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2024 Supreme(Online)(Bom) 205
HIGH COURT OF BOMBAY
Sharmila U. Deshmukh, J
SHRI. KAMALAKAR PURUSHOTAM INAMDAR AND ORS. – Appellant
Versus
SMT. RAJANI SHRIRAM MALIWALE AND ORS. – Respondent
SA/335/2015
Mr. Shriram S. Kulkarni for the Appellants-Applicants. Mr. V. S. Talkure for Respondent Nos.1 to 3.
The burden of proof for joint family property lies with the asserting party, and daughters acquire coparcenary rights by birth, effective only if alive at the amendment date.
Headnote:(A) Hindu Succession Act, 1956 - Section 6 - Partition of property - Dispute regarding nature of properties as ancestral or self-acquired - Trial Court held properties as joint family properties, while Appellate Court declared them self-acquired - The burden of proof lies on the party asserting joint family property - The Appellate Court's findings were based on misreading of evidence. (Paras 15, 16, 48, 49)
(B) Legal principles - The daughter acquires coparcenary rights by birth, but can only assert these rights if alive on the date of the amendment to Section 6 of the Hindu Succession Act, 2005. (Paras 36, 40, 46)
Facts of the case:
The appeals arise from a partition suit concerning properties owned by Purshottam Govind Inamdar, with disputes over whether the properties are ancestral or self-acquired. The Plaintiffs claimed a share based on their relationship to Purshottam, while Defendants contended prior partition and self-acquisition. (Paras 1-8)
Findings of Court:
The Court found that the Kashidwadi property is self-acquired, while the Padali property is ancestral. The shares were determined accordingly, with the legal heirs of Indira not entitled to a share in the ancestral property due to her death prior to the amendment. (Paras 48, 49)
Issues: The main issues included whether the properties were ancestral or self-acquired and the implications of the amended Section 6 of the Hindu Succession Act on the shares of the parties. (Paras 17, 18)
Ratio Decidendi: The Court ruled that the burden of proof for establishing joint family property lies with the party asserting it, and the Appellate Court erred in its findings regarding the nature of the properties. The rights of daughters in coparcenary property are recognized, but only if they were alive at the time of the amendment. (Paras 31, 36, 40)
Result: Appeals partly allowed; shares determined as per findings. (Paras 48, 49)
1. Both the present appeals arise out the common judgment dated 9th January, 2015 passed by the Appellate Court in Regular Civil Appeal No 97 of 2013 and Regular Civil Appeal No 115 of 2013.
2. Regular Civil Appeal No 97 of 2013 was filed by the original Plaintiff Nos 1 to 3 and Regular Civil Appeal No 115 of 2013 was filed by the original Defendant Nos 7 and 8 challenging the judgment and decree dated 5th March, 2013 passed by the Trial Court in Regular Civil Suit No.132/2010 partly decreeing the suit determining the shares of the parties i.e. 1/18th share of Plaintiff Nos 1 to 3 each, 7/18th share of rsk of Defendant No 1, 7/18th share of the Defendant Nos 4 to 6 collectively and 1/18th share of Defendant Nos 7 and 8 collectively in suit properties situated at Mauje Kashidwadi, Taluka Phaltan and Mauje Padali, Taluka Khandala. FACTUAL MATRIX :
3. Regular Civil Suit No.132/2010 was filed by the Plaintiffs initially against Defendant Nos.1 to 3 seeking partition and separate possession of property bearing Gat No.149 ad-measuring 4 H 88 R situated at Mauje Kashidwadi. Subsequently the suit came to be amended to include property being Gat No.370/1, Gat No.370/2, Gat No.374, Gat No.363, Gat No.332, Gat No.345 and Gat No.340 situated at Mauje Padali, Taluka Khandala and to implead the legal heirs of the deceased brother-Arvind and sister-Indira. The case of the Plaintiffs was that the suit properties were owned by the propositus Purshottam Govind Inamdar who expired on 16th August 1971 leaving behind him surviving as his legal heirs his wife Rukminibai, sons Arvind and Kamlakar and the Plaintiffs who are the daughters. In the year 1981 their mother Rukminibai expired and after her death the Plaintiffs are entitled to 1/4th share in the suit properties.
4. The amended pleading was that their deceased brother Arvind rsk of was of good nature and had looked after the Plaintiffs and hence the Plaintiffs do not seek any share in the suit property situated at village Mouje Padali Taluka Khandala and that there was no previous partition on 16th March, 1981. The Plaintiffs had demanded partition, however the same was refused and hence the suit.
5. By written statement filed prior to the amendment, the Defendant Nos.1 and 2 contended that suit property i.e. Kashidwadi property was earlier bearing Survey No.111 and subsequent to the implementation of consolidation scheme the same was given Gat No.149. The Plaintiff Nos 1, 2 and 3 got married in the year 1952, 1955 and 1971 respectively and thus were not entitled to claim 1/4th share in the property. It was pleaded that on 2nd March 1981, their mother Rukminibai expired and at the time Plaintiffs and Arvind who was alive decided to partition the ancestral properties in the presence of Harishchandra Jagannath Mane and Namdev Waman Jagdale. On 16th March 1981, written partition deed was executed which was scribed by Ramesh Ganesh Kulkarni and executed by all siblings in the presence of Harishchandra Jagannath Mane and Namdev Waman Jagdale who affixed their signatures on the deed as witnesses. As per the partition deed, Gat No 149 at Kashidwadi was allotted to Defendant No.1 and property at Padali was allotted to Arvind and the rsk of Plaintiffs were given 50 gms gold ornaments each. It was pleaded that there was no share given in the suit property but as gold was given there was no demand for partition which fact had been suppressed by the Plaintiffs. It was pleaded that the ancestral properties are already partitioned and there cannot be any further partition.
6. Defendant No.3 who is the daughter of Defendant No.1 adopted the written statement of Defendant Nos.1 and 2.
7. Defendant Nos.4 to 6 who are the legal heirs of the deceased son Arvind supported the Plaintiffs.
8. Defendant No.7 and 8 filed their written statement producing the genealogy contending that the Plaintiffs have not specified as to whether the suit properties were the ancestral properties or self acquired properties of Pu
