-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.323 OF 2007 APPEAL NO.323 OF 2007 APPEAL NO.323 OF 2007 Dadasaheb Appalal Mujawar & Ors. ...Appellants vs. Ashama Jalauddin Ghory & Ors. ...Respondents Mr.P.R.Arjunwadkar for the Appellants Mr.G.S.Godbole i/b Mr.P.D.Pise for Respondent no.1. CORAM: CORAM: CORAM: A.S.OKA, J. A.S.OKA, J. A.S.OKA, J. DATE DATE DATE : JANUARY 18,2008 : JANUARY 18,2008 : JANUARY 18,2008 P.C.: P.C.: P.C.: 1. Heard Advocates for the parties. Second Appeal is preferred by the defendant Nos.1 and 2 for challenging the decree of partition passed by the trial court and confirmed by the Appellate Court. It will be necessary to refer to the facts of the case. 2. The first Respondent-plaintiff is the real sister of the first Appellant. The father of the first Appellant and first Respondent was one Appalal. The name of the mother of the first Appellant and the first Respondent was Amirabi. The suit properties are the land bearing Gat No.274/1-A of the village Kupwad, Gat No.11 of village Bamnoli and house properties bearing City Survey No.280 and 39 at Kupwad. According to the case of the first Respondent, the said Appalal was the original owner of the suit properties. According to the case of the first Respondent, the first Appellant executed a Hibanama (gift) in favour of the second Appellant. It is contended that the first Respondent being -2- entitled to 1/3rd share in the suit property, she is not bound by the transaction of the gift. 3. The contention of the Appellants in the written statement was that the suit properties were initially Inam lands given for rendering religious duties to Ladlesha Piraso Dargah. It was submitted that some of the suit properties are the separate properties of the first Defendant (first Appellant). The trial court held that the first Respondent was entitled to 1/3rd share in the suit property and passed a decree for partition. The trial court observed that the first Appellant has not led any evidence. The trial court held that the gift executed by the first Appellant was not binding on the share of the first Respondent. In the Appeal preferred by the present Appellants, the District Court has confirmed the said decree. 4. The first submission of the learned Advocate for the Appellants is that the 7/12 extract of land bearing Gat No.274/1-A which was produced in the trial court shows that the said land was an Inam land and therefore no further evidence was required to show that the said land was Inam land. He submitted that time was sought by the first Appellant before the trial court on genuine grounds by making applications at Exhs.69, 70 and 71 and the said applications were erroneously rejected by the trial court and therefore sufficient opportunity of leading evidence was not made -3- available to the Appellants. He submitted that in the Appeal, a specific prayer was made for passing an order of remand which ought to have been granted. He placed reliance on the Civil Application No.1187 of 2006 which is an application for seeking permission for leading additional evidence. He has placed reliance in the said Civil Application on the extract of public trust register maintained under the provisions of Bombay Public Trusts Act,1950 to show that one of the suit properties was a trust property. Lastly he submitted that when the execution of the gift by the first Appellant was admitted, the burden was on the first Respondent to show as to why the gift was not binding on her and she has not discharged the said burden. 5. I have carefully considered the submissions. By filing the aforesaid Civil Application for leading additional evidence, reliance is sought to be placed on the extract of public trust register. It is submitted that the public trust register shows that the land bearing Survey No.346 of Kupwad is a trust property and the said land has been numbered as Gat No.274 Hissa No.1-A. It must be stated that admittedly no contention has been raised by the Appellants in the written statement that one of the suit properties was a property of a public trust duly registered under the said Act of 1950. The only contention raised in the written statement is that the suit property was an Inam land. In fact, reliance has been placed by the Appellants on the 7/12 extract which allegedly -4- shows that one of the suit properties is Inam land. 6. Apart from the fact that it was never a specific plea of the Appellants before the trial court that one of the suit properties was a property vesting in a public trust, there is hardly any explanation in the application as to why the said document which was always available was not produced in the suit of the year 1999 and in the Appeal of the year 2004. Therefore, the said document cannot be allowed to be produced at this stage by way of additional evidence. 7. In paragraph 6 of its Judgment, the Appellate Court has observed that there is no dispute about the relationship between the parties. The Appellate Court has further observed that admittedly the suit properties were owned initially by Appalal who is the father of the first Appellant and the first Respondent. The Appellate Court has referred to the certified extract of city survey register which shows that after the demise of Appalal on 11th October 1982, the name of the first Appellant was recorded in the ownership column as a manager of the joint family. The Appellate Court observed, and in my view rightly, that only on the basis of the said entry in the city survey record the first Appellant cannot claim exclusive ownership especially when the property bearing City survey No.280 was admittedly vesting in the father Appalal. Considering these factual aspects, the Appellate Court has observed that no purpose will be served by remanding the suit -5- to the trial court. 8. In so far as the gift is concerned, the trial court has not granted any specific declaration in respect of the gift. The trial court has held that as the first Appellant was entitled to only 2/3rd share in the suit properties, the gift will not bind the 1/3rd share of the first Respondent (original plaintiff). Therefore, once it is held that the first Appellant is entitled to 2/3rd share, it is obvious that the gift will be valid only to the extent of 2/3rd share of the first Appellant. 9. In so far as 7/12 extract is concerned the same shows the tenure of land bearing Gat No.274/1-A as ‘Inam’. However, the name of the holder is shown as the first Appellant and the name of the first Respondent appears in other right column as the other heir. Therefore, merely on the basis of the said entry in 7/12 extracts, it cannot be said that the first Respondent is not entitled to claim partition as admittedly the said property was held by the said Appalal, the father of the first Appellant and the first Respondent. 10. Considering the aforesaid factual aspects, the Appellate Court was justified in not passing an order of remand. The learned Advocate for the Appellant submitted that even this court can pass order of remand subject to payment of costs. There are findings recorded by both the courts below on the -6- basis of the documentary evidence on record that the first Respondent who is admittedly the real sister of the first Appellant is entitled to 1/3rd share in the suit properties. In paragraph 6 of the Judgment, the Appellate Court recorded that admittedly the suit properties were owned initially by the father of the first Appellant and the first Respondent. The effect of the decree is that the first Appellant will get 2/3rd share in the suit property and the first Respondent who is his real sister will get 1/3rd share in the suit property. The gift allegedly executed by the first Appellant will remain valid in so far as the share of the first Appellant is concerned. 11. Considering the aforesaid discussion, no substantial question of law arises. Second Appeal is dismissed with no order as to costs. 12. At this stage, the learned Advocate for the Appellants prays for continuation of ad-interim relief granted on 2nd August 2006. The said prayer is opposed by the Advocate for the first Respondent by pointing out that the said ad-interim order was not continued and that the first Appellant has in the meanwhile alienated one of the suit properties. 13. Considering the facts and circumstances of the case, for a period of 12 weeks from today, actual physical partition by metes and bounds shall not be effected subject to condition -7- that the Appellants will not create any third party interests in respect of the suit properties. JUDGE JUDGE JUDGE