1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION SECOND APPEAL NO.113 OF 1990 1. Smt.Shantabai Haribhau Salunkhe 2. Madhukar Haribhau Salunkhe, since deceased through his LRs. (a) Smt.Mirabai Madhukar Salunke (b) Mrs.Nutan Dilip More No. (a) R/at 543 Kasba Peth,Pune-11. No.(b) R/at 311/19, Sasane Nagar, Gale Padwal Road, Hadapsar, Pune-28. (Amendment carried out as per court order dt.28.3.07 in S.A.113/90). Appellants (Orig.Plffs. in Suit) vs. 1. Narayan Laxman Salunke, D/H. 1(a) Murlidhar Narayan Salunke, since deceased by his heirs: 1(a)(i) Smt.Shakuntala Mulidhar Salunkhe, Age 55 yrs., wife 1(a)(ii) Sanjay Murlidhar Salunkhe, Age 34 years, - son, 1(a)(iii) Sudhir Murlidhar Salunkhe, Age 29 years, son. All R/o.65, Juna Bazzar, Khadki, Pune-411 003. ((Amended as per Court’s order dt.19.9.2001 in C.A.No.5827/99). 1(b). Smt.Sulochana Ramchandra Pandit, since deceased through her legal heirs: (i) Surekha Dattatraya Pawar (Daughter) aged 43, Occ:Household, R/o. at 308, Shaniwar Peth, Pune. (ii) Manohar Ramchandra Pandit (son), aged 41, occ: Service, R/o. As above. (iii) Bharati Somnath Raut (Daughter) 2 aged 39, Occ: Housewife, Guruwar Peth, Phoolwala Chowk,Pune. (iv) Shobha Shashikant Gaikwad (daughter, aged 37, occ:Housewife, R/o.812, HADCO Colony, Shirur. (v) Sunil Ramchandra Pandit (son), aged 35, Occ: Service, R/o.308, Shaniwar Peth,Pune. (Amendment carried out as per court’s order dated 5.05.2005 in C.A.No.1654/04). 1 (c). Prabhakar Narayan Salunkhe, since deceased through his legal heirs: i) Mrs.Ranjana Suresh Pande (daughter) Aged 41, Occ: Housewife, R/o.130-2 Kadalkar Colony, Talegaon Dabhade, Tal.Maval,Dist.Pune. ii) Mrs.Rajashree Chandrakant Pandit (daughter) aged 39, Occ: Service R/o.Rambaug Colony, Nakhate Vasti, Rahaini, Pune 17. iii) Rajesh Prabhakar Salunkhe, (son), aged 37, Occ: Service, R/o.115/A, Ashok Housing Kalewadi, Phata, Thergaon, Pune 33. (Amendment carried out as per court’s order dated 5.5.06 in C.A.No.1654/04). 1(d). Shri Chandrakant Narayan Salunkhe, since deceased through his legal heirs: i) Nirmala Chandrakant Salunkhe, (wife), aged 55, Occ: Housewife, R/o.66, Old Bazar, Kirkee, Pune 3. ii) Suvarna Gorakhnath Wagh, (daughter), aged 36, Occ: Housewife, R/o.Opp. Neha Nagar, Manuel Pada, Virar (E), Tal. Vasai, Dist.Thane. iii) Leena Chandrakant Vaikar, (daughter), aged 34, Occ: Housewife, R/o.785, Kasaba Peth, Pune. iv) Monika Chandrakant Salunkhe (daughter), aged 30, R/o.66, Old Bazar, Khadki,Pune 3. 3 v) Anjali Shailesh Garge (daughter), aged 27, Occ: Housewife, R/o.373, Old Bazar, Dhobi Galli, Khadki, Pune 411 003. vi) Prashant Chandrakant Salunkhe (son) aged 24, Occ: Student, R/o.same as No.(iv). Respondents Ms.Snehal Yadav along with Ms.Sangita Lidkar i/b. Mrs.Neeta Karnik for the Appellants. Mr.V.S.Gokhale for Respondent Nos.1(B) (I) to 1(B)(V) and 1(c) (I) to 1(c)(III). CORAM : ANOOP V. MOHTA,J. DATE OF RESERVING THE JUDGMENT : 03/04/2008 DATE OF PRONOUNCING THE JUDGMENT: 02/06/2008. JUDGMENT : The Appellants-original Plaintiffs now legal heirs have challenged the impugned judgment and decree dated 4.10.1989 passed by IVth Additional District Judge, Pune whereby the judgement and decree of the learned trial Judge dated 31.07.1986 has been set aside. In the result, the suit filed by the Appellants for partition is dismissed. This Court has admitted the Second Appeal on 20.02.1990 on the following grounds treating the same as question of law: (d) The learned Additional District, Judge further erred in taking in evidence the documents tendered by the heirs of Narain when nobody was available and was examined to prove the execution thereof. Assuming without conceding that the presumption with respect to the execution of the said documents could be drawn under Section 90 of 4 the Evidence Act since the alleged document was more than 30 years old, that by itself would not establish the contents of the documents. The rule of presumption under section 90 is permissive one and the Court has the discretion and in the instant case there was no necessity to exercise the discretion. Assuming that such discretion was necessary, the said presumption is based on the difficulty of proving the old documents after a lapse of time. As held by the Division Bench of our High Court in A.I.R. 1961, Bombay, page 169 under Section 90 apart from the presumption of due execution there is no presumption that the documents has the legal effect that it purports to have. (f) The learned Judge also erred in ignoring the observations of the Hon’ble Supreme Court, A.I.R. 1986 S.C. page 79 that "the Character of any joint family property does not change with the severance of the status of the Joint family and the joint family property continues to retain its its joint family character". In the instant case mere residence of the appellants and the respondents apart from each other is the only factor which is being relied upon by the respondents. The learned Additional District Judge therefore, ought to have held that the property continues to be joint and had to be partitioned with 50% share to the appellants. 2. Some factual background of the case is as under: . The Appellants are the original plaintiffs. The Respondents are the original defendant. That the original defendant no.1 is the elder brother of Appellant No.1’s late husband and uncle of Appellant No.2. . That Laxman Ladaji Salunke had two sons i.e. Narayan 5 Laxman Salunke (Respondent No.1) and Haribhau Laxman Salunke (Appellant No.1’s husband). After death of Laxman Ladaji Salunke on 15.12.1945, Respondent No.1 was looking after joint family property as the Manager. This continued for about 35 years prior to filing of the suit. After the death of Shri Haribhau on 15.4.1961 the joint family of the Appellants and Respondents continued residing together. After the Appellants started to reside at 543, Kasba Peth, they demanded half of the share of the joint family property. That the Respondents continued giving assurance to the Appellant that their names are entered into the record of rights. That in 1975 the Appellants realised that not only had the Respondents not entered their names but the demise of Appellant No.1’s husband was also not recorded. The Appellants informed the Cantonment Board regarding the same on 22.7.1975 and paid the ground rent on 7.8.1975. However, due to pressure brought by the Respondents, the Appellants name were not entered into the record of rights. 3. That House No.65 old Bazar Kirkee, Pune was bought by Laxman Ladagi Salunke on 17,.05.1909. That House No.66 old Bazar Kirkee, Pune was purchased by the Respondents on 18.08.1967 out of funds of joint family, property. But Respondent No.1 bought the same in the name of his three sons. 6 4. That the Respondents filed written statement to contend that his brother i.e. Appellant No.1’s husband started staying separately with Appellant Nos. 1 and 2 and that the house no.66 had been bought by him from his self earning. The Respondents further contended that he became owner of House No.65 as he had repaid and satisfied the loan raised by their father Laxman. The Respondent produced mortgage deed at Exh.55. That the mortgage was satisfied on 14.01.1942 when the father Laxman was alive. The Respondent further contends that the documents are more than thirty years old and thus need not be proved. 5. After hearing rival contentions, the trial Court decreed the Appellants Suit on 31.07.1986 by holding that the plaintiff/Appellant were entitled to 1/2 share of both the House No.65 & 66. The Respondents filed Civil Appeal No.1156 of 1986 which came to be allowed by the Appellate Court on 4.10.1989. Hence this Second Appeal. 6. By consent, in view of admission of the present Appeal on the grounds so raised which are treated as questions of law, the question of law is reframed as under: 7 . "Whether mis-construction of documents and wrong application in construing it make the impugned judgment and order contrary to the law and the record? " 7. In so far as the house property bearing No.65, Old Bazar, Kirkee, Pune, the trial Court, after considering the material on record, was right in holding that the Respondents-original defendants failed to produce and bring on record any evidence to show that the partition took place between the Appellants and their father Laxman and his brother Narayan. The burden lies on the respondents to prove the partition. The presumption of joint family property unless rebutted needs to be respected in view of various judgments and as relied on Bhagwant Bhagwant Bhagwant P.Salakhe v. Digambar Gopal Salakhe & ors., P.Salakhe v. Digambar Gopal Salakhe & ors., P.Salakhe v. Digambar Gopal Salakhe & ors., AIR AIR AIR 1986 SC 79 1986 SC 79 1986 SC 79. There was no document of partition or material shown at any point of time by the Respondents even when the Appellants asked for partition. The partition was in fact refused by the Respondents. 8. The defendant further failed to prove that he became the owner of the house property bearing No.65 as he had paid the mortgaged amount as the house was mortgaged by his father Laxman. During the lifetime of his father even the said amount was alleged to have been paid that by itself is no reason that the other co-parceners are deprived of their rights in the joint Hindu family 8 property. It is the duty of the Manager of the joint family to satisfy the loan on the immovable property if any. The paying of amount of loan does not create any right of ownership unless agreed accordingly. The Exhibit "57" has been strongly relied upon by the Respondents and also by the Appellate Court while reversing the order of trial Court of granting partition. Though the said document is of 30 years old as alleged, there is no material to justify the non-disclosure of the said document at the earliest point of time when the Appellants demanded the partition. The case that as the Narayan got the property released by paying the amount and, therefore, Laxman executed the said document is also not supported by any material except the averments. The contents of alleged 30 years old document/Will when challenged, need material evidence to support the same by the party who has disclosed and produced during the litigation and denied the right of other co-parceners in the joint Hindu family property in question. There is presumption in favour of the Will so produced but when the existence of the alleged Will, as well as, the contents are challenged, the heavy burden lies on the person who claims the benefit out of the said Will specially in the facts and circumstances of the case, when the Appellants denying the existence of such Will apart from the contents therein. Exhibit "57" as observed by the trial 9 Court, rightly so, nowhere states that house no.65 was given to Narayan. 9. The facet which is to be noted in the present matter is that the heirs of Narayan produced the said document. No-one examined to prove the execution of the said document. Therefore, in view of Section 90 of the Evidence Act since the alleged document is of more than 30 years old, that itself would not establish the contents of the document in the present case. The presumption in the present case though considered in favour of the Respondents, still for want of necessary documents and material to justify the inconsistent stand of earlier partition and/or of mortgage itself destroy the case of the Respondents. 10. The raising of issue by the Respondents to become owner of the suit property by the principle of adverse possession though rightly answered in the negative by the trial Court, yet it further destroy the case of the Respondents in all respects. If it was already partitioned there was no reason of separate Will and/or alleged document of Will or mortgage. Therefore, in my view the reasoning given by the trial Court is right. The reasoning given by the Appellate Court is not correct. Therefore, merely because the document is of 30 years old and produced and disclosed by the heirs of 10 the Respondents-Narayan first time in litigation, that itself cannot be the reason to discard the case of partition as claimed by the Appellants/plaintiffs in respect of joint Hindu family property in the facts & circumstances of the case. 11. Another facet is that there is no material to support that the defendants paid the amount of Rs.5,000/- regarding the suit property for the repairs and taxes and the said mortgage was so redeemed. The non-payment of shares of taxes or revenue or non-recording of name in the revenue record that itself is not sufficient to claim ouster of co-sharer, to succeed in plea of adverse possession specially on vague and inconsistent averments. 12. Admittedly, no evidence was led by the Respondents. The Respondents have examined one Harishchandra, who, nowhere accepted that the amount was received from time to time. In the cross-examination he clearly accepted that he is unable to identify the signature on the alleged Will in question, though in the examination he stated that he can identify the signature of Laxman. He has further admitted that there is no documentary evidence to show that Narayan paid the amount to release the property. Therefore, in the absence of evidence even by the contesting Respondents, the words of one 11 Harischandra to support the contents of the Will as relied upon by the Respondent is unacceptable. The reasoning of the learned Appellate Court that house no.65 was self-acquired property is not correct. 13. With regard to house no.66, as noted, there is no material placed on record, first of all by leading evidence of the Respondents themselves to support their case that house no.66 was self-acquired of their father Narayan and, secondly, he had separate source of income to earn and purchase the said house. Hence, the property so purchased was from the funds of joint family. The case of partition as well as Will, as noted above, is without material on record. The Respondents failed to bring on record to show that Narayan purchased the said property out of his own income. Therefore, merely because the parties reside separately during the lifetime from his father Laxman that itself cannot be the reason to consider the case of Respondents of partition. In this background, therefore, I am of the view that the order passed by the Appellate Court is contrary to record and the law and basically based upon mis-interpretation of the said documents. The order of trial Court in holding that house no.65 and house no.66 and movable property mentioned in Schedule A and B of the plaint are ancestral property and, therefore, entitled for partition as granted, is correct. 12 Accordingly, the question of law is answered in the affirmative. 14. In the result, the impugned judgment and order dated 4.10.1989 passed by the IVth Additional District Judge, Pune in Civil Appeal No.1156/1986 is quashed and set aside. The judgment and order dated 31.07.1986 passed by the trial Court i.e. VIth Joint Civil Judge, J.D., Pune in Regular Civil Suit No.987/1980 is maintained. The Second Appeal is allowed accordingly. No costs. [ANOOP [ANOOP [ANOOP V. MOHTA,J.] V. MOHTA,J.] V. MOHTA,J.]