IMPORTANT POINT
Purchaser shall be entitled to such interest in property as its vendor had in terms of partition decree.

JUDGMENT :

HEMANT GUPTA, J.

1. The plaintiff filed the present appeal against the judgment dated 01.10.2008 passed by the High Court of Judicature at Bombay dismissing the second appeal filed by her. However, the plaintiff died on 18.12.2014 during the pendency of the appeal. Now, the legal representatives of the deceased are prosecuting the present appeal.

2. The question for consideration herein is whether the properties at villages Pirangut and Nande are joint family ancestral properties in the hands of Maruti, the deceased son of Balaji, predecessor of the parties in appeal. The admitted family tree shows that Balaji was the common ancestor. He left behind his four sons, Narayan, Raghunath, Maruti and Sopan. Maruti died on 13.7.1966. He married twice, both his wives had a similar name, Geetabai. The first wife, Geetabai, died in the year 1948 leaving behind the defendant Nos. 1, 2, 3 and 4, namely, Pandurang, Krishnakant, Ramchandra and Muktabai. Geetabai, his second wife and the original plaintiff, filed a suit for partition. She died during the pendency of the proceedings leaving behind two sons and three daughters, namely, Chandrakant, Ramesh, Uma, Shailaja and Sumitra.

3. There is no dispute in respect of the property situated at Lavale, which has been held to be a joint family property wherein a finding has been returned that the plaintiff would have a share in the estate.

4. In respect of a property at Nande, the High Court affirmed the finding that Pandurang/defendant No. 1, purchased the property at village Nande vide sale deed dated 25.2.1969 after the death of Maruti. It was also held that the appellant neither pleaded nor proved that there is sufficient nucleus of the income from the joint family from which the property at village Nande could be purchased. In the absence of any proof, the claim of appellant for such property situated at Village Nande was negated. Our attention was drawn to the plaint filed by the deceased Geetabai but we do not find any pleadings regarding the property at Nande as purchased from the income of the joint family property. All three Courts have concurrently held that the property at Nande is not a joint ancestral property. We find no reason to interfere with the findings relating to the property situate in Village Nande.

5. Hence, the only question which survives for consideration is whether the property situated at village Pirangut is an ancestral property, in which the appellants had share.

6. The plaintiff has pleaded that land at Pirangut was purchased by Hindu Undivided Family (HUF). The plaintiff and deceased Maruti looked after and brought up defendant Nos. 1 to 4. The plaintiff along with all defendants were living jointly and after the death of Maruti, the joint family continued even thereafter, as the Defendant No. 1 assumed the position of Karta of Maruti’s family. It is pleaded that there was a partition of the properties during Maruti’s life time. The memo was reduced in writing and signed by all the four sons of Balaji in the year 1961, but the mutation on the basis of family settlement was sought in the year 1970, only after the death of Maruti.

7. In respect of the property at Pirangut, the High Court returned the following findings:

“9. This takes me to consider the claim of the Appellant in the property at Pirangut. The property at Pirangut was admittedly purchased by Raghunath, uncle of Defendant no. 1 from one Kanhu Dhondu Kudale on 19th August 1947. According to the appellant by Mutation entry 1274 this property was partitioned, and the land at Pirangut was given to Defendant no. 1. If that be so the Appellant obviously has share in it. Per contra it is the case of the defendant no. 1 that this property was purchased by Raghunath in 1947, which was latter on gifted in favour of Defendant no. 1. In order to claim share in the property at Pirangut it was for the appellant/plaintiff to plead and prove that property at Pirangut was ancestral property. Then and then only appe