1 S.A.No.439.89 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 439 OF 1989 WITH CIVIL APPLICATION NO.5032 OF 1998 WITH CIVIL APPLICATION NO. 2478 OF 1999 WITH CIVIL APPLICATION NO. 2885 OF 2008 1] Bhimayya S/o Kishtayya 1-a] Kishan Bhumanna Yennawar,Age 42 years occupation Tailoring R/o 12-8-56 Mittaguda Post Lalaguda Seconderabad,500070(A.P.) 1-b] Mrs. Suvarna K. Anjanelu,Age 35 years Occupation household r/o Shantinagar Royal Tailors Seconderabad, 500070 (A.P.) 2] Baganna S/o Kishtayya . Appellants V E R S U S 1] Pentayya Kishtayya Ennawar (Died) through L.Rs. Ganesh S/o Pentayya Eannawar (Also expired long back) 1-a) Satish S/o Ganesh Yannawar,Age 27 years R/o Tailoring H.No. 1-1o-80 Chelipura Aurangabad 1-b) Santosh S/o Ganesh Yannawar,Age 25 years R/o as above. 1-c) Sandeep S/o Ganesh Yannawar,Age 23 years R/o as above. 1-d) Alka W/o Ganesh Yannawar,Age 46 years, R/o as above. 2 S.A.No.439.89 1-e) Shakuntalabai W/o Kashinath Potpalliwar,age 40 years R/o as above. 1-g) Sumati W/o Sudarshan Rachalwar, age 35 yearsR/o Bopadi,Pune. 1-h) Nanda W/o Kishor Koturwar,Age 30 years R/o Purna,Ta. AndDistrict Nanded. 1-i) Sangita D/o Ganesh Yannawar,Age 18 years R/o as above. 2] Chandramma W/o Pandhari 3] Ramabai W/o Dashrath .Respondents ... Mr. A.S.Deshmukh,Advocate for Appellants Mr. B.R.Warma,Advocate for respondent Nos 1 and 3 The appeal stands dismissed against Respondent nos.2, 1(a) to 1(i) ... CORAM : A.V. NIRGUDE, J. DATED : 5TH FEBRUARY,2010 ORAL JUDGMENT : 1] This Second appeal is filed against the concurrent findings of the Courts below that the original respondent no.1 Pentayya had purchased suit house spending his own funds, but he purchased it in the name of his mother, who had no independent source of income. 3 S.A.No.439.89 2] Facts leading to the litigation are as under; . The original plaintiffs(Original appellants in this Court) are brothers of the original respondent no.1. They filed the suit for partition and separate possession in respect of the suit property, which is a house situated in Chelipura area, Aurangabad. They stated that house was owned and possessed by their mother Vithabai, who died about ten years before filing of the suit. They said till the death of their mother, they and their brother respondent no.1 were jointly occupying the house. They alleged that after the death of their mother, the respondent no.1 forcibly ousted them. They also asserted that the suit house was a joint family property, because it was purchased from the joint family nucleus for Rs.4000 and so they had certain shares in it. 3] The respondent no.1 in defence stated that he alone had purchased the house spending his own own funds in the name of his mother Vithabai due to love and affection. He also stated that in order to raise funds for purchase of the suit property, he took loan from one Sonaji and in turn his mother mortgaged the suit house to said Sonaji. He said he then repaid the loan utilising his own funds. He also asserted, soon after acquisition of the suit house his mother made a will bequeathing the suit house to him alone. He 4 S.A.No.439.89 also said, in alternative, that he became owner of the suit property by adverse possession. The Courts below did not accept this defence of adverse possession, but unequivocally accepted his case that it was he, who purchased the suit house and it was he, who repaid the loan taken from Sonaji. The Courts below also held that the will was valid document. 4] The Second Appeal was filed in this court in 1989 when, following grounds were held to be giving rise to substantial question of law. 1] The Court below erred in law while recording finding on issue of benami nature of transaction without applying the six tests laid down by the Supreme Court in order to ascertain whether the sale deed in the name of deceased Vithabai was really a benami transaction or deceased Vithabai was become the real owner thereunder. The ratio in AIR 1974 Supreme Court 171 is not at all considered by any of the Courts below. 2] The Courts below erred in law not taking into account the evidence of the plaintiffs on the Court of their contribution in the consideration paid while purchasing the said house only by insisting upon such case in plaint by way of pleading ignoring the aspect of the come that it is the defence taken by the defendant No.1 in written statement as to benami transaction and it is highly impossible for the plaintiffs to anticipate such plea in the written statement and make statement relying thereto in advance. 5 S.A.No.439.89 3] The circumstances namely(i) there was no joint family property(ii) the family was residing in rented premises,(iii)_ no joint family nucleus,(iv) over continuous act in the nature of alleged till insisted upon from mother ( this hill is not accepted by the appellants) if the mother way a benamidar,(v) the reference that property is of ownership of Vithabai in subsequent document in the nature of will go to disprove the contention of the respondent No.1 that it is his property and deceased Vithabai was a Benamidar. 4] The Courts below erred in law in taking into account the factum or mortgage by the respondent No.1 of the said house to consider the issue of benami by overlooking the circumstances newly(i) the mortgage transaction is subsequent in time and (ii) mother out of her love and affection towards son, permitting the Respondent No.1 to mortgage her property to raise loan to meet his urgent the then existing needs. 5] On the Court of will, the courts below erred in law in accepting the case of the defendant no.1 on the point of will because (i) the deed Exh.85 no where discloses the reason why Vithabai wanted to change the ordinary course of succession which was to take place after her death,(ii) the deed is executed at the age of 35 years, comparatively at an early age which is not at all age of superannuation as stated in the deed,(iii) word “gifted”is used to not “bequeathed”,(iv)mention is that the said house is not mortgaged etc. any where when it was subject to mortgage with Sonaji in the very year earlier to the document Exh. 85, All these factors go to show that Exh. 85 is a fabricated document created by the respondent no.1,and such question is put to him in evidence. 6 S.A.No.439.89 5] The ground No. 1: The learned advocate appearing for the appellant did not refer to the Judgment of Supreme Court, which is mentioned in the ground no.1 above. Therefore, it appears that he is not very serious about pressing the appeal on the basis of this ground. 6] The ground No. 2: The ground mentioned above is virtually a question of fact and a matter of appreciation of evidence before the Courts below. The Courts below quite correctly considered the factual aspect and held that the appellant/plaintiff had no capacity to make contribution towards consideration that was paid for acquiring the suit house. 7] The ground No.3 : This ground is also based on facts of the case. The courts below rightly held that this family practically had no joint family nucleus. It was a poor family holding no ancestral property at all. The members of family prior to acquisition of the suit house were residing in a rented house. Besides, the Courts below rightly took into account the fact that the original appellant No.1 had no source of income and this compelled him to migrate to Pune, where he took up a small job, from which he earned Rs. 200/- per month. The Courts below, as said above, rightly held that the original respondent no.1 has proved that his mother is benami by giving cogent 7 S.A.No.439.89 reason and so I am not inclined to interfere in it. 8] The ground No. 4 : The fact that the suit house was mortgaged subsequent to the acquisition is not quite damaging to the case of the respondent no.1. Even assuming that the loan was not taken for the purpose of acquiring the suit house. The fact remains that ostensible owner- mother of the parties mortgaged it with Sonaji. Even if, it is assumed that the loan was obtained for the purpose of meeting the needs of the family. It is amply proved that it was the respondent no.1, who repaid the loan. So, this aspect of the matter would not damage the case of the respondent no.1. 9] The ground No. 5 : Once the Courts come to the conclusion that the suit house actually belongs to the respondent no.1, there is hardly need to discuss the so called will executed by the mother of the parties. If mother was ostensible owner as benamidar, she practically had no right to make a will. So, suspicious circumstance relating to the will would not go to the root of the appeal, the appeal should therefore fail. The Second Appeal stands dismissed. Consequently,the Civil Application No.5032 of 1998 for setting aside the order of Additional Registrar dated 10.12.1997, the Civil Application No. 2478 of 1999 for stay, so also the Civil 8 S.A.No.439.89 Application No.2885 of 2008 for remanding the matter to the trial Court does not survive stand dismissed. Sd/- (A.V. NIRGUDE, J.) MTK/ ok