VANDANA 3 Vs. PRADIP

JUDGEMENT

(1.) BY this appeal, the appellants have challenged the judgment and decree passed by the 9th District Judge, Nagpur in Regular Civil Appeal No.86 of 2011 on 17.7.2012 modifying the judgment and decree passed by the 8th Joint Civil Judge, Junior Division, Nagpur in Regular Civil Suit No.729 of 2008 on 20th December, 2010. The respondent is the original plaintiff and the appellants are the original defendants against whom the respondent had filed civil suit for partition and separate possession. For the sake of convenience parties to the appeal are hereinafter referred to as the plaintiff and the defendants.

(2.) THE defendant No.1Smt Vandana is the stepmother of the plaintiff. Defendant No.2Yogesh and defendant No.4 Smt. Pinky are respectively the real brother and real sister of the plaintiff, while defendant No.3Nitin and defendant No.5 Smt. Vijeta are respectively the stepbrother and stepsister of the plaintiff. The plaintiff is the son of late Ramanna Marchettiwar, who died on 13.3.1990 leaving behind the plaintiff, defendants and one Sandeep. Late Ramanna Marchettiwar owned a house with plot bearing Corporation House No.283, New House No.283A and city survey No.495 admeasuring 450 sq.ft. (hereinafter referred to as "suit property"). He died intestate and the plaintiff and the defendants being classI heirs of late Ramanna succeeded to the suit property, having equal shares therein. The plaintiff submitted that Sandeep had separated himself by obtaining a sum of Rs.78,000/ on 3.1.2007 and executed a relinquishmentdeed giving up his right in the suit property. The plaintiff submitted that Sandeep had relinquished his share in favour of rest of the successors to the property and, therefore, each of the legal heirs had equal 1/6th share in the suit property. He further submitted that since the defendant No.1 and defendant No.3 used to quarrel with him, he decided to separate himself from the family and demanded his separate 1/6th share in the suit property. Meanwhile, the plaintiff further submitted, the defendant demolished the old house and caused loss to him which came to Rs.25,000/, commensurate with his 1/6th share in the suit property. Since the defendants denied separate share and compensation to the plaintiff, he filed a suit for partition and separate possession and also compensation of Rs.25,000/ with interest at 12% per annum against the defendants.

(3.) THE defendants resisted the suit insofar as it related to claim put up by the plaintiff about his 1/6th separate share in the suit property. The defendants admitted the relationship and also entitlement of the plaintiff to his share in the suit property. But, they submitted that when Sandeep separated himself from the family and he had released his right and interest in the suit property exclusively in favour of defendant No.1Vandana by accepting an amount of Rs.78,000/ from her, which amount was entirely borne by her, the defendant No.1 became entitled not only to her own 1/7th share, but also 1/7th share of Sandeep in the suit property. Thus, they submitted, defendant No.1 was entitled to 2/7th share in the suit property and plaintiff could only claim 1/7th share in the suit property and not the 1/6th share. They submitted that the plaintiff had been residing separately since about one and half year prior to filing of the suit and he had not contributed in any way in the household affairs of the joint family. They also submitted that since the suit house was old, it was demolished by them and they constructed a new house. They submitted that the plaintiff did not make any contribution towards construction of a new house. They also offered to pay Rs. 64,285/ as value of 1/7th share to the plaintiff towards full and final settlement of the dispute between them.