Second Appeal No. 38 of 2009. Case: Nanibai and Ors. Vs Vitthalrao Marotirao Navkhare and Ors.. High Court of Bombay (India)
| Case Number | Second Appeal No. 38 of 2009 |
| Counsel | For Appellant: M.G. Bhangde, Senior Advocate and For Respondents: S.W. Deshpande, Adv. |
| Judges | A. P. Bhangale, J. |
| Issue | Property Law |
| Judgement Date | July 21, 2015 |
| Court | High Court of Bombay (India) |
Judgment:
A. P. Bhangale, J.
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This Second Appeal was admitted on 10-02-2009 upon the following substantial questions of law -
i) Whether the respondent/plaintiff has proved that "Gajanan Automobiles" was/is a joint Hindu family business of Laxmanrao & Vithalrao?
ii) Whether non-inclusion of all alleged joint Hindu family properties in suit by the respondent /plaintiff is fatal?
My answer to question no. i) is in the affirmative and question no. ii) in the negative for the following reasons:-
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This Second Appeal is directed against the Judgment and Order dt.14-11-2008 passed in Regular Civil Appeal No. 69 of 2008 whereby learned District Judge Amravati (the first appellate Court) was pleased to allow the appeal and set aside the Judgment and Order in Special Civil Suit No. 286 of 2005, dt.29-02-2006 passed by the trial Court and to pass a decree whereby the plea for partition was allowed.
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Motiram Navkhare died leaving behind his widow and two sons i.e. Laxmanrao -aged 7 years and Vithal -aged 1 year. With the support of their mother and uncle, both brothers went with their real uncle to Amravati and started doing labor work at Amravati and started an Automobile Garage for repairs of Automobiles. The Auto Garage business was a joint family business started in the year 1962 in the name as "Gajanan Auto Garage" and also "Trimurti Auto Garage" at Badnera Road, Amravati. They resided at Nanakshahi Wada at Amravati -initially in rental accommodation and later in the acquired house property of their own. Even after their marriage, they resided together with their mother and other members of the family. Due to insufficient accommodation, they constructed a farm house and Laxmanrao went to reside at the farm house, though Vitthal did not shift from the family house. The family business grew and immovable properties were acquired in the name of family members. The dispute arose in Navkhare family between two brothers Vithalrao and Laxmanrao when later died on 15-11-2004 (leaving defendants nos. 1 to 6 as his legal heirs). Defendant nos. 1 to 6 had ill-motive and mala- fide intention to deprive the plaintiff of his half share in the joint Hindu family property. The case pleaded was that the aforesaid two brothers formed joint Hindu family. Laxmanrao was karta (Manager) and the family had started Auto Garage in the name as "Gajanan Automobiles" and "Trimurti Auto Garage" at Badnera Road, Amravati. Both Laxamnrao and Vithalrao, out of the said...
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