Bombay High Court
Murlidhar Pandharinath Kulkarni vs Vithal Pandharinath Kulkarni And ... on 17 March, 2016
Bench: T.V. Nalawade
SA No. 220/1998
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
SECOND APPEAL NO. 220 OF 1998
WITH
CIVIL APPLICATION NO.3115 OF 1998
WITH
CIVIL APPLICATION NO. 4032 OF 1998
WITH
CIVIL APPLICATION NO. 9833 OF 2010
WITH
CIVIL APPLICATION NO. 794 OF 2014
1 Murlidhar Pandharinath Kulkarni
Since deceased through his legal heirs.
A1(a) Smt. Mangala Murlidhar Kulkarni,
Age 74 yrs., occ. Household,
A1(b) Dilip Murlidhar Kulkarni,
Age 49 Yrs. Occ. Service,
Both r/o Karjat Tq. Karjat
Dist. Ahmednagar.
A1(c) Shobha Shridhar Deshpande,
Age, 53 Yrs. Occ. Service,
R/o Pushparaj Apartment, Sangle Galli,
Ahmednagar.
A1(d) Dipali Dattatraya Pethkar,
Age 47 Yrs. Occ.Service,
R/o. Nalegaon, Dist. Ahmednagar.
A1(e) Jayashree Sushilkumar Kamat,
Age 41 Yrs. Occ. Profession.
R/o. Shalimar Chowk, Daund,
Tq. Daund, Dist. Pune. ....Appellants.
Versus
1 Vithal Pandharinath Kulkarni
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SA No. 220/1998
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Since deceased through his legal heirs.
1(A) Hemlata Vithal Kulkarni
Age 48 yrs., Occ. Household,
Bhange Galli, Karjat,
Tq. Karjat, Dist. Ahmednagar.
1(B) Sau. Pushpalataa Shekhar Kale
Age 25 yrs., Occ. household,
R/o Shakambari Temple, Kacheri Road,
Baramati, Tq. Baramatia, Dist. Pune.
1(C) Prasad Vithal Kulkarni
Age 22 yrs., Occ. Agri.,
R/o Bhange Galli, Karjat,
Tq. Karjat, Dist. Ahmednagar.
2 Dattatraya Pandharinath Kulkarni,
Since deceased through his legal heirs.
2A) Sau. Sunita Nandkumar Tattu
Age 35 years, Occu: Household,
R/o At Post Paras, Tq. Daund.
District Pune.
2B) Sau. Sharda Pralhad Pundle
Age 45 years, Occu: Household,
R/o At Dubarwadi, Post Otur,
Tq. Junnar, District Pune.
2C) Satish Dattatraya Kulkarni,
Age 38 years, Occu: Service,
R/o Sukhtankarwada, In front
of Patilwada, Daund, District
Pune.
3 Digambar Pandharinath Kulkarni,
Age Major, Occu: Service,
R/o Karjat, District: Ahmednagar.
4 Laxmibai Anant Kulkarni,
Since deceased through her legal heirs.
4-A) Ramchandra Anant Kulkarni
Age 72 years, Occu: Pensioner,
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SA No. 220/1998
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R/o Survey No. 39, Building No.1,
Post Anand Nagar, Pune-51.
4-B) Laxman Anant Kulkarni,
Deceased Through L.Rs.
4B-I) Vinayak Laxman Kulkarni,
Age 28 years, Occu: Service.
4B-ii) Ganesh Laxman Kulkarni,
Age 24 years, Occu: Service.
4B-iii)Shailaja Laxman Kulkarni,
Age 55 years, Occu: Household,
All Res, 4B-i to 4B-iii are
R/o 205, Somwar Peth, Pune-11.
4B-iv)Sau.Uma Mahesh Subhedar,
Age 30 years, Occu: Household,
R/o Near Savata Mali Bhavan,
Near Jijamata Guardan, Budhwar
Peth, Pune-2.
4-C) Bharat Anant Kulkarni,
Age 63 years, Occu: Pensioner,
R/o 27/C, Budhwar Peth, Near
Jogeshwari Tempale, Behind Vedh
Pathsala, Pune.
4-D) Balkrushna Anant Kulkarni,
Age 58 years, Occu: Service,
R/o Sai Sidharth Building
Near Garaml at Post Wadgaon (BK)
Tq. Haveli, District Pune.
4-E) Sau. Malathi Madhav Daithankar,
Age 65 years, Occu: Household,
R/o Behind Belapur Market Yard,
At Post, Belapur, Tq. Shrirampur,
District Ahmednagar.
5 Saraswatibai Dhondopant Kulkarni,
(Deceased through L.Rs.)
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SA No. 220/1998
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5A Pandurang Dhondopant Kulkarni
(Deceased through L.Rs.)
5AI Pradnya Prashant Deshpande,
Age 35 Years, Occu: Hosusehold,
R/o: Shani Galli, At Post Sangola,
District Solapur.
5AII Rohini Sarvottam Deshpande,
Age 32 Years, Occu: Household.
R/o: Acharya Galli, Jinturkar Wada,
Osmanabad, District Osmanabad.
5AIII Vrushali Shripad Deshpande,
Age 29 Years, Occu: Household,
R/o: Satyakamal Colony, Chandrakant Rekhi Agency,
Block No. B/3, Opposite Manohar Nagar,
Talegaon Dabhade, Chakan Road,
Taluka Mawal, District Pune.
5B) Shri. Arun Dhondopant Kulkarni,
Age Major, Occ. Post Master,
R/o. Jeur, Tq. Karmala,
Dist. Solapur.
5C) Sow. Vijaya Balasaheb Kimbhune,
Age Major, R/o. Near Krant Nagar,
At post Tq. Patoda, Dist. Beed.
5D) Sow. Manda Sadashiv Walwadkar,
Age Major, Occu. Household,
R/o. Alipur Road, Shivaji Nagar,
At post Tq. Barshi, Dist. Solapur. ..Respondents.
Miss. M.S. Mhase h/f. M. Y. Deshmukh, Advocate for appellants.
Mr. S.L. Bhapkar, Advocate for Respondent No. 1 to 3
Mr. B.G. Deshmukh, Advocate for Respondent No. 4A, 4B/i to iv,
4C & 4D .
Mr. Rajendrra Deshmukkh, Advocate for Respondent No. 4E.
CORAM : T.V. NALAWADE, J.
DATED : 17th March, 2016.
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SA No. 220/1998
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JUDGMENT :
1) The appeal is filed against judgment and decree of
Regular Civil Appeal No. 364/1990, which was pending in the
Court of IInd Additional District Judge, Ahmednagar. The appeal
was filed by original defendant Nos. 1 to 3 against judgment and
decree of Regular Civil Suit No. 132/1978, which was pending in
the Court Court of Civil Judge, Junior Division, Karjat, District
Ahmednagar. The suit filed by present appellant - Murlidhar for
relief of partition and separate possession in respect of
agricultural lands and house properties, was decreed in his
favour. The First Appellate Court has set aside the decree of
partition and possession given in respect of agricultural lands,
though the decision given in respect of house properties in
favour of plaintiff is confirmed. Both the sides are heard.
2) Plaintiff and defendant Nos. 1 to 3 were real brothers
inter-se. Defendant No. 4 was mother of plaintiff. Their father
had died prior to year 1956.
3) The suit was filed in respect of three agricultural
lands and six house properties, which included open spaces
situated at Karjat, within the limits of Village Panchayat.
SA No. 220/1998
4) it is the case of plaintiff - Murlidhar that all the suit
properties were ancestral properties of his father, Pandharinath.
He contended that father died in the year 1940 and after the
death of father, the plaintiff and defendants continued to live in
Joint Hindu Family. it is contended that the suit lands were in the
possession of tenants and so, to protect the lands from the
provisions of the Bombay Tenancy and Agricultural Lands Act,
1948 (hereinafter referred to as 'the Tenancy Act' for short) and
for getting back the lands, family arrangement was made and
properties were shown in the names of plaintiff and defendants.
It is contended that the properties were never partitioned,
though such partition was shown on the record. It is contended
that for family necessity, the land which was shown in the name
of plaintiff, was sold and similarly, one land shown in the name
of mother, was sold.
5) It is the case of plaintiff that he has equal share with
the three brothers as the lands were ancestral properties of their
father and he died in the year 1940. He had claimed 1/4th share
and relief of partition to get that share.
6) The defendant Nos. 1 to 4 filed joint written
SA No. 220/1998
statement and they denied the contentions of plaintiff that
partition in respect of agricultural lands had not taken place. It is
contended that the partition took place amongst plaintiff and
defendant Nos. 1 to 4 in the year 1956 and accordingly,
mutation was made in revenue record at mutation No. 3345. It is
contended that property bearing Survey No. 142/4 was accepted
by plaintiff, though area of this land was much less as this land
was yielding more income and the family was maintaining itself
on the income of this land. It is contended that the severance of
status and partition took place in the year 1956 itself and so,
there is no question of making partition and giving relief of
possession to the plaintiff. It is contended that plaintiff sold land
allotted to his share viz. Survey No. 142/4 for valuable
consideration to one Shri. Katariya in the year 1977 and this
circumstance also shows that there was the partition.
7) On the basis of aforesaid pleadings, issues were
framed. The First Appellate Court has considered the revenue
record which includes the mutation, the conduct of the plaintiff
that he sold Survey No. 142/4, the circumstance that mother
sold one property which had come to her share like Survey No.
277 in the year 1977 and the circumstance that before Tenancy
Court, plaintiff had given statement that he had accepted Survey
SA No. 220/1998
No. 142/4 though it was having less area as it was irrigated land.
8) At the time of admission of appeal, no substantial
question of law as such was formulated. In view of the
submissions made by the learned counsel for the appellants, this
Court holds that following substantial questions of law can be
considered in the present matter.
(i) Whether the First Appellate Court has committed
error in holding that there was partition on the basis of
circumstances like sale deeds made by plaintiff, his
mother in respect of portions shown to he allotted to
them in partition of 1956, the statement of plaintiff
given before the Tenancy Court when there was the
other circumstances that house properties were not
partitioned ?
(ii) Whether the First Appellate Court has committed
error in holding that there was partition when plaintiff
did not get equal area as shown to be allotted to the
shares of defendants ?
(iii) Whether there was sufficient material to draw
inference that the so called partition shown to be
effected in the year 1956 was not partition, but it was
family arrangement made for protecting the property of
SA No. 220/1998
the family from the provisions of Tenancy Act ?
9) The learned counsel for appellants took this Court
through oral evidence and evidence of one witness like Bhika
Wagh. It was submitted that only one defendant was available in
Karjat and other brothers were living at different places, the
places of their work and so, it was not possible for them to
cultivate the portions shown to be owned by them personally
and separately. She submitted that Bhika Wagh has given
evidence that he was working as a labour in all the lands and
brothers were together giving labour charges to him. He has
produced one receipt allegedly issued to Bhika in support of this
case. If Bhika was only working as a labour, there was no
necessity of creation of such record as labour charges were paid
at the relevant time without creating such record. He was not
cultivating the lands as tenant and his name was not entered in
the revenue record as the person cultivating lands. Similarly, in
the crop cultivation column of revenue record of all the lands
from the year of surrender of the lands by tenants, the names of
plaintiff and defendants were shown in their respective
properties.
10) Admittedly, the sale deed executed by plaintiff was
SA No. 220/1998
executed by him alone and no consent etc. of defendants was
obtained on the sale deed. Same is the case in respect of sale
deed executed by the mother of the plaintiff in favour of third
party. In view of this record and as these transactions were never
challenged, it is not possible to accept the contention of plaintiff
that these properties were jointly sold for legal necessity of
plaintiff and defendants. One document like Yadi, list, prepared
at the time of marriage of defendant No. 1, which was second
marriage, is produced. It shows that members of the family of
plaintiff and defendants have signed on Yadi, list. Such practice
is there in Hindus when the marriage is settled. Even after the
partition the relatives come together and they sign on such Yadi
and so, not much can be made out from this circumstance in
favour of plaintiff.
11) On one hand, there are following circumstances.
(i) Record like report given to revenue authority by
these brothers to show that partition had taken place
amongst them and as per the report mutation was
made and entries of the names of these brothers were
entered in the lands which were allotted to their share.
(ii) Further, in support of partition, there is the record
of transactions of aforesaid two sale deeds made
SA No. 220/1998
independently by the persons to whom the lands were
allotted.
(iii) The statement given by plaintiff before Tenancy
Court that he was accepting Survey No. 142/4, though
it was having less area than the area of defendants as
his share in the partition as it was good quality land,
Bagayat land.
These circumstances can be treated admissions against his own
interest by the plaintiff. On this point, the learned counsel for
appellants, placed reliance on one case reported as AIR 1977
SUPREME COURT 1712 [Sita Ram Bhau Patil Vs.
Ramchandra Nago Patil & Ors.]. In this case, the Apex Court
has laid down that the admission is relevant, but it needs to be
proved before it becomes evidence. It is further laid down that
admission is not conclusive proof. There is no dispute over the
propositions. There is not only the admission before Tenancy
Court, but there is aforesaid record and the admission given
before Tenancy Court was clear and unambiguous. The
explanation given of aforesaid nature by the plaintiff in respect
of the sale deeds does not appear to be probable as he sold this
land in the year 1977 and there is no convincing evidence to
show that the land was sold by plaintiff and the defendants
together and the sale proceeds were used by all of them. It is
SA No. 220/1998
not disputed that these brothers were living separate from each
other at different places. Even the mother was living in a
separate room. On the other hand, against the record there is
word against word. This Court holds that the probability which is
created by documentary evidence needs to be accepted. It
appears that subsequently, the mother executed will in favour of
defendant Nos. 2 and 3 in respect of the property which she was
leaving behind. Though under the will, nothing is given at
present to defendant Nos. 2 and 3, the contents of the will
showing that there was the partition and mother had separate
property needs to be considered in the matter like present one.
It appears that due to this circumstance, defendant No. 1 then
changed his stand and he admitted that there was no partition.
It is clear that he must have felt that he will be loosing more, the
share in the property of mother and so, such stand was taken.
Such afterthought admission given by defendant No. 1 cannot
help the plaintiff in any way. So, the aforesaid questions are
answered in negative and following order is made.
ORDER
Appeal stands dismissed. All Civil Applications are
disposed of.
[ T.V. NALAWADE, J. ]
ssc/
