1 SA277/92 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 277 OF 1992 Kashinath Shrikisanji Mungad (died), through legal representative Smt Taramati Premraj Mungad, Aged 50 years, Occupation Household, Resident of 20, Bhoetynagar, Jalgaon Appellant V E R S U S 1 Vinayak Kesharlal Mungad (died), through legal representatives Respondent (a) Kiranbai w/o Vinayak Mungad, Aged 36 years, Occupation Household, Resident of Kathora, Taluka and District Jalgaon (b) Srinivas Vinayak Mungad, Aged 11 years, minor, under guardianship of his mother Smt Kiranbai w/o Vinayak Mungal (L.R.No.1(a) above), resident of as above 2 Premraj Kesharlal Mungad, Aged 53 years, Occupation Agriculture, Resident of Main Road, Kasargalli, Parola, Taluka Parola, District Jalgaon Shri S.S. Bora, Advocate, holding for Shri S.C. Bora, Advocate for the appellant Shri V. J. Dixit, Senior Counsel, instructed by Shri L.V. Sangit, Advocate for respondent Nos. 1 (a) & 1 (b) CORAM : A.V. NIRGUDE, J. DATED : 2nd September, 2011 ORAL JUDGMENT : 1. In this second appeal, following substantial question of law was formulated by my learned brother on 15th April, 2010. It reads as under : “Whether the partition of joint family property takes effect only by a registered document, consequently, mutation entry No. 1489 in the name of appellant relating to land Gut No. 64, has no evidentiary value.” 2 SA277/92 The facts leading to this litigaton can be narrated as under : 2. Deceased Kesharlal and Kashinath (original defendant No. 2) were brothers. Kashinath never married and therefore had no children. Kesharlal had two sons; Vinayak (plaintiff) and Premraj (defendant No.1). Intervenor Taramati is wife of defendant No. 1 Premraj. 3. Plaintiff came with a case that his father Kisharlal and defendant No. 2 did not inherit any property from their father. He said, though his father Kesharlal and his brother Kashinath stayed together, Kashinath did not work and made no contribution to the joint family. He said, it was his father Kesharlal, who alone toiled and acquired the suit properties, and thus, they were his self acquired properties. He said, one of the suit properties; namely land Survey No. 64 was purchased by his father Kesharlal, and thereafter, by a mutation entry effected in 1976, the same was shown to be the property of his uncle Kashinath (defendant No. 2). He said, this transaction was illegal. He said, he would get half share of this land with his brother (defendant No.1). The other two suit properties, he said, were already partitioned and he had taken half share in them. 4. Original defendant No. 2 Kashinath and defendant No. 1 Premraj, it appears, opposed the suit, but the written statement was filed only by defendant No. 1. Kashinath filed a pursis of adopting same as his defence. In this written statement, it is said that all the properties mentioned in the plaint are joint family properties of Kesharlal and his brother Kashinath. It is contended that though the properties were purchased in the name of Kesharlal, it was done because Kesharlal was elder of the family and also a karta. They further asserted that there occurred a family arrangement between Kesharlal and Kashinath in 1976 when land Survey No. 64 was allotted to the share of Kashinath, whereas the other two properties were 3 SA277/92 retained by Kesharlal. They thus asserted that land Survey No. 64 was independent property of Kashinath and plaintiff Vinayak has no concern with it. 5. The Courts below rejected the case of the defendants on facts. On going through the Judgments of the Courts below, I noticed that the issues framed by the learned Judge of the tjrial Court as well as the point for consideration framed by the learned Judge of the first appeal Court were not entirely proper, but the learned Judge of the first appeal Court certainly understood the crux of the case and he discussed the evidence on record to come to a conclusion that the defendants had failed to prove their case of joint family property etc. The Courts below thus recording a finding that defendant No. 2 Kashinath was not owner of land Survey No. 64, and so, the plaintiff is entitled to half share in it. Curiously it was defendant No. 2 Kashinath who alone filed appeal against the Judgment of the learned trial Court, and as indicated above, he lost the appeal. Even thereafter, when this second appeal came to be filed, he alone came before this Court in appeal. Defendant No. 1 Premraj did not file any appeal. However, it is not that he cannot question the correctness of the findings recorded by the Courts below since he is a party to this appeal also. But he too faces a serious problem. 6. During pendency of the second appeal Kashinath died. Kashinath was the only appellant. Kashinath left behind no children. Apparently therefore the legal heirs of Kashinath were noneelse but the original plaintiff Vinayak and his brother Premraj, the defendant No.1. The plaintiff would not vouch to continue the appeal, because he was the contesting respondent. Premraj, defendant No. 1 did not vouch to continue the appeal as one of the legal representatives / legal heirs of deceased appellant. It is 4 SA277/92 Taramati, wife of defendant No. 1 Premraj came forward to this Court for the first time saying that Kashnath has left a will and had bequeathed his property viz. land Survey No. 64 exclusively to her. She sought leave of the Court to represent her interest in this appeal, but it seems, her application was opposed by the contesting respondent (plaintiff Vinayak). He probably disputed the genuineness of the will of Kashinath. This Court did not touch this dispute, but allowed Taramati to join the appeal as representative of original defendant No. 1, appellant. In this way, Taramati succeeded in contesting the appeal. However, the substantial question of law quoted above would really not arise in this case, because the Courts below, recording cogent reasons, held that there was no jointness of the suit properties between brothers Kesharlal and Kashinath, and this finding on fact is apparently unassailable. I have discussed above why this finding of fact should not be disturbed. In view of this, there is no question of recording finding on the above quoted substantial question of law. The appeal should therefore fail. Second Appeal stands dismissed. ( A.V. NIRGUDE, J. ) SRM/sa/277/92/2/9/11ok