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IN THE HIGH COURT OF BOMBAY
GAURI GODSE, J
SUNIL ANNA KAKADE – Appellant
Versus
LAXMI BALU KAKADE – Respondent
JUDGMENT :
1. This Second Appeal is preferred by the original defendants to challenge the judgments and decrees passed by the First Appellate Court granting partition and separate possession to the plaintiffs. Respondents had filed a suit for partition and separate possession, claiming one-fourth share in the suit property. The suit was dismissed. The first appeal preferred by the plaintiffs is allowed, and the suit is decreed granting one-third share to plaintiff no.1, legal heirs of deceased Nana and defendant no. 1 each excluding the land already sold by defendant no. 1 to defendant no. 2 to the extent of 2 anas 4 paise out of suit land bearing Gat No. 70A. Being aggrieved by the decree for partition and separate possession the defendants filed the present Second Appeal. Being aggrieved by the determination of shares and exclusion of the land given to defendant no. 2, plaintiffs have filed cross-objections.
2. By order dated 22nd March 2024, the Second Appeal is admitted on the following substantial questions of law:
(I) Whether it was permissible for the Appellate Court to disregard the partition between the parties for the reason that the partition was an unequal partition?
(II) W
The court upheld the presumption of joint family property, ruling that no valid partition had been established, thus entitling the plaintiffs to their shares.
Joint family property is presumed until proven otherwise; prior partition must be established by metes and bounds to be valid.
The court affirmed that items 1 and 2 of suit properties are ancestral, and items 3 to 11 are self-acquired, highlighting the plaintiffs' burden to prove family property claims.
The presumption of joint family property necessitates proof of individual ownership; without such proof, a child has a right to claim share in ancestral property.
The sale deed executed without legal necessity and consideration does not bind the joint family properties, affirming the plaintiffs' entitlement to a share.
A legal heir is entitled to an equal share in joint family properties, and claims of exclusive ownership must be substantiated by evidence.
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