Bombay High Court
Tulsiram Tukaram Kadam vs Padmavati Manikrao Kadam And Ors on 13 June, 2016
Bench: T.V. Nalawade
1 SA 398/99 & 489/99
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No.398 of 1999
* Tulsiram s/o Tukaram Kadam,
Age 60 years,
Occupation : Agriculture,
R/o Akoli, Taluka Basmathnagar,
District Parbhani. .. Appellant.
Versus
1) Padmavati W/o Manikrao Kadam,
Age 24 years,
Occupation : Household,
R/o Akoli, Taluka Basmathnagar,
District Parbhani
At present R/o Unchegaon,
Taluka Hadgaon, District Nanded.
2) Samindrabai w/o Tulsiram Kadam,
Age 55 years,
Occupation: Agriculture
R/o Akoli, Taluka Basmathnagar,
District Parbhani.
3) Prasad S/o Tulsiram Kadam,
Age 28 years,
Occupation: Agriculture
R/o Akoli, Taluka Basmathnagar,
District Parbhani.
4) Vithal s/o Tulsiram Kadam,
Age 14 years, Minor,
under guardianship of father
Tulsiram s/o Tukaram Kadam,
Age 60 years,
Occupation: Agriculture
R/o Akoli, Taluka Basmathnagar,
District Parbhani. .. Respondents.
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2 SA 398/99 & 489/99
Shri. D.R. Shelke, Advocate, for appellant.
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With
Second Appeal No.479 of 1999
* Padmavati W/o Manikrao Kadam,
Age 30 years,
Occupation : Household,
R/o Akoli, Taluka Vasmatnagar,
District Parbhani
At present R/o Unchegaon,
Taluka Hadgaon, District Nanded. .. Appellant.
Versus
1) Tulshiram s/o Tukaram Kadam,
Age 65 years,
Occupation : Agriculture,
R/o Akoli, Taluka Vasmatnagar,
District Parbhani.
2) Samindrabai w/o Tulshiram Kadam,
Age 60 years,
Occupation: Agriculture
R/o Akoli, Taluka Vasmatnagar,
District Parbhani.
3) Prasad S/o Tulshiram Kadam,
Age 30 years,
Occupation: Agriculture
R/o Akoli, Taluka Vasmatnagar,
District Parbhani.
4) Vithal s/o Tulshiram Kadam,
Age 19 years, Minor,
Occupation: Agriculture
R/o Akoli, Taluka Vasmatnagar,
District Parbhani. .. Respondents.
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3 SA 398/99 & 489/99
Shri. S.S. Choudhari, Advocate, for appellant.
Shri. D.R. Shelke, Advocate, for respondent Nos.1 to 4.
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CORAM: T.V. NALAWADE, J.
DATE : 13th JUNE 2016.
JUDGMENT:
1) Both the appeals are filed against the judgment
and decree of Regular Civil Appeal No.15/1993 which was
pending in the Court of the learned Additional District
Judge Parbhani. The suit filed by Padmavati, widow of son
of Tulsiram Kadam for relief of partition was decreed in
her favour by the trial Court. This decision was challenged
by filing aforesaid appeal in District Court by the
defendants. The appeal is partly allowed by the District
Court. Share of the plaintiff is reduced to make it 1/10th
in the two properties and the suit in respect of remaining
three suit properties is dismissed by the District Court.
Both the sides are heard.
2) Defendant No.1 Tulsiram is husband of
defendant No.2 Samindrabai. Defendant Nos.3 and 4 are
his sons and he had one more son by name Manikrao.
4 SA 398/99 & 489/99
There was some dispute between Manikrao and the
plaintiff and the plaintiff was deserted by Manikrao.
Proceeding for maintenance was filed by the plaintiff
against Manikrao and then Manikrao died. As the widow
of Manikrao, plaintiff demanded to hand over share of
Manikrao to her by effecting partition but the defendants
refused to do so and so the suit was filed.
3) The suit was filed in respect of five agricultural
lands like Gat No.154, admeasuring 1 hectare 40 R which
is having one well and which is situated at Akoli, Tahsil
Basmathnagar; Gat No.193 admeasuring 1 hectare 21 R
(1/4th share of the plaintiff and the defendants in the
property) situated at Akoli. Gat No.258 admeasuring 6
hectares 24 R (plaintiff and defendant having 1/4th share)
situated at Akoli, land Gat No.70 admeasuring 1 hectare
41 R situated at Phata, and Gat No.78 admeasuring 5
hectares 80 R (1/2 portion belongs to plaintiff and
defendants) situated at Phata. The plaintiff had contended
that she has 1/4th share in the aforesaid properties and
she had prayed for relief of partition, possession and
mesne profit.
5 SA 398/99 & 489/99
4) The defendants filed joint written statement.
They admitted the relationship. They contended that
during lifetime of Manikrao, Tulsiram, father, had effected
partition and Manikrao had accepted Rs.15,000/- in lieu of
his share in the ancestral properties and he had
relinquished his share in those properties.
5)
Defendant No.1 contended that only two
properties like Gat No.258 and Gat No.78 mentioned in
the plaint are the ancestral properties of defendant No.1
and remaining three properties were purchased by him
from his independent income. It is his case that the
income from the ancestral property was not sufficient for
livelihood and so he was doing the business of sale and
purchase of cattle and food grains. It is contended that
from the profit made in the business he purchased the
remaining three properties and so they are his self
acquired properties and they cannot be partitioned.
6) Issues were framed on the basis of the above
pleadings. Both the sides gave evidence. The trial Court
had held that there was nucleus which was giving
6 SA 398/99 & 489/99
sufficient income and the remaining three properties were
purchased from the income received from the ancestral
proprieties. The trial Court considered the circumstance
like one property was purchased in the name of Manikrao
when Manikrao was minor and one property was
purchased by defendant No.1 and his two brothers and on
the date of the suit this property was with defendant No.1
Tulsiram. The trial Court inferred that in the partition
amongst Tulsiram and his brothers this property had come
to the share of Tulsiram and so all the properties are the
joint Hindu family properties. 1/5th share was given by
the trial Court in all the properties. The first appellate
Court has held that the aforesaid three properties are self
acquired property of the defendant No.1 and the suit is
dismissed in respect of the three properties. The share of
the plaintiff is reduced to make it 1/10th by the first
appellate Court by effecting notional partition and then
giving share to the defendant No.2, mother of Manikrao in
the share of Manikrao as Manikrao died during her
lifetime.
7 SA 398/99 & 489/99
7) This Court admitted the appeals by order dated
9-9-2002 by holding that two substantial questions of law
are involved like (1) what is the nature of the property;
and (2) whether the plaintiff has share in the property.
8) This Court allowed the learned counsel for the
original defendants to argue on one more point viz.
whether the defendant No.1 has proved that the three suit
properties viz. Gat Nos.154, 193 & 70 are the self
acquired property of the defendant No.1.
9) The evidence of the plaintiff shows that her
marriage took place after the purchase of the three
disputed properties and so she has no personal knowledge
regarding the said transactions. Much was argued on this
circumstance by the learned counsel for the original
defendants. Though this circumstance is there, there are
other circumstances leading to inference in favour of the
plaintiff and those circumstances are not explained. The
total area of the two properties which are admittedly
ancestral like Gat No.258 and Gat No.78 is 4.46 hectares
(1 hectare 56 R of Gat No.258 and 2 hectares 90 R of Gat
No.78). It is the case of the plaintiff that there is facility of
8 SA 398/99 & 489/99
irrigation to the land Gat No.258 of canal and so it is
giving good income. She had claimed mesne profit of
Rs.20,000/- by contending that sufficient income is
received from the agricultural lands. 7/12 extract of Gat
No.258 is at Exhibit 42 and it shows that Tulsiram had
taken sugarcane crop in 60 R portion and the other
sharers of this Gat had also taken sugarcane crop in some
portion of the land. There is entry on the 7/12 extract of
the facility of irrigation due to Government canal. The
7/12 extract at Exhibit 9 of Gat No.78 shows that the
crops like hybrid, toor were taken in this land.
10) The lands were with defendant No.1 and
admittedly he was cultivating these lands personally. He
has given evidence that before 17 to 18 years he had
purchased the three disputed lands out of his income from
the business of selling and purchasing cattle and Jowar.
He has deposed that the income from the agriculture was
not enough but he was getting handsome income from the
business. Thus the evidence given is very vague regarding
the income which he was receiving from the aforesaid two
ancestral lands.
9 SA 398/99 & 489/99
11) Copy of sale deed in respect of the other land is
at Exhibit 64 and it shows that the land Survey No.57/B
which is having area of 3 acres was purchased by
Tulsiram and his two brothers in the year 1971. There is
nothing with the defendant No.1 to show that he had paid
some consideration for getting this entire property for his
family from his two brothers. Thus, inference was possible
that in the partition which had taken place amongst
Tulsiram and his brothers this property had come to the
share of Tulsiram. Present Gat number of this land is 193
and it is standing in the name of defendant No.1. There is
no explanation whatsoever with defendant No.1 in respect
of this circumstance and it can be said that this land was
also with defendant No.1 and the income received from
this property was also the income of the joint Hindu
family.
12) Gat No.70 admeasuring 1 hectare 40 R was
purchased in the name of Manikrao when he was aged
about 16 years for the consideration of Rs.3500/- in the
year 1977. Thus burden was heavy on the defendant No.1
to prove that he had separate source of income and from
10 SA 398/99 & 489/99
that income he had purchased the three disputed
properties. It is already observed that the evidence on this
point is very vague. Though in the cross examination he
contended that he was getting income of Rs.4000/- to
5000/- from the land, considering the area of the land, this
evidence is not believable. When one deals in cattle and
food grains, he is required to obtain licences from many
authorities. There is no such record with defendant No.1.
In ordinary course such transactions are made in writing
and the dealer maintains the accounts. There is not a
single document with the defendant No.1 to prove that he
was doing such business at the relevant time. Defendant
No.1 examined one Balasaheb, who is husband of the
sister of defendant No.1 in support of his case. His
evidence is also very vague. He has simply stated in the
evidence that defendant No.1 was doing such business for
many years and from the income of that business he
purchased the remaining three properties. Both, the
defendant No.1 and his witness were disbelieved by the
trial Court. There was no room to the first appellate Court
to interfere in the finding given by the trial Court on this
point as it was based on the appreciation of the oral
11 SA 398/99 & 489/99
evidence done by the trial Court and there was no record
in support of this contention.
13) In view of the aforesaid material and the
circumstances, there was no other alternative before the
trial Court than to hold that all the suit properties were
joint Hindu family properties and the plaintiff is entitled to
get share in all the properties.
14) Learned counsel for the original defendants
placed reliance on two reported cases - (1) AIR 1954 SC
379 (Srinivas Krishnarao Kango v. Narayan Devji Kango)
and (2) (2011) 9 SCC 451 (Marabasappa v. Ningappa) .
The learned counsel for the defendants submits that
though there is presumption of jointness of Hindu family,
there is no presumption that the joint Hindu family owns
joint Hindu family property. There is no dispute over the
proposition. When the plaintiff proves that there was
nucleus for the joint Hindu family from which sufficient
income could have been derived, the burden shifts on the
defendant who is contending that some property is his self
acquired property. As the defendant failed to discharge
12 SA 398/99 & 489/99
this burden, the trial Court held that all the properties are
the joint Hindu family properties. The first appellate Court
has committed error in dismissing the suit in respect of
the aforesaid three properties. However, the first
appellate Court has correctly held that the plaintiff has
1/10th share. The above points are answered accordingly.
15)
In the result, Second Appeal No.479 of 1999 is
allowed. The judgment and decree of the first appellate
Court by which the suit was dismissed in respect of three
properties is hereby set aside. The judgment of the trial
Court is modified for declaring and giving 1/10th share of
the plaintiff in all the properties. Remaining part of the
judgment and decree of the trial Court is hereby
confirmed.
16) Second Appeal No.398 of 1999 is hereby
dismissed. Decree is to be prepared accordingly.
Sd/-
(T.V. NALAWADE, J. )
rsl
