Bombay High Court
Maruti Pandurang Yelikar vs Govind Pandurang Yelikar And ... on 6 September, 2021
Bench: V. V. Kankanwadi
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 195 OF 2020
with
CIVIL APPLICATION NO. 4119 OF 2020
Maruti s/o Pandurang Yelikar = APPELLANT
(orig.Plaintiff)
VERSUS
1) Govind s/o Pandurangn Yelikar
and Ors. = RESPONDENTS
(orig.Defendants)
-----
Mr.ND Kendre,Advocate for Appellant
-----
CORAM : SMT.VIBHA KANKANWADI,J.
DATE : 6th SEPTEMBER, 2021.
PER COURT :-
1. Present appeal has been filed by
appellant - original plaintiff, challenging the
concurrent judgment and decrees of both the Courts
below. The appellant is original plaintiff, who
filed Regular Civil Suit No.13 of 2000 in the court
of learned Civil Judge, Senior division, Nilanga,
seeking partition and separate possession. The said
suit came to be dismissed by learned Trial Judge on
12.8.2010. Aggrieved by the decision of the Trial
Court, dismissing the suit, the plaintiff-appellant
filed Regular Civil Appeal No.49/2010 in the court
of District Judge-1, Nilanga. The said appeal has
been dismissed by the appellate court on 19.7.2018.
Hence, this Second Appeal.
2. Heard learned Advocate appearing for the
appellant.
3. In view of the decision in the case of
Ashok Rangnath Magar Vs. Shrikant Govindrao
Sangvikar - (2015) 16 SCC 763, it is not necessary
that the respondent/s should be heard at the time
of admission of the Second Appeal. If the
substantial questions of law are arising and they
are framed then only the Respondent/s are required
to be called upon by issuing notice.
4. It has been vehemently submitted on
behalf of the appellant that both the Courts below
have not properly considered the evidence and the
law points involved in the case. Both the Courts
below erred in dismissing the suit without any
cogent reason. Both the Courts below did not apply
their mind to the facts of the case and they failed
to appreciate the pleadings of the parties in
proper perspective. Two significant issues viz.
Whether the plaintiff-appellant has share in the
suit property and whether the plaintiff is entitled
to division and separate possession were not framed
by the Courts below. The nature and character of
the properties in the suit was not examined. The
reasoning and findings arrived at by the Courts
below in respect of alleged Will are not factually
correct and sustainable in the eye of law. When
there is no evidence brought on record on behalf of
the defendants/respondents, Exhibit-136 i.e. Will
can it be termed as Will. The findings of both the
Courts below do not depict as to whether the Will
at Exh. 136 is binding on the plaintiff. The Will
has not been proved by the defendants as per
Section 63(C) of the Indian Succession Act read
with Section 68 of the Indian Evidence Act. Both
the Courts below arrived at a wrong finding that
the suit property was purchased by deceased
Mandabai when the defendants-respondents failed to
prove that the suit property was purchased by
deceased Mandabai from her own income and there was
no evidence to that effect.
5. The learned Advocate relied on following
authorities to support his contentions.
1. (2015) 11 SCC 269 - Shasidhar and
Ors. Vs. Ashwini Uma Mathad and Anr.;
2. (2003) 2 scc 91 - Janki Narayan Bhoir
Vs. Narayan Namdeo Kadam.
6. At the outset, it can be seen that there
is concurrent findings of both the Courts below
that the suit properties are not joint family
properties of the plaintiff and the defendants.
This may be mixed question of law and fact. But,
when the fact has been assessed properly and it is
not giving rise to point of law, then this Court
may not enter into the arena of re-assessment of
facts. However, cursorily it can be said that as
regards one property is concerned, i.e. land
Survey No.82/2, admeasuring 2 hectares and 13 R.,
situated in village Talikhed standing in the name
of original deft.No.3, the plaintiff contended
that, in fact, his father had purchased it on
6.7.1966 in the name of deft.No.3. However, he
has not produced the documentary evidence in the
form of sale-deed and, therefore, the learned
Trial Judge has certainly refused to accept the
contention of the plaintiff.
7. As regards another property, i.e. Gut No.
396, admeasuring 2 hectares and 61 R. is
concerned, admittedly, it was standing in the name
of Mandabai, who was grand-mother of the plaintiff
and defendants. According to the plaintiff, it
was purchased in her name by his father and
father's brother viz. Pandurang and Daulatrao for
the maintenance of Mandabai. No supporting
evidence has been led by the plaintiff to prove
the same. But, in fact, it had come on record in
the form of cross-examination of the plaintiff
himself that, his father and uncles got their
properties partitioned in 1958 through a decree of
Court. If that is so, then the property, of which
sale-deeds have been produced at Exhibit-80 and
84, i.e., in fact, Exh.80 is the land Survey No.
82/2 which was purchased on 24.11.1972, that is
the property which is now standing in the name of
deft.No.3, and as regards Gut No.396 is concerned,
it is stated to have been purchased in the year
1972. At the cost of repetition, it can be said
that if the plaintiff and his brothers had got
separated by way of decree passed by the Court in
the year 1958 itself, then why they would purchase
the land commonly for the maintenance of their
mother. Another fact to be noted is that, when
such evidence has not come that the property was
purchased out of joint income, then it has been
rightly held by both the Courts below that the
property was self-acquired property of Mandabai.
Further, the plaintiff could not have taken such
averments, which amount to Benami transaction in
the name of grand-mother Mandabai in view of
prohibition under Section 4 of the Benami
Transaction (Prohibition) Act. When it was the
self-acquired property of Mandabai, she had every
right to dispose it off.
8. Another point that was canvassed was, the
Will was executed on 10.6.1974. However,
according to the plaintiff, Mandabai was not alive
on that day, as she expired on 7.12.1973. In
order to prove the same, the plaintiff led
evidence. Death Certificate and other documents
have been produced at Exhibits-90, 91 and 92. The
learned Trial Judge as well as the first Appellate
Court have rightly considered that the said
Certificate and Register maintained at the Gram
panchayat disclose death about one Mandabai Maruti
Surwase on 16.8.1973. That means, though the
plaintiff contended the date of her death as
7.12.1973, the evidence that was adduced was in
respect of date of death 16.8.1973. Further, full
name of grand-mother of the plaintiff and
defendants is "Mandabai Sadashiv Yelikar" and not
"Mandabai Maruti Surwase". So apparently the
lady appears to be different, who expired on
16.8.1973. Further, it is to be noted that
deft.Nos. 3 and 4 tried to establish that Mandabai
expired on 24.4.1978. One witness Tatyarao
examined by them deposed that, Mandabai had
written a letter to Daulatrao Yelikar, i.e. father
of deft.Nos. 3 and 4 (Daulatrao was another son of
Mandabai), when Daulatrao was studying in
Manchester University. The postal remarks have
been considered and the said letter has been
accepted to be a genuine letter. Therefore, it is
stated that deft.Nos.3 and 4 have proved that
Mandabai was alive on 8.4.1975 when the said
letter was issued. She had left the Will on
10.6.1974. Therefore, taking into consideration
all these facts and also the proof of the Will,
there was no evidence, which could be said to be
believable, adduced by the plaintiff to support
his contention.
9. The decision in the case of Janki Narayan
Bhoir (cited supra) cannot be denied. However, it
can be said that in view of the said requirements,
in the ratio laid down by the Hon'ble Apex Court,
the Will has been proved. Further, the ratio in
the case of Shashidhar and Ors. (supra), will not
be applicable, as for the aforesaid reasons, the
plaintiff has failed to prove that he is a co-
owner.
10. No substantial question of law, as
contemplated under Section 100 of CPC, is arising
in this case. When the above said facts and
circumstances have been properly considered and
the law points are also dealt with by both the
Courts below and they are not giving rise to any
substantial question of law. Hence, the Second
Appeal deserves to be dismissed and it is
accordingly dismissed. Pending civil application,
if any, stands disposed of.
(SMT. VIBHA KANKANWADI)
JUDGE
BDV
