Dismissed

Sarjerao Jalindar Mandale v. Lochanabia Jalindar Mandale

Bombay HC18 Jan 2013SA/596/2012

Case brief

AI extract

What is this about?

In a second appeal challenging a partition suit decree, the High Court dismissed the appeal. The court rejected the appellant's claim of the respondent's oral relinquishment of rights and held that a 7x12 extract was insufficient to prove the disputed property was self-acquired. No substantial question of law was found.

What did the court decide?

Second Appeal No.596 of 2012 and Civil Application No.1297 of 2012 dismissed at the stage of admission.

Sarjerao Jalindar Mandale Vs Lochanabia Jalindar Mandale — Partition | Bombay HC (2013)

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596-12-sa=.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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SECOND APPEAL NO.596 OF 2012

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WITH CIVIL APPLICATION NO. 1297 OF 2012 IN

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SECOND APPEAL NO.596 OF 2012

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Sarjerao Jalindar Mandale

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.. Appellant

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V/s.

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Sou. Lochanabai Jalindar Mandale & Ors. .. Respondents

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Mr. Purshottam G. Chavan for the appellant None for the respondents

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CORAM : R.Y.GANOO, J. DATED : 18^th JANUARY, 2013

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P.C. :

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The present appellant is defendant no.2 in Regular Civil Suit No.708 of 2005 filed in the Court of 3^rd Joint Civil Judge, Junior Division, Malshiras, Dist. Solapur by present respondent no.1 for partition in respect of various properties mentioned in the suit. Regular Civil Suit No.629 of 2005 is filed by one Mr. Machindra and Madhukar against the present respondent nos. 2 and 3 for perpetual injunction restraining respondent nos. 2 and 3 for obstructing their peaceful enjoyment and possession in respect of the said properties. For the reasons best known to the learned trial Judge, these suits were decided by common judgment and decree dated 29^th

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April, 2008, the suit for partition bearing Regular Civil Suit No.708 of 2005 was decreed and partition of the property was ordered more particularly set out in the impugned judgment and decree. The Regular Civil Suit No.629 of 2005 as mentioned aforesaid was dismissed. Regular Civil Appeal No.31 of 2008 was filed by Machindra and Madhukar being original plaintiffs. Regular Civil Appeal No.32 of 2008 was filed by the present appellant being defendant no.2 in the suit for partition. These two appeals were filed in the Court of District Judge at Malshiras. These two appeals were taken up for hearing together and they have been decided by common judgment and decree dated 20^th January, 2012 and both these appeals have been dismissed. It is required to be noted that as of today, the aforesaid two appeals are filed by Mr. Sarjerao, original defendant no.2 in the suit for partition.

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I have heard learned advocate Mr. Chavan in support of the second appeal. According to learned advocate for the appellant, on 11^th December, 2002 the respondent no.1 orally relinquished her rights in respect of the property and that rest of the persons arrived at partition of the various properties by a written document dated 18^th December, 2002. The said

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document was registered. The present appellant has in the trial Court as well as in the appellate Court placed heavy reliance on this Deed of Partition dated 18^th December, 2002. In the course of arguments, learned advocate for the appellant had to concede that the said deed of partition does not bear the signature of the present respondent no.1. Some attempt was made by learned advocate for the appellant to point out on the basis of observations of both the Court as well as the evidence that the theory of oral relinquishment ought to be accepted. He further submitted that if the theory of oral relinquishment, which has been rejected by both the Courts if accepted by this Court, it would change the complexion of litigation.

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I am not inclined to accept the argument advanced by learned advocate Mr. Chavan. If the present respondent no.1 is said to have orally relinquished her rights in respect of the various properties, it would go to show that the present appellant and others admitted that at one stage she had right in respect of the various properties. If parties thereafter, within a short period of 7 days, proceeded to execute a writing on 18^th December, 2002 and proceeded to register the said writing wherein various properties

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were partitioned by a registered partition deed, then, no explanation is coming forth as to why the present respondent no.1 was not informed about the written partition and her signature was not obtained by incorporating the fact of oral relinquishment of respondent no.1. It was fairly accepted by the learned advocate for the appellant that document dated 18^th December, 2002 does not bear the signature of respondent no.1. In my view, the concurrent finding recorded by both the Courts that the stand of the present appellant that the respondent no.1 had given up her right in regard to the various properties by way of oral relinquishment has been rightly rejected.

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It was argued before this Court that properties mentioned in paragraph 1C of the suit are self acquired properties admeasuring about 5-6 acres. According to the appellant the said property was purchased by him out of his own funds and it should have been treated as a separate property. On the basis of record, it is clear that the only material placed before the Court in support of the above stand is 7x12 extract. In my view, mere production of 7x12 extract cannot be treated as sufficient material to show that vast land of about 5-6 acres was purchased by the present

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appellant out of his own funds. Both the Courts have arrived at proper conclusion that said property was joint family property.

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Hence, on the points argued before this Court, no substantial question of law is involved. The Second Appeal is dismissed at the stage of admission.

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The Civil Application No.1297 of 2012 is dismissed.

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[R.Y.GANOO, J.]

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Sarjerao Jalindar Mandale v. Lochanabia Jalindar Mandale

Case brief

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What did the court decide?

Sarjerao Jalindar Mandale v. Lochanabia Jalindar Mandale

Case brief

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What the court decided

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