Vijay S/O Shrikrishna Mahajan vs Arun S/O Shrikrishna Mahajan ...
2018 Latest Caselaw 1093 Bom

39-J-SA-344-17                                                                             1/4


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           NAGPUR BENCH, NAGPUR.

                          SECOND APPEAL NO.344 OF 2017


Vijay s/o Shrikrishna Mahajan, 
Aged major, Occ. Architect, 
R/o Plot No.35, Gokulpeth, 
Nagpur.                                                          ... Appellant. 

-vs-

Arun s/o Shrikrishna Mahajan 
(since deceased L.Rs. on record) 

a)  Anagha wd/o Arun Mahajan, 
     Aged about 78 years. Occ. Retired. 

b)  Amaresh s/o Arun Mahajan, 
      Aged about 38 years, Occ. Service. 

Both R/o Shriram Apartment, 
Dhawade Galli, Near Dinanath High School, 
Dhantoli, Nagpur.                                             ... Respondents 


Shri Anup Dhore, Advocate for appellant.  
Shri N. A. Gaikwad, Advocate for respondents. 

                                 CORAM  :  A. S. CHANDURKAR, J. 

DATE : January 29, 2018.

Oral Judgment :

The appellant is the original defendant in the suit for partition

and separate possession filed by the plaintiff. It is the case of the original

plaintiff that the defendant was his elder brother. On 23/06/1976 a house

property was purchased by them jointly for a consideration of Rs.40000/-

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Their names were jointly mutated and the house was standing in their name

since the date of purchase. Subsequently the plaintiff started residing

separately from the defendant and thereafter he sought his share in the suit

house. As the same was not given, suit for partition and separate possession

came to be filed. In the written statement the defendant took the plea that

though the sale deed was executed in the joint names of both the brothers,

the defendant alone was its owner. He had paid the entire consideration and

hence he was entitled the same exclusively. The amount of consideration

was raised by the defendant from his own income and after taking hand loan

from persons close to him. Hence, dismissal of the suit was sought.

2. After the parties led evidence the trial Court Court held that the

plaintiff had half share in the suit property and that the defendant had not

proved that he had paid the entire consideration. The suit was accordingly

decreed. The appellate confirmed the said decree.

3. Shri A. Dhore, learned counsel for the appellant submitted that

the Courts below committed an error by shifting the burden of proving that

the defendant had purchased the suit property on his own especially when it

was the case of the plaintiff that he had half share in the same. It was for the

plaintiff to lead evidence to indicate the manner in which half consideration

was paid. The documents at Exhibits-84 and 85 were not considered in the

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proper perspective and merely because the sale deed was executed in joint

names, the same would not be sufficient to confer title on the plaintiff with

regard to half share.

4. Shri N. A. Gaikwad, learned counsel for the respondent supported

the impugned judgment. According to him on consideration of the entire

evidence on record, it was clear that both the brothers had half share in the

suit property. After the house was purchased, the mutation entires were

carried out in the names of both the brothers. This was not objected to at

any point of time. The persons from whom the loan was taken by the

defendant were not examined. Hence no error was committed by both the

Courts while holding in favour of the plaintiff.

5. I have heard the learned counsel for the parties and I have

perused the impugned judgment. It is not in dispute that as per the sale

deed at Exhibit-31, the names of both the brothers have been shown as

having jointly purchased the suit property. Other contents of the sale deed

indicate that the consideration was received jointly from the brothers. It has

been found that after 23/06/1976, the property was mutated in the joint

names and no objection to the same was taken by the defendant at any point

of time. The stand of the defendant that he has paid the entire

consideration has not been accepted by both the Courts. Though the

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defendant relied upon the documents at Exhibits-84 and 85 the same do not

indicate that the entire payment was made by the defendant. The persons

from whom the hand loan was claimed to have been taken have not been

examined by the defendant. The recitals in the sale deed therefore would

have to be accepted in absence of any evidence disproving the same. The

provisions of Section 45 of the Transfer of Property Act, 1882 also support of

the case of the plaintiff. I find that both the Courts on proper appreciation

of the evidence on record have held in favour of the plaintiff. This

appreciation of evidence does not appear to be perverse. The second appeal

does not give rise to any substantial question of law. Same is therefore

dismissed. No costs.

JUDGE

Asmita