Second Appeal No. 255 of 1989. Case: Ananda Krishna Tate (since deceased by legal heirs Shri Sanjay Anand Tate, Shri Hemant Ananda Tate and Sou. Chhaya Arun Jankar) Vs Draupadibai Krishna Tate and Ors.. High Court of Bombay (India)
| Case Number | Second Appeal No. 255 of 1989 |
| Counsel | For Appellant: A.R.S. Baxi, Adv. And For Respondents: P.K. Hushing, Adv. |
| Judges | C.L. Pangarkar, J. |
| Issue | Hindu Succession Act - Sections 6, 8 and 14; Hindu Women's Right to Property Act 1937 - Section 3 and 3(3); Indian Succession Act, 1925; Mulla's Hindu Law |
| Judgement Date | March 02, 2010 |
| Court | High Court of Bombay (India) |
Judgment:
C.L. Pangarkar, J.
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This second appeal is filed by the original defendant No. 1 who suffers a decree for partition and separate possession as well as setting aside alienation. [The parties shall be hereinafter referred to as the Plaintiffs and Defendants]. Few facts giving rise to this appeal are as under:
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Respondent No. 1 - Plaintiff instituted a suit for partition and separate possession. It is her case that the suit property belongs to her husband. Her husband died in the year 1959 leaving behind him, his widow - the Plaintiff, Defendant Nos. 1 to 5 as his sons, Defendant Nos. 6 to 13 as the heirs of his another son by name Ganpati. After the death of Plaintiff's husband Krishna, name of Defendant No. 1, being the eldest son, came to be recorded as a manager of the joint family in the revenue record. One of the sons of the Plaintiff and Krishna died in the year 1974 and Defendant Nos. 6 to 13 are his heirs. It is the contention of the Plaintiff that the Defendant Nos. 2, 3, 4 and 5 have no avocation and they are addicted to vices, and therefore, they are not living in the joint family while Defendant No. 2 has been living with the Plaintiff. It is the contention of the Plaintiff that the parties owned C.T.S. No. 245. The Defendant Nos. 1 to 6 have, however, sold their shares out of the said house to one Bhau Dattatraye Nerlekar. Rest of the portion in the said house is in occupation of the Plaintiff and Defendant No. 2 and, no partition is sought for in respect of the said house since other sharers have already sold their shares. It is further contended that the suit land is an irrigated land and it was giving sufficient income to maintain the family. Yet the Defendant No. 1 had executed a sale deed with a condition to repurchase in favour of the Defendant No. 17. Further the Defendant No. 1 has purchased shares of Defendant Nos. 3, 4 and 5 and he had purchased those shares out of the income of joint family itself and, therefore, although those shares have been sold to the Defendant No. 1, that property is too liable for partition. The Plaintiff contends that she is entitled to a share in the suit property and it should be divided and she should be put in separate possession thereof.
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Except Defendant No. 1 all other defendants have admitted the claim of the Plaintiff.
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The Defendant No. 1 however, opposes the claim of the Plaintiff and admits the relationship between the parties. He also admits that his father left behind him the suit property. He further admits that the family had executed a conditional mortgage deed in favour of the defendant No. 17. The Defendant No. 1 however disputes the contention of the Plaintiff that there was no necessity to sell and mortgage the suit property to Defendant No. 17. It is his contention that the land was not giving sufficient income and in order to repay the loans of the banks etc., he has to mortgage the suit property with the Defendant No. 17. Further it is his contention that he has purchased the shares of Defendant Nos. 3, 4 and 5 from his own money and he is exclusive owner thereof. It is also his case that there was partition amongst brothers and each of the brother was supposed to cultivate his own share of the property. He, therefore, contends that the suit is not maintainable.
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The learned Judge of the trial Court framed issues and found that the Defendant No. 1 did not purchase the shares of Defendant Nos. 3, 4 and 5 from his exclusive income. He...
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