TUKARAM DHONDIBA PADATARE Vs. SAVITHRI

JUDGEMENT

(1.) THESE two appeals are between the same parties and regarding the same subject matter. Therefore both of them are disposed of by this common Judgment. RSA 6/97 arises from the suit O. S. 99/67 while RS 7/97 arises from the suit O. S. 55/67. O. S. 99/67 is filed by Smt. Savithri w/o Dhondiba, against tukaram, Putafabai, Fulabai and others for partition and separate possession of her share in the suit property; While O. S. 55/67 is filed by Putalabai and Fulabai against Savithri Dhondiba and others for declaration that they are the absolute owners of the suit property having inherited the entire share of their father Hajiba and in the alternative for partition of two third share in the suit property. The parties are related to each other and their relationship is shown by the genealogical tree stated herein below as stated by the parties before the Court below. (Plaintiffs 1 and 2 in O. S 55/67 and Defendants 2 and 3 in OS 997 67)According to the genealogical tree the common male ancestor or the propositus is one Dhondiba. He is said to have died in the year 1932 or 1936. He has two sons one hajiba who is said to have died on 9. 8. 63 and another Tukaram. Hajiba's wife Rajubai's died about 10 years prior to the filing of the suit. Hajiba and Rajibai had two daughters Putalabai and Fulabai (Plaintiffs in OS 55/67 and defendants in OS 99/67) and Dhondiba the son who died on 14. 2. 67; smt. Savithri claims to be the wife of Dhondiba. She filed the suit os 99/67. As stated the suit properties consists of agricultural land and three houses situated in Aigali village and Telsang village of athani Taluk. She contended in the suit that the suit properties belong to the joint family of Hajiba and Tukaram on the death of her husband dhondiba a notional partition has taken place as per Section 6 of the Hindu Succession Act and whatever share her husband was entitled to, she has a right to inherit as a Class I heir, that right is denied, therefore the suit for partition. This suit OS 99/67 was contested by Putalabai, Fulabai and tukaram. They contended that Savithri is not the wife of Dhondiba as no marriage took place in accordance with the Hindu rites and ceremonies. Even otherwise on the date of the alleged marriage of savithri with Dhondiba, she was only 12 years of old. Such a marriage was not valid in law, therefore the suit was not maintainable. It was also contended in the alternative that there was a partition between Hajiba and Tukaram in the year 1946 and at partition tukaram was allotted a share in RS No. 366/1 and 366/5 of Aigali village and about 5 Acres of land in RS No. 817 and Survey No. 796 of Telsang village, besides a house bearing VPC No. 836/b. Similarly Hajiba was allotted the properties as stated in para 4 of the written statement of Tukaram. After partition each divided party were in possession of their respective share as separate owners and other properties were acquired in their individual capacities. Therefore all the suit schedule properties cannot be put into the notch pot and made subject to partition; Same was the defence of putalibai and Fulabai. Apart from taking the above defence, Putalibai and Fulabai in their suit OS 55/67 contended as stated that Savithri was not the wife of Dhondiba and after the death of Dhondiba they alone being the sole survivors of Hajiba entitled to succeed to the entire estate of Hajiba and as such they should be declared as owners or in the alternative their share should be declared as two third of the entire property. The learned trial Judge though recorded the evidence in the two suits separately but at the request at the Bar heard common arguments and by his common Judgment and Decree dated 22. 2. 83 dismissed the suit OS 55/67 while decreed the suit OS 99/67 holding that the plaintiff Savithri is the legally wedded wife of Dhondiba and therefore was entitled to, to inherit his share of the property. Learned Munsiff also has held that there was no partition between hajiba and Tukaram. Therefore the entire suit properties are liable for partition. Thus he has declared the share of Savithri at one third whereas Putalabai and Fulabai are entitled to one Twelfth each, while Tukaram was entitled to half of the schedule property. Aggrieved by the said Judgment and Decree, the said Tukaram, putalabai and Fulabai filed two separate appeals. The learned Appellate Judge after reappraising the evidence by a well considered Judgment has agreed with the findings of the learned Munsiff and dismissed both the appeals. These two Judgments and decrees are under challenge. At the time of admitting this appeal, this Court as framed the following substantial question of law as arising for consideration.