gst 1 sa206.09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY. CIVIL APPELLATE JURISDICTION. SECOND APPEAL NO. 206 OF 2009. WITH CIVIL APPLICATION NO. 785 OF 2009. Krishna Pandit Waze & Ors. ..... ..... .... Appellants. V/s Shrikant Pandit Waze & Ors. ... ..... ..Respondents. Mr.Pradeep Patil, Adv. For the appellants Mr.Amit B. Borkar, Adv. For respondent Nos. 1 & 5. Mr.P.D.Dalvi, Adv. For respondent No.2. Mr.P.M.Arjuunwadkar, Adv. For respondent Nos. 3 & 4. Mr.V.B.Jagdale, Adv. For respondent Nos. 7 & 8. CORAM: B.R.GAVAI, J. 26th August, 2010. PC: By way of the present appeal the appellant challenges the judgment and order passed by the learned Civil Judge, Senior Division, Ichalkaranji in Regular Civil Suit No.390/05 thereby dismissing suit of the plaintiff and holding that the plaintiff is having 10/280 share in the suit properties and further holding that defendant Nos. 1 to 6 are also having 10/280 share each in the suit properties and that defendant Nos. 7 and 8 are having 70/280 share in the suit properties and that defendant No.9 and defendant No.10 each have 35/280 share in the suit properties. 2. A suit came to be filed by respondent No.1 for partition against parents, brothers, sisters, cousin sisters and aunts. All the parties claim their share in the property of deceased Govinda Vaze. The deceased Govinda had four children; two sons and two daughters. Defendant No.7-Tarabai is one daughter and another daughter Hirabai has died and she has left one legal heir i.e. Radhabai-defendant No.8. One son Bapu has also died and he has left behind gst 2 sa206.09.sxw two heirs viz. Defendant No.9-Sakubai and defendant No.10-Shanabai. Another son Pandit is defendant No.4. Defendant No.5-Anusaya is wife of defendant No.4-Pandit, who have five children viz. 3 sons and 2 daughters. Defendant Nos. 1-Krishna and 2-Suresh are the sons and defendant No.3- Anjana and defendant No.6-Shrimanti are the daughters. It was the contention of plaintiff that the land block Nos.864, 887 and 872 situated within the limits of village Shahapur belonged to Govinda so also house No.617 and 618 in CTS No.493 situated within the limits of Shahapur also belonged to Govinda. It is further contention of the plaintiff that the family remained a joint family property and that the land block No.882 was purchased in the year 1968 and house No.704 in village Kabnur was purchased in the year 1977 from and out of income of the joint family property and as such the said properties are also required to be brought in the hotchpot for determining the shares of co- parceners. In the pleadings before the trial court it is only the defendant Nos.1, 4, and 5 who have contested the suit. Rest of the defendants have supported the claim of the plaintiffs. In so far as the properties bearing Nos.864, 887 and 872 as well as CTS No.493 it is not disputed by even these defendants that these were properties of joint family. It is the contention of defendant No.4-Pandit that the responsibility of the entire family was on his shoulders and as such he was required to work as Coolie on bullock-cart to support the family. He has further contended that thereupon he joined the services in a sugar factory and started to work as coolie. It is the contention of defendant Nos.1, 4 and 5 that the property bearing block No.882 and the house property No.704 of village Kabnur have been purchased by defendant No.4 out of income generated by him when he was working as coolie and i the said sugar factory. 3. Learned trial court after appreciation of evidence placed on record held that all the aforesaid properties were properties belonging to joint family and as such decreed the suit. The trial court held that the defendant No.4 had failed to prove that he had any independent source of income to purchase the property gst 3 sa206.09.sxw being block No.888 and house No.704 and therefore held that the suit properties were also purchased from the nucleus of joint family property. 4. Being aggrieved thereby defendant Nos. 1, 4, and 5 preferred an appeal before the learned District Judge. During the pendency of appeal learned appellate court had permitted the appellants to lead additional evidence under Order 41 Rule 27 of Code of Civil Procedure. Learned trial court confirmed the findings of the appellate court and dismissed the appeal. Being aggrieved thereby the present appeal has been filed. 5. Mr.Patil, learned counsel for the appellants submits that both the courts below have failed to take into consideration that the present case would not be governed by section 8 of the Hindu Succession Act, 1956 (hereinafter referred to as “the said Act”) but would be governed by section 6 of the said act. He submits that if the case is governed by section 6 then the daughters Tarabai and Hirabai would not be entitled to any share. He therefore submits that a substantial question of law as to whether the partition between the parties wold be governed by section 6 arises for consideration in the present appeal. 6. He further submits that both the courts below ought to have taken into consideration that the two properties viz. agricultural property in Gat No.882 and house in gramp panchayat No.704 being self acquired property of defendant No.4-Pandit could not have been brought into hothcpot. He submits that though before the appellate court additional evidence was permitted to be placed on record which would exhibit that defendant No.4-Pandit had independent source of income. The learned appellate court has failed to take into consideration the said evidence and therefore the same requires to be considered in the present appeal. He also submits that leave aside considering the said evidence the same is not even referred to by the learned appellate court. He therefore submits that substantial question of law regarding non consideration of additional evidence would arise for consideration in the present appeal. gst 4 sa206.09.sxw 7. Mr.Dalvi, learned counsel for respondent No.2 also supports the contention of the appellants. 8. Mr.Borkar. learned counsel appearing for respondent Nos. 1 and 5, and Mr.Arjunwadkar, learned counsel appearing for respondent Nos. 3 and 4 submit that both the courts below upon appreciation of evidence have correctly arrived at a finding that even two properties claimed to be the self acquired properties by defendant No.4 are joint family properties. They therefore submit that no question of law leave aside substantial question of law arise for consideration in the present appeal and therefore the same be dismissed. 9. In so far as contention raised by learned counsel for the appellant is concerned, I find that both the courts below have concurrently held that no material was placed on record to establish that the properties in block Nos.864, 887 and 872 so also properties in CTS No.493 were inherited by the deceased Govinda from his forefathers. In view of the concurrent findings based on appreciation of evidence on record, I do not find that the same can be interfered with by this Court in this second appeal. I, therefore, find that no error could be found with the concurrent findings that the shares of the parties before the Court would be required to be determined under section 8 of the said Act. Even otherwise the contention of the present appellant that the partition would be governed by section 6 is to be accepted, even then in my view, no difference would be made in so far as the inter se of shares of the parties are concerned. 9. The relevant portion of section 6 of the said Act reads thus: “(6) Devolution of interest in co-parcenery property-- (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu Family governed by the Mitakshara Law, the daughter of a co-parcener shall- (a) by birth become a co-parcener in her own right in the same manner as the son; gst 5 sa206.09.sxw (b) have the same rights in the co-parcenery property as she would have had if she had been a son;” Admittedly, the suit for partition has not been filed prior to 20.12.2004. As such proviso of sub-section (1) to section 6 of the said Act would not be applicable. In that view of the matter, I find that there is no merit in the contention of the appellant that the daughters of the deceased Govinda viz. Tarabai and Hirabai would not be entitled to the share in the properties of deceased Govinda. 10. That leaves only to the question as to whether property in block No.882 purchased in the year 1968 and house No.704 at village Kabnur purchased in the year 1977 are liable to be brought in the hotchpot of joint family property. Learned counsel for the appellant has strenuously submitted that in the additional evidence which was permitted to be produced before the Appellate Court the appellant had established that he he had sufficient income to purchase the said properties. I have carefully gone through the additional evidence which is placed on record. Nothing has been placed on record to establish that the defendant No.4-Pandit was earning anything prior to 1970. Admittedly the property in block No.882 has been purchased in the year 1968. When defendant No.4 had failed to establish that he had any independent source of income prior to 1970 and when nucleus has been established, no error could be found in the orders of learned courts below holding that block No.882 was purchased from the income of joint family property and as such was liable to be brought in the hotchpot. 11. The only question now that remains is as to whether houses No.704 of village Kabnur which is purchased in the year 1977 could have been brought in the hotchpot of jointly family property. From the evidence which has been placed on record before the appellate court it will be seen that there was a dispute between the present appellant No.2 i..e. defendant No.4-Pandit Govinda Waze and the Panchganga Sahakari Sakhar Karkhana before the labour court gst 6 sa206.09.sxw Solapur. In an application under section 33(C) of the Industrial Disputes Act an award has been passed on 20.6.82. However it is pertinent to note that certain documents were placed on record in the said proceedings by said Panchganga Sahakari Sakhar Karkhana. From the documents placed on record it will be seen that during the period from 1980 defendant No.4-Pandit was paid an amount of Rs.26,994/23 towards salary, during the said period. He was also paid bonus of Rs.4094/-. The house property in question is purchased in the year 1977 for Rs.2500/-. Leave aside consideration of this evidence, there is not even reference to the same in the judgment of the learned appellate court. Taking into consideration income generated by defendant No.4-Pandit during the period 1970-80 and the amount paid by him for purchase of house in 1977 I find that it was required to be considered by learned appellate court as to whether the said house property could have been considered to be one purchased by defendant No.4-Pandit from is own source of income. At this stage learned counsel Mr. Borkar and Mr.Arjunwadkar on instructions from their respective clients fairly state that they are not interested in claiming the share in the house property No.882. In view of fair proposal on the part of respondents learned counsel for the appellants was requested to take instruction as to whether his client was willing for partition of property except house No. 882 which could be retained by them. However the appellants are not willing for the said proposal. 12. In that view of the matter, I find that the appeal requires to be admitted only on the question for considering as to whether house property No.704 of village Kabnur could be considered to be self acquired property of defendant No.4-Pandit in as much as he had produced the additional evidence on record to establish that he was having income from 1970-80. 13. The appeal therefore stands dismissed in so far as property being block No.864, 887,872 within the limits of village Shahapur and house property in S.No.492 so also land being block No.882. The appeal is admitted only in so gst 7 sa206.09.sxw far as House No.704 of village Kabnur is concerned on following substantial question of law: “1. Whether the Lower Appellate Court has msiread the admitted evidence in the form of exhibited document on record viz. Award dated 29.6.1982 of Labour Court, in as much as the said document relates to independent income of appellant No.2-Pandit Waze to purchase house property Grampanchayat No.704? gst 8 sa206.09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY. CIVIL APPELLATE JURISDICTION. CIVIL APPLICATION NO. 785 OF 2009 IN SECOND APPEAL NO. 206 OF 2009. . Krishna Pandit Waze & Ors. ..... ..... .... Appellants. V/s Shrikant Pandit Waze & Ors. ... ..... ..Respondents. Mr.Pradeep Patil, Adv. For the appellants Mr.Amit B. Borkar, Adv. For respondent Nos. 1 & 5. Mr.P.D.Dalvi, Adv. For respondent No.2. Mr.P.M.Arjuunwadkar, Adv. For respondent Nos. 3 & 4. Mr.V.B.Jagdale, Adv. For respondent Nos. 7 & 8. CORAM: B.R.GAVAI, J. 26th August, 2010. PC: By the present civil application the applicant prays for stay to the effect and operation of the impugned judgments in the present appeal. By a reasoned order passed in the second appeal I have dismissed the appeal in respect of all properties except house No.704 in village Kabnur is concerned. The appeal is admitted only in so far as property being house No. 704 is concerned. In that view of the matter application stands rejected except in so far as property being house No.704 in village Kabnur is concerned. There shall be stay to the execution of effect and operation of the impugned judgment and decrees only in so far as house property No.704 of village Kabnur is concerned. Needless to state that the proceedings for partition of rest of property except house No.704 shall proceed in accordance with law.