USHA RANI NARAYAN HALDANKAR Vs. AVINASH NARAYAN HALDANKAR

JUDGEMENT

(1.) THIS First Appeal is preferred by the appellant (original plaintiff)against the judgment and decree dated 23rd. August, 1991 passed by the VI Joint Civil judge, Senior Division, Pune in Special Civil suit No. 238 of 1980. A civil application being Civil Application No. 348 of 1997 was filed under Order 41 Rule 27. by the plaintiff for placing certain documents on record which were inadvertently not exhibited in the Trial court. Mr. Abhyankar, the learned counsel appearing on behalf of respondent No. 1, fairly conceded that the documents annexed to the aforesaid civil application may kindly be allowed in this appeal as an evidence and may be exhibited. Since by consent both the parties agreed to place the said documents on record, we are allowing for the same and exhibiting them accordingly. The Sheristedar of this Court is directed to give exhibit number and bring the copies of the said documents, admitted by both the sides on record. In view of this, rule is made absolute in terms of prayer Clause (b) and this civil application is allowed accordingly. As regards the other civil application being Civil Application No. 347 of 1997 for taking action for the alleged perjury committed by the respondents, according to our opinion, there is no need to pass any order on this belated civil application and hence, the same is dismissed.

(2.) THE appellant (original plaintiff) has filed Special Civil Suit No. 238 of 1980 before the Civil Judge, Senior Division, Pune, for partition and separate possession of movable and immovable properties of her father late shri N. S. Haldankar. It was contended on behalf of the appellant (original plaintiff) that late Shri N. S. Haldankar who died oh 2nd december, 1972 at Talwalkar Nursing'home, dadar, Bombay, has left the property in the names of the present plaintiff-his daughter, defendant No. 1-Avinash his son and defendant no. 2-Seema, his daughter. It is the case of the plaintiff that she is the youngest child of late Shri N. S. Haldankar and Avinash. defendant No. 1, is the eldest son of late Shri haldankar. Late Shri Haldankar was residing at Suyog, 10th Lane, Prabhat Road. Pune the said late Haldankar, during his life time. acquired the movable and immovable properties. He was carrying on business under the name and style of "haldankar Engineers" which was initially a proprietary concern however, subsequently, defendant No. 1 was taken as partner in the said concern. Under the said partnership, her father later Haldankar had 60% share while defendant No. 1 had 40% share in the said business. It is the case of the plaintiff that her father acquired all the properties and he had no ancestral movable and immovable properties. According to the plaintiff, she has l/3rd share in the property left by her father and in 60% share of her father, late Haldankar in the business of haldankar Engineers, that is. according to her, she has l/5th share in Haldankar Engineers. Defendant No. 1, after the death of his father, has 40% + l/5th share in the business of Haldankar Engineers and defendant No. 2 has 1/5th share in the said Haldankar Engi neers. However, it is her specific case that as regards the movable and immovable properties acquired by her late father, whish she has described in the schedule annexed to the plaint, she, defendant No. 1 and defendant no. -. 2 each has l/3rd share in the said properties.

(3.) IT is contended on behalf of the plaintiff that on 2nd December, 1972 i. e. at the time of death of the plaintiff's father, the plaintiff was minor and she, the plaintiff, attained majority on 7. 7. 1973. During plaintiff's minority, defendant No. 1-Avinash, who is plaintiff's elder brother, was looking after her i. e. plaintiff and was also looking after the property of his father late Haldankar. After attaining majority on 7,7. 1973, she was demanding her share in movable and immovable properties left by her father late Haldankar, but somehow or the other, the matter was postponed from time to time and therefore, she was constrained to file the present suit for partition and separate possession of movable and immovable properties left by late Haldankar, her father. According to her, the movable property left by her father is about Rs. 98,029. 50 and she has 1/3rd share in the said property. It is further contended on behalf of the plaintiff that her father late Haldankar constructed a bungalow on 7 Gunthas of land of survey No. 127 at Kothrud and in the said bungalow also she has 1/3rd share. It is further contended that her father was a tenant in a building at Bhavani Shankar Road, Dadar, bombay-28, paying monthly rent of Rs. 85. The said tenancy was in the personal narne of her late father. The said tenancy, according to her, is transferred by her brother defendant no. 1-Avinash to his name, by accepting premium of Rs. 3,00,000/ -. It is also contended that she being the heir of late Haldankar, acquired the right of tenancy alongwith defendant Nos. 1 and 2 under-Section 5 (11) (c) of the Bombay Rent Act and, therefore, she is also entitled to receive an amount of Rs. 1,00,000/-out of theamount of Rs. 3,00,000/-- as a premium for transferring the aforesaid tenancy. 21st January, 1997