sa700.09 -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 700 OF 2009 WITH CIVIL APPLICATION NO. 9910 OF 2009 Sakharam s/o Ganpat Kshirsagar ...Appellant Versus Gangabai w/o Nagorao Kadam and others ...Respondents Mr. A.S. Bajaj, advocate for the appellant Mr. S.V. Warad, advocate for respondents CORAM: A.V. NIRGUDE, J. DATED: 21ST SEPTEMBER, 2011 P.C. : 1 At the time of hearing on admission of this second appeal, my learned predecessor noted/framed a substantial question of law, which reads as under;- “Whether, in the facts and circumstances of the present case, the suit for partition, without inclusion of all the property and particularly the properties alienated by the plaintiffs themselves could be maintainable in view of Article 333 of the Hindu Law (By Mulla)?” 2 Since the parties were put to the notice that the second appeal would be heard peremptorily, I heard the submissions of the counsel for the parties. The facts leading to this litigation, in short, can be narrated as under:- 3 One Jakoji was the owner of the suit properties. The suit properties were his ancestral properties. He had a wife, one son and two daughters. Jakoji died in 1985, his wife died in 1994 and his son Ganpat died in 1995. His daughter Jijabai had died long back about 20 years ago. Ganpat is survived by his widow, sons and a daughter. It is the case of the plaintiffs Gangabai, (daughter of Jakoji) and Kantabai (grand-daughter of Jakoji) that the suit properties were never sa700.09 -2- partitioned during the life time of Jakoji. They however, admitted in the plaint that during life time of Jakoji, for the purpose of saving the lands from the provisions of Agricultural Lands (Ceiling on Holding) Act, 1961, Jakoji ostensibly transferred one piece of land in the name of plaintiff No.1 Gangabai. They suggested that though the property was ostensibly transferred in the name of Gangabai, it was not partition and the property remained in common hotchpotch of joint family. They thereafter suggested that during life time of Ganpat, when he was in need of some funds, he sold the land which was standing in the name of plaintiff No.1 Gangabai. They admitted that this sale was effected for family benefits. In other words, they did not challenge the sale and its legality. Rather belatedly, they filed the suit for partition. When the suit was filed, as said above, Ganpat, his mother Tanubai and Jakoba were already dead. The defendants were widow, sons and daughters of Ganpat, who admittedly are in possession and enjoyment of the suit property. With this case, they came before the trial court. But they did not file written statement though they had engaged an advocate. 4 The Trial Court passed an order that the suit would proceed without written statement. In view of the uncontested plaint on record, the learned Judge of the trial court had ample scope for deciding the suit on the basis of the averments made in the suit but he preferred to record the depositions of one of the plaintiffs i.e. the plaintiff No.1 Gangabai. While giving deposition, she narrated the facts, as stated above, but had committed one mistake. She said that the land which was ostensibly standing in her name was sold away by her mother Tanubai. She thereby suggested that Tanubai desired to sell the property from common hotchpotch and no one took objection to such transfer. She said that the land was sold at the instance of Ganpat her brother. The learned Judges of the courts below ignored this lapse and held that the plaintiffs had proved their case that the suit properties belong to the joint family and that they were ancestral ones. sa700.09 -3- 5 The appellants (defendants) being aggrieved by the judgment and decree of the trial court had preferred appeal, most probably, by engaging another counsel. In the appeal memo, admittedly, they made no grievance about loss of opportunity for filing written statement and cross examination. However, at the time of oral submissions it seems that a request was made to the learned Judge of the first appellate court that the case should be remanded. The learned Judge however, rejected this plea and proceeded to decide the appeal and as said above, he concurred with the findings given by the learned Judge of the trial court. 6 At the time of admission of appeal, the above mentioned substantial question of law was framed. This was framed because the appellants now suggest that the land which was sold away during life time of Ganpat and his mother Tanubai, was not included in the common hotchpotch and so the suit was not maintainable. The learned counsel appearing for the appellant further contended that the respondents herein did not prove their case at all, because there is serious lapse on the part of the plaintiff No.1 when she recorded her deposition. As mentioned above, she indeed made an error in deposing her case and pleaded that the land which was standing in her name was sold by her brother instead the land was sold by her mother Tanubai. 7 According to the learned counsel for the appellants, the evidence was irrelevant and contrary to the pleadings, so it can not be read in the evidence at all. He therefore, suggested that the main contention of the plaintiffs that the property which was standing in the name of plaintiff No.1 was not proved to have been sold. He said for this reason it was necessary for the plaintiffs to include it in the suit claim. I do not accept this contention at all. The plaintiff No.1 has stated in her deposition that the land which was standing in her name was sold by her mother instead of saying that it was sold by her sa700.09 -4- brother Ganpat. But in view of the facts mentioned above, Ganpat and his mother Tanubai died one after another in the year 1994 and 1995 respectively. The sale instance took place during the life time of both these persons and since it is the case of the plaintiffs that Tanubai, Ganpat, Ganpat’s wife and children formed a joint Hindu family, the sale took place at the instance of members of the family, whether it is Tanubai or her son Ganpat, who wished to sell the landed property was thus irrelevant. What is pertinent is that they could sell the property, which was not standing in their names. This clearly proves her case that the sale could have been effected effortlessly because the property which was standing in her name ostensibly was still a joint family property and the members of joint Hindu family could sell it for some urgent need. 8 In view of this, practically, there is no lapse on the part of plaintiff No.1 when she made error in recording her deposition. The courts below ignored it and I do not think that it would go to the root of the matter. The objection that is raised at the time of admission of the appeal was that this property, which was sold, ought to have been added as suit property itself is erroneous. The plaintiffs came with a case, as said above, that the property which was not included in the claim column was already sold away by the joint family and since they did not have any objection for such sell, they would not have added it to the claim column. 9 The learned counsel appearing for the appellants then urged that in view of the insufficient opportunity of defence given to the appellants/defendants the case should be remanded back. He said in view of complicated facts mentioned in the plaint a written statement would have certainly thrown better light on factual aspects of the case. However, his request for remand cannot be allowed because the appellants-defendants made no attempt to explain as to why they failed to file written statement despite engaging advocate and getting sa700.09 -5- opportunities. They further failed to explain as to why their advocate refused to cross examine the plaintiff No.1 though he was present in the Court. They simply remained silent about their case though sufficient opportunity to explain these lapses on their parts were given to them. There is no material available on record for me to give reasons for remand of the case. I am unable to remand the case. For all these reasons, the second appeal fails and stands dismissed. 10 Needless to mention that during pendency of the second appeal, the respondent No.2 (plaintiff No.2) had given up her claim in the suit property. In view of this, the suit stands decreed only to the extent of share of respondent No.1 (plaintiff No.1). 11 In view of dismissal of second appeal, nothing remains to be decided in the pending civil application, hence, the civil application No. 9910 of 2009 stands dismissed. ( A.V. NIRGUDE, J. ) rlj/ ok