1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.291 OF 1990 Mahadu s/o Ramji Kakde (died) through his L.R.:­ Gangadhar s/o Mahadu Kakde, age 17 years, minor under guardianship of real mother Deokabai w/o Mahadu Kakde, age 40 years, occup.Agril. Appellant/orig. r/of Dhangarwadi, Taluka and Defendant District Nanded. versus Jankabai w/o Namdeo Kakade, age 47 years, occup. Agril. r/of Dhangarwadi, Taluka & Respondent/orig. District Nanded. Plaintiff. ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­ Shri V.D. Patoorkar, Advocate for the appellant. Shri M.V. Deshpande, Advocate for the respondent. ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­ Coram : P.R. Borkar, J. Date : April 26, 2010 ORAL JUDGMENT 01. This second appeal is filed by original Defendant being aggrieved by the decree of partition and separate possession passed by the learned Additional District Judge, Nanded in Regular Civil Appeal No.380 of 1983, thereby declaring that present Respondent­plaintiff was entitled to 1/3rd share in 2 the suit property and as such for partition and separate possession. By the said judgment and decree, the learned Additional District Judge set aside the judgment and decree passed by the III Joint Civil Civil Judge, Junior Division, Nanded in R.C.S. No.386 of 1981 decided on 29.10.1983 whereby latter had dismissed the said suit for partition and separate possession. 02. Briefly stated, it is no more disputed that one Ramji was the common ancestor. He owned land survey No.11/2/B situated at village Dhangarwadi, Taluka and District Nanded. Ramji had two sons i.e. original appellant Mahadu and other is Namdeo who was admittedly husband of Jankabai. Appellant Gangadhar is son of deceased appellant Mahadu and has come on record as legal representative of Mahadu. The relationship is not disputed. 03. It is also not disputed that survey No. 11/2/B is ancestral property of Ramji. It is the case of the Respondent­plaintiff Jankabai that Ramji died in or about 1957 and 4­5 years prior to that her husband Namdeo had expired. She is entitled to 1/2 share in the land being the widow of predeceased son 3 of Ramji and thus entitled to partition and separate possession of her share and so she filed the suit. 04. Appellant­defendant Mahadu filed Written Statement at Exhibit 17 and stated that Namdeo had died in or about 1948 and immediately 1 or 2 years thereafter Ramji expired. As such, appellant Mahadu was entitled to the entire suit property and the respondent­plaintiff is not entitled to any share. 05. The trial court came to the conclusion that Ramji died before Hindu Succession Act came into force and, therefore, it dismissed the suit. The learned trial judge relied upon entries in Khasra Patrak and Pahani Patrak produced with list at Exhs. 19. The learned Judge observed that those documents were prepared in the year 1953­54 and at that time, the name of appellant Mahadu was shown as Pattedar and so Ramji must have died by that time. 06. The first appellate court has come to the conclusion that though respondent­plaintiff failed to prove that Ramji expired in 1957, it was ancestral property and relying upon several authorities he came to the conclusion that the respondent­plaintiff had a 4 right of maintenance. The property is deemed to be in her possession and as such, she is entitled to share in the property in view of Section 14 of the Hindu Succession Act. 07. This court while admitting the second appeal on 1.10.1990 raised substantial question of law thus; "Whether provisions of Hindu Women's Right to Property Act apply to the benefit of Jankabai, her husband having died before the Act came into force in Hyderabad area?" 08. There is no record whatsoever to show exact date or month or the year of death of Ramji. There is some oral and documentary evidence which could be of of some help. Although the year of death of Ramji is crucial, the appellate court has only said that respondent­plaintiff Jankabai has failed to prove that Ramji had expired in 1957. However, it is not stated when exactly Ramji died. Hindu Women's Right to Property Act, 1937 was made applicable to this area on 22.10.1954. 09. So far as oral evidence is concerned, Respondent­Plaintiff Jankabai at Exhbit 40 stated in 5 her examination­in­chief that since her marriage she was residing at the house of her husband. Since defendant started giving her trouble and therefore she asked for partition which defendant denied. She also stated that Ramji died due to disease of leprosy. He was leper and therefore he was kept in the land and she used to attend him. According to Jankabai, appellant Mahadu was 5­6 years of age when Ramji expired. She did not remember the year in which her husband died. But, she stated that she was 12­13 years old when Ramji expired. Respondent Jankabai gave her age as 40 when her deposition was recorded on 11.10.1983. 10. There is also evidence of PW­2 Ramchandra Digaji at Exhibit 41. He stated that at the time of marriage, Respondent was four years old. He was elder brother of Respondent Jankabai. Namdeo, husband of Jankabai, died 4 to 5 years after Police Action. According to this witness, Namdeo died when Khasra Patrak was being prepared. Ramji died 25 years before, as he was suffering from leprosy. According to the witness, he himself was 15 years old at the time of Police Action. 6 11. Appellant­Defendant Mahadu examined himself at Exhibit 43. He deposed that on 11.10.1983 when his deposition was recorded, he was aged 40 years. According to Mahadu, Namdeo expired one year after Police Action and his father expired one year thereafter. He did not state when his mother died. 12. The trial court referred to Pahani Patrak and Khasra Patrak. However, earliest entries produced on record are for the year 1955­56. They are in the name of appellant­Mahadu. So, at the most it can be inferred that Ramji was not alive in the year 1955­56. However, that by itself will not be sufficient to hold that he was not alive on 22.10.1954. Therefore, the crucial question that arises for consideration is whether Ramji expired before 22.10.1954 and we do not find any convincing evidence in that respect on record. 13. In the circumstances, we have to consider the oral statements made by the parties. In 1982, appellant­Mahadu in his written statement gave his age as 45 years and it is filed on 22.7.1982. So, it is not that even the ages are given correctly. It may be because the parties are from rural area. So far as 7 Respondent­plaintiff Jankabai is concerned, she does not appear to have attended school and thus is an illiterate lady. 14. In the circumstances, in my opinion, the statement of PW­2 Ramchandra Digaji needs to be accepted. He was sufficiently grown up to remember things. Since he is brother of plaintiff Jankabai, it is natural for him to remember such events of deaths in her family. If we have to go by evidence of appellant, he was too young when Namdeo and his father expired. He has also motive to give wrong year of deaths inasmuch as he was to get benefit thereby. If we are to consider evidence before the court, in my opinion, Ramji could have said to have expired somewhere in 1954­55 and that is why we find name of appellant Mahadu in Khasra Patrak and Pahani Patrak of 1955­56. 15. It is also pointed out that Respondent No.1­ Jankabai in her statement stated that she was attending Ramji during his last days when he was suffering from leprosy and was residing in the land. That statement is not denied. So, Respondent Jankabai continued to be in the family of the appellant. She 8 stated that she continued in the family till appellant Mahadu started troubling her and that was reason for demanding partition. The learned District Judge has come to the conclusion that since the Respondent­ plaintiff had a right of maintenance and she was residing in the family, it can be held that she was in possession of the property and her right became absolute by virtue of Section 14 of the Hindu Succession Act. The view taken by the learned Additional District Judge cannot be said to be perverse or not based on evidence so as to require interference. In the circumstances this appeal must fail. 16. Hence, second appeal stands dismissed. pnd/sa291.90 (P.R.BORKAR, J.)