1 sa774.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 774 OF 2010 WITH CIVIL APPLICATION NO.17611 OF 2010 Shri. Hari Ganpat Nhavi, Age: 64 years, Occ: Agri., R/o. Sutar Galli, Jamner, Tq. Jamner, Dist. Jalgaon. ...APPELLANT VERSUS Sau. Shantabai Kadu Sinde, Age: 70 years, Occ: Household, R/o. Paldhi, Tq. Jamner, Dist. Jalgaon and others. ...RESPONDENTS ... Mr. S.P. Deshmukh, Advocate for appellant - applicant. Mr. K.C. Sant, Advocate for respondent No.1. ... CORAM: S.S. SHINDE, J. DATE : 15TH DECEMBER, 2011 PER COURT : . Heard learned Counsel for the appellant and learned Counsel for respondent No.1. Perused the grounds taken in the second appeal and also impugned judgment and order and other documents referred by by the Counsel for the appellant. 2 sa774.10 2. Learned Counsel for the appellant submits that, common ancestor Ganpat Nhavi died in the year 1958. According to the Counsel for the appellant, respondent No.1 got married even prior to that. Name of the appellant is entered in to the revenue record in the cultivation and ownership column and since then, he is in possession of the suit property. There are three sisters to the appellant. However, two sisters have executed relinquishment deed waiving their share in the property. It is further submitted that, the suit filed by respondent No.1 was after 43 years of death of Ganpat and therefore, in view of Article 110 of the Limitation Act, the suit filed by respondent No.1 should have been dismissed on that ground alone. Learned Counsel also submitted that, after marriage, respondent No.1 ceased to be the member of the joint family and therefore, learned Counsel invited my attention to the Article 212 of Hindu Law and submitted that, exclusion from the joint family 3 sa774.10 after marriage is automatic. Therefore, respondent NO.1 ceased to be the member of joint family of the appellant. Therefore, at the most, she should have filed suit within 12 years. However, suit was filed in the year 2000 which was hopelessly time barred and therefore, the suit should have been dismissed by the trial Court. . Learned Counsel further submits that, it was the duty of the lower appellate Court to frame all points for consideration, however, the lower appellate Court has not framed all points and therefore, the matter be remanded to the lower appellate Court for fresh consideration. In support of this contention, the Counsel for the appellant placed reliance on the reported judgment in the case of Madhukar and others vs. Sangram and others reported in AIR 2009 S.C. 2171. Learned Counsel also invited my attention to the findings recorded by the lower appellate Court and submitted that, the observations of the lower appellate Court that there is no specific mention 4 sa774.10 of the averments in the Written statement about the exclusion of respondent No.1, is contrary to the statement in the written statement where the appellant has specifically stated that he is the only owner and in possession of the suit property since the death of Ganpat. It is further submitted that, though specific ground was taken as a Ground No. N and S before the lower appellate Court that, share of plaintiff as 12.50 ps. in the agricultural property was never claimed by the plaintiff and the trial Court erred in declaring respondent No.1 is entitled for 12.50 ps. share in the agricultural land. Learned Counsel orally submitted that, admission by the Advocate of the appellant by way of placing on record the written notes of argument that respondent No.1 is entitled for share of 12.50 ps. in the agricultural land of deceased Ganpat Nhavi, is not acceptable to the appellant. In spite of taking said point in the appeal memo, lower appellate Court has not framed specific point in that respect, and there is no any discussion in the body of judgment about the 5 sa774.10 said contention of the appellant. Learned Counsel also invited my attention to the grounds taken in the second appeal and submitted that, the second appeal deserves consideration. He further submits that, there is no ground taken in the memo of second appeal that the statement made by the Advocate before the trial Court, that respondent NO.1 is entitled for share to the extent of 12.50 ps. in the agricultural property, is not acceptable to the appellant and the appellant may be allowed to take said ground in the second appeal. 3. On the other hand, learned Counsel for the respondent No.1 invited my attention to the findings recorded by the trial Court while answering issue No.2. According to learned Counsel for the respondent No.1, the Advocate appearing for the appellant before the trial Court filed written notes of arguments in which it was specifically stated that respondent NO.1 is entitled for share in the agricultural property of 6 sa774.10 deceased father to the extent of 12.50 ps. Therefore, according to learned Counsel for respondent No.1, there was specific admission by the Advocate for the appellant by way of filing written notes of arguments that respondent No.1 is entitled for share in the agricultural field of deceased father Ganpat to the extent of 12.50 ps. Therefore, there was specific admission and once such admission was there, the trial Court has rightly passed the decree and thereby respondent No.1 is held to be entitled for the share in the agricultural field of deceased Ganpat to the extent of 12.50 ps. Learned Counsel further submits that, if the daughters were not entitled for the share of Ganpat, there was no necessity for the appellant to take relinquishment deeds from other two sisters. It is the case of the appellant himself that, such deeds are placed on record by two sisters and that fact itself would indicate that the sisters of the appellant are entitled for the share in the property of the deceased Ganpat. Learned Counsel further submits 7 sa774.10 that, in the written statement which was filed before the trial Court, there was no specific averments or statement of the appellant that respondent No.1 is excluded from the joint family from particular date and therefore, in absence of such statement, respondent No.1 continued to be the member of the joint family and only specific denial by the appellant such exclusion would start, however, that is not the case pleaded by the appellant. Therefore, this Court may not accept the contention of the appellant to that effect. Learned Counsel submits that, the lower appellate Court rightly held that in the written statement, there is no any specific statement that respondent No.1 is excluded from the joint family and therefore, she is not entitled for the share in the agricultural property of deceased Ganpat and therefore, learned Counsel for respondent No.1 submits that, the second appeal is devoid of any merits and same may be dismissed. 4. I have carefully perused the grounds 8 sa774.10 taken in the appeal memo. There is no ground taken by the appellant that written notes of arguments which was filed by the Advocate appearing for the appellant before the trial Court, an admission in the said written notes of argument that respondent No. 1 is entitled for share in the agricultural property i.e., suit property, to the extent of 12.50 ps., is not acceptable to the appellant herein. In short, there is no any ground taken in the memorandum of second appeal, that the statement of the Advocate through written notes of argument stating therein that respondent No.1 is entitled for the share in the agricultural property of deceased Ganpat to the extent of 12.50 ps., is not acceptable to the appellant or such statement is contrary to the instructions given by the appellant. Though the Counsel appearing for the appellant invited my attention to the Ground No. N and S before the lower appellate Court, from perusal of the judgment of the lower appellate Court, there was no specific argument to that effect or on reading 9 sa774.10 the judgment of the lower appellate Court, there was no insistence by the appellant to frame specific point to that effect. The appellant did participate in all the proceedings of the appeal. Merely because the general ground is taken in the appeal memo , that itself would not prove the case of the appellant unless specific attention of the lower appellate Court was invited and there was insistence for framing the issue on the said point. It was also possible for the appellant to invite the attention of the lower appellate Court by insisting to frame the specific point in that respect and in case, the lower appellate Court was not inclined, to challenge the said order before the higher Court. However, that endeavour has not been made. 5. So far the point of limitation is concerned, the lower appellate Court has dealt with the said point and rightly observed that in the written statement there was no any specific statement as such that respondent No.1 stands 10 sa774.10 excluded from joint family and consequently, she cannot claim share in the joint family property. Therefore, the view taken by the lower appellate Court that limitation will start from specific exclusion, cannot be said to be perverse view. Therefore, taking overall view of the matter, if it is the appellant's case that other two daughters have executed relinquishment deeds thereby relinquishing their right in the suit property, that pre-supposes that the appellant's sisters being L.Rs. were entitled for the share in the property of deceased Ganpat. The appellant denied the share of respondent No.1 and therefore, suit was filed by respondent No.1. . The view taken by the lower appellate Court on the point of limitation is inconsonance with the pleadings and the provisions and therefore, that point also needs no consideration in the present second appeal. The another aspect of the matter is that, the appellant herein through his Advocate by way of filing written 11 sa774.10 notes of arguments has stated that respondent No.1 is entitled for the share in the property of Ganpat to the extent of 12.50 ps. 6. Therefore, taking overall view of the matter and looking to the relationship between the appellant and respondent No.1 as brother and sister, in the facts and circumstances of this case, in my considered opinion, the view taken by both the Courts below is reasonable and not perverse, therefore, needs no interference. 7. For the reasons aforesaid, I do not find any substance in the second appeal, same stands rejected. Consequently, Civil Application stands rejected. [S.S. SHINDE, J.] sut/DEC11