SAVITRI BAPU SHINDE Vs. RAU RAMA SHINDE

JUDGEMENT

(1.) While admitting this appeal on 10-12-1996, this court framed the following two substantial questions of law:-" (a) The Lower Appellate Court erred in recording the findings of tenancy in favour of the Defendant No. 1. The lower Appellate court ought to have framed issue of tenancy and referred the same to the Tenancy Court for its decision on the same to decide as to whether it is joint family tenancy or individual tenancy, especially, when the Defendant No. 1 raised an objection regarding the same in his appeal memo and pleadings of the parties are more than clear. This is a substantial question oi law. (b) The Lower Appellate Court has emed in dismissing the suit of the plaintiffs, especially when the Respondent has failed to produce evidence regarding acquisition of land out of his own earning. On the contrary he has clearly admitted in his cross-examination that he has no documentary evidence to prove his self earnings or separate income. "

(2.) Rama Shinde, a resident of village Jakatwadi (Shahapur) Taluka and district Satara was married to Smt. Chandrabai and the couple had three sons, namely, Rau (Defendant No. 1) , Bhau (the late husband of defendant No. 2) and Bapu (the late husband of Plaintiff No. 1). Rama died sometimes in the year 1940 and the children were brought up by Chandrabai. Defendant No. 1 was the eldest son and was about 20 years of age when his father died, whereas the husband of Plaintiff no. 1 i. e. Bapu was hardly about one year's old As per the Plaintiff on her marriage with bapu she became a member of the joint Hindu family of Chandrabai and the Defendant No. 2 was married earlier to the second son Bhau, who died within a short period of about two years after the marriage and consequently defendant No. 2 left the village after she came to be appointed as a School Teacher. The defendant No. 1 along with his family and the third son Bapu along with his family i. e. wife and three daughters continued to be the members of the joint Hindu family with chandrabai as the Karta of the family. However, Bapu, the husband of Plaintiff No. 1 died sometimes in 1977 and the Plaintiff along with her three daughters was shifted to the shed marked as Village Panchayat House No. 104, but the cultivation of agricultural lands continued to be joint occupation of the family and she was being given her due share by chandrabai till her demise in 1980. On the demise of Chandrabai the Defendant No. 1 being the eldest son took over the affairs of the family and he continued to give the plaintiff's share from the agricultural income till July, 1983. However, the Defendant No. 1 changed this stand and stopped giving the share to the Plaintiff No. 1 from the agricultural income and, therefore, she issued a notice on 01-09-1986 seeking her share in the family property. As per the Plaintiff No. 1 the defendant No. 1 orally informed her that she had no right in the suit property and she was free to take whatever steps she desired. The plaintiff No. 1, therefore, filed Regular Civil suit No. 505 of 1986 along with two of her daughters i. e. Plaintiff Nos. 1a and 1b and prayed for partition of the joint Hindu family property described in para 1 of the plaint, namely;" (a) Agricultural land admeasuring 5 hectares and 4 ares located in Gat No. 88/0 and agricultural land admeasuring 52 ares located in Gat No. 87/5 of village Jakatwadi. (b) House bearing Village Panchayat no. 104a with 12 Khans and built in stone and mud which was valued at Rs. 1,000/-, and (c) House bearing Village Panchayat no. 104 with tin roof and built in stone and mud located in the open space of the entire property registered as House No. 104a and valued at rs. 500/ -. "

(3.) Defendant No. 3 is the daughter of Plaintiff No. 1 and she filed her Written statement at Exh. 19 supporting the claim of partition. So also Defendant No. 2 filed her written Statement at Exh. 15 and claimed her 1/3rd share in the suit properties along with the Plaintiffs. However, Defendant No. 1 by filing his Written Statement at Exh. 21 opposed the suit contending that the house bearing no. 104a was purchased by him in the year 1946 and it was not the property of the joint family. As far as the agricultural land was concerned, he contended that it was exclusively his own property and the other brothers had no share in the same. He relied upon the certificate at Exh. 34 issued under Section 32-M of the Bombay Tenancy Act on 19-10-1978. As per him, he was in exclusive cultivation as a tenant over both the suit lands prior to 1957 and after the purchase value was assessed under Section 32-G of the Bombay Tenancy act he was issued the ownership certificate in respect of the suit land located in Gat No. 88/ 0. whereas the other land located in Gat No. 87/ 5 belonged to Devasthan and he was cultivating it as a tenant. In respect of House No. 104 it was contended by Defendant No. 1 that in the year 1967 the husband of Plaintiff No. 1 was allowed to put up a separate shed admeasuring 20 x 10 ft. and he started occupying the same as his residential dwelling along with his wife and children. In short, the Defendant No. 1 claimed that the husband of Plaintiff No. 1 had already separated sometimes in 1967 and the plot of land admeasuring 20 x 10 ft. from the entire house property under Village Panchayat no. 104a was given by him to the husband of plaintiff No. 1. On all these grounds he prayed for the dismissal of the suit.