Bombay High Court
Angad Pandit Mali And Others vs Akash Angad Mali And Others on 26 July, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.738 OF 2018
ANGAD S/O PANDIT MALI AND OTHERS
VERSUS
AKASH ANGAD MALI AND OTHERS
.....
Advocate for applicants : Mr. P. R. Katneshwarkar
Advocate for Respondents No.1 to 4 and 6 : Mr. S. V. Natu.
.....
CORAM : SMT.VIBHA KANKANWADI, J.
DATE : 26-07-2021.
ORDER :
1. The present appellants are the original defendants who want to
challenge the concurrent Judgment and decree passed against them.
Present respondents are the original plaintiffs who had filed Special
Civil Suit No.28 of 2012 before Joint Civil Judge, Senior Division, Latur
for partition and separate possession. The said suit came to be
decreed and it was held that the plaintiffs have 1/6 th share each in the
1/6th share of defendant No.1 i.e. 1/36 th share each in all the suit
properties. It was also held that defendants No.1, 2, 4, 5 and 6 have
1/6th share each and defendants No.3(1) to 3(3) together have 1/6 th
share in all the suit properties. The said decree was challenged by the
defendants in Regular Civil Appeal No.107 of 2015 before District
Judge-3, Latur. The said appeal came to be dismissed on 03-03-2018,
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hence this second appeal.
2. Heard learned Advocate Mr. P. R. Katneshwarkar for appellant
and learned Advocate Mr. S. V. Natu for respondents No.1, 2, 3, 4
and 6.
3. It has been vehemently submitted on behalf of the defendants
that both the Courts below have not considered the evidence and
the law points properly. The defence raised has not been properly
considered in which it was categorically pleaded by the defendants
that land Gut No.24 is the self-acquired property of defendant No.2.
The suit house at Latur is the absolute property of defendant No.6.
Further, defendant No.2 had given some portion out of Gut No.24 to
defendants No.4 and 5. Defendant No.1 had incurred huge
expenses in various litigation between plaintiff No.5 and him, and
the entire family had provided the monitory assistance to defendant
No.1, therefore, no share was allotted in the family arrangement to
defendant No.1. The suit properties were not available for partition
and, therefore, the suit ought to have been dismissed, so also the
appeal ought to have been allowed, but these points were not
considered though the evidence was also led by the defendants to
prove their contentions. When the appreciation of the evidence has
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been wrongly done and the conclusion has been arrived at on the
basis of such wrong appreciation of evidence, it leads to substantial
questions of law. He, therefore, prayed for admission of the second
appeal and formulation of the substantial questions of law at Serial
No.1 to 6 in the appeal memo.
4. Per contra, the learned Advocate appearing for the
respondents supported the reasons given by both the Courts below.
He submitted that the relationship between the parties is admitted.
The learned Trial Judge has given elaborate reasons as to how it
cannot be said that the suit properties are the self-acquired
properties of some of the defendants. The income used for the
purchase of the suit properties was the joint family income. The
status of the suit properties is joint family property and, therefore,
for the plaintiffs, it is ancestral property. Plaintiffs, therefore, are
entitled to get their shares separated. No substantial questions of
law are arising in this case.
5. Before turning to the rival contentions it can be seen that
defendant No.1 is the husband of plaintiff No.5. On the day the suit
was filed, plaintiffs No.1 to 4 who are the children of plaintiff No.5
and defendant No.1, were minors. The agricultural land, as well as
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house property, was the suit property. It is an admitted position
that plaintiff No.5 had filed various litigation contending that she has
been thrown out of the house after ill-treatment by the defendants.
The minors have a share in the property and, therefore, she prayed
for separation of the same.
6. After going through both the impugned Judgments it can be
seen that there is elaborate discussion. Both the Courts below have
appreciated the oral evidence as well as have considered each and
every document that was produced from both sides. When the
relationship was not denied and the defendants had come with a
case that it is the self-acquired property, though it was claimed that
in the family settlement defendant No.1 was not given share with
some intention i.e. he relinquished his share, therefore it was for the
defendants to prove their contention. The cross-examination of the
witness who was examined on behalf of the defendants i.e. DW.1
Angad has been properly considered. He has not given the source of
income of his parents in whose names the agricultural land, as well
as house, was purchased. The details of the "Stridhan" of defendant
No.6 was not given. At one point of time, it was canvassed by the
defendants that one Balaji Trust gave 1 Acre land to defendant No.6
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for cultivation. She received income and then purchased buffalo.
Thereafter, she started a milk business. This was tried to be shown
as the separate income of defendant No.6. However, the witness
who was examined failed to give the approximate income that was
derived by defendant No.6 permitting her to purchase the suit
property.
7. The evidence has been properly scanned by both the Courts
below and it cannot be the subject matter in the second appeal.
When the source of income for purchase of the property as a
separate property has not been bought on record, both the Courts
below were justified in arriving at a conclusion that the defendants
have failed to prove that averment and, therefore, the suit
properties are the ancestral properties for the plaintiffs. Definitely,
they would get a share from/through defendant No.1. Defendant
No.1 has 1/6th share and there is no concrete evidence adduced by
the defendants to prove that he has relinquished his share. Though
such relinquishment may not require registration, it can be seen that
what could have been the approximate cost of his share and what
was the expenses that were incurred by him in fighting the litigation
against plaintiff No.5 has not been told by DW.1 Angad. Therefore,
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that relinquishment part in a family settlement has also not been
proved. Computation of share is also legal and appropriate and,
therefore, no substantial questions of law as contemplated under
Section 100 of the Code of Civil Procedure are arising in this case.
In view of the above, the second appeal stands dismissed at the
admission stage itself.
(SMT. VIBHA KANKANWADI)
JUDGE
vjg/-.
