1 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 325 OF 1999 SECOND APPEAL NO. 325 OF 1999 SECOND APPEAL NO. 325 OF 1999 Suman Balkrishna Zodage .. Appellant V/s. Alaka Suresh Zodge & Ors. .. Respondents Smt.A.R.S.Baxi for the Appellant. Mr.Indrajeet Kulkarni i/b.ALMT Legal for Respondent Nos. 1 to 3. CORAM : S.S.SHINDE, J. CORAM : S.S.SHINDE, J. CORAM : S.S.SHINDE, J. DATE : 13TH JUNE, 2008. DATE : 13TH JUNE, 2008. DATE : 13TH JUNE, 2008. ORAL JUDGMENT :- ORAL JUDGMENT :- ORAL JUDGMENT :- . The present second appeal arises out of the final judgment and order passed by the Additional Civil Judge, Junior Division, Pune at Pune in Regular Civil Suit No.2382 of 1983 and final Judgment and order passed by the Additional District Judge, Pune at Pune in Civil Appeal No.499 of 1997 on 6th March, 1999. The present Appellant is defendant No.2 in Regular Civil Suit No.2382 of 1983. The present Respondent Nos. 1 to 3 are original plaintiffs in R.C.S.No.2382/83. The 2 Respondent No.4 in the present appeal was Defendant No.1 before the Jt.C.J.J.D., Pune at Pune. The present Respondent Nos. 5, 6 and 7 are original Defendant Nos. 3 to 5. 2. The present Respondent Nos. 1 to 3/original Plaintiffs filed R.C.S.No.2382/83 for partition and separate possession of the Plaintiffs 1/4th share in the suit house and the suit flour mill. The said suit was contested by some of the Defendants by claiming that there was previous partition by metes and bounds. FACTUAL MATRIX FACTUAL MATRIX FACTUAL MATRIX 3. One Mahadeo Zodge had four sons by name Balkrishna, Dnyeshwar, Suresh and Chandrakant. He died in 1961 leaving behind him his wife Shevantabai and these four sons. Balkrishna died on 7.10.1976 leaving behind his wife defendant No.2 Suman and two daughters Vidya and Sandhaya defendants No.3 and 4. Dnyeshwar is defendant No.1, Suresh died on 13.6.1979 leaving behind his wife Alka, daughter Varsha and son Sunil, Plaintiffs No.1 to 3. Chandrakant died on 22.8.1979 leaving behind his wife and one daughter Manisha. Admittedly chandrakant’s wife has remarried. Mahadeo’s 3 wife Shevantabai died on 26.3.1983. 4. The genealogy of the family of the Plaintiffs and Defendants has given in the plaint is as under Mahadeo Maruti Zodge (expired on 1961) -------------------------------------------------- -------------------------------------------------- -------------------------------------------------- ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! Balkrishna Dnyaneshwar Suresh Chandrakant Shevantabai son Son Son Son wife (deceased) (Deceased) (Deceased) (Deceased) 7.10.76 13.6.79 22.6.79 26.3.83 ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! Manisha ! ! ! ! ! ! ------------ --------------- ------------ --------------- ------------ --------------- ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! Suman Vidya Sandhya Alka Varsha Sunil wife Dau. Dau. Wife Daughter Son 5. The subject matter of the suit is three storeyed house bearing City Survey No.1231, in Kachi Ali, Raviwar Peth, Pune. On the ground floor there is one flour mill. 6. According to the Plaintiff (the Respondent No.1 to 3 herein this appeal) the suit property was purchased by Mahadev from the Stridhan of his wife Shevantabai. But the property was enjoyed by Mahadev and his sons as joint Hindu family property. After the death of Plaintiff No.1’s husband Suresh on 13th June, 1979 there were differences between Plaintiffs and the 4 Defendants. The Defendants were getting monthly income of Rs.700/- to 800/- from the flour mill and rent of Rs.15/- per month from three tenants Shankar Bharte, Vitthal Lunkad, Chandrabai Shette and Rs.80/- from Ramchandra Salunkhe. The Defendant No.1 and 2 were receiving the rent and income from the flour mill but they were not giving any share to the Plaintiffs. The husband of Plaintiff No.1 Suresh was looking after the flour mill during his life time. But after his death Plaintiffs are not getting any share in the suit property. Therefore, the present Respondent Nos. 1 to 3/Original Plaintiffs filed suit for partition and separate possession of 1/4th share of the Plaintiff. 7. The original Defendant No.1 i.e. present Respondent No.4 was served with suit summons, but he did not appeared. Hence, the suit proceeded exparte against him. The Defendant No.4 who is Respondent No.7 in the present appeal. She was personally served with suit summons, but she did not appeared hence, the suit proceeded exparte against her. The Defendant No.5 who is Respondent No.5 in this Appeal filed written statement at Exh.60 and claimed possession of her 1/4th share in the suit property. The Defendant Nos. 2 and 3 i.e. present Appellant and Respondent No.6 herein, 5 contested the suit by written statement at Exh.14 on following pleas : . The Suit properties were not purchased from Stridhan of Shevantabai. In 1963 the suit properties were partitioned between Mahadeo, defendant No.1 Dnyeshwar, Shevantabai and Chandrakant. In the partition the flour mill was allotted to Balkrishna the husband of Defendant No.2. since, 1963, defendants 2 to 4 own and possess the flour mill and they are running the flour mill. The Plaintiff has no concern with the flour mill. In 1977 there were partition between defendant No.1 and Suresh, the huband of Plaintiff No.1. The Plaintiffs are occupying the part of the suit house which was allotted to them. The suit is bad for non-joinder of Chandrakant’s wife i.e. defendant 5’s mother. 8. On the basis of pleadings in the plaint and written statement filed by the Defendants issues were framed at Exh.19 by the Jt.C.J.J.D.,Pune at Pune which were subsequently modified. 9. The Plaintiff No.1/Respondent No.1 herein, examined herself. The Defendant No.2 and 3 i.e. 6 present Appellant and Respondent No.6 herein this appeal, did not entered into witness box. On the basis of the pleadings following issues were framed by the learned C.J.J.D.,Pune at Pune. (1) Whether the flour mill was Stridhan property of Shevantabai and whether the plaintiffs are entitled to get 1/4th share in the same ? (2) Whether the joint family of the parties was separated in 1963 and whether in 1977 the suit property was partitioned by metes and bounds ? (3) Whether the flour mill was received by the Defendants 2 to 4 in the partition? (4) What the suit is bad for non-joinder of defendants No.5 mother ? (5) What reliefs ? ...The suit is decreed with costs. It is ordered and decreed that the Plaintiffs and defendant No.5 have 1/4th Share each 7 in the suit properties. The suit properties shall be partitioned by metes and bounds. Defendants 1 to 4 to deliver the Plaintiffs and defendant No.5 their 1/4th Share each as shall be determined by the Court. 10. The issue No.1 was answered by the lower court holding that besides bear words of P.W.1 Alka, there is no documentary evidence to show that the suit property was purchased from Stridhan of Shaventabai the mother-in-law of P.W.1 Alka. However, it was further held by the lower court that in the written statement filed by the Defendant Nos. 2 and 3 there is clear admission given that the suit property is joint family property. The issue No.1 was answere‘d by the lower court by holding that the Plaintiffs would have inherited 1/4th shares in the suit properties. 11. So far as issue no.2 and 3 which were framed in respect of claim of the Defendants that there was partition in 1963 and 1977, the lower court held that 8 there is absolutely no evidence to show that there was any partition between the heirs of Mahadev either in 1963 or in 1977. 12. The lower court relied on decision of the Supreme Court in K.V.Narayan Swami Iyer v/s K.V.Iyer, AIR 1965, K.V.Narayan Swami Iyer v/s K.V.Iyer, AIR 1965, K.V.Narayan Swami Iyer v/s K.V.Iyer, AIR 1965, Supreme Court, 289 Supreme Court, 289 Supreme Court, 289 and came to the conclusion that merely because the flour mill stands in the name of Defendant No.2 i.e. present Appellant or that she was exclusively running the flour mill or that she was exclusively enjoyed the income of the flour mill that itself will not prove her exclusive ownership of the flour mill. The lower court further held that the suit house was admittedly purchased by Mahadev who was common ancestor of the parties. Thus, there was a nucleus from the joint family to purchase the machinery for flour mill. Further it was observed that flour mill is situated in the suit property. Hence, lower court held that the natural presumption is that the flour mill is jointly owned by all the parties. Accordingly, issue No.2 and 3 answered by the lower court. 13. In respect of issue no.4 the trial court concluded that since Chandrakanta’s wife has remarried, 9 she is not entitled to claim any interest in the suit property. . The trial court decreed the suit with costs. It was declared that the Plaintiffs are having 1/4th share in the suit properties and Defendant No.5 is also having 1/4th share in the suit properties. It was further ordered that the suit properties including the flour mill shall be partitioned by metes and bounds and 1/4th share each of the Plaintiffs and Defendant No.5 shall be separated by metes and bounds. It was further ordered that the Defendants 1 to 4 who are in possession of the suit properties shall hand over the share of property of Plaintiff and Defendant No.5 as shall be determined by the Court. Being aggrieved by the final Judgment and order passed by the Jt.C.J.J.D., Pune at Pune in Regular Civil Suit No.2382 of 1983, the present Appellant as well as present Respondent Nos. 6 and 7 filed Regular Civil Appeal No.499 of 1997. 14. The learned Additional District Judge, Pune framed following points for determination. i. Whether the Appellant i.e. Defendant Nos. 2 to 4 proved that the suit flour mill exclusively belong to them as it was 10 allotted to them in the family partition. ii. Whether the Judgment and decree passed by the lower court is proper? . While discussing the point no.1, the learned Judge observed that "The learned Advocate for the Appellant during the course of his arguments fairly conceded for passing decree for partition in respect of the suit house excluding the flour mill in it." . Therefore, the Appeal Court determined the question in respect of the rights and the partition over the suit flour mill. 15. The Lower Appellate Court considered all the contentions raised in appeal, Judgment and order passed by the lower court and further taking into account the evidence and documents on record came to the conclusion that the suit flour mill is situated in the joint family house i.e. the suit house. And therefore court came to the conclusion that the flour mill is not separate independant property. 16. The Lower Appellant court confirmed findings of the lower court that there was no partition in the year 1963 or in the year 1977 as contended by the Appellant. 11 The Appeal court observed that the electricity meter provided to the flour mill and the shop and license of the flour mill was in the name of Balkrishna and subsequently in the name of his wife Suman Defendant No.2 i.e. the present Appellant. However, the Appeal Court observed that only this circumstance is not sufficient to say that it is an independent property of Defendant No.2. The Appeal Court relying on decision of the Supreme Court in the case of K.V. Narayan Swami K.V. Narayan Swami K.V. Narayan Swami Iyer v/s. K.V.Ramkrishna Iyer, AIR 1965, S.C., Iyer v/s. K.V.Ramkrishna Iyer, AIR 1965, S.C., Iyer v/s. K.V.Ramkrishna Iyer, AIR 1965, S.C., came to the conclusion that merely the property stands in the name of any of the family member it does not give him right of ownership. The Appeal Court further observed that, the contention of the Appellant that there was prior partition is not supported by documentary evidence or Appellant did not adduced any evidence to that effect or they did not entered into the witness box to depose in support of their contention that there was prior partition. The Appeal Court further observed that in absence of any evidence of prior partition or inaction of the Appellant not to entered into the witness box, intitial burdon is on the Defendant/Appellants to prove prior partition. Taking overall view of the matter, the Appeal court dismissed the appeal filed by the Appellant. 12 17. The present second appeal filed by Appellant challenges the Judgment and order passed by the 4th Additional District Judge, Pune at Pune in Civil Appeal No. 499 of 1997 on 6th March, 1999. 18. The second appeal was heard on 23rd August 1999. This Court issued notices to the Respondents and it was further ordered that the possession should not to be taken from the Appellant. On 28th March, 2006 second appeal was admitted by this Court and following two substantial questions of law were framed. i. Whether the suit is maintainable without adding or joining all the properties into the common hotchpot ? ii. Whether the court below was correct in holding that the flour mill situated on the ground floor of the suit premises is jointly family property. . During the pendency of the second appeal the interim stay which was granted on 23rd August 1999 was continued. 19. The Second appeal is finally heard. 13 SUBMISSION ON BEHALF OF APPELLANT : SUBMISSION ON BEHALF OF APPELLANT : SUBMISSION ON BEHALF OF APPELLANT : 20. The learned counsel Smt.Baxi appearing for the Appellant submitted that, only the property situated in the joint family property cannot be called as an joint family property unless it has been specifically proved that the sufficient nucleus is available with the joint family. It was further submitted that there is no presumption of property being joint family property only on account of existence of joint family. It was further contended that, the person who asserts that the property is joint family property must, prove that there was nucleus in the joint family from which the property can be acquired and than only onus would shift on the person who claims property is self-acquired property. It was further submitted that though the Respondent No.1 entered into a witness box, but failed to prove that suit property is purchased from the stridhan of the Shaventabai. It was further submitted that the original plaintiff failed to prove that the joint family was having sufficient nucleus to purchase the flour mill. It was further submitted that Respondent No.1 i.e. the original Plaintiff failed to discharge her burden and therefore the Plaintiff was 14 not entitled for the decree. It was further submitted that since Plaintiff failed to prove that suit property is purchased from stridhan of the Sheventabai and since same has not been proved by the Plaintiffs., the findings recorded by the courts below are wrong on law and facts and therefore, the second appeal filed by the Appellant deserves to be allowed. 21. In respect of the first substantial question of law, the counsel appearing for the Appellant submitted that, the additional evidence tendered on record alongwith civil application filed in second appeal demonstrates that all properties were not joined for partition which is basic legal requirment of suit for partition. It was further submitted that the pleadings regarding non-joinder of the properties is not properly appreciated by the first Appeal court. It was further contended that the family arrangement was taken place in 1963 and there was partition of the properties and all the members of the family are separated from each other. It was further contended that this aspect of the matter that there was family arrangement in 1963 has not been properly considered by the courts below. It was further contended that though there is a corroborating finding against the Appellant still the 15 appeal raises the question of law as Respondent No.1 failed to prove the nucleus and in consequently the ownership of the joint family. It was further submitted that since the Respondent No.1 was original Plaintiff, the onus was on Respondent No.1 to prove his case. The Respondent No.1 did not prove her case and she has not discharged the burden to prove his case and therefore the Judgment and order passed by the Courts below are not sustainable and second appeal deserves to be allowed. SUBMISSION ON BEHALF OF RESPONDENTS : SUBMISSION ON BEHALF OF RESPONDENTS : SUBMISSION ON BEHALF OF RESPONDENTS : 22. The advocate appearing for the Respondent No.1 to 3 submitted that by virtue of section 101 of the Evidence Act, the courts below rightly casted burden on the Defendants i.e. the present Appellant to prove whether there was a partition or not. It was further submitted that, the Defendant No.2/present Appellant failed to prove the same, that Defendant No.2/Appellant neither laid any evidence nor filed any documents except license under Shop and Establishment Act to show that there was any partition as alleged to that effect. It was further contended that the Appeal Court has rightly held that there is no direct evidence about the 16 partition. It was further submitted that the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the parties who denies. It was further submitted that the specific pleading of the Defendant No.2 present Appellant is that there is a partition in the year 1963 and 1977 by virtue of which the flour mill came in their possession, therefore burden of proof to prove the said partition was on Appellant. 23. It is submitted that, though the Appellant/Defendant No.2 mentioned in her written statement before the lower court that all joint family properties are not mentioned in the plaint, no documentary evidence was produced by the Appellant in support of her contention that all the joint family properties are not joined in the partition suit. The Appellant asserted that, all joint family properties are not shown in the suit, however, till the appeal is decided by the Appellate Court no documentary proof or any other evidence was produced by the Appellant on record to show that all properties are not joined/mentioned in the suit for partition. 24. It was further submitted by the Respondent that, 17 the original Defendants and present Appellant before this Court has not submitted any documentary proof or laid any evidence on record to support her contention that all the properties of the joint family are not joined/ mentioned in the suit for partition. It was further submitted that though suit was filed in the year 1983 and same was disposed of on 30th November, 1996 except statement made in written statement by the Appellant/Defendant that all joint family properties are not joined/mentioned in the partition suit, no any documentary or oral evidence was laid by the Appellant before the lower court. Even in an appeal filed by the Appellant before the Additional District Judge, Pune at Pune except the statement in the appeal that all joint family properties are not joined/mentioned in the partition suit, the Appellant herein did not produce any documentary evidence or laid any evidence to that effect. Therefore, in absence of any documentary evidence placed on record by the Appellant/Defendant about her contention that all joint family properties are not joined in the plaint lower court as well as the Appellate Court was perfectly justified to reject the said contention of the Appellant. 25. It is further submitted by the Advocate appearing 18 for the Respondents that, at belated stage when second appeal is pending before the High Court the Appellant filed civil application annexing some documents to show that there were other joint family properties which were not joined in the suit for partition. On the said application there are no any orders passed by this Court and therefore in absence of any documentary evidence on record the courts below ere absolutely right to reject the contention of Appellant that all joint family properties are not included or joined in the suit for partition. CONCLUSIONS AND FINDINGS : CONCLUSIONS AND FINDINGS : CONCLUSIONS AND FINDINGS : 26. I proceed to discuss and answer substantial question of law involved in the matter keeping in mind the observations of the Apex Court in paragraph 14 in case of Santosh Hazari V/s. Purushottam Tiwari Santosh Hazari V/s. Purushottam Tiwari Santosh Hazari V/s. Purushottam Tiwari (deceased) AIR 2001 Supreme Court 965 :- (deceased) AIR 2001 Supreme Court 965 :- (deceased) AIR 2001 Supreme Court 965 :- A Point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be ‘substantial’, a question of law must be debatable, not previously settled by law of 19 the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation of it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by Court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstances of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis." 20 In the above paragraph of Judgment of the Apex court it has been observed that, to be a question of law involving in a case there must be first factual foundation laid in the pleadings and the question should emerge from the sustainable finding of facts arrived at by Court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. 27. In the instant case, the first question of law which is framed by this Court in the present Second Appeal is that whether the suit is maintainable without adding or joining all the properties into common hotchpot ? 28. The Appellant who is original Defendant No.2 before the trial court asserted the fact that all joint family properties are not joined/mentioned in the suit for partition and therefore suit for partition was liable to be dismissed. The present Appellant/Original Defendant No.2 merely mentioned in the written statement that all properties of the joint family are not joined in the suit for partition, however, no documentary evidence was produced on record to show that there are other properties than joined/added in 21 the plaint which are joint family properties. The present Appellant/Defendant NO.2 did not entered into the witness box to prove the fact that there are other properties than joined/added in the plaint which are joint family properties. The Appellant except bear words in the written statement did not file any documentary evidence or did not entered into the witness box to prove the fact that there are other joint family properties which are not joined in the suit for partition filed by the present Respondent/original Plaintiff. In absence of any documentary evidence on record and in absence of any oral evidence laid by the Appellant/original Defendant NO.2, the trial court rejected the contention of the Appellant that, the other properties of