: 1 : sa.682.1989 vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.682 OF 1989 Housabai Ramchandra Patil & anr. .. Appellants V/s. Mahadev Babu Patil since deceased by his heirs - 1A. Atmaram Mahadeo Patil & Ors. .. Respondents Mr.B.R. Patil for the Appellants Mr.S.G. Deshmukh for the Respondents CORAM: SMT.NISHITA MHATRE, J. DATED: DECEMBER 9, 2011 ORAL JUDGEMENT: 1. The Second Appeal has been admitted on the following questions of law: i) Whether the agricultural lands mentioned in para 1b of the plaint are self acquired properties of the defendants and whether they were entitled to alienate the same? ii) Whether the defendants repurchased the property and are entitled to the same to the exclusion of the plaintiffs? 2. Appellant No.1 is the mother of appellant No.2 (hereinafter referred to as the plaintiffs). According to the plaintiffs, the suit properties were originally owned by one Babu Nana Patil, who had two sons Mahadev and Ramchandra and a daughter Drupada. : 2 : sa.682.1989 Ramchandra died in 1947 leaving behind his wife plaintiff No.1 and his daughter plaintiff No.2 (the appellants herein). Mahadev had two sons – Atamaram and Jaysing who are defendant Nos.2 and 3. Defendant No.4 is the sister of Ramchandra. According to the plaintiffs, all the properties of Babu Nana Patil were held as joint family properties when he died on 1.9.1950. After Babu's death, there was a partition in 1953 between his branch of the family and his brother's family of the suit lands which were held as the joint family property of Babu Nana Patil. Mahadev's name was recorded as Manager of the joint family property. Indisputably, the plaintiffs who are the widow and daughter of Ramchandra had an interest in the joint family. It appears however, that on 18.2.1963, the property described in para 1b of the plaint was sold to one Hariba Balu, the brother in law of Mahadev. That property according to the plaintiffs was sold in breach of the provisions of Bombay Prevention of Fragmentation and Consolidation of Holdings Act. It appears that the property was repurchased by defendant Nos.2 and 3 on 22.5.1969. The plaintiffs claimed that the property became joint family property once again after its repurchase by defendants 2 and 3. The plaintiffs therefore filed a suit against the defendants for partition and separate possession of the aforesaid property. : 3 : sa.682.1989 3. The defendants contested the suit by contending that the suit land was sold in 1963 for legal necessity. It was repurchased in 1969 from the income available to defendant No.2 at the time of his marriage and not from the income of the joint family property. 4. Oral and documentary evidence was led before the trial Court. Several documents including the sale deed of 1963 and the sale deed of 1969 showing the repurchase of the land were also placed on record. The father in law of defendant No.2 was examined to prove that he had paid defendant No.2 an amount of Rs.6,000/- at the time of his marriage which amount was used to repurchase the property. The defendants claimed that they had sufficient income to repurchase the land on account of an amount of Rs.6,000/- being paid to defendant No.2 as manager by his father in law. 5. The trial court has held that the plaintiffs are entitled to the partition and separate possession of the suit lands and they were entitled to 4/9th share in each of the suit properties. 6. Being aggrieved by the decision of the trial Court, the defendants preferred civil appeal No.188 of 1985. The appellate Court has allowed : 4 : sa.682.1989 the appeal partly and set aside the decree inasmuch as it directed the partition and separate possession in respect of the agricultural lands described in para 1b of the plaint. The appellate Court held that the defendants had proved that the suit lands were alienated in favour of Hariba for a legal necessity. It further concluded that the defendants had proved that the lands were their separate and self acquired property. The appellate Court therefore concluded that although the plaintiffs were entitled to a decree in respect of the other lands mentioned in the plaint they were not entitled to lands mentioned in para 1b of the plaint. The appellate Court found that the land had been repurchased by the defendants with the amount paid by the father in law of Defendant No.2 at the time of his marriage. 7. The learned advocate appearing for the appellants has submitted that the property described in para 1b referred to hereinafter as the suit property was sold in 1963 by defendant No.1 who was the manager of the property without there being any legal necessity to do so. He submits that at that point of time defendants 2 and 3 were minors. There is evidence on record that the defendants had no other source of income except the agricultural income derived from the joint family property. He submits therefore that when the property was repurchased : 5 : sa.682.1989 by defendant No.2 from Hariba it was obvious that the agricultural income derived from the joint family property was used to purchase the same. According to him, besides this nucleus the defendants, having no other source of income, could not have purchased the property. He therefore submits that the appellate Court has erred in not decreeing the suit and partitioning the suit property. 8. Mr.Deshmukh, the learned advocate appearing for the respondents-defendants, submits that the plaintiffs have not challenged the sale deeds - either the sale deed of 1963 or that of 1969 at any point of time. According to him, there was sufficient evidence on record to establish the fact that the amount of Rs.6,000/- was paid to defendant No.2 at the time of his marriage by his father in law and that he had purchased the property from this sum of money. 9. The sale deed of 1963 is on record and it indicates that the property was in fact sold to Hariba. Whether this sale was collusive as alleged by the plaintiffs and not for a legal necessity cannot be challenged today by the plaintiffs as no suit has been filed by the plaintiffs to challenge the same. Therefore, it must be accepted that the sale in 1963 by which the properties mentioned in para 1b of the plaint : 6 : sa.682.1989 were alienated in favour of Hariba was for a legal necessity. 10. The question then arises as to whether the repurchase of the suit property was in fact from the nucleus of the joint family properties or from the self acquired income of the defendants. It is only if the plaintiffs had managed to prove that the property had been repurchased from the joint family nucleus that they would be entitled to a share in the suit property. 11. There is no evidence led by the plaintiffs to establish that it was only through the nucleus of the income from the agricultural lands that the sale had been effected. It is true that the defendants have admitted that they had no other source of income but that derived from their agricultural lands. The evidence on record establishes the fact that the amount of Rs.6,000/- was paid to the defendants at the time of the marriage of Defendant No.2. Whether such an amount could be accepted legally or not is not in issue in the present case. The amount was paid at that point of time as seen from the Yadi prepared at the time of the marriage in 1969. Thus the fact that the amount was paid to the defendant No.2 has been established. Therefore, it is evident that the defendants had this amount at their disposal for repurchasing the : 7 : sa.682.1989 property. The marriage of defendant No.2 took place in 1969, albeit when he was a minor. It has been proved therefore that defendant No.2 did have the means to repurchase the property from Hariba. 12. In these circumstances, the judgement and order of the first Appellate Court is upheld. The agricultural lands described in para 1b of the plaint have been repurchased by the Defendants and they are entitled to them to the exclusion of the plaintiffs. The plaintiffs have no share in the same. 13. The Second Appeal is therefore dismissed. (SMT.NISHITA MHATRE, J.)