1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.120 OF 1988 1) Bhagabai alias Sarubai w/o Shridharappa; 2) Vijayabai d/o Shridharappa Age:11 Yrs., minor under guardianship of real mother Bhagabai alias Sarubai, i.e.appellant no.1. .. APPELLANTS (orig.Pltffs. nos.1 & 2) VERSUS 1) Sarmukhappa s/o Bandayappa; 2) Anandappa s/o Bandayappa; 3) Yadavrao Sambhaji Khotare; 4) Ramrao Sambhaji Khotare; 5) Hanmabai d/o Shridharappa (deleted as per order dated 28th June, 1982 passed on Exh.14) ..RESPONDENTS (Nos.1 to 4 orig.deft.no. 1 to 4; no.5 orig.Pltff.3) ***** Mr.Rahul P.Dhase, Adv.h/for Mr.AH Vaishnav, Advocate for Appellants; Mr.NE Deshmukh, Adv.h/for Mr.SB Talekar, Advocate for Respondent nos 1 to 4. ----- CORAM : K.U.CHANDIWAL, J. DATE : 7th July, 2009. ORAL JUDGMENT : Heard learned Counsel for the parties. 1) The concurrent finding recorded against 2 the plaintiffs is subject of challenge in the second appeal. The appeal is admitted on 26.7.1988 by formulating following substantial question of law - “Whether the suit property was joint family property or self- acquired property of Anandappa, is substantial question of law involved in this appeal.” 2) The plaintiffs sought partition and separate possession of their 1/6th share in each of the lands Survey Nos.65, 66, 67 and 68 and 1/3rd share in other land Survey No.8/2, 8/A-3, 10, 11 and 120. The non-controversial facts in the matter are, Sanmukhappa, Anandappa and deceased Shridharappa are the sons of Bandayappa. Shridharappa married to one Sarubai, who expired on 18.1.1970. Shridharappa expired somewhere in 1977. Plaintiff no.3 – Hanmabai is minor daughter of deceased Shridharappa, while plaintiff no.2 -Vijayabai is daughter of plaintiff no.1 – Bhagabai. Plaintiff no.1 – Bhagabai canvassed that she was legally wedded wife of deceased Shridharappa. Both the courts have recorded that Bhagabai married Shridharappa after demise of his wife Sarubai and plaintiff no.2 – Vijayabai is daughter of Shridharappa. On analysis of the evidence, I do not see that this aspect needs any further intervention, and I too hold that Bhagabai has been accepted to be wife of Shridharappa. 3 3) The contentions that the property referred above was belonging to joint Hindu family, or it was from the earnings of joint Hindu family, are negatived by the defendants. It was contended, it was Anandappa, who was Karta of the family, the suit land Survey Nos. 65 to 68 were purchased on 29th June, 1955 when Shridharappa was ten years old boy under guardianship of his elder brother Sanmukhappa. The consequence of minority of Shridharappa was obvious. He could not have the funds to part with to purchase the property. It was contributed, naturally, by the brothers Shridharappa, Sanmukhappa and Anandappa. Indeed, Sanmukhappa, at Exhibit-95 has disclosed that he has paid Rs.5,000/- for purchase of half share in these four of the lands, while other half was purchased by defendant nos. 3 and 4. 4) It is a matter of record, that after purchase of the property in the year 1955, it was under cultivation of Sanmukhappa. Shridharappa by calculation attained majority in the year 1963 and he survived up to 1977. The revenue record of these four lands indicate that even after attaining the majority, Shridharappa did not assert his rights to these four properties and allowed to remain in the name of defendant no.1 – Sanmukhappa, showing him an exclusive owner and possessor of these four lands to the extent of half share, the other being of defendants nos. 3 4 and 4. Had it been a case of Shridharappa was having any share or owned part of the property, based on the sale deed dated 29.6.1955, it was open for Shridharappa, during his life time to have got necessary entries recorded even after 1963 when he attained the majority. The long drawn silence, on the part of Shridharappa, was not an omission, but a calculated notable fact, as he had no stake in the property to agitate the mutation entries or the possession of his brother Sanmukhappa. Consequently, the evidence of the plaintiff could not indicate that Shridharappa had any share in the land Survey Nos.65 to 68, which apparently were purchased by Shanmukhappa along with defendant nos. 3 and 4. In the scenario, the plaintiffs could not stake claim in the said property. 5) So far as other lands are concerned, they were bequeathed on 5.2.1950 by maternal grandmother in favour of Aanandappa and there were persistent revenue entries to this effect. Consequently, the plaintiffs could not stake claim to those of the properties, which were received by Aanandappa directly from his maternal grandmother. Though Courts have held that defendant nos. 1 and 2, Shridharappa were members of the joint family and Shridharappa died while being member of it, the plaintiffs continued to be members of joint family of which defendant nos. 1 and 2 are the co-parceners. However, 5 since it was Aanandappa and Sanmukhappa, who was Karta of the joint family, and the properties, as indicated herein above, were received in the manner by virtue of independent title, could not have been treated to be the joint family property. The concurrent findings recorded against the plaintiffs by both the courts do not warrant any interference. The substantial question of law is answered in the negative. Second Appeal dismissed. No costs. ( K.U.CHANDIWAL ) JUDGE bdv/sa120.88