SAHEBRAO CHAMPATRAO DIWAN Vs. BABARAO CHAMPATRAO DIWAN

JUDGEMENT

(1.) By this Appeal under Section 100 of Code of Civil Procedure, the original defendant nos. 2 and 5 are challenging the judgment dated 19.09.,1983 delivered by the 3rd Joint Civil Judge, Junior Division, Amravati decreeing the suit of respondent no.1 / plaintiff for partition and possession partly, and dismissal of their appeal no. 268/1983 by the District Judge, Amravati on 30.08.1991.

(2.) The Appeal has been admitted on 16.12.1991 by mentioning that ground no.1 and ground no.8 shown as substantial question of law in memo of appeal are to be considered. The same are as under :

(3.) The Courts below are concurrently against the present appellants and fact that the family was joint and had a joint family field having survey no.16/2, ad-measuring 22 Acres 35 Gunthas at Mouza Wathonda is not in dispute. The defendant no.1 in the suit namely Sheshrao who is respondent no.2 in the present Second Appeal is the eldest member and therefore should have been in normal circumstances a .Karta.. It however, appears that he was not residing at Wathonda and was away because of his service, and evidence on record also show that after marriage of present appellant no.1 with appellant no.2 in 1965, the appellant no.1 was cultivating the suit field at Mouza Wathonda. There is one more sale instance considered by the Appellate Court in which on 24.05.1972 some part of family property was sold and the present appellant no.1 has acted as vendor in it and has signed on behalf of himself as also of minor brothers i.e. as Karta of the family. These facts are not in dispute. The appellant no.1 has purchased field survey no.40/1-B ad-measuring 1.62 H. in his own name on 19.04.1973. Thereafter, survey no. 35/4 ad-measuring 1.82 H. was purchased in the name of his wife . appellant no.2 on 2.6.1975. Both these fields are at Mouza Wathnonda. In view of the evidence which has come on record and its findings as mentioned above, both the Courts have held that there was nucleus available with the family, and funds were available to the present appellant no.1 and he has purchased these two properties through that joint family funds and hence those properties constituted joint family property. Accordingly while ordering partition, these two properties are also accepted and treated as joint family properties, by both the Courts below.