Tukaram Ashruba Tandale And ... vs Uattareshwar Ashruba Tandale And ...
2021 Latest Caselaw 3179 Bom

                                          (1)


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                     SECOND APPEAL NO.483 OF 2015
                                 with
                    CIVIL APPLICATION NO.11512/2015


 1.       Tukaram s/o Ashruba Tandale
          and Anr.                                            = APPELLANT/S
                                                            (Orig.Plaintiff)

          VERSUS

 1.       Uattareshwar s/o Ashruba Tandale
          and Anr.                        = RESPONDENT/S
                                       (Orig.Defendants)
                            -----
 Mr.Shrimant Mundhe,Advocate for Appellant/s;
 Mr.HV Tungar, Advocate for Respondent No.1.
                        -----

                                 CORAM :        SMT.VIBHA KANKANWADI,J.

                                 DATE :         18th February, 2021.

 PER COURT :-

 1.               Present             appellants             are            original

plaintiffs, who have challenged judgment and decree dated 23.1.2015 passed by learned Principal District Judge, Beed in Regular Civil Appeal No. 58/2013, whereby the said Appeal filed by original defendant No.1, i.e. present Respondent No.1, came to be allowed and the judgment and decree dated 30.3.2013 passed by 4th Jt. Civil Judge, Jr. Division, Beed in Regular Civil Suit No. 340/2010,came to be set aside.

2. Heard learned Advocate Shrimant Mundhe for the appellant/s and Shri HV Tungar, learned

Advocate for Respondent No.1. The appeal already stood abated as against Appellant No.2, vide order dated 13.3.2018. In order to cut short, it can be stated that both of them have made submissions in support of their respective contentions.

3. Perusal of the record would show that present appellants had filed RCS No.340/2010 before 4th Joint Civil Judge, Jr. Division, Beed, for partition and separate possession. The parties are hereinafter referred to by their original nomenclature. Plaintiff No.1 and defendant No.1 are the sons of plaintiff No.2. In all 9 agricultural lands, described in Para No.1, were said to be the ancestral properties, except Block No.416, which was stated to be the self-acquired property of plaintiff No.1. It was contended by the plaintiffs that there is no partition of their ancestral property and, therefore, they demanded their share to be carved out.

4. Defendant No.1 resisted the claim and contended that there was previous partition effected in the year 1994 in respect of the suit

and, therefore, the partition cannot be reopened. He claimed that, in fact, even Block No.416 was his self-acquired property. The parties went to trial. After framing of the issues, the learned Trial Judge held that the defendants have failed to prove that there was previous partition in the year 1994. The Block No.416 is a joint family property. The

plaintiffs have 1/4th share each in the said property. Original defendant No.2 was daughter of plaintiff No.2 and sister of plaintiff No.1 and defendant No.1 and, therefore, the suit was partly decreed. In all those properties, each party was held to be entitled to have 1/4th share.

5. Original defendant No.1 approached the first Appellate Court and all the findings were upset after re-appreciation of the evidence. It was held that father of the appellant and the respondents had effected partition in the year 1994. It was held that Block No.416 was self- acquired property of the appellant, i.e. original defendant No.1. Since there is severance of the status of joint family property, it could not be re-opened for partition and, therefore, the appeal was allowed and the suit was dismissed.

6. Thus, it can be seen that there is no concurrent finding of facts as well as law by the Courts below. The plaintiff has contended that he was employed in Military and then he had sent certain amounts to defendant no.1 periodically for which he had produced certain receipts of the postal authority. It also appears that there are certain admissions from both the sides, which require to be interpreted. If defendant No.1 had produced 10/- rupees stamp paper, which he says that is partition document, which is stated to have been signed by plaintiff No.1, then that document is also required to be interpreted and, therefore,

a case is made out to admit the Second Appeal.

7. The Second Appeal is admitted on following substantial questions of law, -

1) Whether the learned Principal District Judge is justified in allowing the Regular Civil Appeal and setting aside the entire judgment and decree of partition suit ?

2) Whether the partition of Hindu joint family properties of five members can be executed only between three members ?

                  3)       Whether         the       learned             Principal
                  District         Judge      is   justified         in      holding
                  that         "the   parties      are    not      entitled           to
                  reopen           the      partition",             when           such

partition itself is disputed, it is not registered, it is not having date, place and it is not executed by all parties of the joint family ?

4) Whether the learned Principal District Judge is failed to consider that all the members of Hindu joint family are entitled for equal share in joint family properties ?

                  5)       Whether         the       learned             Principal
                  District            Judge        has     considered               the






                  deposition/admission                of      defendant             No.2
                  about status of joint family ?


 8.               Issue          notices         to      the        respondents.

Learned Advocate Shri HG Tungar waives notice for Respondent No.1. Notice of Respondent No.2 is made returnable on 15th July, 2021. Interim relief granted earlier to continue.

(SMT. VIBHA KANKANWADI) JUDGE

BDV