1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Second Appeal NO.1230/2005 WITH (C.A.NO.13138/2008 AND C.A.NO. 13139/2008 1) Vishwanath s/o Rangrao Shirsalle Age 40 years Occup.: Agriculture and Trader, R/o Lokhand Galli,Latur. Appellant. (Orig. deft no.1) Versus 1) Arvind s/o Rangrao Shirsalle,Age : 27 years, Occupation : Agriculture, R/o Shindi Jawalga, Tq. Nilanga. 2) Govind s/o Rangrao Shirsalle, Age : 35 years, Occupation : Agiculture, R/o Shindi Jawalga, Tq.Nilanga. 3) Rangrao Narayanrao Shirsalle, (died) 4) Tribenibai W/o Rangrao Shirsalle, Age : 65 years, Occu. Household, and Agriculture, R/o As above. (Died) 5) Kashibai alias Laxmibai W/o Manikrao Mane, Age : 52 years, Occupation : Agriculture, R/o Madaj Tq. Omerga. 6) Shailesh Jayantilal Shah, Age : Major, R/o Ashwini Medical Stores, Gandhi Market, Behind Bus Stand, Latur. 7) Satish s/o Mahfibhai Patel, Age : 2 Major, R/o as above. 8) Sow. Pushpa W/o Ramrao Patil,Age : Major,, R/o Wanre V.G. Matra Pitra Chya , Near Dalve Building, India Nagar, Latur. 9) Panditrao Shankarrao Kulkarni, Age : Major, R/o Anand Nagar, Osmanabad, Dist. Osmanabad. Respondents. Mr. V.C. Solshe, Advocate for appellant. Mr. S.S. Chaudhari, Advocate for respondents no.1,2 and 5. Mr. V.D. Gunale, Advocate for respondent no.5. Mr. Vivek Bhavthankar, Advocate for respondent no.6. WITH CROSS OBJECTION ST. NO. 17182/2005 IN (SECOND APPEAL NO. 1230/2005) Shri Shailesh s/o Jayantilal Shaha,Age : 50 years, Occu.Business, R/o Gandhi Market, Latur Dist. Latur. Cross Objection petitioner Versus 1 Vishwanath s/o Rangrao Shirsalle, Age : 45 years, Occu. Agriculture & Trader, R/o Lokhandi Galli, Latur. 2 Arvind s/o Rangrao Shirsalle, 3 Age : 40 years, Occu.Agriculture, R/o Shindi Jawalga, Tq. Nilanga Dist. Latur. 3 Govind s/o Rangrao Shirsalle, Age : 46 years, Occu. & R/o As above. 4 Rangrao Narayanrao Shirsalle, (Died). 5 Trivenibai Rangrao Shirsalle, (Died) 6 Kashibai @ Laxmibai w/o Manikrao Mane, Age : 55 years, Occu. Agriculture, R/o Madaj, Tq. Omerga Dist. Osmanabad. 7 Satish Mahfibhai Patel, (Died) 8 Sau. Pushpa w/o Ramrao Patil,Age 55 years, Occu. Household, R/o Matra Pitra Chyaya, Near Dalve building, India nagar, Latur. 9 Sau. Savita Sudhir Yermalkar, Age : 34 years Occu. Household, R/o Shivaji nagar, near Udyog bhavan, Latur. 10 Panditrao s/o Shankarrao Kulkarni, Age : 44 years, Occu. Agriculture, R/o Anand nagar, Osmanabad Dist . Osmanabad. ..Respondents Mr.Vivek Bhavthnkar, Advocate for for cross objection petitioner. Mr. V.C. Solshe, Advocate for respondent no.1.Mr. S.S. Chaudhari for respondents no.2, 3 and 6. 4 WITH Second Appeal NO. 1377/2005 (With civil application no. 8805/2005 AND CIVIL APPLICATION No.3343/2009) 1) Arvind s/o Rangrao Shirsalle,Age : 51 years, Occupation : Agriculture, R/o Shindi Jawalga, Tq. Nilanga. Dist. Latur. 2) Govind s/o Rangrao Shirsalle, Age : 60 years, Occupation : Agriculture, R/o Shindi Jawalga, Tq.Nilanga. Dist. Latur. Appellants. Versus 1) Vishwanath s/o Rangrao Shirsalle Aged : 65 years Occu.: Agriculture and Trader, R/o Lokhand Galli,Latur. (Now at Deshpande colony, Ausa road behind Jaju hospital, Latur. 2) Rangrao s/o Narayanrao Shirsalle, (deceased) his. L.Rs. 2A Kashibai alias Laxmibai w/o Manikrao Mane, Age : 68 years, Occupation : Agri. & Household, R/o Madaj, Tq. Omerga, Dist. Osmanabad. 2B Shailesh Jayantilal Shah, Age : 45 years, Occupation : Business, R/o Ashwini Medical Stores, Gandhi Market, Behind Bus Stand, Latur. 2C Satish Mahfibhai Patel, Age : 45 years, Occupation : Business, R/o Ashwini Medical Stores, Gandhi Market, Behind Bus Stand, Latur. (Dismissed as per court s order 5 dated 21/08/2008) 2D Sou. Pushpa w/o Ramrao Patil, Aged : 40 years, Occupation : Household, R/o Wanre V.G., Matra Pitra Chaya , Near Dalve Building, India Nagar, Latur. 2E Sou. Savita w/o Sudhir Yermarkar, Aged:45years,Occupation :Household, R/o Shivaji Nagar, Near Udyog Bhavan, Latur. 2F Panditrao Shankarrao Kulkarni, Aged : 50 years, Occupation : Business, R/o Anand Nagar, Osmanabad, Dist. Osmanabad. (2E & 2F dismissed as per court s order dated 21/08/2008)n 3) Trivenibai W/o Rangrao Shirsalle, Deceased. Respondents. Mr. S.S. Chaudhari, Advocate for appellants. Mr. V.C. Solshe, Advocate for respondent no.1. Mr. Vivek Bhavthankar, Advocate for respondent no.2B. [CORAM : K.U. CHANDIWAL, J. ] Date : 31st March, 2010. ORAL JUDGMENT : 1 Heard respective counsel. 2 Second appeal no.1230/2005 is moved by Vishwanath plaintiff in R.C.S. No. 703/1980. The first appeal No. 92/2003 was preferred by 6 him where also Vishwanath lost and hence, he has questioned the concurrent finding in the second appeal. 3 Vishwanath during the pendency of the proceeding sold four plots to original respondent no. 6 Shailesh Shah on 24/04/1988, 11/08/1989, 24/04/1991 and 26/04/1991. He asserted, he was bona fide purchaser for value without any knowledge of pendency of Special civil suit No. 3/1981. The original plaintiff Arvind preferred second appeal No.1377/2005 as the Will deed to which he placed reliance having been executed by mother Trivenibai, divesting others from her share, was available to him. Claim to her entire share, by virtue of such bequeath, as claimed by Arvind, has not been accelerated before both courts and it was raised for first time in the High Court. Apparently, there is no evidence to prove the will deed in favour of Arvind and Govind from their mother. I do not wish to touch to this aspect for further details and consequently, hold that since will deed itself has not been legally proved, to the extent of the right of mother Trivenibai, defendant / appellant herein can not stake claim to her property. The observation of the learned judge holding, entitlement of the sons, to the extent of 6/25th share devolved equally, does not warrant any interference. 4 Mr. Solshe arguing for Vishwanath submits that the independent business commenced by him was from his source having sold gold ornaments of his wife and had certain borrowing from his in-laws. The court has observed that in Special Civil Suit No. 3/1981 while filing 7 defence, no such stand was raised by Vishwanath. According to Mr. Solshe, such stand did appear in R.C.S. No. 703/1980 where he is a plaintiff. 5 The court gave ample opportunities to Vishwanath, by asking him to produce what was initial amount which was invested in opening Adat shop at Latur. In spite of said opportunity, no such endeavour was made. The court had the available record that father of the parties Rangrao being Karta of the joint family, was in possession of 58 acres of land and has purchased several properties as referred in para 21 in R.C.A. No. 92/2003 (Second appeal No. 1230/2005). It also demonstrated that the property was not alone purchased in the name of father but it was in the name of plaintiff or in the name of Vishwanath also and such purchase was even dated 19/06/1979, in the name of plaintiff. The sale deed dated 17/05/1980 was in the name of defendant no.2. A plot was purchased by defendant no.3 in his own name. The plot purchased on 11/01/1978 was purchased in the name of defendant no.1 (Vishwanath). The courts, on analysis of the evidence found that, whatever business Vishwanath had carried, it had nucleus and source of joint family and consequently, any purchase of the property by Vishwanath was not from his independent source. It was only ancestral property. Indeed Vishwanath did not dispute the other ancestral properties barring the property in question, asserting that it was self acquired property of himself. The evidence adduced, negatived contention of Vishwanath. I do not find any error of fact or 8 law in the courts, not accepting contentions of the appellant Vishwanath and rightly held that it was the joint family property of the brothers with their father. The second appeal moved by Vishwanath sans merit, warrants dismissal. 6 Then comes cross appeal of original respondent no.6 Shailesh Shah. He has, during the pendency of the proceeding, purchased above referred plot from Vishwanath. He has his independent remedies. However, he can not stake claim of setting aside the decrees in favour of the plaintiff Arvind or other brothers. The remedies open to the subsequent purchaser Shailesh Shah can be exhausted by him as would be advised. There is no merit in cross objection raised by Shailesh Shah. Hence, it is dismissed. Order a) execution to the extent of purchaser Shailesh Shah, shall not be accelerated till 30/06/2010. b) Second appeal no. 1230/2005, Second appeal no. 1377/2005 and Cross Objection Stamp No. 17182/2005 dismissed with respective civil applications. No costs. [K.U. CHANDIWAL, J.] tsk/sa1230/2005.