1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Second Appeal No.28 of 1993 1. Trimbak Vithoba Kadlag, age 52 years, 2. Subhash Vithoba Kadlag, age 37 years, 3. Hirabai w/o Yadav Kadlag, age 42 years, 4. Bhagirathibai w/o Vithoba kadlag, age 70 years, 5. Yadav Vithoba Kadlag (deceased) through his legal heirs- Appellant No. 3 and : 5-A. Mohan Yadav Kadlag, age 21 years; 5-B. Rajendra Yadav Kadlag, age 18 years, 5-C. Sanjay Yadav Kadlag, age 15 years, 2 5-D. Shobha d/o Yadav Kadlag, age 22 years, 5-E. Jawala d/o Yadav Kadlag, age 17 years, Nos. 5C to 5E minors, through their guardian, appellant No.3. All residents of Javale .. appellants/ Kadlag, Taluka Sangamner original District Ahmednagar. Defendants. Versus 1. Subhadrabai w/o Madhav Kadlag age 52 years, 2. Yamunabai Nivrutti Deshmukh age 57 years, 3. The Manager, Ahmednagar Dist. Central Co-operative Land Development Bank, Branch Sangamner, District Ahmednagar. 4. Vithoba Sakharam Kadlag (deceased) through his legal heirs appellants Nos. 1, 2 and 4 and: 3 4-A. Shantabai Bhaskarrao Deshmukh, age 52 years,resident of Kotul, Taluka Akola, 4-B. Kantabai Babasaheb Sahane, age 41 years, r/o Malwadi, Taluka Sinnar, Dist.Nasik. 4-C. Sushila Shriram Padol, age 38 years, c/of Shriram Vinayak Padol (V.D.O.) .. Respondents/ Panchayat Samiti, Deogad, R.No.1 orig. District Sindhudurg. Plaintiff. ---------- Shri H.U. Dhage, Advocate, holding for Shri S.T. Shelke, Advocate, for the appellants. Shri S.k. Tambe, Advocate, for Respondent No. 1. Coram : P.R. Borkar, J. Date : July 09, 2009 ORAL JUDGMENT 01. This is a second appeal filed by original Defendants, being aggrieved by judgment and decree passed by learned Joint Civil Judge, Junior Division, Sangamaner in Regular Civil Suit No.164 of 1979 decided on 16.4.1986 as modified by 4th Additional District Judge, Ahmednagar, in Regular Civil Appeal No. 163 of 1987 decided on 23.7.1992. 4 02. Briefly stated, it is no more disputed that the original Plaintiff Subhadrabai-Respondent No.1 is widow of Madhav Kadlag and Vithoba- original Defendant No.1-Respondent No.4 was her father-in-law. Vithoba died and his legal heirs are shown as Respondent Nos. 4-A to 4-C. Vithoba had four sons, namely, deceased Madhav, who was husband of original plaintiff Subhadrabai, Yadav who is appellant No. 5(since deceased), appellant No.1 Trimbak and appellant No. 2 Subhash. Appellant No.4 Bhagirathibai is the widow of Vithoba who died pending this litigation. Respondent No.1 Subhadrabai filed suit for partition and separate possession. 03. It is not disputed that survey No. 100/1+2+4A, as well as house No.162, are the ancestral properties of the family and Respondent No.1 Subhadrabai w/o Madhav had share therein. Dispute is regarding remaining properties which, according to Respondent-1 Plaintiff, are joint family properties acquired out of joint funds whereas, as per original defendants and appellants, those were self acquired properties of Defendant Nos. 1,2 and 4. 04. In paragraph 6 of Written Statement at Exhibit 21, it is stated that Defendant No. 2 was serving for 17 years prior to filing of the Written Statement on 22.7.1980. According to 5 Defendants/appellants, Defendant No. 3 was also working as a labourer and out of Defendant Nos. 2 and 3's income, properties were purchased. 05. The trial court in paragraph 14 of its judgment, has referred to the mutations regarding properties. As per Exhibit 58 which are mutation entries Survey Nos.292/3A, 292/3B-2 and 292/1A were purchased by Defendant No. 2 on 28.1.1972 from one Nivrutti Sakharam Deshmukh. These mutation entries are bearing numbers 4634, 4635 and 4636 respectively. There are also mutation entries bearing Nos.3137 dated 17.3.1957 and 3272 dated 26.11.1957 showing that Defendant No.1 Vithoba purchased the suit lands bearing Sry. Nos. 147/2A and 249/5+7B from Raghunath Ganpat etc. and Thoka Jonakh Kadlag on 29.1.1957 and 6.1.1951 respectively. Mutation entry No. 4747 dated 23.10.1973 at Exh.35 shows that Defendant No. 5 Hirabai-wife of Defendant No. 2 Yadav, purchased survey No. 249/5-7A from Defendant Nos. 1 to 3. Learned Trial Court also referred to admission by plaintiff in her cross examination recorded on 25.3.1986 that for 15-16 years Defendant No. 2 was in service and he used to keep his salary with him. So, relying on that admission, trial court held that it was proved that survey Nos. 292/3A, 293/3-B2 and 293/1 mentioned in plaint paragraph 1-B, were self acquired properties of defendant No.2. 6 06. As against the judgment of the trial court, present appellants filed Regular Civil Appeal No.163 of 1987 in the District Court at Ahmednagar and the learned 4th Additional District Judge came to the conclusion that even those properties mentioned in paragraph 1-B of the plaint were not self acquired properties of Defendant No. 1 and further held that except the properties described in paragraph 1-C of the plaint, all other properties were joint family properties and thus liabale for partition. It is this order of the District Court, which is challenged in the present Second Appeal. 07. The grounds, on which this second appeal was admitted as per order dated 5.2.1993, are ground Nos. 9 and 10 of the appeal memo which are as follows; "IX. Whether the learned Courts below have taken into consideration the implications of the provisions and Explanation 1 to the provisions of Section 6 of the Hindu Succession Act, 1956 in the facts and circumstances of the case ? X. Whether in the facts of the case when admittedly the husband of the plaintiff died sometime in 1955-56, the plaintiff would be entitled to properties acquired by the joint family after 1956 ?" However, the point that is argued before me is whether the conclusion that the properties other than Survey No.100/1+2+4A and 7 house property were self-acquired properties as determined by the first appellate court. 08. It may be noted that if there was no partition after the death of Madhav-the husband of the plaintiff- and the plaintiff continued to be member of Hindu joint family. Though not living with the joint family, she would be entitled to share not only in joint family properties which were in existence at the time of death of her husband, but also in all the properties which were acquired with the aid of income from joint family properties. Being widowed daughter-in-law, the plaintiff inherits undivided interest of her husband in the joint family property and unless the share of Madhav is carved out and allotted to his heirs, it cannot be said that there is any impediment in tenability of the suit and accordingly, I answer the issues raised by ground Nos. 9 and 10 in the appeal memo. 09. In this case, it may be noted that though in paragraph 4 of the plaint it was specifically mentioned that it was Defendant No. 2 who was Manager of the family and he had purchased suit properties described in plaint paragraph 1-B out of income from joint family properties, there is no specific denial that Defendant No. 2 was Karta of the family. In this case plaintiff-Subhadrabai deposed on oath at Exhibit 54 and she did admit 8 that Defendant No. 2 had been in service for about 15-16 years prior to her deposition recorded on 25.3.1986. So, from about 1970, Defendant No. 2 was in service. However, no oral evidence whatsoever was led by any of the defendants. None of Defendant Nos.1, 2 or 3 entered into the witness box. Documentary evidence is mainly the mutation entries which are referred to above. It is not disputed that there was some nucleus with family, such as, land survey No.100/1+2+4A which was ancestral land. Moreover, as per mutation entries dated 6.1.1951, 29.1.1957, 26.11.1957 certain properties were purchased by Defendant No. 1 Vithoba and it is not case of any one that he had any independent source of income. So, all those properties form nucleus to purchase properties in the year 1972 in the name of Defendant No.2. It is not case of any one that Defendant Nos.2 and 3 were earning in 1951 or in 1957. 10. In the circumstances, burden is on the defendants to prove that they acquired the properties described in paragraph 1-B of the plaint, out of their separate income. Not only that Defendants did not enter into the witness box, but they did not examine any other witness. Fact of purchase of lands in the names of Defendant Nos. 1 and 2 is not disputed. 9 11. Law on the point is now well settled. Though mere existence of joint family cannot raise presumption that such family owns property jointly. However, it is proved in this case that the joint family owned a nucleus (source of income) to acquire new properties. In such situation, the presumption would be that the acquired lands are the joint family properties unless the presumption is rebutted by evidence. In this case, it is not disputed that survey No. 100/1-2+4A was the source of joint family property acquired in 1951. The said land and lands purchased form nucleus for land acquired in 1957 and all those lands form nucleus to purchase lands in 1972. In the circumstances, burden was on defendants and more particularly on defendant No. 2 who is said to be Karta of the family and which averment in the plaint is not denied in the written statement. 12. The first appellate court has dealt with this aspect in paragraph 12 of its judgment, by observing that the defendants have not adduced any oral evidence in support of their claim and, therefore, there is no evidence to show as to what was the nature of services of Defendant Nos. 2 and 3 and what were their salaries, receivings and expenses. In the absence of any cogent evidence on these aspects, it is difficult to believe that they have saved amount with which they 10 could have purchased the suit properties. If we are to accept the admission by the plaintiff on its face value, at the most it would mean that since 1970 Defendant No. 2 was in service and, therefore, the defendant No.2 should have come forward with evidence to show as to how much was his salary and how much were his expenses and savings and how he raised money for purchase of properties. It may be noted here that in 1972, the purchase of lands was made for a consideration of Rs.3,000/=. So, in 1972, it was not a small amount. 13. In this view of the matter and in the absence of any evidence on the part of defendants, it cannot be said that the conclusion drawn by the first appellate court is wrong. Hence, this Second Appeal deserves to be and is accordingly, dismissed. Parties to bear their own costs. pnd/ sa28.93 (P.R.BORKAR, J.)