JUDGMENT
S.B. Deshmukh, J.
1. This appeal is directed against the judgment and decree passed by the learned Civil Judge, Senior Division, Amalner, district Jalgaon in Regular Civil Suit No. 25A of 1996 by the appellant/plaintiff, since she is not copacetic with the judgment and decree passed by in Regular Civil Suit No. 25A of 1996. The appellant was the plaintiff before the trial Court and respondent in this appeal was the defendant in the said suit. The parties are hereinafter referred to their status in the suit, for the sake of convenience.
2. The plaintiff filed Special Civil Suit No. 25A of 1996 for partition and separate possession along with mesne profits, it is alleged by the plaintiff that one Maharu Dagadu Patil was resident of village Junone, Taluka Amalner, district Jalgaon. Maharu Patil was having agricultural landed properties at village Junone. The defendant No. 1 is adopted son of the plaintiff. This adoption took place on 18th May, 1972. Apart from the plaintiff, Maharu Patil was also having two other wives viz. Sarubai and Sarjabai. Undisputedly, Sarubai W/o Maharu Patil died on 9th December, 1993 i.e. prior to filing of the suit. Maharu Dagadu Patil also died on 27th July, 1981. Plaintiff claim that the properties, movable and immovable, as described in the plaint, were owned by her husband Maharu Patil and she was having 1/2 share in these properties. Plaintiff has also alleged that she was driven out of the matrimonial house by her deceased husband Maharu and defendants and was required to file an application for maintenance under Section 125 of the Criminal Procedure Code. Maintenance application was allowed and amount of Rs. 100/- per month was granted towards maintenance. Despite the notice dated 4th July, 1996 the defendants refused to partition the suit properties and, therefore, the suit for partition and separate possession.
3. The defendants, after appearance, filed their written statement in the suit. Defendant Nos. 1 to 4 filed written statement at Exhibit-35. According to defendants, genealogy given by the plaintiff, in the suit, is incorrect. The plaintiff is not entitled to claim and get 1/2 share in the suit properties. At the time of adoption, deed of adoption was executed by three co-wives of Maharu along with the defendant No. 1. In the said deed of adoption, it is mentioned that the land, to the tune of 16 Acres, from Gat No. 125 (western side) was given to three co-wives, including the plaintiff, for maintenance. After the death of three co-wives/adopted mothers of defendant No. 1, the said property was to revert back to defendant No. 1 or his legal heirs. Two co-wives viz. Sarubai and Sarjabai have relinquished their share from land to the tune of 16 Acres, out of Gat No. 125, in favour of the defendant No. 1 Narayan, in the year 1982, and this fact is recorded under mutation No. 1353 on 29th September, 1982.
4. Defendant No. 5 has also filed written statement in response to the suit. According to defendant No. 5, adoption of defendant No. 1 took place on 18th May, 1972 and at that time land to the tune of 16 Acres, out of Gat No. 125, was given to three co-wives of deceased Maharu, including the present plaintiff, for maintenance and said property, thereafter, was to revert back to the defendant No. 1. Similar contentions are raised in this written statement, filed by respondent No. 5 to that of written statement filed by original defendant Nos. 1 to 4.
5. The trial Court, after considering the rival pleadings of the parties, framed as many as seven issues and decreed the suit partly. The trial Court, by the judgment and decree under appeal, did not partition the land Gat No. 10 and 140. Suit of the plaintiff is also dismissed for partition regarding movable properties, described in the plaint. These two findings and part of the decree, dismissing the suit, are subject matter of the present appeal.
6. The learned Counsel Mr. Rane has pointed out from the judgment of the trial Court that the partition regarding land Gat No. 10 and 140 was refused by the trial Court on the ground that these lands have been purchased by the defendant No. 1. Regarding the movable properties, the trial Court has recorded a finding that there is no evidence for existence of the movable properties. From the evidence of defendant No. 1 Narayan, it appears that he claims to have purchased the land Gat No. 10 from Ramchandra Pratap Patil in the year 1983. In relation to land Gat No. 140, situated at village Junone, according to the defendant No. 1, he purchased the said property from one Ratan Giridhar Dhangar, in the year 1983. Learned Counsel Mr. Rane pointed out that these registered documents are not placed on record. Apart from this, in the cross-examination, defendant No. 1 Narayan has admitted that he had no means for his livelihood except the agricultural land. He was adopted in the family undisputedly on 18th May, 1972. Maharu Patil died on 27th July, 1981. It is clear that defendant No. 1 Narayan was cultivating the joint family properties since adoption till acquisition of these two lands Gat No. 10 and 140. Defendant No. 1 Narayan is not specifically coming with the case of self acquisition of these two properties i.e. Gat No. 10 and 140 in his written statement. Neither he has lead convincing evidence to show that these properties are self acquired properties of defendant No. 1 Narayan, apart from the income of the joint family property. From the record, it appears that there was sufficient nucleus for acquisition of these two agricultural lands. These two agricultural lands Gat No. 10 and 140 ought to have been held to be available for partition.
7. Mr. R. M. Borde, learned Counsel for the respondent support the judgment of the trial Court. According to him, there is no evidence on record to show that joint family was having nucleus for acquisition of these two properties i.e. Gat No. 10 and 140. According to him, there is no evidence regarding the movable properties and the trial Court has rightly dismissed the suit filed by the plaintiff.
8. Having heard the learned Counsel for the parties, the following are the points arose for my consideration :
(i) Whether the plaintiff is entitled to claim partition?
(ii) Whether defendant No. 1 proves that the land, to the tune of 16 Acres, out of Gat No. 125, was given to three co-wives by deceased Maharu and, therefore, the plaintiff is not entitled to seek partition?
(iii) Whether the plaintiff is entitled to claim and get 1/2 share in the suit properties.
9. My findings to the above points are as under :
(i) Yes.
(ii) No.
(iii) Plaintiff is entitled to claim l/4th share in the suit properties.
REASONS
POINT NOS. 1 TO 3 :
10. I have perused the judgment of the trial Court. The trial Court has framed seven issues, considering the pleadings of the parties. However, in my opinion, the three points for determination, which I have framed, take care of the controversy between the parties. These three points, since being interlinked, the evidence of two witnesses, one for the plaintiff herself of the defendant No. 1 requires to be considered, I am therefore, answering the finding of all the points simultaneously.
11. The plaintiff, in her substantive evidence, claims that she is wife of deceased Maharu and the defendant No. 1 was adopted on 18th May, 1972. According to her, during the lifetime of Maharu, she was driven out of the matrimonial house by Maharu and defendants. She was required to file an application for maintenance under Section 125 of the Criminal Procedure Code. She being wife of deceased Maharu, is entitled to seek partition of the properties, left by deceased Maharu Patil. The defendant, in support of his pleadings, has also examined himself before the trial Court. The defendant, however, in the cross-examination, admitted that the family was joint, at the time of death of his father. His father i.e. Maharu died on 27th July, 1981. Defendant has also admitted, in his cross-examination para No. 6, that he had no means for his livelihood except the agricultural land. From the record, it is clear that except land Gat No. 10 and 140 other lands were owned by the coparcenary family consisting of Maharu and Narayan. In other words, joint Hindu family, consisting of Maharu, his three wives and Narayan was having sufficient nucleus. After the death of Maharu the joint family properties must have been managed by the defendant No. 1. This inference can be drawn on the basis of the undisputed fact that plaintiff was required to file an application for maintenance against Maharu, which is reflected from the pleadings and evidence of the plaintiff. In this view of the matter, acquisition of land Gat No. 10 and 140, can be inferred to be the acquisition on the basis of the nucleus available with the defendant No. 1. Consequently, the land Gat No. 10 and 140 can be said to be the joint family properties, available for partition to the members like the present plaintiff. In my opinion, therefore, the plaintiff is entitled to seek partition.
12. The trial Court has worked out the share at 16.66 Ps. in favour of the plaintiff. Learned Counsel Mr. Rane states that it is a case of Section 10 of Hindu Succession Act and the plaintiff is entitled for 1/2 share in the suit properties since she is claiming the suit properties through her husband, Maharu, under Section 8 of the Hindu Succession Act, 1956. Learned Counsel Mr. Borde states that adoption, undisputedly, took place on 18th May, 1972. The moment adoption took place, the coparcenary family consisting of Maharu and Narayan came into existence and the property of the joint family since then can be said to be the property of the said coparcenary. According to him, therefore, Section 6 of the Hindu Succession Act is applicable to the facts of the present case. I am inclined to accept the submissions of learned Counsel Mr. Borde in view of the facts and evidence of the case. Apart from the pleadings of the plaintiff, it is undisputed fact that adoption took place on 18th May, 1972 and even in the suit status of defendant No. 1 as adopted son is not disputed by the present plaintiff. In this view of the matter, share of the plaintiff needs to be worked out as per Section 6 of the Hindu Succession Act. It is pointed out by the learned Counsel Mr. Borde that Sarubai, one of the co-wives of Maharu, died on 9th December, 1993. Admittedly, the suit is filed on 10th July, 1996. Thus, on the date of filing of the suit, Sarubai was not alive. One share in its entirety goes to the wives and in this case on the date of filing of the suit, two wives of Maharu, including the plaintiff, were alive. In this view of the matter, I am of the opinion, that the plaintiff is entitled to l/4th share in the immovable property, described in the plaint, including the land Gat Nos. 10 and 140. The points framed, thus, accordingly are answered affirmatively and in favour of the plaintiff.
13. For the reasons mentioned in the aforesaid paragraphs of this judgment, the appeal filed on behalf of the plaintiff needs to be partly allowed, by setting aside the dismissal of the suit of the plaintiff for partition regarding Gat Nos. 10 and 140, situated at village Junone and share allotted to the plaintiff by the trial Court to the extent of 16.66 Ps., by maintaining the dismissal of the suit for movable properties, hence, the following would be the modified judgment, in lieu of the trial Court’s judgment.
(i) The plaintiffs suit is accordingly decreed.
(ii) The plaintiffs suit for partition and separate possession of immovable properties (agricultural lands, as described in the plaint) stands decreed. The plaintiff is entitled for l/4th share in the immovable properties, inclusive of land Gat Nos. 10 and 140 situated at village Junone, Taluka Amalner, district Jalgaon.
(iii) The partition and separate possession in relation to the immovable properties, described in plaint Index No. 1, inclusive of land Gat Nos. 10 and 140, be made by the Collector, or any other gazetted officer, deputed by him, in accordance with the provisions laid down under Section 54 of the Civil Procedure Code.
(iv) A separate inquiry be held for mesne profits under Order XX, Rule 12 (c) of the Code of Civil Procedure.
(v) Preliminary decree be drawn accordingly.
(vi) No costs.