{1} IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.248 OF 1991 01- Yamunabai w/o Baban Borde R/o Shivrai Tq. Vaijapur 02- Rajendra s/o Baban Borde Minor U/g. Appellant no.1. 03- Lahanu s/o Baban Borde Minor U/g appellant no.1. APPELLANTS. [Org. Defendants] VERSUS 01- Bhikan Bandu Borde 02- Suryabhan Bandu Borde 03- Raibhan Bandu Borde All R.o Shivrai Tq. Vaijapur. RESPONDENTS. [Org. Plaintiffs] *** Shri M.G.Mustafa, advocate for appellants. Shri N.N.Navandar, advocate for respondents. *** Coram : K.U.Chandiwal, J. Date: 23rd June 2009. {2} ORAL JUDGMENT: 01- The defendants being aggrieved by judgment and order of learned Additional District Judge, Aurangabad in RCA No.88/1987 decreeing the suit for partition of land S.No.219 situate at Shivrai Tq. Vaijapur Dist. Aurangabad, thereby reversing the judgment and order in RCS No.32/1985, has come in the Second Appeal. 02- The appeal was admitted on 11/06/1991 without formulating any substantial question of law. 03- The parties are referred by their status as plaintiffs and defendants. 04- At the time of hearing the counsel, the following points are formulated as substantial question of law between the parties; a- Whether the first appellate Court was right in ignoring that there was no joint family of Bandu, Pandu and Khandu, the three brothers or there was no ancestral property enjoyed by them? b- Whether the only residential house jointly {3} in the name of father of the plaintiffs and husband of defendant no.1 Yamunabai could establish that there was jointness in the mess or income? 05- The inter-se relations between the parties are not in controversy. Bandu, Pandu and Khandu were three brothers. Pandu was running a grocery shop and had good deal of income. While his other brothers Bandu and Khandu were not financially strong. Out of the income earned by Pandu, he had purchased three houses and two agricultural fields. Pandu and Khandu died issue-less, consequently the property purchased out of the income of shop or other benefits which Pandu was enjoying, came to be enjoyed by Bandu. Bandu expired ten years prior to 1987. Bandu had four sons. Bhikan, Suryabhan, Raibhan and Baban. Baban was the youngest. The shop left over by deceased Pandu was looked after by Baban. It has come in evidence that he was intelligent and literate while the plaintiffs were illiterate. 06- The controversy revolves around the purchase of suit land gat No.219 in the name of Baban deceased husband of Yamunabai / defendant no.1 on 29/11/1978. According to the defendants, this purchase of property in the name of Baban was from the income of Baban alone, his brother / the plaintiffs were separate in mess and earning and consequently they are not entitled to claim any share or partition in the land. On the other hand, the {4} plaintiffs sons, brothers of Baban and natural sons of Bandu asserts that it was a joint family property, and though there was a partition of some of the land, this land was also partitioned equally getting 1/4th share by the plaintiffs and deceased Baban. However, taking benefit of the mutation entry in the name of Baban, his widow Yamunabai has negatived the effect partition of the said property by carrying necessary mutation entry and ultimately she dispossessed the plaintiffs. 07- The contention that there is no pleading of jointness of Bandu, Pandu or Khandu will not change colour and complexion of the matter, as it was the property basically belonging to Pandu which has been enjoyed, shared by sons of Bandu or during the life time of Bandu. The evidence of Yamunabai [defendant no.1] has damaged the very stand taken by the defendants that the suit property was self acquired property of her husband Baban. She accepts her husband ran suit shop till his death and from the amount of said shop before ten years, the land gat no.219 was purchased from Jagannath for Rs.17,000/-. It could not be established that it was the independent source of income of Baban from the shop. Though Yamunabai has stated that entire amount of consideration was paid by her husband, the first part of her evidence itself indicates that it was from the income of the shop that the land was purchased. {5} 08- The two lands, which Pandu has purchased were also partitioned between the plaintiffs and Baban. Necessary mutation entry was made on the application made by the plaintiff and the defendant no.1. She accepts Bandu and Pandu were residing in the same house till their deaths. She was not party to any partition between Bandu and Pandu or she is aware of the same. She accepts Pandu was running grocery shop. The three houses purchased by Pandu, as stated above, are in possession of the plaintiffs and defendant no.1 equally with the respective lands. Yamunabai safely pleaded ignorance as to the source of Pandu for purchasing the houses or the agricultural lands. Then in the next breath she accepts that Pandu purchased the houses and the land from the income of himself. It is thus apparent that the land S.No.219 purchased on 29/11/1978 was not an independent purchase of Baban, but it was out of the income of shop which was owned by Pandu and the corollary that follows is, the plaintiffs are equally entitled to have share in the said house and agricultural field with their brother Baban [husband of defendant no.1]. It is more so because of the estate left over by Pandu was partitioned between the plaintiffs and Baban [husband of defendant no.1]. The controversy tried to be coined by the counsel for the appellant that there was no jointness between Bandu, Pandu and Khandu in the above situation has no legal consequence. {6} 09- The respondent took recourse to the judgment in the matter of Baikuntha Nath Vs. Sashi Bhusan, air 1972 SC 2531. The Hon’ble Lordships of the Apex Court in para no.10 on assessing the evidence observed; “When a joint family is found to be in possession of nucleus sufficient to make the impugned acquisitions then a presumption arises that the acquisitions standing in the names of the persons who were in the management of the family properties are family acquisitions. “ 10- The evidence illustrate that it was Baban who was managing the affairs of the family including the business and naturally, the purchase was to be in his name. That does not mean that there was an independent income which provided avenue for Baban to acquire property or for his legal representatives, the defendants, to assert that it was independent property of Baban and consequently no share of the plaintiffs. 11- The theory of partition as pleaded by the plaintiffs prior to 1978 and including partition of the suit property, cannot be said in the facts situation to be erroneous or imaginary. However, without giving effect to such theory of partition, the fact remains the land S.No.219 has been purchased from the income of the shop belonging to Pandu or for that {7} purpose legal representatives of Baban [defendant no.1] and her children cannot take benefit thereof. Consequently the first appellate Court was correct in setting aside the order of the Court of first instance dated 31/01/1987 and decreeing the suit of the plaintiff directing partition of the agricultural land. Hence order. 12- The appeal is dismissed. No costs. The stay is vacated. [K.U.CHANDIWAL] JUDGE /mda/0609/sa248.91