Bombay High Court
Dashrath Aba Zaware vs Parubai Aba Zaware, Died, Deleted ... on 17 November, 2016
Bench: S.P. Deshmukh
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.278 OF 2012
Shri Dashrath Aba Zaware
Age 75 years, Occ.Agriculture,
R/o Bhondre, Ta. Parner,
District Ahmednagar .. APPELLANT
[ORI.PLAINTIFF]
VERSUS
1] Parubai w/o Aba Zaware
(Died, name deleted)
2] Thakubai @ Raubai w/o Nana Chemate
(Deceased and her legal heirs)
2A] Bhanudas Vitthal Walunj,
Age 55 years, Occ.Agriculture,
R/o Room No.425, Building No.11
Mumbai Dock Labour Board Colony,
Cotton Green, Mumbai 33
2B] Raosaheb Vitthal Walunj
Age 53 years, Occ.Agriculture
2C] Shobha Sudam Zaware
Age 50 years, Occ.Agriculture,
2D] Gaba Nana Chemate
Age 55 years, Occ.Agriculture
2E] Janabai w/o Kisan Shinde
Age 53 years, Occ.Agriculture
R.No.2B to 2E R/o Wasunde
Tq. Parner, District Ahmednagar
2F] Kausabai w/o Kondibhau Rokade
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Age 50 years, Occ.Agriculture
R/o Wadgaon Savtal,
Tq.Parner, District Ahmednagar
2G] Kantabai w/o Laxman Chemate
Age 53 years, Occ.Agriculture
R/o Wasunde, Tq. Parner
District Ahmednagar
2H] Shaila w/o Sahebrao Hulawale
Age 40 years, Occ.Agriculture
R/o Karjule Hariya (Wafarewadi),
Tq. Parner, District Ahmednagar
2I] Manisha w/o Chhagan Thange
Age 38 years, Occ.Agriculture
R/o Tikhol, Tq. Parner
District Ahmednagar.
2J] Naina w/o Suresh Wable
Age 36 years, Occ.Agriculture
R/o Sitabai Chawal, Chakkinaka
At Post and Tal. Kalyan
District Thane.
2K] Alka w/o Bhausaheb Zaware
Age 34 years, Occ-Agriculture
2L] Yogesh Laxman Chemate
Age 30 years, Occ.Agriculture
R2K and 2L both R/o Wasunde,
Tq. Parner, District Ahmednagar
2M] Hausabai w/o Dattatraya Aher
Age 53 years, Occ.Agriculture
R/o Mandave Khd., Tq. Parner
District Ahmednagar
3] Gaubai @ Tarabai w/o Baburao Rokade
Age 75 years, Occ.Agriculture
R/o Wadgaon Savtal, Tq. Parner
District Ahmednagar.
4] Bhau Aba Zaware
Age 70 years, Occ.Agriculture
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R/o Gadilgaon, Tq. Parner
District Ahmednagar
5] Shewantabai w/o Bhau Zaware
Age 67 years, Occ.Agriculture
As above. .. RESPONDENTS
(ORI.DEFENDANTS)
...
Mr.V.D.Hon, Senior Advocate for Appellant.
Mr. A.B.Gatne, Adv for Respondents No.4 and 5.
Respondents No.2B to 2M, 2J and 3 to 5 served
ig ...
CORAM : SUNIL P. DESHMUKH,J.
DATED : 17TH NOVEMBER,2016
ORAL JUDGMENT :-
Heard learned counsel for the parties.
2] The appellant had instituted a Suit seeking partition and
possession in respect of several properties against defendants no.4
and 5 claiming that plaintiff and defendants constituted a joint family
which possesses sufficient means to for acquisitions as have been
made in the name of defendants no.4 and 5. While defendants no.4
and 5 appeared in the Suit, they had pointed out certain properties
having not been included in the Suit which were ancestral properties
and thus filed counter claim for partition and separate possession of
the said properties. The parties to the Suit were not in dispute over
that, some of the properties were indeed joint family properties.
While the parties went to the trial Court, upon evidence, the trial
Court passed a decree holding plaintiff would be entitled to take
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share and defendants no.2 and 3 each would be entitled to 1/20 th
share and defendant no.4 to 3/10th share in the properties bearing
land Gat Nos.129, 137, 338, 353 and 442 situated at Bhondre, Tq.
Parner, Dist.Ahmednagar and land Gat No.4849, 4861,4865,4868
and 4869 situated at village Kanhur-Pathar, Tq. Parner,
Dist.Ahmednagar further declaring that the plaintiff and defendant
no.4 would be entitled to 3/8th share and defendants no.2 and 3 each
are entitled to 1/8th share in the house properties referred to under
Clause 4 of the operative order of decree and dismissed the Suit of
the appellant/plaintiff in respect of land Gat No.136, 138, 429 and
435 situated at village Bhondre, Tq.Parner and in respect of Gat
Nos.2394 and 2396, 2397/1, 2400 and Gat No.2401 situated at
village Nighoj, Tq. Parner, as well as in respect of House No.76 at
village Gadilgaon, Tq. Parner.
3] Aggrieved by aforesaid order, Appeal had been preferred vide
Regular Civil Appeal No.144/2007 which came to be dismissed under
judgment and order dated 16/11/2011. Learned Senior counsel
Mr.V.D.Hon appearing for the appellant vehemently contends that
the appellate as well as trial Court have found the joint family to be
possessed of sufficient nucleus. In the circumstances, the burden
which has been purportedly shifted on defendants no.4 and 5 can not
be said to have been sufficiently discharged by them. He submits
that while it has been considered by the Courts that there is sufficient
time lag between the acquisitions made in the name of defendants
no.4 and 5, it has not been considered that from the joint family
nucleus sufficient income had been accumulated, from which the
purchases of properties can be said to have been made. It is further
being submitted that the defendants no.4 and 5 have not at all
referred to the quantum of income generated from the so called
service of defendant no.4. According to him, preponderance of
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possibilities and by virtue of position of law the burden has been
sufficiently discharged by the plaintiff. The same has not received
due consideration while both Courts have delivered judgments.
4] On the other hand, Mr.Gatne, appearing for the defendants
no.4 and 5 contends that it has come on record that defendants no.4
and 5 had been staying away from the family on account of strained
relations. It has further come on record that defendant no.4 has been
a salaried employee since 1959. It is not the case of the other son
that the employment of defendant no.4 had never generated income.
Apart from this, he contends that besides vague statement in the
deposition with regard to income being generated from the so called
nucleus nothing further has been placed on record which can be said
to have been enough for making acquisitions in the name of
defendants no.4 and 5. He submits that defendant no.4 is not the
elder brother of appellant-plaintiff. If the acquisitions are to be said to
be brought about by joint family in the natural course, during the time
governing the transactions, those would have been made in the
name of eldest person in the family. He submits that the evidence as
on record sufficiently shows claim with regard to acquisition made
with the aid of so called nucleus of the joint family stands falsified.
5] After having heard learned counsel, looking at the evidence as
has been appreciated by the Courts particularly having regard to
plaintiffs evidence, which shows that although it is claimed by the
plaintiff that acquisitions have been made from the joint family
property, yet the evidence shows the plaintiff can be said to hardly
have any knowledge about the transactions by which the acquisitions
have been made. Both the Courts have sufficiently considered these
aspects and appreciated the same. Besides it has to be considered
that the plaintiff was eldest member of the family. There is no
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explanation coming forth as to why properties were being acquired in
the name of younger brother. The appreciation of the Court does not
appear to be away from the record much less perverse. In the
circumstances, Second Appeal does not appear to give rise to any
substantial question of law. Second Appeal as such stands
dismissed.
6] In view of disposal of Second Appeal, Civil Application
No.5911/2012 stands disposed of.
(SUNIL P. DESHMUKH,J.)
umg/
