BABURAO BALA SHINGATE Vs. SAHEBRAO TUKARAM SHINGATE

JUDGEMENT

(1.) THIS second appeal is preferred against the judgment and decree dated 17.8.1981 passed by II Extra Assistant Judge, Satara, in Civil Appeal No.83 of 1973. By the aforesaid judgment and decree, the lower appellate Court confirmed the judgment and decree passed by the trial Court.

(2.) FEW facts which are material for disposing of this second appeal are as under: Plaintiffs in this second appeal are the respondents and appellants are the defendants. Plaintiffs filed the aforesaid suit for partition and possession of their undivided share in the suit properties mentioned in the plaint. Some properties are admittedly properties owned by the Joint Hindu Family; Some properties were tenanted properties purchased in a subsequent litigation and some properties are purchased by plaintiff No.2 and his brother Baburao Bala Shingate (defendant No.1) It is the case of the plaintiffs that the tenanted properties and other properties were purchased out of the nucleus of the Joint Hindu Family and, therefore, all these properties belonged to the Joint Hindu Family and are subject matter of partition. In order to understand the case of the plaintiffs and defendants, it is necessary to understand the genealogy of the parties, which is as under: From the aforesaid geneology it is clear the Plaintiff No.2 - Tukaram and Defendant No.1 - Baburao are the real brothers and Plaintiff No.1 Sahebrao is the son of Tukaram (Plaintiff No.2). Baburao (Defendant No.1) had five sons viz. Gulab, Ananda (Defendant No.2), Yeshwant, Dattatraya and Ashok.

(3.) THE only question is as to whether the properties mentioned in Schedule 'A' which are agricultural lands and the property mentioned in Schedule 'B' which is a house property are the ancestral properties or whether the same were purchased by defendant No.1 - Baburao out of his earning from service and further whether Tukaram (Plaintiff No.2) gifted his share and interest in the Joint Family properties by a registered gift deed dated 14.7.1947 which is at Exhibit 90. THE trial Court gave the finding to the effect that the plaintiffs proved that the property mentioned in Schedule 'A' and Schedule 'B' are Joint Hindu Family properties. Trial Court held that the lands bearing Survey Nos. 51/22, 49/1, 42/6, 42/8, 57/20 of village Mardho and Survey Nos. 1099/2 and 1098 of Village Lim are not self-acquired properties of Defendant No.1. As regards the contention of Defendant No.1 that Plaintiff No.2 gifted his share in the property of Joint Family by gift deed dated 14.7.1947, the trial Court held that the said issue does not survive. Trial Court also held that the suit property mentioned in Schedule 'B' was not reconstructed by Defendant No.1 out of his own earnings and the same belongs to Joint Hindu Family. However, as regards the movable property mentioned in Schedule 'C' claimed by the plaintiffs, trial Court held that the plaintiffs failed to prove that the said movable property mentioned in Schedule 'C' belongs to the Joint Hindu Family and to that extent dismissed the claim of the plaintiffs. By giving the aforesaid findings, trial Court by his judgment passed the decree to the effect that Plaintiff No.2 and Defendant No.2 have got half share each in the properties mentioned in Schedule 'A' and Schedule 'B' and directed the Collector to effect partition of the agricultural lands by giving to Plaintiff No.2 and Defendant No.1 half share each. As regards the suit house mentioned in Schedule 'B' trial Court appointed Commissioner to divide the suit house mentioned in Schedule 'B'.