Dismissed

Kesu Sakharam Vetal and Another. v. Mhasu Sakharam Vetal.

Bombay HC20 Jun 2012SA/221/1989

Case brief

AI extract

What is this about?

This Second Appeal challenged the lower courts' conclusion that a partition of coparcenary property occurred in 1961, contrary to the appellants' claim of a 1971 partition. Relying on revenue entries and a familial arrangement precedent, the High Court upheld the lower courts' finding of the 1961 partition and dismissed the appeal.

What did the court decide?

The Second Appeal is dismissed. There shall be no order as to costs.

Kesu Sakharam Vetal and Another. Vs Mhasu Sakharam… — Succession and Inheritance | Bombay HC (2012)

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1 S.A.No.221/89

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UNREPORTED

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IN THE HIGH COURT OF JUDICATURE AT

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BOMBAY

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BENCH AT AURANGABAD.

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SECOND APPEAL NO.221 OF 1989.

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1. Kesu Sakharam Vetal, died through
L.Rs.

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1(a) Trimbak Kesu Vetal,
Age 62 years, Occ.Agri.,

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1(b)Namdeo Kesu Vetal,
Age 60 years, Occ.Agri.,

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1(c) Changdeo Kesu Vetal,
Age 57 years, Occ.Agri.,

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1(d) Ramkishan Kesu Vetal,
Age 54 years, Occ.Agri.,

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1(e) Dnyaneshwar Kesu Vetal,
Age 50 years, Occ.Agri.,

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All R/o Deopudi, Tq. Kannad,
Dist.Aurangabad.

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2. Trimbak Kesu Vetal

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... Appellants.

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Versus

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Mhasu Sakharam Vetal, died
L.Rs.

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1A) Eknath Mhasu Vetal, Age
65 years, Occ.Agri.,
R/o Devpudi, Tq. Kannad, Dist.
Aurangabad.

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2 S.A.No.221/89 1B) Pandharinath Mhasu Vetal, Age 50 years, Occ.Agri., R/o as above. 1C) Tukaram Mhasu Vetal, Age 47 years, Occ.Agri., R/o as above. 1D) Raibhan Mhasu Vetal, Age 42 years, Occ.Agri., R/o as above. 1E) Sumanbai Sopan More, Age 45 years, Occ.Household, R/o Babulgaon, Tq. Kannad, Dist. Aurangabad. 1F) Laxmibai Mhasu Vetal, Age 78 years, Occ.Household, R/o as above. ... Respondents. ...

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Mr.M.D.Joshi, advocate for the Appellants.
Mr.B.G.Sagade Patil, advocate for Respondent Nos.
1A to 1F.

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CORAM : S.V.GANGAPURWALA,J.
 Date : 21.06.2012.

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ORAL JUDGMENT :

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1.Heard.

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2.The present Respondents had filed suit
for declaration and possession. The trial Court
decreed the suit. The defendants filed appeal
before the District Court. The District Court

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3 S.A.No.221/89

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dismissed the appeal. The defendants have
assailed the said concurrent findings in the
present Second Appeal. The present appeal is
admitted on following grounds :

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"(2) The plaintiff has not proved

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the alleged partition of the year
1961 and the partition between the
coparceners which should have been
at least in three shares.

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(3)The learned Joint District
Judge, has failed to consider that
there can not be two partitions.
The Plaintiff has admitted that in
1961 only Khate-phod had taken place

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and the entire property was
partitioned in the year 1971 only.
Thus there can not be two partitions
in Hindu Law.

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(6)The admission of the Plaintiff
has not been construed properly
which itself proves the fact of
partition taken in 1971.

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(6A)The entire evidence has been

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4 S.A.No.221/89

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perversely appreciated.

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(8)The Courts below have failed to

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consider the principles that when
partition takes p0lace all the
coparceners take equal shares unless
there is evidence of surrender of
the shares."

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3.Mr.M.D.Joshi, learned counsel for the
appellants strenuously submits that in the year
1961 because of the introduction of the Ceiling
Act and to protect the property, some divisions
(Khate-phod) were made. The plaintiff is trying
to take disadvantage of the said fact. The
partition in fact has taken place in the year
1971 after the death of the father and
thereafter, the name of the appellant came to be
mutated in 1977-78. The learned counsel further
contends that even plaintiff in his cross-
examination has admitted that in 1961 only Khate-
phod was done. According to learned counsel,
merely because there are revenue entries, it
would not be sufficient to infer partition. The

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5 S.A.No.221/89

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learned counsel submits that no details of the
alleged partition are given by the plaintiff.
The defendant has led evidence to prove that
partition has taken place in 1971. The Courts
have not appreciated the evidence in proper
manner. It is the case of perverse appreciation
of evidence. Even the admission of the plaintiff
has not been properly considered.

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4.The learned counsel for the Respondents
supports the order.

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5.It is not disputed that the plaintiff
and defendant are real brothers. It is also not
disputed that partition has taken place. The
only question of debate is the order of
partition. The plaintiff contends that partition
has taken place in the year 1961, whereas
according to the defendant, the partition has
taken place in 1971. The name of plaintiff is
mutated in the revenue record in the year 1961-62
and is continuously appearing in the revenue
record till the year 1977-78. The plaintiff
claims dispossession in the year 1978 and has

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6 S.A.No.221/89

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filed suit for possession. The plaintiff has
produced on record the revenue entries, 7/12
extracts showing properties allotted to the
defendant, wherein the name of defendant appears
in respect of the said properties from the year
1961-62. Even the witness of defendant Dattu at
one place admitted that partition had taken place
in 1961. With all these evidence, both the
Courts had concluded that the partition had taken
place in the year 1961 and the suit properties
allotted to plaintiff. The Apex Court in a case
of "Digambar Adhar Patil Vs. Devram Girdhar Patil
(died) and another" reported in AIR 1995 Supreme

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Court 1728, has held that entries in record of
rights in official course of business is relevant
piece of evidence to prove factum of partition
between two brothers. It is further been held
that even a family arrangement is enough to
effectuate the partition between coparceners and
to confer right of separate enjoyment.

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5.The said admission relied by the
appellant that plaintiff at one place admitted
that Khatephod has taken place in 1961 would not

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7 S.A.No.221/89

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be sufficient to discard the total evidence on
record regarding the partition of 1961.

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6.In view of the above, the substantial
questions framed are answered accordingly. The
Second Appeal is dismissed. However, there shall
be no order as to costs.

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 (S.V.GANGAPURWALA,J.)

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asp/office/Sa22189

Kesu Sakharam Vetal and Another. v. Mhasu Sakharam Vetal.

Case brief

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What did the court decide?

Kesu Sakharam Vetal and Another. v. Mhasu Sakharam Vetal.

Case brief

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