1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.713 OF 2009. 1.Saraswatibai W/o Bansi Shinde and others ... Appellants. Versus Trivenibai W/o Babarao Kharat ... Respondent. ... Mr.S.S.Kulkarni, advocate holding for Mr.A.S.Lomte, advocate, for the appellants. Mr.P.N.Sonpethkar, advocate for the Respondent. ... CORAM : V.R.KINGAONKAR,J. Date : 09.12.2009. PER COURT 1. This appeal is being disposed of finally at the stage of admission inasmuch as there are concurrent findings of the Courts below regarding the entitlement of the Respondent (plaintiff) to claim separate share in the joint family property. 2 2. The plaintiff's case before the trial Court was that deceased defendant No.1 was the mother and the defendant No.2 is her real sister. The defendant No.3 is her adopted brother, defendant No.4 is his wife and the defendant No. 5 is his son. It was averred that the suit properties comprising of 4 agricultural lands situated at village Pachegaon and a house property were jointly inherited by the parties. 3. There is no dispute about the fact that the plaintiff's father, namely, Govindrao died somewhere in 1973, leaving behind him the two daughters and the widow i.e. the plaintiff and defendant No.2 as daughters and defendant No.1 as widow who inherited the ancestral properties left by him. There is also no dispute about the fact that after death of Govindrao, the defendant No.1 adopted the defendant No.3 on 27th October 1975. It appears that the adopted son i.e. defendant No.3 purchased land Gat No.139, admeasuring 12 Ares area. The plaintiff alleged that land Gat No.139 was acquired by the defendant No.3 by utilising income derived from the other suit 3 lands and, therefore, it was part and parcel of the joint Hindu family property. 4. The plaintiff sought 1/3rd share as the legal heir of deceased Govindrao on the allegation that the succession opened as on his death. The defendants resisted the suit vide their written statement (Exh.27). The main defence raised by them was that the plaintiff and the defendant No.2 relinquished their rights at the time of marriage of the defendant No.2 in lieu of consideration of Rs.1,45,000/- (Rupees one lac forty five thousand) paid to them in presence of some respectable persons. They further contended that the defendant No.2 had no concern with the suit properties. It was further asserted that the defendant No.3 acquired the land Gat No.139 independently and, therefore, it was his self-acquired property. On these premises, they sought dismissal of the suit. 5. The trial Court held that the plaintiff (Respondent) was entitled to claim 1/3rd share in the suit lands and the house properties and, 4 therefore, the suit was decreed. The first appellate Court also held that she was entitled to seek partition. However, her share was modified. 6. The only substantial question of law involved in this Second Appeal is as follows : " Whether in the facts and circumstances of the present case, the Courts below committed patent error while holding that land Gat No.139 was the property of the joint Hindu family and the plaintiff (Respondent) had right to claim share in the same or that it ought to have been considered as self-acquired property of the defendant No.3.?" 7. Mr.Kulkarni, would submit that when the defendant No.2 herself did not want to get any share and had given the written statement as such, the first appellate Court wrongly allotted share to her. He would submit that the findings 5 of the Courts below are improper and incorrect. He contended that identification of the share of the defendant No.2 itself is patent error committed by the first appellate Court and, therefore, this should be treated as substantial question of law. He contended that the issue regarding self-acquisition of the land Gat No.139 was framed by the trial Court but not properly addressed and the first appellate Court committed error due to the omission of non-consideration of such issue. Mr.Sonpethkar, however, supports the impugned judgment. 8. Let it be noted that though the defendants filed joint written statement, yet, their main defence regarding payment of Rs. 1,45,000/- (Rupees one lac forty five thousand) to the plaintiff and the defendant No.2 was found to be untrue. Once it is found that both the sisters were not paid any amount by the defendant No.3., at the time of marriage of the defendant No2, it goes without saying that the allegations about the surrender of their rights are without foundation. It can not be assumed that both the 6 sisters relinquished their rights in favour of the defendant No.3. The first appellate Court was right while discarding such contention of the defendant No.3 who appears to be the main litigant. 9. It has come on record that after death of Govindrao, the other suit properties were inherited by the legal heirs i.e. the widow and the two daughters. The suit lands bearing Gat No.216 and 217 were held by Govindrao during his life time. The succession opened in the year 1970 after his death. The subsequent adoption vide registered Adoption Deed dated 27.10.1975 would entitle the defendant No.3 to the share as like natural son of deceased Govindrao. Obviously, the shares of the parties are required to be worked out having regard to juxta-position of their claims which could be regarded as on the date of Govindrao's death. I find that both the Courts rightly rejected contentions of the defendants regarding relinquishment of the rights by plaintiffs. It has come on record that the plaintiff (Respondent) was hardly 13 years old 7 at the relevant time. Obviously, such a minor female member could not have competency to surrender her rights. The original defendant No. 3 put forth such theory of relinquishment only with a view to grab the properties and to avoid giving of share to the Respondent (plaintiff). 10. So far as acquisition of land Gat No. 139 is concerned, it is important to notice that the said land was purchased by the defendant No.3 (appellant No.2) in the year 1983. There is no tangible evidence to infer existence of joint nucleus available for acquisition of the said land. It was necessary for the plaintiff to plead and prove existence of the joint nucleus when the story of acquisition from the common funds was put forth. The property purchased by the defendant No.3 can not be blended in the properties of the family unless it is proved that the purchase was made by utilising the joint funds available with the family. The widow and the two daughters could not be treated as coparceners. The sole surviving male member could be the defendant No.3. He purchased the 8 said land after considerable period after adoption. The trial Court and the first appellate Court assumed that it was acquired by utilising the income of the joint family only because the defendant No.3 gave a stray admission to the effect that he had no other source of income except the income of the agricultural lands. The acquisition was only in respect of small fragment of 12 Ares area. The labour put up by the defendant No.3 while cultivating the other family lands, his own contribution to the income and other related factors were required to be considered. In any case, such stray admission of the defendant No.3 by itself was insufficient to reach conclusion that it was not the self- acquired land but was the property available for division by way of partition. Consequently, I have no hesitation in holding that the findings recorded in this behalf are perverse and improper. I have gone through the statement of the defendant No.3 i.e. DW1 Pandharinath as recorded by the trial Court. I do not find any substantial admission to infer that it was the property blended with other properties of the 9 family. 11. At this juncture, the subsequent development may also be considered. The original defendant No.1 Samindrabai died during pendency of the appeal before the first appellate Court. Obviously, her share also ought to be equally divided amongst two daughters and the son. Having regard to the fact that acquisition of Gat No.139 is not proved to have been done by utilising nucleus available with the joint family, the said property will have to be excluded from the partition decree. 12. In the result, the appeal is partly allowed. The Respondent (plaintiff) will be entitled to the share as determined by the first appellate Court only in respect of the properties shown in the prayer clause of plaint excluding Gat No.139. The parties to bear their own costs. (V.R.KINGAONKAR,J.) asp/office/sa71309