Bombay High Court
Mrs. Nirmala Nitin Koppikar vs Smt. Jigibai Maganlal ... on 7 October, 2022
Bench: Nitin W. Sambre
11.SA.247.20.doc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Digitally
signed by
BALAJI
BALAJI GOVINDRAO
GOVINDRAO PANCHAL
PANCHAL Date:
2022.10.11
SECOND APPEAL NO. 247 OF 2020
11:58:11
+0530
Mrs. Nirmala Nitin Koppikar ..Appellant
Versus
Smt. Jigibai Maganlal Shaha & Ors. ..Respondents
Mr. Kishor K. Malpathak for the Appellant.
Ms. Sejal A. Hariyan i/by Padmanabh D. Pise, for Respondent Nos.1,
2 & 3.
CORAM : NITIN W. SAMBRE, J.
DATE : 7th OCTOBER, 2022
P.C.
1. This appeal is directed against the judgment and order
passed in Regular Civil Suit No.32 of 2010, on 16 th February, 2016
by the 2nd Joint Civil Judge, Junior Division, Miraj, confirming in
Regular Civil Appeal No.109 of 2016 delivered by District Judge
Sangli on 16th March, 2019. In the aforesaid proceedings the claim
of the appellant/plaintiff seeking partition of the suit property is
dismissed.
2. Few facts necessary for deciding the appeal as under:-
Common nucleus Mr. Maganlal Shaha allegedly
migrated from Kaccha, Gujarat to Miraj in Sangli district and
married to defendant No.1 who was allegedly illiterate. The
SRW 1 of 5
11.SA.247.20.doc.
appellant herein claimed to be daughter of said Maganlal and
defendant No.1/Smt. Jigibai. The couple was blessed with in all
five issues including present appellant.
3. The case of the present appellant is based of the factual
matrix viz. the migration of Mr. Maganlal Shaha after disposal of
the ancestral properties in Gujrat and investing the said amount in
the suit properties.
4. Both the Courts below have concurrently held that the
appellant has failed to demonstrate common nucleus thereby failure
to discharge the initial burden and as such dismissed the claim for
partition.
5. Counsel for the appellant/original plaintiff Mr.
Malpathak would urge that the inter se relationship between the
parties is not in dispute. According to him, Mr. Maganlal Shaha
disposed of the ancestral properties from Gujrat and Migrated to
Miraj and has purchased the suit property out of the income
received from the sale proceeds of ancestral properties. As such,
according to him, even if the suit properties were purchased in the
name of the other legal heirs of Mr. Maganlal Shaha, including
defendant Nos.1, 2 and other defendants that by itself will not give
colour of the properties being self acquired. He would urge that the
appellant has discharged initial burden of existence of common
nucleus Mr. Maganlal Shaha and that being so, Courts below ought
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11.SA.247.20.doc.
to have decreed the suit. So as to substantiate his contentions, he
has invited attention of this Court to the sale-deeds in relation to the
suit properties, the letters written by defendant No.1 to the plaintiff
acknowledging receipt of the part consideration and the fact that
the defendant No.1/mother was not having independent source of
income. As such, the grounds which he has canvassed are, both the
Courts below committed an error in failing to appreciate the
documentary evidence as well as the oral evidence on record.
Whether the Courts below have committed an error in recording a
finding that the appellant has failed to discharge her initial burden
and whether there exists common nucleus.
6. With the assistance of Mr. Malpathak, I have perused
both the judgments which are impugned in the present appeal.
7. Though the appellant with an intention to discharge
initial burden has entered into the witness box, but was unable to
prove or establish that the suit properties were purchased out of sale
proceeds received from the disposal of the ancestral properties at
Gujarat. Neither such documents or details of the properties which
were disposed of at Gujarat are brought to the notice of the Court.
8. Rather the claim of the appellant is, her father deceased
Mr. Maganlal Shaha expired on 17th April 1991 was in Pharmacy
business. From the earning out of the said business has acquired
the properties in the name of the defendants. The appellant has
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11.SA.247.20.doc.
also claimed that the part consideration was paid to the defendant
No.1 for purchase of the properties i.e. to the mother and has relied
on certain communication to that effect. The said evidence was
discarded by both the Courts below having regard to the provisions
of Section 73 of the Evidence Act. The Trial court has compared the
signature on the said letter acknowledging receipt of amount by
defendant No.1 with that of her admitted signature on the written
statement and rightly drawn inference against the appellant.
9. Apart from above, the appellant so as to discharge initial
burden though has entered into witness box was unable to
demonstrate her own source of income so as to at least prima facie
infer that she has parted part consideration towards the purchase of
suit properties from her own income. Both the Courts below have
concurrently held that the appellant is unable to discharge the
initial burden and establish case that of existence of common
nucleus and status of the suit property as that of ancestral.
10. The findings of both Courts below are based on the
appreciation of the oral and documentary evidence. The view
expressed by both the Courts below, in the backdrop of observations
made by this Court herein-above is quite justified and in accordance
with law. The Court below has rightly relied on the judgment of the
Apex Court in the matter of Makhan Singh Vs. Kulwant Singh
reported in 2007 STPL(LE) 38269 SC, wherein the preposition laid
down is already considered by the Trial Court in its judgment.
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11.SA.247.20.doc.
11. In the aforesaid background, in my opinion, the present
Second Appeal is devoid of any question of law, as such fails,
dismissed.
[NITIN W. SAMBRE, J.]
SRW 5 of 5
