Dismissed

Namdeo S/O Potu Bambole v. Kamlabai W/O Duryodhan Dongre and Anr.

Bombay HC4 May 2012SA/118/2012

Case brief

AI extract

What is this about?

The High Court dismissed the second appeal challenging a decree for partition and separate possession of joint family properties, finding no merit or perversity in the lower courts' rejection of a gift deed and a Will, confirming shares. The appeal under Second Appeal No. 118/2012 was summarily dismissed.

What did the court decide?

The appeal stands dismissed summarily. No order as to costs.

Namdeo S/O Potu Bambole Vs Kamlabai W/O Duryodhan Dongre and Anr. — Partition | Bombay HC (2012)

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sa118.12.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR

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Second Appeal No. 118/2012

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Namdeo Potu Bambole ..vs.. Kamlabai Duryodhan Dongre & anr.

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Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions and Registrar’s orders.

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Court’s or Judge’s orders

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Mr. D. R. Rupnarayan, Advocate for appellant

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CORAM : M.N. GILANI, J . DATED : MAY 4, 2012.

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Heard.

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Original defendant no.1 has filed this appeal taking exception to the judgment and decree dated 27.04.2006 passed by Civil Judge Junior Division, Sakoli in Regular Civil Suit No. 263/1998 and later on confirmed by District Judge on 01.09.2010 in Regular Civil Appeal No. 14/2007.

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One Bajirao died on 31.12.1971 leaving behind one son and five daughters. Pout-the son, had two wives namely Powarabai-plaintiff no.2 and Najukabai-defendant no.3. Plaintiff nos. 1 and 3 are daughters of Potu born from Powarabai and defendant nos. 1 and 2 are the son and daughter born from Najukabai. In respect of the properties in the hands of Potu, dispute arose between his wife and children. The plaintiffs filed suit for partition and separate possession of their shares. The suit was resisted by defendants on the ground that there had been partition of the properties left by Bajirao in the year 1988 and mutations were already carried out. It was also their case that Potu executed some gift deed and also left behind him a Will.

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The learned trial Court, believing the case of the plaintiffs, decreed the suit for partition and separate possession of the plaintiffs and

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sa118.12.odt

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defendants. While decreeing the suit, the learned trial Court did not believe the case of the defendants that any gift deed was executed by Potu. The Will (Exh.-90) was also found not to be genuine.

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The learned District Judge concurred with the findings of facts arrived at by the learned trial Judge by observing that the so called partition had taken place in the year 1988 between Potu and his sisters. In pursuance to that, land Gat No. 408 and 442 went to the share of the sisters of Potu (daughters of Bajirao). The gift deed relied upon by the defendants was not placed on record. Further, the learned District Judge concurred with the view taken by the learned trial Court that the Will is not genuine. He, therefore, held that the suit was rightly decreed for partition and separate possession.

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Mr. Rupnarayan, learned counsel for the appellant-original defendant no.1 contended that both the courts below committed serious error in appreciating the evidence and thus there involves substantial question of law to be adjudicated upon in this appeal.

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Having appreciated the controversy involved in this case and after having gone through the judgment of both the courts below, I find no merit in this appeal. Both the Courts below have rightly discarded the theory of the execution of the gift deed as well as execution of the Will. I do not find any perversity in the findings of facts recorded by both the courts below. While declaring the shares of partition, the learned trial Court in para 6 observed as follows:

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“6. ...At present it is crystal clear from the documentary evidence produced by the plaintiffs that the properties shown in Schedule “A” and “B” are Joint Family Property. No as regards the ½ share in the properties, it is pertaining to note here that the suit properties will devolved primarily in between Potu and Namdeo, as they are the only co-parcener. This fact is even admitted by both

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sa118.12.odt

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the parties. Thus the share of Potu will equally go to plaintiff no.1, 3, defendant no.1 and 2 respectively. The defendant no.1 will be entitled to equal share of Potu in addition to his own ½ share. Thus the Plaintiff No. 1,3 and defendant no.2 are entitled to 1/8^th share each in the suit properties and defendant no.1 is entitled to 5/8^th share of the suit properties.”

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Accordingly, the present appellant got 5/8^th share in the joint family properties whereas others got 1/8^th share each. In that view of the matter, I do not find any merit, muchless, substantial question of law in the present appeal.

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The appeal stands dismissed summarily. No order as to costs.

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JUDGE

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kahale

Namdeo S/O Potu Bambole v. Kamlabai W/O Duryodhan Dongre and Anr.

Case brief

What is this about?

What did the court decide?

Namdeo S/O Potu Bambole v. Kamlabai W/O Duryodhan Dongre and Anr.

Case brief

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What did the court decide?

What the court decided

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