Bombay High Court
Narayan Patilba Bhonde And 8 ... vs Sangita Motiram Bhonde on 12 June, 2017
Bench: A.S. Chandurkar
sa217.03.odt 1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.217 OF 2003
APPELLANTS: 1. Narayan Patilba Bhonde,
Aged 75 years,
2. Sau. Bhagubai Narayan Bhonde,
Aged 65 years,
3. Sakharam Narayan Bhonde,
Aged 45 years,
4. Dinkar Narayan Bhonde,
Aged 35 years,
5. Rangubai Sakharam Bhonde,
Aged about 40 years,
6. Mandabai Dinkar Bhonde,
Aged 30 years,
7. Ramrao Santosh Bhonde,
Aged 35 years,
8. Gajanan Sakharam Bhonde,
Aged 32 years,
9. Motiram Dinkar Bhonde,
Aged 11 years, Minor through
natural Guardian father -
Appellant No.4, All agriculturists,
R/o Mhsala, Tah. Buldana,
District - Buldana.
-VERSUS-
::: Uploaded on - 17/06/2017 ::: Downloaded on - 18/06/2017 00:31:26 :::
sa217.03.odt 2/6
RESPONDENT: Sangita D/o Motiram Bhonde, Aged
about 24 years, Occupation-Household,
R/o C/o Prakash Omkar Thombare,
Palaskhed (Daulat), Tah. Chikhali,
District - Buldana.
Shri P. B. Patil, Advocate for the appellants.
Shri Tushar Darda, Advocate for the respondent sole.
CORAM: A.S. CHANDURKAR, J.
DATED: 12
th JUNE, 2017.
ORAL JUDGMENT :
1. The appellants are the original defendants in a suit for
partition and separate possession of ancestral property filed by the
respondent. The trial Court partly decreed the suit and granted 1/5 th
share to the respondent in Gut Nos.136 and 139 and refused relief in so
far as Gut No.121 and Gut No.140 were concerned. The plaintiff as well
as the defendant filed two separate appeals and by the impugned
judgment, the appellate Court partly allowed the appeal preferred by the
respondent and granted her share in Gut No.121 and 140 also. The
appeal preferred by the present appellants came to be dismissed. Being
aggrieved, the present appeal has been filed.
2. It is the case of the respondent that she is the grand
daughter of the original defendant Nos.1 and 2 and the niece of the
defendant nos.3 & 4. Her father Motiram who was also the son of
sa217.03.odt 3/6
defendant Nos.1 & 2 expired on 14-8-1982. The defendant Nos.1 and 2
were in possession of the ancestral property and hence the suit for
partition of the same came to be filed. Gut Nos.136 and 139 along with
Gut Nos.141 and 121 were the agricultural fields that were the subject
matter of the suit. The trial Court after considering the evidence on
record held Gut Nos.136 and 139 to be ancestral properties and granted
the plaintiff 1/5th share therein. Though it was found that Gut No.121
was also ancestral property, no share was granted on the ground that it
was a small piece of land. As noted above, the appellate Court has
modified the decree of the trial Court.
3. The appeal was admitted on the following substantial
question of law:-
(1) Whether the Courts below have erred in
law in not considering the legal position on record that
the mother of deceased Motiram, being class one heir
was equally entitled to get a share in property to the
extent that would fall in the share of deceased?
4. By order dated 9-6-2017, two other questions of law were
also framed.
(1) Whether the lower appellate
Court is justified in granting 1/5th share each
out of 1/4th share in Gat No.140 which is
admeasuring only 62 Rs and, therefore, the
same is not liable for partition. Thus, the
sa217.03.odt 4/6
equity would have been done by awarding
compensation?
(2) Whether the lower appellate
Court is justified in shifting the burden on
defendants/appellants to prove that Gat
No.121 is co-parcenary property?
5. Shri P. B. Patil, learned Counsel for the appellants
submitted that the respondent was not entitled for 1/5 th share in the
ancestral property. He submitted that the plaintiff was the daughter of
Motiram who had already expired in the year 1982 and, therefore, the
suit property ought to have been divided amongst the remaining co-
parceners. He submitted that the appellate Court was not justified in
directing partition of Gut No.140 on the ground that it was measuring
only 62R. He further submitted that in so far as Gut No.121 is
concerned, the same was self acquired property of appellant Nos.5 and 6
as the sale deeds at Exhibits 74 and 75 stood in their name. These fields
could not have been the subject matter of partition. He, therefore,
submitted that the impugned judgment was liable to be set aside.
6. Shri Tushar Darda, learned Counsel for the respondent
supported the impugned judgment. According to him, the plaintiff being
the daughter of Motiram, she was entitled for her father's share in the
joint family property. Merely because Gut No.140 was a small piece of
land, it could not be said that it was not liable for partition. He further
submitted that the evidence on record clearly indicated that Gut No.121
sa217.03.odt 5/6
had been purchased by the joint family after selling Gut No.241. As Gut
No.241 was joint family property, the appellant Nos.5 and 6 could not be
treated as exclusive owners of Gut No.121.
7. I have heard the learned Counsel for the parties at length
and I have also perused the records of the case.
8. In so far as the respective shares of the parties are
concerned, it is to be noted that Narayan who is defendant no.1 was
married with Bhagubai - defendant No.2. They had three sons Sakharam,
Dinkar and Motiram. Motiram was the father of the original plaintiff.
The trial Court in paras 21 and 22 of its judgment has rightly found that
there were five sharers and the plaintiff was entitled for 1/5 th share in the
ancestral property being daughter of Motiram. This finding has been
confirmed by the appellate Court in paras 19 and 20 of its judgment. It
can thus be seen that shares of the parties have been rightly calculated
and the plaintiff has been held entitled for 1/5th share.
9. In so far as Gut No.121 is concerned, the appellate Court in
para 16 of its judgment has found that initially Gut No.241 was sold by
Narayan and immediately thereafter on 16-12-1993 Gut No.121 was
purchased under two sale deeds at Exhibits 74 and 75. The deposition of
the defendant no.6 Mandabai clearly indicates that she was doing labour
work and was earning Rs.120/- per day. Amount of Rs.31,000/- was paid
in cash for purchasing said field. The deposition of Sakharam who was
sa217.03.odt 6/6
Narayan's son also supports the finding of the appellate Court in view of
his admission that defendant Nos.5 & 6 had no separate source of
income. Hence, said finding recorded by the appellate Court does not
call for any interference.
10. In so far as Gut No.140 is concerned, the trial Court refused
to grant any relief with regard to that land only on the ground that it was
admeasuring 62R. The appellate Court in para 21 of its judgment has
clearly observed that even if said land was of smaller area, it was a
matter of execution. The grant of 1/5th share out of total 1/4th share in Gut
No.140 is, therefore, justified. By observing that the aspect regrading
smallness of its area is a matter to be considered by the executing Court
the right of the plaintiff therein stands recognized. Same cannot be a
ground to refuse the relief of partition.
11. In view of aforesaid discussion, the substantial questions of
law as framed are answered against the appellants. The judgment of the
appellate Court accordingly stands confirmed. The second appeal stands
dismissed with no order as to costs.
JUDGE
//MULEY//
