CHHABABAI BALWANTRAO SHINDE Vs. GULABRAO BALWANTRAO SHINDE

JUDGEMENT

(1.) THE brief background in this case is that one Gulabrao Balwantrao Shinde along with his two sisters viz. , Sau. Prabhavati and Sau. Nalinibai had filed a suit being Regular Civil Suit No. 199 of 1981 before the 6th Joint Civil Judge, Junior Division at Jalgaon against Smt. Chhabubai Balwantrao Shinde being step-mother of the plaintiffs. The plaintiffs are the children of one Balwantrao Bhagwantrao Shinde out of his first marriage whereas the defendant No. 1 Smt. Chhabubai Balwantrao is the second wife of the said Balwantrao. The said Balwantrao died on 27th June, 1954. The said Balwantrao had married Smt. Chhabubai after the death of his first wife and out of the second marriage with Smt. Chhabubai defendant Nos. 2, 3, 4 and 5 were born viz. , four daughters Lilabai, Rajanabai, Padmabai and Pushpabai. The case of the plaintiffs before the trial Court was that agricultural suit land Gat No. 441 admeasuring 2 Hec. 27 R situated at village Tarsod, Tal. Jalgaon and in addition two houses being Grampanchayat House Nos. 2 and 26 at village Tarsod was the suit property wherein the plaintiffs had contended that they had half share and the suit land consisting of the aforesaid agricultural land and both the houses should be partitioned and half share should be granted to the plaintiffs. The trial Court after appreciating the evidence on record came to a conclusion that both the Grampanchayat houses at Tarsod were in possession of the appellants herein and also the said suit land at Gat No. 441 admeasuring 2 Hec. 27 R. was also in possession of the appellants and the said Chhabubai Balwantrao Shinde being the second wife was actually cultivating the said land. It appears that the plaintiff had tried to make out a case that he was sending money to the said Smt. Chhabubai for the purpose of cultivating the land. The trial Court came to a conclusion that there is no proof that the plaintiff was in fact sending any money for cultivation to Smt. Chhabubai. The trial Court has clearly given a finding that it is an admitted fact that the said Smt. Chhabubai was in possession of the said agricultural land and was cultivating on the said suit land. It is very clearly observed in para 6 of the said judgment, the suit land at Gat No. 441 as well as both the Grampanchayat houses were in possession of the defendant viz. Smt. Chhabubai Shinde. The plaintiffs case before the trial Court was that only half of the said land and both the houses was given to Smt. Chhabubai towards maintenance. On the contrary, the defendant-the appellant herein had contended that the entire agricultural land at Gat No. 441 as well as both Grampanchayat houses in the said village Tarsod were the exclusive property of the defendants and they had full rights over the same and that they were the absolute owners.

(2.) FINALLY the trial Court, after appreciating the evidence on record gave a declaration that plaintiff No. 1 Gulabrao Balwantrao Shinde had 9/12th shares in the said suit property and plaintiff Nos. 2 and 3 had 1/24th share in the said suit property. The trial Court had also directed the Collector, Jalgaon to partition the said property and to hand over and put in possession the plaintiff Nos. 1, 2 and 3 in their respective share in the suit land. That is to say the trial Court came to a conclusion that all the plaintiffs put together were entitled to 11/24th share and the defendants were entitled to 13/24th share of the suit property.

(3.) AGGRIEVED thereby the present appellants had filed Civil Appeal before the Court of Additional District Judge, Jalgaon being Civil Appeal No. 67 of 1987. The learned lower Appellate Court has referred to section 6 of the Hindu Succession Act and has held that Chhabubai can never get any title with regard to the said property and at the most the said Smt. Chhabubai can only have a right of maintenance with regard to the property of Balwantrao and that she cannot claim any exclusive right and title in the said suit property. The lower Appellate Court has given a finding that Smt. Chhabubai is only entitled to maintenance till she survives and she gets no exclusive title to the suit land. Accordingly the appeal was dismissed and strangely the judgment of the trial Court was modified to the extent that the plaintiff No. 1 Gulabrao as an exclusive owner of the said agricultural land Gat No. 441 as well as house Nos. 2 and 26 situated at village Tarsod, Tal. and Dist, Jalgaon. The said order further directs that the said Chhabubai to hand over possession of the said property to respondent No. 1 Gulabrao. By that order the learned lower Appellate Court has held that Chhabubai can only have a right of residence as well as right of maintenance and had directed Gulabrao to maintain Chhabubai and allowed her to reside in the suit house, till she survives. In this context it is pertinent to note that after the suit was decreed by the trial Court holding that the plaintiffs were entitled to 11/24th share of the suit land the respondents herein had never filed any cross objection in the aforesaid appeal filed before the lower Appellate Court viz. , Civil Appeal No. 67 of 1997 claiming exclusive ownership of the said agricultural land Gat No. 441 admeasuring 2 Hec. and 26 R. at village Tarsod, Tal. and District Jalgaon. It must be stated herein in fairness that Shri Sabnis, the learned Counsel for the respondents very fairly stated that his clients had never made any claim for the entire property being the suit land and the Grampanchayat houses and also that no such argument was advanced that they were entitled to the entire property.