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Baburao Ramchandra Aher And … vs Manisha Sopan Aher And Another on 27 February, 2019

(Order) (1) Second Appeal No. 0137 of 2019

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.

Second Appeal No. 0137 of 2019

District : Ahmednagar

1. Baburao s/o. Ramchandra Aher,
Age : 81 years,
Occupation : Nil,
R/o. Bhramhangaon,
Taluka Kopargaon,
Dist. Ahmednagar. .. Appellants
(Original
2. Savitrabai w/o. Baburao Aher, defendants
Age : 76 years, no.01 02)
Occupation : Nil,
R/o. Bhramhangaon,
Taluka Kopargaon,
Dist. Ahmednagar.

versus

1. Sau. Manisha w/o. Sopan Aher,
Age : 35 years,
Occupation : Agriculture,
R/o. C/o. Sharad Shivram
Paithankar,
At Post Nagarsul,
Taluka Yeola, .. Respondents
Dist. Nashik. (Original
plaintiffs)
2. Bhagyashree Sopan Aher,
Age : 18 years,
Occupation : Education,
R/o. C/o. Sharad Shivram
Paithankar,
At Post Nagarsul,
Taluka Yeola,
Dist. Nashik.

………..

Mr. Abasaheb D. Shinde, Advocate, for the
appellants.
………..

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(Order) (2) Second Appeal No. 0137 of 2019

CORAM : SMT. VIBHA KANKANWADI, J.

DATE : 27TH FEBRUARY 2019

ORAL ORDER :

01. Present appeal has been filed by defendants
no.01 and 02 challenging the judgment and decree
passed in Regular Civil Appeal No. 007 of 2017 by
learned District Judge-2, Kopargaon, dated 03-08-
2018, whereby their appeal came to be dismissed. In
the said appeal, present appellants had challenged
the judgment and decree passed in Regular Civil Suit
No. 490 of 2012 by learned Joint Civil Judge (J.D.),
Kopargaon, District Ahmednagar, dated 14-12-2016.

02. Present respondents are the original
plaintiffs. They had filed the said suit under
Sections 19 and 21 of the Hindu Adoption and
Maintenance Act, for maintenance from the defendants.
The relationship between the parties is not denied.
Defendants no.01 and 02 are the father-in-law and
mother-in-law of plaintiff no.01. Plaintiff no.01
got married to Sopan, who was the son of defendants,
on 26-03-2002. Plaintiff no.02 is daughter of Sopan
and plaintiff no.01. Sopan expired on 18-02-2004.
According to the plaintiffs, after some days from the
death of Sopan, defendants drove plaintiffs out of
their house. However, at that time, gold ornaments
of plaintiff no.01 were kept by defendants with them.
Since then, plaintiffs are residing at village

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(Order) (3) Second Appeal No. 0137 of 2019

Nagarsul with the father of plaintiff no.01. It is
stated that there is no source of income for the
plaintiffs. Defendant no.01 is the Karta of the
joint family. There were agricultural lands bearing
Gut no.58 admeasuring 1 hectare 82 R, Gut no.70
admeasuring 3 hectares 19 R, Gut no.56 admeasuring 1
hectare 21 R, Gut no.68 admeasuring 2 hectares 5 R
and Gut no.67/1 admeasuring 1 hectare 6 R. All are
situated at village Brahmangaon, Taluka Kopargaon,
District Ahmednagar. All the suit lands are in
possession of the defendant and he is taking income
from the same. The family is also having house
property bearing no.493 at the said village. It is
also stated that the suit lands are irrigated lands
and the defendants are getting income of around Rs.
3,00,000/- to 4,00,000/- per year. Plaintiff no.02
is taking education and, therefore, they had prayed
for grant of maintenance at the rate of Rs.10,000/-
per month from the defendants. They had also prayed
for keeping charge on the suit lands as well as suit
house.

03. The defendants filed written statements and
resisted the claim of the plaintiffs. It is denied
that all the suit properties are ancestral properties
and defendant no.01 is the Karta of the joint family.
It was their contention that during the lifetime of
Sopan, there was partition in the year 2003, between
defendant no.01 and his sons. It is also stated that

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(Order) (4) Second Appeal No. 0137 of 2019

after the said partition, names of the plaintiffs
were recorded after death of Sopan to those lands
which were given to the share of Sopan. The
plaintiffs are taking income from those lands. It is
also stated that only 60 R land is now with
defendants and they are getting barely some income
for their own survival. They are also residing in
Pandharpur in an Ashram. It is also stated that
plaintiffs are residing separately from them without
any reasonable ground and, therefore, they are not
entitled to get maintenance.

04. With these rival contentions, issues came to
be framed. Parties led oral as well as documentary
evidence on record. After considering the evidence
on record and hearing both sides, learned trial Court
has partly decreed the suit. Defendant no.01 was
directed to pay maintenance at the rate of 5,000/-
per month to each of the plaintiffs from the date of
filing of the suit. Charge of the maintenance was
kept on Gut no.70, Gut no.56 which are mutated in the
name of defendants no.01 and 02, respectively and
also on the house property which is recorded in the
name of defendant no.01.

05. The said judgment and decree was challenged
in appeal bearing Regular Civil Appeal No. 07 of 2017
by the present appellants. After hearing both sides,
the appeal has been dismissed. Now, those appellants

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(Order) (5) Second Appeal No. 0137 of 2019

have filed present second appeal.

06. Heard learned Advocate Mr. A.D. Shinde
appearing for the appellants.

07. Taking into consideration the arguments
advanced by the learned Advocate for the appellants
and perusing the impugned judgments, it is not
necessary even to issue notice to the respondents.
It has been submitted on behalf of the appellants
that both the courts below have not considered a fact
that the ancestral properties are joint family
properties of defendants and Sopan, which were
already partitioned during lifetime of Sopan and
accordingly mutations have been carried out. The
properties which went to the share of Sopan are with
plaintiffs. Under such circumstance, defendants
cannot be held responsible to maintain the
plaintiffs. When the fact of partition was brought
on record, so also, the suit which was filed by the
plaintiffs for partition was dismissed, these facts
ought to have been considered to hold that plaintiffs
are not entitled to get maintenance from the
defendants.

08. The first and the foremost fact that is
required to be considered is that when the
relationship is not denied, in the normal course,
defendant no.01 would be the Karta of the family.

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(Order) (6) Second Appeal No. 0137 of 2019

However, the defendants have come with a case that
already there was a partition between the defendants
and their deceased son Sopan. Therefore, they ought
to have led evidence. It appears that before the
trial Court, absolutely no documentary evidence to
support the plea of previous partition was adduced.
Further, the defendants themselves did not enter into
witness box. However, it appears that another son of
defendants, namely Tukaram, adduced evidence in the
capacity as power of attorney. Even if for the sake
of arguments it is taken as being the son he had
knowledge of all the facts, yet, unless he gives a
specific date or month and year of partition and the
details of the partition, it cannot be accepted that
there was a partition in respect of the ancestral or
joint family properties. Even in the written
statement, those details were not given. As regards
dismissal of the suit for partition filed by the
plaintiffs is concerned, it appears that photo-copy
of the judgment in the said suit was produced on
record. Learned first appellate Court has considered
that judgment also though it was a photo-copy and has
correctly stated that the said dismissal of the suit
was on technical point i.e. all the necessary parties
were not made as party to the proceedings and,
therefore, it resulted in dismissal. Even if for the
sake of arguments we consider that no appeal was
filed challenging that decision, yet, it cannot be
stated that it supports the say of the defendants

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(Order) (7) Second Appeal No. 0137 of 2019

that there was a previous partition.

09. It appears that the defendants intended to
say that there was oral partition amongst defendants,
Sopan and other coparceners, but then it was for the
defendants to prove that the said partition was
effected by metes and bounds. Mere some entries in
the name of one of the coparceners will not be
conclusive evidence of partition. That mutation
entry itself appears to have not been produced before
the trial Court. But it appears that mutation entry
no. 4453 was produced at Exhibit 47 showing that on
13-01-2005, both the defendants, deceased Sopan and
one Gangubai filed an application for entering the
names of defendant no.01 and his sons in the record
of rights of suit lands Gut no.56, 58, 67/1 and 70.
Interestingly, DW 01 Tukaram does not appear to be
party to the said application. PW 01 Manisha
admitted in her cross examination, that name of her
husband was appearing in the record of rights of Gut
no.68 and now the names of the plaintiffs have been
entered to that property. But then she denied that
she is cultivating the said land. If we consider the
acreage of the suit properties and when it is not
stated in clear terms as to how many sharers were
there, it is hard to believe that each one of them
would have taken the entire land. Further, the
mutation entry would indicate that the partition was
not by metes and bounds. Only names of coparceners

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(Order) (8) Second Appeal No. 0137 of 2019

or co-sharers were prayed to be entered. Therefore,
both the courts below have taken note of the defence
that was raised by the present defendants and the
evidence. In fact, that evidence was not properly
led by the defendants themselves. When there was no
evidence showing that Sopan’s share was carved out
and was given to him during his lifetime, it will
have to be held that he still has share in the suit
properties and the plaintiffs being his heirs are
entitled to get maintenance from the defendants.

10. Both the courts below have also considered
properly the point that the father-in-law is liable
to maintain widowed daughter-in-law on the basis that
he is holding share of the deceased son. Further,
taking into consideration the needs of the
plaintiffs, especially education of the daughter,
present index of price, the amount of maintenance
that was awarded was also reasonable. Therefore, no
error has been committed either on facts or on law by
both the courts. No substantial question of law has
been pointed out.

11. In the result, the second appeal is
dismissed / not admitted.

( Smt. Vibha Kankanwadi )
JUDGE

………..

puranik / SA137.19

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