Bombay High Court
Shri Dinesh S/O Shivshankar Badwaik vs Shri Parag S/O Shivshankar Badwaik And ... on 9 September, 2025
2025:BHC-NAG:8881
J SA-620-2018.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.620 OF 2018
APPELLANT : Shri Dinesh S/o Shivshankar Badwaik,
On R.A. Aged : 38 years, Occ : Business, R/o.
(Ori. Def.1) Near Shraddha Printing Press,
Ganeshpur, Tq. & Dist. Bhandara.
..VERSUS..
RESPONDENTS : 1. Shri Parag S/o Shivshankar Badwaik,
On R.A. Aged : 37 years, Occ : Business, R/o.
(Ori. Plnt.) Ambedkar Ward, Ganeshpur, Tq. &
Dist. Bhandara.
2. Shri Prakash S/o Karuji Bokde,
Aged : 54 years, Occ : Contractor, R/o.
Near Shraddha Printing Press,
Ganeshpur, Tq. & Dist. Bhandara.
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Mr U. K. Bisen, Advocate for Appellant.
Mr S. R. Thengri, Advocate for Respondents.
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CORAM : M. W. CHANDWANI, J.
RESERVED ON : 10th JULY, 2025.
PRONOUNCED ON : 9th SEPTEMBER, 2025.
JUDGMENT
1. Being dissatisfied with the judgment and decree dated
26.06.2018 passed by the District Judge, Bhandara in Regular Civil
J SA-620-2018.odt
Appeal No.2 of 2014, thereby setting aside the judgment and decree
dated 02.12.2013 passed by the Civil Judge Senior Division,
Bhandara in Special Civil Suit No.52 of 2012, the present second
appeal came to be filed.
2. On 11.12.2018, the following substantial question of law
was framed:-
"Whether the finding recorded by the appellate Court that the suit
property was the self acquired property of three brothers namely
Shivshankar, Vishwanath and Ramkrushna is contrary to the recitals
of the Partition-deed and the other evidence on record ?"
3. Thumbnail sketch of the facts is as under:-
Appellant- Dinesh and respondent No.1- Parag are the sons
of Shivshankar Badwaik. Parag (original plaintiff) filed a suit for
declaration, possession and a direction to Dinesh (defendant no. 1) to
pay the sum of damages to the first floor of the suit house. Parag
claimed that his father Shivshankar Badwaik alongwith his two
brothers namely Ramkrushna Badwaik and Vishwanath Badwaik had
purchased a ready made old house by a registered sale deed dated
03.01.1974. As the said house was old and in a dilapidated condition,
his father - Shivshankar and his uncle Ramkrushna constructed a new
house by demolishing the old house. Shivshankar started residing in
the west block whereas, Ramkrushna had given the east block on
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tenancy to others. Vishwanath alongwith his family was residing in
another house at Ganeshpur. A partition of the suit house took place
between Shivshankar, Ramkrushna and the legal heirs of deceased
Vishwanath. In the said partition, west block of the suit house was
allotted to Shivshankar and east block was allotted to Ramkrushna.
During the lifetime of Shivshankar, Dinesh (original defendant No.1)
broke the lock of the ground floor and illegally took possession of the
ground floor and 1st floor premises entirely. Shivshankar reported the
matter to the police. Dinesh had inducted a tenant in the 1 st floor of
the west block which originally belonged to Shivshankar. It was
contended on behalf of Parag that Shivshankar gifted the suit house
to Parag by gift-deed dated 18.03.2010 and Dinesh was given a block
on rent with electronic equipments worth Rs.2,50,000/- to enable
him to run an electronic shop. After becoming the owner of the suit
house, Parag issued a notice to Dinesh calling upon him to vacate the
suit premises but he failed to do so. Therefore, the suit for possession
came to be filed.
4. Dinesh came-up with a defence that the suit house was
purchased jointly out of the income of the ancestral property accrued
from old house No.163 situated at Nehru Ward, Ganeshpur and by
selling ancestral ornaments. Therefore, the suit house is an ancestral
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property and he has a share in the same. Dinesh possessed the 1 st
floor in consequence of the family arrangement. Shivshankar with
intent to oust Dinesh from the suit house, executed the gift-deed in
favour of Parag.
5. The Trial Court dismissed the suit holding that the suit
house was purchased by three brothers from the income accrued
from ancestral property. Respondent No.1- Parag carried the matter in
appeal before the learned District Judge, Bhandara. The learned
District Judge, Bhandara overturned the decree passed by the Trial
Court by allowing the appeal. Feeling aggrieved with the judgment
and decree passed by the First Appellate Court, the present appeal
came to be filed.
6. Indisputably, the suit house was purchased jointly by
Shivshankar, Ramkrushna and Vishwanth by registered sale-deed
dated 03.01.1974. It is the case of respondent No.1- Parag that the
suit house was purchased by his father and two brothers from their
joint income. In partition, half portion of the suit house constructed
by Shivshankar was allotted to him whereas, the remaining portion
was allotted to Ramkrushna and Vishwanath got Rs.5,000/- apart
from another ancestral house. Appellant- Dinesh has come up with a
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case that the said house was purchased out of the ancestral money
and gold ornaments and therefore, according to him, it is joint family
property. Shivshankar, the father of respondent No.1 as well as the
appellant was not the absolute owner of half portion of the suit
house. Therefore, gift-deed executed by him in favour of respondent
No.1 Parag is not valid.
7. The sale-deed dated 03.01.1974 shows that the suit house
was jointly purchased by three brothers. The evidence led by the
parties before the Trial Court reveals that Shivshankar, Ramkrushna
and Vishwanath were residing as joint family members in the
ancestral house. It is the case of Dinesh that Plot No.248 is the
ancestral property, since it was purchased from ancestral money and
gold. The burden was on Dinesh to show that there was sufficient
nucleus available with the Joint Hindu Family to purchase the
property. Dinesh has only deposed in his evidence that there was
ancestral money and gold. Apart from the bare written statement and
evidence, no detail has been given by Dinesh with regard to the
ancestral money and the gold ornaments. Dinesh failed to prove how
much money and how much gold was in possession of the three
brothers. No details have been produced by appellant- Dinesh to
arrive at the conclusion that the joint family fund was available to
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purchase the suit property. Therefore, the First Appellate Court
rightly held that appellant- Dinesh failed to prove that the suit house
was purchased from the joint family fund. The presumption would
arise only that if it is shown that there was sufficient nucleus. In
absence of such evidence, the suit property cannot be said to be joint
family property. Merely because the occupation of Vishwanath was
shown as nil, it cannot be presumed that he had not contributed any
consideration amount to purchase the suit Plot No.248.
8. It is a matter of record that both Shivshankar and
Ramkrushna were in service and they were earning members of the
family, whereas Vishwanath was not in service. Perhaps that may be
the reason for writing the occupation of Vishwanath as nil but it does
not pre-suppose that Vishwanath was not earning. Respondent No.1-
Parag has examined his father Shivshankar who in categorical terms
deposed that the suit house was purchased out of the joint income of
three brothers. The sale-deed also does not mention that the suit
house was purchased out of the ancestral money. Apart from that,
nothing has been brought on record by appellant- Dinesh to show
that the joint family corpus was available to purchase the plot.
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9. This takes me to the partition deed. The suit house has
been shown as ^^lkeqghd ekydhph tk;nkn**- The Trial Court misread
these words as "Common Joint Family Property". The actual
interpretation is "Joint Ownership Property" and not "Common Joint
Family Property". That apart, the legal heirs of Vishwanath had
relinquished their shares as joint owners by receiving Rs.5,000/- as
consideration of their share in Plot No.248. Therefore, recitals in the
partition deed also cannot be said to be contrary with regard to the
nature of the suit house.
10. Appellant- Dinesh failed to prove that sufficient nucleus
was available to purchase the joint family property, contrary to the
cogent evidence on record that Shivshankar and Ramkrushna were in
service in Zilla Parishad and Ordinance Factory respectively and they
were earning members of the family. It is a cardinal principle of law
that the presumption that the property purchased is joint family
property arises only when it is proved that there was sufficient means
available with the Hindu Joint Family at the time of purchase of the
property which is not the case here. Therefore, the First Appellate
Court has rightly relied on the case of Harihar Diwakar Choube and
Ors. vs. Govind Diwakar Chobe and Ors. , 2010 (4) Mh. L. J. 524 .
Merely because the joint family consisted of three brothers, it cannot
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be said that they cannot jointly purchase the property from their
earnings. No perversity can be seen in the findings of the First
Appellate Court while overturning the findings recorded by the Trial
Court. Even though, the property was purchased by three brothers
jointly, it has not been proved that the property was purchased from
the nucleus of the joint family.
11. There is no merit in the appeal and hence, it is dismissed.
(M. W. CHANDWANI, J.)
Tambe.
Signed by: Mr. Rajnesh Jaiswal
Designation: PA To Honourable Judge
Date: 09/09/2025 19:27:36
