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Bombay High Court
Taresh S/O Vishwanath Dabhekar And ... vs Ramesh S/O Vishwanath Dabhekar And ... on 27 January, 2026
2026:BHC-NAG:1400
1 33-sa 770.2017.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 770 OF 2017
( Taresh S/o. Vishwanath Dabhekar and others vs. Ramesh Vishwanath Dabhekar and others )
Office Notes, Office Memorandum of Coram,
appearances, Court's orders or the directions, Court's or Judge's order
and Registrar's orders.
Mr. A.A.Sambaray, Advocate for appellant.
Mr. S.V.Sohoni, Advocate for respondent No.1.
CORAM : ROHIT W. JOSHI, J.
JANUARY 27, 2026
1) The notice was issued in the present appeal on the
following substantial question of law framed vide order dated
13/07/2018 :-
"The trial Court in the light of evidence on record having held
that the suit property was joint property of the family as there
was no evidence to indicate that it was the self acquired
property of the father Vishwanath, whether the appellate
Court was legally correct in reversing that finding and
concluding that it was the self acquired property of
Vishwanath ?"
2) The appellants are the original plaintiffs, who had filed
a suit for partition and separate possession being
R.C.S.No.104/2002, which came to be partly decreed vide
judgment and decree dated 12/03/2008, passed by the learned
Joint Civil Judge Senior Division, Wardha. The learned trial
Court held that the suit property was an ancestral property of the
plaintiffs, defendants and their father Late Vishwanath Dabhekar.
The learned trial Court has accepted the defence of respondent
No.1/original defendant No.1 that deceased father Vishwanath
KOLHE
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had executed 'Will' dated 09/12/1999 in his favour, however,
the learned trial Court came to conclusion that the suit property
was ancestral property, in which the father had 1/7 th share along
with the parties to the suit and therefore, the Will was valid only
to the extent of his 1/7th share in the suit property. Accordingly,
the learned trial Court passed a decree for partition and separate
possession granting 1/7th share to the plaintiff Nos.1, 2, 3 and
defendant Nos.2 and 3 and 2/7th share to the defendant No.1.
3) The defendant No.1 preferred an appeal challenging
the said judgment and decree dated 12/03/2008 passed by the
learned trial Court being R.C.A. No.156/2013. The said appeal
came to be allowed by District Judge-1, Wardha vide judgment
and decree dated 27/04/2017. The learned first appellate Court
has held that the suit property was self-acquired property of
deceased father and that the Will was valid to the extent of the
entire suit property. Accordingly, the suit came to be dismissed.
4) The learned trial Court has also found that an old
house was sold by the father and proceeds thereof were utilised
for purchasing the suit property. The learned trial Court has also
recorded that in the written statement of the defendant No.1
pleadings with respect to nature of the suit property were denied
evasively and therefore, the plaintiffs may not have taken pains
in collecting all the relevant documentary evidence to
substantiate that the suit property was an ancestral property.
5) The learned first appellate Court has reversed the
finding with respect to nature of property on the ground that,
although the plaintiffs had come up with the case that the suit
property was purchased after selling another house property at
Sindhi Naka, the plaintiffs did not bring any evidence on record
to demonstrate that the said property at Sindhi Naka was joint
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Hindu family property. In view of the aforesaid, the learned first
appellate Court has held that the father was absolute owner of
the suit property and accordingly, the defendant No.1 became
absolute owner thereof by virtue of the Will executed in his
favour by the deceased father.
6) Mr.Sambaray, learned counsel for the appellant
contends that the learned trial Court, on appreciation of
evidence found that deceased father was merely working as a
'carpenter' and that he had a family of four sons and two
daughters to maintain. On this basis, it is contended that he did
not have sufficient funds from his own income to purchase the
suit property.
7) There is a presumption regarding the existence of a
joint Hindu family in Hindu Law. However, there is no
presumption in Hindu Law that a joint Hindu family would
possess property which can be termed as joint Hindu family
property. This presumption arises only if there is evidence to
establish nucleus. Once nucleus is established, a presumption
with respect to the existence of a joint Hindu family property
arises. In the present case the pleadings and evidence of the
plaintiffs are that the property at Sindhi Naka was a joint Hindu
family property and that the suit property was acquired from sale
proceeds of the said property. However, there is no evidence to
suggest that the property at Sindhi Naka was a joint Hindu
family property. There is no evidence to suggest other nucleus as
well. The father was admittedly working as a carpenter and had
a separate source of income.
8) In view of the aforesaid, in the considered opinion of
this Court, the learned first appellate Court has arrived at proper
findings on appreciation of pleadings and evidence on record. I
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find it difficult to accept the finding recorded by the learned trial
Court with respect to nature of suit property, since the learned
trial Court has not recorded any positive finding that the
property at Sindhi Naka was a joint Hindu family property.
Indeed there is no material to suggest so.
9) In view of the aforesaid, substantial question of law
framed vide order dated 13/07/2018 is answered against the
appellants/plaintiffs and in favour of respondent No.1/defendant
No.1. The Second Appeal is therefore dismissed. No order as to
costs.
( ROHIT W. JOSHI, J. )
KOLHE
Signed by: Mr. Ravikant Kolhe
Designation: PA To Honourable Judge
Date: 29/01/2026 10:21:43
