Dismissed

Bhagabai Alias Sarubai Shridharapp and Anrs. v. Sarmukhappa Bandyapp and Ors.

Bombay HC7 Jul 2009SA/120/1988

Case brief

AI extract

What is this about?

In this second appeal concerning partition, the court examined two sets of lands: those purchased in 1955 during the minority of one co-parcener and lands bequeathed directly to another co-parcener. The court held both were the self-acquired property of the respective transferees, not joint family property.

What did the court decide?

No interference; the second appeal was dismissed against the plaintiffs

Bhagabai Alias Sarubai Shridharapp and Anrs. Vs Sarmukhappa… — Partition | Bombay HC (2009)

¶1

¶2

IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

¶3

SECOND APPEAL NO.120 OF 1988

¶4

1) Bhagabai alias Sarubai w/o Shridharappa;

¶5

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)

¶6

 VERSUS

¶7

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 28^th June, 1982 passed on Exh.14) ..RESPONDENTS (Nos.1 to 4 orig.deft.no. 1 to 4; no.5 orig.Pltff.3)

¶8

*****

¶9

Mr.Rahul P.Dhase, Adv.h/for Mr.AH Vaishnav,
Advocate for Appellants;

¶10

Mr.NE Deshmukh, Adv.h/for Mr.SB Talekar, Advocate
for Respondent nos 1 to 4.

¶11

ORAL JUDGMENT :

¶12

Heard learned Counsel for the parties.
1)The concurrent finding recorded against

¶13

¶14

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 -

¶15

“Whether the suit property was
joint family property or self-
acquired property of Anandappa,
is substantial question of law
involved in this appeal.”

¶16

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

¶17

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.

¶18

¶19

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 29thJune, 1955 when

¶20

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,bythebrothers
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.

¶21

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

¶22

¶23

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.

¶24

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,

¶25

¶26

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.

¶27

( K.U.CHANDIWAL ) JUDGE

¶28

bdv/sa120.88

Bhagabai Alias Sarubai Shridharapp and Anrs. v. Sarmukhappa Bandyapp and Ors.

Case brief

What is this about?

What did the court decide?

Bhagabai Alias Sarubai Shridharapp and Anrs. v. Sarmukhappa Bandyapp and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

State of Maha and Ors. Vs Shivappa Shantirappa Malkatte

Limbraj Tulshiram Ingle. Vs Raju Shesharao Deshpande.

State of Mah Thr Collector Latur and Anr. Vs Goroba Bala Kumbhar

Hausabai Limbaji Padwalkar. Vs Chandar Babaji Pandhare and Others.

Sundrabai Mohaniraj Joshi and Anr. Vs the State of Maha. and Ors.

The New India Assurance Co. Ltd. Vs Indubai Sheshrao Thube and Ors.