Shankar Babugonda Patil (Deceased Thr. Lrs. 1. Sou. Vasanti Shankar Patil And ORS. ) v. Kalgonda Babugonda Patil And ORS.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

varsha CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 492 OF 2024 Digitally signed by VARSHA VIJAY RAJGURU Date:

2024.09.10 12:28:40 +0530 WITH VARSHA VIJAY RAJGURU CIVIL APPLICATION NO. 1432 OF 2017 IN SECOND APPEAL NO. 492 OF 2024 Shankar Babugonda Patil (deceased thr. Lrs 1. Sou. Vasanti Shankar Patil and Ors.) ... Appellants/Applicants vs.

Kalagonda Babugonda Patil and Ors ... Respondents Mr. Bhushan Walimbe a/w. Mr. Mayank Tripathi, for Appellants. Mr. N.B. Khaire, for Respondent No. 2 B.

Mr. Chetan Patil i/b. Mr. Mandar G. Bagkar, for Respondent No.1. CORAM : GAURI GODSE, J.

DATED : 2nd SEPTEMBER 2024 ORDER:

1.

Heard learned counsels for the parties. Second Appeal is admitted on the following substantial questions of law: I) Whether in the absence of clear findings that the suit property at serial no.7 was purchased by defendant no. 1 out of his independent source of income, the trial court's findings Page no. 1 of 4

granting partition and separate possession in respect of the said property, could have been reversed by the First Appellate court?

II) When there was no dispute that there was a joint family of the parties, whether the burden to prove that the suit property at serial no. 7 was purchased by defendant no.1 out of his independent source of income could have been casted upon the plaintiff?

III) When there was no dispute that there was a joint family between the parties and other suit properties were belonging to the joint family, whether it was the burden on defendant no.1 to prove that the suit property at serial no.7 were purchased out of his independent source of income. IV) Whether the plaintiff's case with regard to the suit property at serial no. 7 being a joint family property is covered by the legal principles settled by the Hon'ble Apex Court in the case of Adiveppa and Ors Vs. Bhimappa and Anr1 V) Whether in view of legal principles settled by the Apex Court in the case of D.S. Lakshamaiah and Anr Vs. L. Balasubramanyam and Anr2 the burden to prove the suit (2017) 9 SCC 586.

(2003) 10 SCC 310 Page no. 2 of 4

property at serial no.7 was on the plaintiff that it was a joint family property though purchased in the name of defendant no.1?

2.

Mr. Khaire, waives notice on behalf for respondent nos. 2B and Mr. Patil waives notice on behalf of respondent no.1. 3.

In addition to Court notice, the learned advocate for the appellants to serve the remaining respondents, by private notice and file affidavit of service.

4.

Call for records and proceedings.

5.

Printing is dispensed with.

6.

Learned advocate for the appellants shall file private paperbook within a period of one year from today. CIVIL APPLICATION NO. 1432 OF 2017 7.

Rule on interim relief in terms of prayer clause (a) is made returnable after ten weeks. Till next date no third party interest be created in respect of suit property at serial no.7. 8.

It is clarified that there is no stay to the decree for partition and separate possession in respect of other suit properties. 9.

Mr. Khaire, waives notice on behalf for respondent nos. 2B Page no. 3 of 4

and Mr. Patil waives notice on behalf of respondent no.1. 10.

In addition to Court notice, the learned advocate for the applicants to serve the remaining respondents, by private notice and file affidavit of service, before the next date. (GAURI GODSE, J.) Page no. 4 of 4