* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 407 OF 2009 W I T H CIVIL APPLICATION NO. 1508 OF 2009 IN SECOND APPEAL NO. 407 OF 2009 1. Trimbak Ravji Khalkar, since decd thru. His heirs and legal representatives (a) Smt.Anusuyabai Trimbak Khalkar (b) Shri.Balasaheb Trimbak Khalkar (c) Shri.Babaji Trimbak Khalkar (d) Shri.Arun Trimbak Khalkar (e) Shri. Madhukar Trimbak Khalkar (f) Sau.Sindhubai Parasharam Walunjage (g) Sau.Kusumbai Balasaheb Khalkar .....Appellants V/S. 1. Shri.Anil Kashinath Khalkar 2. Shri.Sunil Kashinath Khalkar 3. Smt.Lilabai Kashinath Khalkar ....Resps/Orig.Plffs. 4. Sou.Bebitai w/o.Nivrutti Pote,since decd. thru.her heirs and legal representatives (a) Shri.Nivrutti Mhasu Pote (b) Smt.Vaishali Nivrutti Pote (c) Shri.Vishal Nivrutti Pote * 2 * (d) Smt.Snehal Nivrutti Pote 5. Sou.Lata Laxman Gite ...Resps/Orig.Appellants 6. Shri.Raghunath Raoji Khalkar 7. Shri.Bhaskar Raoji Khalkar 8. Shri.Pandurang Ravji Khalkar (A) Smt.Pushpalata Pandurang Khalkar (B) Sau.Sangita Sunil Aher (C) Shri.Pradip Pandurang Khalkar (D) Sou.Sunita Sunil Pagar 9. Shri.Daulat Pandharinath Khalkar 1. 10. Shri.Pandharinath Punja Khalkar ....Respondents/Orig.Defendants ----------- Mr.K.Y.Mandlik, adv. for appellants. Mr.Sidharth Ranghe, adv.for respondents no.1 to 5. CORAM : SMT.R.P.SONDURBALDOTA, J. DATED : 10TH NOVEMBER, 2009. P.C. :- 1. Heard counsel for both sides. 2. This Second Appeal arises out of judgment and order dated 21st March, 2009 passed by the District Court, Niphad, Nashik decreeing the suit filed by respondents no.1 to 5 for partition of joint family property. The appellants are the heirs and legal representatives of original defendant no.2 Trimbak. Respondents no.6 to 10 are the other members of the joint family who have * 3 * accepted the impugned judgment and decree. 3. One Ravji died leaving behind five sons i.e. Raghunath (respondent no.6), Trimbak (since deceased), Bhaskar (respondent no.7), Pandurang (respondent no.8) and Kashinath (deceased). Kashinath had predeceased his father Ravji who held joint family properties during his lifetime. It was the case of respondents no.1 to 5 that Trimbak, the father of the appellants was the `Karta of the joint ’ family for some time. They claim in the plaint that the members of the joint family had been independently cultivating different parts of the agricultural land being the suit property by way of family arrangement. On 23rd April, 1990 a meeting of the family members had taken place for partition in which these respondents demanded 1/5th share in the property. However, Trimbak refused to give share in respect of two of the properties i.e. Gat No.355 and 351 and that is why no partition took place on that day. As these respondents were denied their share in the joint family properties, they filed suit being Regular Civil Suit No. 172 of 1974 for partition of the joint family properties. 4. Trimbak original defendant no.2 in the suit, predecessor of the appellants set up his defence in the suit that Gat no.554 was not purchased from joint family funds and it was his self acquired property and oral partition had taken place in the year 1971. He however did not state any particulars whatsoever of the partition. As a result, both the courts below rejected the claim of partition in the year 1971 observing that the plea taken was vague and not supported by * 4 * any evidence. 5. The other family members being respondents no.6 to 10 claimed in the written statement that partition had taken place in the year 1990 on the date on wich respondents no.1 to 5 claimed that a meeeting for partition had taken place. The trial court had accepted this claim and dismissed the suit. Respondents no.1 to 5 then preferred Regular Civil Appeal No. 46 of 2002 to challenge the decree of dismissal of the suit. By the impugned judgment and order, the appeal was allowed. The appeal court rejected the claim of the other respondents that partition had taken place on 23rd April, 1990. These other respondents have not challenged the judgment of the first appellate court thereby accepting the decision that there was no partition of the joint family properties at any point of time. 6. The appellants by the present appeal seek to contend that the impugned judgment and decree is illegal as the same is not supported by the evidence on record. Mr.Mandlik, submits that the appellants had preferred cross-objections before the first appellate court to challenge the finding that partition had taken place in the year 1990. Mr.Mandlik submits after advancing arguments for some time as regards partition of the joint family property that he is not pressing the appeal in respect of the partition of the suit properties except, agricultural land at Gat No.554. It has been the contention of the appellants that the land at Gat No.554 was the self acquired property of Trimbak and the same was never * 5 * thrown in the common stock. Consequently, it could not have been included in the suit property. 7. The first appellate court has considered the evidence led by the applicants at paragraph-40 of the judgment. The said property was purchased in the year 1976 by virtue of the documents at Exhibit-144. There is no doubt that the property was purchased in the name of Trimbak. It has been the case of the appellants that Trimbak had purchased the property out of his separate income earned from the tailoring job that he was doing during his lifetime. The only witness examined by the appellants was appellant no.1(a) Kusum who claims that the suit property has been bequeathed by Trimbak to her. The first appellate court has observed that the appellants failed to examine appellant no. 1(a), the widow of Trimbak who could have given evidence as regards the additional income allegedly earned by Trimbak by doing tailoring job. Since, there was no explanation offered by the appellants for not examining appellant no.1(a) who had been very much available for giving evidence, the first appellate court has drawn adverse inference against the appellants on the backdrop of the evidence of appellant no.1(g) that Trimbak was not keeping any accounts of his income. The second witness examined by the defendants before the trial court i.e.D.W.No.2 Ramesh shows that there were about 8 to 10 tailors in the village at the relevant time, and that tailoring was only a secondary occupation. At the relevant time, the charges for stitching a shirt were Rs.2..50 ps, for * 6 * stitching a blouse Rs.2/- and that for underpant was Rs.4 anna. The land at Gat No.554 was purchased for the consideration of Rs.5,000/-. The appellate court on the basis of the evidence before it, inferred that even if it was to be accepted that Trimbak had separate income from tailoring job, the same could not have been enough or sufficient to purchase the said land independently. There can be no fault found with this reasoning of the learned Judge. The appellants have also not pointed out any question of law for consideration of this court in the Second Appeal. The questions arising are based only on appreciation of evidence by the First Appellate Court. In my considered opinion, the appreciation of evidence by the first appellate court is reasonable and proper and there is no need to interfere with the same. 8. Mr.Mandlik relies upon the decision of the Apex Court in the case of Lakkireddi Chinna Venkata Reddi V/s. Lakkireddi Lakshmama reported in AIR 1963 S.C.page 1601 to submit that for blending of separate property with joint family property by a co-parcener, its essential ingredient to be established is the intention of the owner of abandoning his separate claim therein. Unless that intention is established, there cannot be blending of separate property with the joint family property. He also relies upon another decision of the Supreme Court in the case of K.V.Narayanan V/s.K.V.Ranganadhan i.e.AIR 1976 S.C.page 1715 in support of the same submission. In the instant case, it is not the case of respondents no.1 to 5 that property at Gat No.554 was a separate * 7 * property of Trimbak which was blended with joint family property. It is their case that this property is a joint family property having been purchased out of the joint family income. It has been held by the impugned judgment and order that the appellants have failed to establish that the property was a separate property of Trimbak. The facts of the decisions cited above are distinct and the decisions are not relevant. In the above circumstances, the Second Appeal is dismissed. 9. With the dismissal of the Second Appeal, the Civil Application does not survive. The same is accordingly disposed off. [SMT.R.P.SONDURBALDOTA, J]