BHANUDAS BHALCHANDRA Vs. MORESHWAR MUKUND

JUDGEMENT

(1.) THE appeal is filed by the original defendant challenging the judgment and order passed by the learned Joint District Judge, thane in Civil Appeal No. 10 of 2004, whereby the said appeal was allowed, setting aside the dismissal of the regular Civil Suit No. 220 of 2000 by the learned Vth Joint Civil Judge, Junior Division, Thane.

(2.) TO state in brief, the plaintiff/respondent Moreshwar and the deceased defendant/appellant Jamunabai were the real brother and sister. Jamunabai died pending the second appeal and her legal representatives were brought on record. One Mukund Bhoir was their father and Gangabai was their mother. Suit property bearing Survey No. 658, Hissa No. 3 corresponding to new Survey No. 251, Hissa No. 3 situated at Village: Bhayander, Taluka and District: Thane was admittedly owned by Mukund, father of the parties. According to the plaintiff, their parents were married in or about 1928 and the defendant Jamunabai was bom sometimes in the year 1932. Plaintiff was born on 20th June, 1935. Their father Mukund died intestate sometimes in 1936 leaving behind his widow, daughter and son as the only legal heirs. In 1945 defendant married. At the time of death of their father, plaintiff was infant and was under the guardianship of his mother Gangabai. Under the Hindu Law as prevailing at that time, the plaintiff became exclusive owner of the property left behind by his father. Defendant had no legal right of inheritance. Their mother Gangabai was entitled only to maintenance out of the property of her husband. She had also no right of inheritance or share in the property. Their mother Gangabai died on 10-10-1990. According to the plaintiff, after death of the mother, the defendant approached the revenue authority and got her name entered as shareholder in the property. Plaintiff raised objection and also preferred appeal but without success. Therefore, the plaintiff filed suit for declaration of his exclusive title over the suit property and for perpetual injunction restraining the defendant from causing any interference in his possession over the suit property.

(3.) THE defendant contested suit by filing written statement. She admitted relationship between the parties. According to her, suit property was ancestral property in the hands of their father Mukund as he had inherited the same from his father. It is denied that their parents were married in 1928. According to her, they were married in 1932. According to her, their father died in 1939 and not in 1936 as pleaded by the plaintiff. It is also contended that she herself was aged about 6 years at the time of death of the father. According to her, plaintiff himself was born in 1938. After death of their father, their mother had equal right in the property along with the plaintiff and she had become absolute owner to the extent of half share in the property. After her death, defendant is entitled to right of inheritance in that property. It is contended that land was being actually cultivated by Bhalchandra, who was husband of the defendant and after his death, land was being cultivated jointly by the plaintiff and the defendant. The plaintiff cannot claim exclusive ownership over the property. Mutation entry has been rightly taken in the revenue record showing the plaintiff and the defendant as the owners. Therefore, she contended that the suit is liable to be dismissed.