon'ble
Judge) on 30.10.2014 (between Vishwambhar Swami Vs.
Mahadev Swami). The facts of the aforesaid cases were
different. Abatement and the effect of provisions of Order 22 of
Civil Procedure Code was under consideration. Such is not the
present case. In view of the facts of this case, this Court holds
that observations made in aforesaid cases are of no use to the
present appellant. The case reported as 2009 (2) Mh.L.J. 547
[Equbalbegum Sk. Ahmed Vs. Abdul Rahim FAteh
Mohammad] was also cited, but the facts of this case were also
different. The decree in the present matter will be effective even
in absence of legal heirs of predeceased daughters of Shankar
and there is no possibility of giving conflicting decisions.
17) The First Appellate Court has held that plaintiff is
entitled to 9/40th share. As already observed, the partition needs
to be first effected amongst Shankar and his four sons and so, in
the first partition plaintiff will get 1/5 th share. Similarly, 1/5th
share could have been given to Shankar and after his death, this
SA No. 354/2002
1/5th share was required to be distributed equally amongst his
four sons and seven daughters. Thus, each son and each
daughter will get 1/55th share. Thus, plaintiff will get 12/55th
share (1/5 + 1/55). Each brother of plaintiff will get similar share.
So, the points are answered against the appellant and following
order is made.
ORDER
(I) Appeal is partly allowed. Judgment and decree of the
First Appellate Court is modified in following terms :-
(i) The First Appeal is allowed. Judgment and
decree of the Trial Court of dismissal of the partition
suit is set aside.
(ii) The suit is decreed.
(iii) Plaintiff is entitled to 12/55th share in all the
suit properties. The brothers of the plaintiff viz.
defendant Nos. 1 to 3, each, is entitled to the same
share viz. 12/55th. Each daughter of deceased
Shankar is entitled to 1/55th share and to this share,
the daughters of predeceased daughters are also
entitled, though they are not made party to the suit.
Care is to be taken to see that in execution
proceeding, their shares are also carved out.
(iv) The remaining part of the judgment and
SA No. 354/2002
decree of the First Appellate Court stands as it is.
(v) Decree is to be prepared accordingly.
(II) The learned counsel for appellants requested for stay
to the execution proceeding. The request of stay is refused as
suit is very old and apparently, the appellants are in possession
of the properties and original plaintiff is deprived of his share.
(III)
Civil Applications are disposed of.
[ T.V. NALAWADE, J. ]
ssc/
