SHUBHANGI NANDAKISHOR GAIDHANI Vs. DAMODAR GOVINDGAIDHANI

JUDGEMENT

(1.) Heard.

(2.) The appellant is taking exception to the judgment and decree passed by the District Judge 3, Nashik in Regular Civil Appeal No.1/2007 decided on 2 nd May 2011. The appellants original plaintiffs instituted suit being Regular Civil Suit No.133/2000 claiming partition and separate possession of movable and immovable properties. The plaintiff No.1 is the widow of deceased Nandkishor Gaidhani and daughter in law of defendant No.1 Shri Damodar Govind Gaidhani. The plaintiff Nos.2 and 3 are the daughters of plaintiff No.1 out of wedlock with deceased Nandkishor Gaidhani. Defendant No.2 Arvind Gaidhani is the son and defendant Nos.6 and 7, namely Usha and Mangal are daughters of defendant No.1. Defendant Nos.3 to 5 are the brothers of defendant No.1. According to the plaintiffs, deceased Nandkishor and defendant No.1 constituted a Hindu Joint Family. Nandkishor, the husband of plaintiff No.1 died on 26 th January 1993. The other defendants were not maintaining the plaintiffs, as such, she was compelled to reside separately. The plaintiffs claimed partition and separate possession of the immovable property situated in villages Deolali, Lakhalgaon, Palse and Amboli as well as movable property like cash amount, ornaments etc. The defendants were served with the suit summons. They caused their appearance and resisted the suit. Defendant Nos.6 to 15 failed to file their written statement, as such, suit was proceeded ex parte against them. Defendant Nos.1 and 2 resisted the suit by filing their written statement. They admitted the relationship between the parties. However, they contended that there was love marriage of plaintiff No.1 with deceased Nandkishor and, therefore, parents of plaintiff No.1 were opposed to the said marriage and did not participate in the marriage ceremony. The plaintiff No.1 did not get Stridhan from her parental house. Defendant Nos.1 and 2 admitted death of Nandkishor, however, they denied that he was a member of Hindu Undivided Family and that suit property is joint family property. Defendant Nos.1 and 2 further admitted that deceased Mhalsabai Govindrao Gaidhani disposed of property as mentioned in Schedule A by her last will dated 8 th September 1989. However, they contended that the land at Survey No.237A/13A, 237A/14 (plot No.14) and plot No.22 as mentioned in Schedule A is self acquired property of defendant No.1. He has purchased plot No.14 in the year 1957 -58 in the name of Mhalsabai and with the help of Mhalsabai constructed a building in the year 1960. Defendant No.1 has purchased plot No.22 in the year 1967 and defendant No.3 has half share in the said open plot. The defendants denied that landed property situated at village Lakhalgaon as mentioned in Schedule B was purchased by deceased Nandkishor and defendant No.2 and, therefore, they have share in the said property. Defendant Nos.1 and 2 further contended that defendant No.1 purchased the land block No. 298 in the name of his wife Lilavati and block No.303 in the name of deceased Nandkishor and defendant No.2 and, thus, this property is self acquired property of defendant No.1. It is further contended that Nandkishor was in service of private company since 1982 and he was getting monthly salary of Rs.1,500/ . It is contended that Nandkishor has never contributed the amount for purchase of the property. The defendant No.1 has purchased properties in the names of his wife and sons. He purchased a landed property at village Amboli out of the amount which he received at the time of his retirement. Defendants further contended that the lands situated as village Palse is ancestral property and all the shareholders are cultivating the said land as per their shares. So far as claim in respect of share in the cash amount as well as in the ornaments is concerned, the same has been denied by the defendants. Similarly, defendant Nos.3 to 5 have also filed their written statement and contested the claim. All the defendant Nos.1 to 5 have prayed for dismissal of the suit.

(3.) The trial Court, after considering the evidence led by the parties decreed the suit presented by the plaintiffs. The plaintiffs are held entitled for partition and separate possession of deceased Nandkishor's share in the property City Survey Nos.3750, 3245 and 3246 situated at village Deolali as noted in Will deed at Exh164. The plaintiffs are also held entitled for partition and separate possession of 1/3 rd share in the property Survey Nos.119 A/1, 119 B/1 17, plot No. 22 to the extent of half portion situated at village Deolali; land block No.298 admeasuring 1 H. 77 R., land block No.303 admeasuring 2 H. 56 R. to the extent of 59R situated at village Lakhalaon and land block No.191 B/1 to the extent of 2 H. 20 R. situated at village Amboli. The plaintiffs are also held entitled for partition and separate possession of 1/3 rd share in defendant No.1's s/5 th share in the ancestral property land block No.1109 admeasuring 48 R., land block No.1250 admeasuring 87 R. and land block No.1339 admeasuring 1 H. 17 R. situated at village Palse. Plaintiffs' claim in respect of movable property has been dismissed by the trial Court.