1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION SECOND APPEAL NO.812 OF 2007 WITH CIVIL APPLICATION NO.739 OF 2008 Shri Akoba Nana Mang (Khavale) Since deceased through his legal heir Hanmant A. Mang (Khavale) ...Appellant. v. Dinkar Parasu Mang (Khavale) & Anr. ...Respondents. Mr. Ajit Kenjale, adv. For the Appellants. Mr. Dilip Bodake, adv. For the Respondent Nos.1 and 2. CORAM : J.H. BHATIA, J. DATED : 5th October , 2009 P.C. 1 Heard the learned counsel for the Parties. 2 This appeal is filed by the legal heir of the original defendant no.1. Plaintiff/Respondent no.1 filed Regular Civil Suit No. 196/86 for partition and separate possession of agricultural lands consisting of in all 7 gat numbers. It was the contention of the plaintiff that four of lands bearing Survey No.176/2A(Gat No.892), Survey No. 177/3B(Gat No.882), Survey No.177/6A(Gat No.893) and Survey No. 239/4A (Gat No.1260) were the tenanted properties in possession of his grandfather Nana Mang. He was protected tenant of the property and was cultivating the same for and on behalf of the joint family. Plaintiff is 2 a son of Parsu, who was son of Nana Mang. Defendant no.2 is his mother and defendant nos.3 and 4 are his sisters. After death of his grandfather Nana, Defendant no.1 Akoba, being the eldest male member of the family, was cultivating land for and on behalf of the joint family. According to him, out of the income from the above referred four lands, three more lands being survey no.177/7 (Gat No.885), Survey No. 177/6B/2(Gat No.888) and Survey No.153/35A (Gat No.638) were purchased for and on behalf of the joint family. Family continues to be joint. Plaintiff demanded partition and separate possession, which was refused by the defendant no.1 and therefore, he filed suit for partition and separate possession. 3 Defendant no.1 contested the suit. Firstly, it was his contention that there was no joint family nor the joint family was holding any property. Four lands referred earlier were in his possession as tenant in his individual capacity and after enquiry under section 32G, Bombay Tenancy of Agricultural Lands Act, Purchase Certificates were issued under Section 32M in his favour and he had paid the price of lands. Therefore, he alone is the owner of the said properties. He contended that he had purchased the remaining 3 properties from his self income and savings and, therefore, the said three lands were his self acquired 3 properties. He contended that the plaintiff could not claim any share in any of the properties. He also contended that the consolidation of these lands had taken place and lands stand in his name alone and, therefore, partition of these lands can not be effected in view of the provisions of Bombay Prevention of Fragmentation and Consolidation Act. 4 The trial Court after hearing evidence of the parties decreed the suit for partition and separate possession and held that plaintiff, defendant no.1 and defendant no.2 were entitled to 1/3rd share each. Defendant no.1 preferred Regular Civil Appeal No.248/96 challenging decree for partition and separate possession. Pending the appeal, he died and his son Hanmant was brought on record. The First Appellate Court also discussed the evidence minutely and found that the plaintiff is entitled to decree for partition. However, the appellate Court modified shares finding that plaintiff and his mother could not be granted 1/3rd share each. Appellate Court determined share of the plaintiff and the defendant no.2 as 5/24th each while defendant nos.3 and 4 sisters of the plaintiff were granted 1/24th SHARE each . Defendant no.1 was granted half share in the property. 5 The learned counsel for the defendant no.1/appellant vehemently contended that the question as to who has become owner of 4 the property under Section 32M of the Tenancy Act could be determined only by the authorities under the Tenancy Act and not by the Civil Court. According to him, burden to prove that there was sufficient and adequate nucleus with the joint family to purchase the property is on the plaintiff. He also contended that properties have been consolidated and, therefore, under the provisions of the Bombay Prevention of Fragmentation and Consolidation Act, properties can not be put to partition. He contends that this question has not been considered by the Courts below. 6 On perusal of the judgments of both the Courts below and the pleadings and the evidence led by the parties, there is no dispute that Nana Mang father of the defendant no.1 and grandfather of the plaintiff was a protected tenant of four agricultural lands. On 1.4.1957, i.e., the tillers day, he was cultivating the land as tenant and, therefore, he was a deemed purchaser of the land. In 1959, said Nana died and, therefore, name of the defendant being the son of Nana and eldest male member of the family came to be recorded in the record of rights. In view of this, proceeding under section 32G of the Tenancy Act for determination of the purchase was commenced and in that proceeding defendant no.1 was a party. In the result, under Section 32M of the Tenancy Act, purchase certificate was issued in his name. Courts below noted that in the 5 proceeding under section 32G, defendant no.1 had admitted that he was ‘Karta’ of the joint family, and, therefore, when the certificate under section 32M was issued in his favour, he took that property not for himself alone but as a ‘Manager’ of the joint family consisting of himself and his brother. Under Section 40, tenancy is inheritable. The defendant no.1 alone would not get the right of inheritance. Right would go to himself and his brother. Once the proceeding under Section 32G and 32M have been completed, question of partition and separate possession between the brothers or their descendants is within the jurisdiction of the Civil Court and Section 85 of the Tenancy Act does not take away the jurisdiction of the civil Court. 7 The learned counsel for the appellant relied upon several authorities to show that burden lies upon the plaintiff to prove that the joint family held adequate and sufficient nucleus from which the suit property could be purchased. In Rukhmabai v. Lala Laxminarayan AIR 1960 SC 335, the Supreme Court held that there is no presumption that any property whether moveable or immoveable held by a member of a joint family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. If he proves that there was sufficient joint family nucleus from 6 and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint family property. This is settled legal position. In the present case, the plaintiff has established that four agricultural lands were joint family properties, which had come to the hands of the defendant no.1 from his father Nana. Total area of those four lands was 3 H and 21 R, equivalent to about 8 acres. Defendant no.1 purchased 3 lands, admeasuring in total 2 H 65 R sometimes in 1967 or thereafter. It is material to note that it was the plea of the defendant no.1 that the four tenanted lands were his property alone and he had taken a plea that out of his own income and savings, he had purchased remaining three lands. He had not given any details of separate earnings and savings from which he had purchased remaining three properties. Once the plea of the defendant that the four tenanted lands were his self acquired property is rejected and it is held that the said properties were joint family property, plaintiff has succeeded in proving that there was joint family nucleus and out of the income of the said family, family could purchase more property. Defendant no.1 did not lead any evidence to establish that he had separate income besides 7 income from the agricultural lands and that he had purchased remaining three properties from his separate income and without the assistance from the income from the joint family property. As the initial burden was discharged by the plaintiff, burden lies was on the defendant no.1 that he had purchased remaining three properties from his personal earnings and savings without assistance from the joint family property. Courts below held that except his bare words he had not produced any such evidence and, therefore, it was held that he had failed to discharge that burden. Taking into consideration the pleadings, evidence and the other material , I find no mistake in the findings of the Courts below. 8 Section 8 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 provides that no land in any local area shall be transferred or partitioned so as to create a fragment. Section 8AA provides that where any decree for partition has been passed, such partition shall be effected so as not to create a fragment. Under sub-section 2 of Section 8AA where two or more persons get share in the property and it can not be partitioned without creating fragmentation, Collector has to follow certain procedure so as to avoid the fragmentation. Sub-section 3 provides that where partition is effected in execution of decree, question relating to partition of land and 8 apportionment of compensation shall be decided by the Court executing decree or by the Collector effecting partition in accordance with provisions of sub-section (2). In view of this it is clear that where decree for partition of the land which has been consolidated is passed, procedure laid down under Section 8AA(2) has to be followed while effecting partition. That does not prevent civil Court from passing any decree for partition. That question has to be dealt with by the Collector at the time of effecting partition. 9 In view of the above circumstances and the legal position , I find no substance in the contention of the appellant. No substantial question of law is involved in the present appeal. 10 Therefore, the appeal stands dismissed. 11 As the appeal itself is disposed off, Civil Application No. 739/08 does not survive and stands disposed off accordingly. (J.H. BHATIA,J.)