Govind Gangaram Khedekar and Ors. Vs Savitri Ramji Pandare

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

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SECOND APPEAL NO.637 OF 2006

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Govind Gangaram Khedekar & Ors.

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...Appellants

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Versus

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Smt Savitri Ramji Pandare

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...Respondent

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Shri S.M.Railkar for the Appellants.

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Shri Parag Shelke with Shri C.K.Marathe for the
Respondent.

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CORAM : ABHAY S.OKA, J.
DATED : OCTOBER 01st, 2007.

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P.C.:

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1.Heard learned counsel appearing for the
appellants. The second appeal is preferred by the
original defendants. The original respondent in the
second appeal is the Plaintiff.

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2. The respondent-plaintiff filed a suit for partition
and separate possession against the appellants who are
the original defendants.

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3.According to the case of the respondent, the
suit properties were held by the predecessor of the
parties by the name of Ganya Mehtar alias Khedekar. The
said Ganya had a son by the name Bala. Bala had three
sons by the name Rama, Babu and Baba and two daughters.
The said Baba and two daughters died during the life

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... 2 ...

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time of their father. It is contended by the Respondent
that from the year 1948 the surviving sons of Bala i.e
Rama and Babu started residing separately and by way of
family arrangement they were enjoying different parts of
joint family property. It is however contended that
there was no actual partition by metes and bounds
between the parties. It is alleged that Babu i.e the
father of Respondent died in the year 1957 and the
Respondent being his only daughter was the only legal
representative of Babu. The Appellant Nos.1 to 10 are
the legal representatives of the said Rama. It is
alleged that the Appellant Nos.11 and 12 are not
concerned with the suit property in any manner. It is
alleged that the Respondent-Plaintiff being the legal
representative of Babu was entitled to one half share of
Babu and legal representatives of Rama were entitled to
one half share of Rama.

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4.The suit was contested by the Appellants by
filing written statement. The Appellant No.8 filed the
main written statement. The Appellant No.8 contended in
the written statement that Babu died in the year 1948
and therefore, the Respondent is not entitled to claim
any right as a heir. It is alleged that Rama and Babu
were residing separately right from the beginning and
they have acquired various properties during their life

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... 3 ...

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time. It is alleged that the suit properties were the
properties of the deceased Rama and the Appellant Nos.1
to 10 being his heirs are entitled to exclusive
ownership of the said properties. The said written
statement was adopted by the Appellant Nos.1 to 6.

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5.The learned trial Judge dismissed the suit by
holding that the Respondent had not established that the
suit properties were joint family properties. In an
appeal preferred by the Respondent, the District Court
has passed a decree. The decree passed by the District
Court was set aside by this Court by order dated 21st
April, 2005 by holding that the Appellate Court seems to
have proceeded on the assumption that Babu had one half
share in the suit properties. This court observed that
there was no clear finding recorded by the Appellate
Court as regards the controversy whether suit properties
were joint family properties of the Appellant Nos.1 to
10 and the Respondent. Therefore, this Court passed an
order of remand. After the order of remand, by the
impugned judgment and decree the learned additional
District Judge has allowed the Appeal and has passed a
preliminary decree of partition in favour of the
Respondent. The Appellate Court observed that the
shares in the suit properties sold by the Appellant
Nos.1 to 10 to Appellant Nos.11 and 12 shall be

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... 4 ...

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allotted, as far as possible, to the share of the
Appellate Nos.1 to 10.

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6.The learned counsel appearing for the Appellants
contended that there is a clear finding recorded by the
Appellate Court that no evidence was produced by the
Respondent to show that the suit properties were
acquired by Ganya Mehtar. He submitted that there was
absolutely no evidence on record to show that the suit
properties were held by Ganya Mehtar. He submitted that
except for an entry in revenue record in the name of
Rama in the capacity as Karta of the joint Hindu Family,
there is no material on record to show that the suit
properties are ancestral properties of the family of the
Appellant Nos.1 to 10 and the Respondent. He submitted
that earlier partition of the property between Rama and
Babu was admitted by the Respondent. He, therefore,
submitted that in absence of any material on record to
show that the suit properties were ancestral properties,
the Appellate Court could not have upheld the case made
out by the Respondent.

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7.I have considered the submissions. Perusal of
the written statement filed by the Appellant No.8 which
is adopted by the Appellant Nos.1 to 6 shows that the
suit properties were acquired by the deceased Rama and

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... 5 ...

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after his demise, by inheritance, the properties were
acquired by deceased Gangaram and Ganpat from whom the
Appellant Nos.1 to 10 have obtained the properties by
inheritance. In so far as genealogy pleaded by the
Respondent is concerned, the only stand taken in written
statement was that the genealogy was incomplete and
necessary information has not been incorporated.
However, there is no dispute raised regarding
relationship between the parties as reflected from the
genealogy. The genealogy shows that one Bala was the
son of Ganya and Rama and Babu were the only two
surviving sons of Bala. Gangaram and Ganpat are the
sons of deceased Rama and the Respondent is the daughter
of deceased Babu.

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8.The Appellate Court has referred to Mutation
Entries 203 and 326 which show that the name of Rama was

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entered in the revenue records in respect of suit
property as elder son and Karta of joint Hindu Family.
The Appellate Court has observed that there is no
explanation from any of the Appellants as to how the
name of Rama was incorporated in the revenue records in
his capacity as Karta of joint Hindu Family. The
Appellate Court has also referred to Mutation Entry 326
which shows that Ganya died in the year 1941 and the
name of his elder son Rama was entered as Karta of joint

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... 6 ...

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Hindu Family. The Appellate Court has observed that
aforesaid Mutation entries falsify the case made out by
the Appellants that Rama was the only person having
title to the suit properties in his personal capacity.
Apart from the revenue record, the Appellate Court has
considered the fact that the Appellants have not led any
evidence to establish exclusive title of Rama.

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8.Considering the relationshipbetween the

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parties, the Appellate Court has accepted the case made
out by the Respondent that the suit properties were held
by Rama in his capacity as Karta of the joint Hindu
Family. It is very difficult to find fault with the
aforesaid finding of fact recorded by the Appellate
Court on the basis of the material on record.

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9.No substantial question of law arises. There is
no merit in the Second Appeal and the same is
accordingly dismissed with no orders as to costs.

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JUDGE

Govind Gangaram Khedekar and Ors. v. Savitri Ramji Pandare

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Govind Gangaram Khedekar and Ors. v. Savitri Ramji Pandare

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