MANU/MH/1951/2012

Equivalent Citation: 2013(1)ALLMR604, 2013(6)BomC R397, 2013(1)MhLj709, 2013(1)MhLj709, 2013(4)RC R(C ivil)566

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 1060 of 2005
Decided On: 30.11.2012
Appellants: Somanath Radhakrishna More
Vs.
Respondent: Ujjawala Sudhakar Pawar
Hon'ble Judges/Coram:
Mrs. Mridula Bhatkar, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Mr. M.M. Sathaye, Advocate
For Respondents/Defendant: Mr. Rahul Motkari, Advocate for Respondent No. 1
JUDGMENT
Mrs. Mridula Bhatkar, J.
1 . This Second Appeal is directed against the judgment and order passed by the First
Appellate Court dated 16th December, 2004 thereby confirming the judgment and order
of the trial Court dated 18th July, 2000. Respondent No. 1 filed Regular Civil Suit No.
461 of 1995 against the appellant and other respondents for her one half share in the
agricultural land and suit house including business through her deceased father in the
Joint Family property. Respondent No. 1 (plaintiff) is a daughter of deceased Trimbak
Ramchandra Mahale. Ramchandra had three sons, i.e., Radhakrishna, Trimbak and
Digamber. According to the plaintiff, Radhakrishna was given in adoption in one Mor
family, therefore, he had no interest or right in the Joint Hindu family. Respondent No.
2-Digamber died pending Second Appeal. Hence, his legal heirs are brought on record.
Respondent No. 3 is mother of respondent No. 1 (Original plaintiff). She has equal
share like her daughter i.e. respondent No. 1. Pandurang Thete, respondent No. 4 has
purchased 1H 20R land from the suit field from deceased Digamber and appellant has
also purchased 80R from the suit field from Digamber. Somnath, the
appellant/defendant No. 2 is a son of Radhakrishna. Trimbak died leaving behind his
wife-Bhagirathi and a married daughter Ujjawala Sudhakar Pawar. Admittedly, there was
no partition in the family. It being the Hindu joint family, Digambar remained sole
coparcener after Trimbak. Ujjawal-respondent No. 1, Trimbak daughter demanded
partition of the property of the share which would have given to Trimbak after the
partition. The trial court partly allowed the suit and held that the plaintiff-daughter is
entitled to 1/4th share in the suit property i.e. Gat No. 665 of village Girnare,
admeasuring 3 H. 50 R and also in the house property, bearing grampanchayat number-
11, village Girnare. The trial court has framed issue in respect of adoption of
Radhakrishna and it was held in affirmative. Issue No. 3 was that defendant No. 3 being
son of adopted son Radhakrishna, has no right interest in the suit property and it was
answered in affirmative. Share of the plaintiff is to be carved out as per Section 6 of the
Hindu Succession Act, 1956. So at the time of partition, if property would have been
partitioned in the lifetime of Trimbak, then the property would have been distributed

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1/2 between Trimbak and Digambar. Trimbak left behind Bhagirathi-wife and plaintiff
and therefore, 1/2 share of Trimbak was further divided in two portions i.e. between the
wife-Bhagirathi and daughter Ujjawala and therefore, the plaintiff is entitled to 1/4th
share. Somnath was not given anything as it was held that he is a son of the adopted
son, therefore he is not entitled to any right in the property. The appellant challenged
the said verdict of the trial Court in Civil Appeal No. 316 of 2000 along with original
defendant No. 4-Pandurang Punja Thete. The first Appellate Court upheld the judgment
and order of the trial Court and dismissed the appeal.
2. This Second Appeal was admitted on 21st September, 2005 and substantial questions
of law were formulated as follows:
(1) Whether the lower appellate Court was justified in holding that
Radhakrishna-father of defendant No. 2/present appellant was given in
adoption, when admittedly at the relevant time, during 1915 to 1920,
Radhakrishna was only son to his parents i.e. Ramchandra and Narmadabai and
prior to year 1956, as per the uncodified Hindu Law, only son could be given in
adoption?
(2) Whether the lower appellate Court was in error to hold that the bar under
Section 23 of the Hindu Succession Act will not apply to the present case
because plaintiff/appellant is sole heir of deceased Trimbak, specially when it is
plaintiff's own case that no partition has taken place between Trimbak and
Digamber (male heirs of family)?
(3) Whether the lower appellate Court was justified in holding that the suit land
Gat No. 665 is joint family property of plaintiff's father and defendant No. 1
only?
(4) Whether the lower appellate Court was justified in holding that at the time
when the suit land Gat No. 665 was purchased in the year 1944, the father of
plaintiff (Trimbak) who was only 23 years old, was earning member on the
basis of evidence available, so as to prove nucleus of the joint family?
3. The issue of adoption of Radhakrishna is vital and goes to the root of the matter. The
learned counsel for the appellant submitted that the appellant has vehemently
challenged the fact of adoption of Radhakrishna from Mahale family to Mor family. He
argued that respondent No. 1-plaintiff could not bring any documentary evidence in
support of her contention of the adoption of Radhakrishna. She doesn't have personal
knowledge and she did not examine any evidence in support of her case. The appellant
has produced number of documents supporting his contention that his father
Radhakrishna was not given in adoption in true sense and he remained in Mahale family
as the eldest son or karta of the family. Considering the status of Radhakrishna as karta
in the family, the Courts below ought not to have believed the case of the plaintiff on
the point of adoption of Radhakrishna. He pointed out that Radhakrishna was the only
son of Ramchandra when adoption has taken place. He submitted that assuming
Radhakrishna was given in adoption in the year 1922 approximately, he being the only
son, the said adoption is not valid under Hindu Law.
4 . Per contra, the learned counsel for the main contestant-respondent No. 1/plaintiff
relied on oral evidence of the plaintiff's and the admissions given by the appellant in his
cross-examination. He relied on the marshalling of the documentary as well as oral
evidence done by the Courts below. He submitted that the original defendant No. 1-
Digamber, the uncle of the plaintiff was alive till the Second Appeal was filed. However,

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Digamber did not lead any evidence on the point of adoption. He did not challenge this
fact of adoption and this goes in favour of the plaintiff.
5. The genealogy of Mahale family is not disputed. Ramchandra Mahale has 3 sons viz.
Radhakrishna, Trimbak and Digambar. There is no evidence in which year Radhakrishna
was adopted by a family of Narayan Mor of Trimbakeshwar. Radhakrishna was the
eldest son, Trimbak was the second and Digambar was the youngest one. It was
contended that when Radhakrishna was given in adoption by Ramchandra at that time
Radhakrishna was his only son and as per Chapter-23 of the Hindu Law, only son
cannot be given in adoption. The period of adoption is mentioned generally between
1915 to 1920. No documentary evidence of adoption is available, hence not produced
by the plaintiff. In the cross-examination of respondent nos. 2 & 4 it is brought on
record that there was a gap of 4 years between Trimbak and Radhakrishna. Trimbak was
born in the year 1921 and there was age gap of 4 to 5 years between Trimbak and
Radhakrishna. In the cross-examination of respondent nos. 1 & 3 they deposed that
when Radhakrishna was 7 to 8 years old, he was given in adoption. The plaintiff could
tell a specific year of the birth of her father Trimbak was of 1921, however, she is not
sure about the year of the adoption so uncertain long span of 5 years i.e. 1915 to 1920
of the adoption is stated. However, in the cross-examination, she has specifically stated
that the age of Radhakrishna was 7 to 8 years, he was adopted. So also about the
distance of 4 years between Radhakrishna and Somnath. From these two statements in
respect of the age of the Radhakrishna at the time of adoption and secondly the age gap
between Radhakrishna and Trimbak it can be ascertained that when Radhakrishna was
given in adoption, Trimbak might have born. So the submission of the
appellant/original defendant No. 3 that when the adoption has taken place Radhakrishna
was the only son to Ramchandra Mahale, cannot be accepted. Moreover, the bar on the
adoption of only child was not absolute but it was generally followed.
6. The validity of adoption is further contested on the ground that the plaintiff could not
prove adoption by tendering any cogent documentary evidence. The trial court and the
first appellate court both, have gone into the evidence of the plaintiff as well as main
contesting defendant i.e. appellant in detailed. In order to find out whether the courts
below were perverse in their positive finding of adoption, it is necessary to again look
into the relevant evidence of these 2 witnesses. In the cross-examination she admitted
that she does not have any document of adoption, she does not have personal
knowledge of adoption. She claims that she had this knowledge from her father and the
family members. She admitted letters i.e. Exhibits-80 to 87. She admitted that she
wrote letters Exhibits-80 and 81. She states that Exhibits-82 to 85 these 4 letters were
written by her husband. Exhibits-86 & 87 were written by her father-in-law and these 2
letters were written to her Maiden-home. She admitted that in all these letters
Radhakrishna was addressed as 'Tatya' and he is the father of original defendant No. 2
Somnath. She also admitted that in all these letters Radhakrishna is addressed as
Radhakrishna Ramchandra Mahale. She also admitted that all the letters were addressed
to Radhakrishna because he was karta of the family and he used to look after the
management of the family. On the basis of these admissions it can be inferred that the
plaintiff Radhakrishna considered as karta of the family and he being the eldest brother
of Trimbak, the plaintiff, her husband and her in-laws used to seek his permission and
addressed him letters accordingly. It is a known custom in the Hindu joint family that
in-laws or son-in-law generally address the eldest male member in the maiden home of
the daughter-in-law and may not the father of the daughter-in-law. This practice is
followed generally to give respect to the eldest persons in the family.
7. From this evidence it can be inferred that Radhakrishna was treated in Mahale family

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as the eldest son of Ramchandra Mahale and the eldest uncle of the plaintiff and
admittedly, he was looking after the management of the family as a karta. In the
absence of any other evidence, this evidence would have been sufficient to accept the
rival submissions of the appellant/defendants challenging the validity of the adoption;
however, there are other material circumstances which are produced by the plaintiff in
her examination-in-chief, so also they are appearing in the evidence of Somnath, the
appellant.
8. The learned Counsel for the respondents relied on certain documents i.e. Exhibit-99
& Exhibit-100 the extracts of the school registers showing the names of the appellant
and his sister. The name of father is shown as Radhakrishna. However surname of both
the children was shown as Mor and not as Mahale. These erstwhile entries show that the
name of defendant No. 2 was registered in the school by surname Mor. Mr. Ramesh
Keda Gavli, the headmaster P.W-4 had issued the certificates of Somnath Radhakrishna
Mor and Shobha Radhakrishna Mor. Though he did not bring the original register, the
truthfulness of the certificates cannot be doubted.
9. Radhakrishna died in 1984. Exhibit-73 and Exhibit-112 are death certificates issued
by the authority on the death of Radhakrishna. Death certificate was issued on
22.9.1999 during the pendency of the suit. In that certificate surname of Radhakrishna
is appearing as Radhakrishna Mahale. The death certificate issued earlier is to be given
more weightage than the death certificate which was obtained during the pendency of
the suit. The certificate which is obtained during the pendency of the suit is obviously
suitable to the evidence of the plaintiff. Exhibit-112 dated 8.7.1986 shows name as
Radhakrishna Mahale. Death certificate is an evidence of a death of a person on a
particular date. The name of the deceased obviously should appear in the certificate.
However, the certificate though it is expected to be authentic, the authenticity of the
contents of the death certificate depends on the information given by the person who
approaches the authority. How surname of Radhakrishna appeared as Mahale instead of
Mor can be explained on the basis of the admissions given by the plaintiff in her cross-
examination. She admitted that Radhakrishna was staying with the family. He was
looking after the management of the entire family. His status was like karta of the
family and therefore, he was known in the society by the surname of Mahale.
Admittedly, Mahale is a surname of Radhakrishna's natural father. Before adoption his
name was Radhakrishna Mahale. This is how the two different surnames of deceased
Radhakrishna in death certificate are appearing. Thus, he was recognized as one of the
members of "Mahale" family.
10. Most important document in favour of the plaintiff is a sale deed Exhibit-114 dated
16.6.1995 which was taken place between Digambar and Somnath. This exhibit-114
was admitted document. The appellant/defendant No. 2 admitted in the cross-
examination that he has gone through the sale deed and the contents in the sale deed
are true and correct. Somnath has purchased some portion of the land from Digambar.
It was argued by the learned Counsel for the appellant that after the death of Trimbak,
Digambar was the sole coparcener and he sold some portion of the land which is fallen
to his share to Somnath by sale deed dated 16.6.1995. However, in the cross-
examination though he admitted all the contents of the sale deed, he denied the
contents in paragraph-4 of the sale deed that his father was adopted in Mor family. He
answered in the cross-examination that he did not realize at the time of execution of the
sale deed that this fact is incorrect and he realized this fact at the time of cross-
examination. This cannot be believed. Indeed this sale deed hits the core part of the
adoption and it negatives the challenge of the defendant to the validity of the adoption.
The first appellate court while dealing with this evidence has rightly posed the question

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that if the defendant was not given in adoption in Mor family then he must be having a
share in the suit property and if it was so then what was a need for defendant No. 2 to
purchase 80R's of land out of the ancestral suit land by executing the sale deed from
defendant No. 1 Digambar, his uncle? Curiously, the plaintiff filed a suit for partition on
14.6.1995 and the sale deed was executed on 16th June, 1995. Therefore, the contents
in the sale deed cannot be read as incorrect and the sale deed is a document which
speaks for itself. Therefore, this confirms the case of the plaintiff that Radhakrishna was
given in adoption.
11. The learned Counsel Mr. Sathaye on the point of adoption heavily relied on the
judgment of the Supreme Court in A. Raghavamma Vs. A. Chenchamma reported in
MANU/SC/0250/1963 : AIR 1964 SC 136. In the said case Supreme Court had occasion
to deal with the issue of adoption of only son and subsequent conduct of the parties.
The Supreme Court held that who claims adoption must discharge the burden that lies
upon him by proof of the factum of adoption and its validity. Only son of a brother
Chimpirayya was adopted by one Pitchayya. At the time of adoption Chimpirayya was 40
years old and Pitchayya was 25 years old. The Supreme Court observed that therefore,
ordinarily he had every prospect of having children of his own; it is therefore, highly
improbable unless there are special circumstances, that an only son of an elder brother
was taken in adoption by his younger brother; though there is no legal prohibition, it is
well known that ordinarily an only son is neither given nor taken in adoption. The
supreme court elaborately described the proof on the point of subsequent conduct of
the parties in paragraphs-15 & 16 of the judgment. On promissory notes, mortgages,
sales of adopted Venkayya was described as adopted son of Pitchayya. However, in the
insurance proposal form Venkayya is described as only son of Chimpirayya and adopted
son of Pitchayya. In the Will Chimpirayya recited the factum of adoption. However,
there was another current of unimpeachable documentary evidence which leads to a
contrary inference. In the school Venkayya was adopted as son of Chimpirayya.
Venkayya executed promissory note, sale deed and mortgage as son of Chimpirayya. He
filed a suit as son of Chimpirayya. He ensured his life as son of Chimpirayya. In the said
case it was found that whenever Venkayya exhibited documents he described himself as
son of Chimpirayya, that he filed suits as the son of Chimpirayya, operated upon the
accounts of third parties as his son, that he purchased properties as his son. So when
he gave evidence he declared himself as son of Chimpirayya i.e. of his natural father.
Therefore, Supreme Court held that in such state of evidence it was not possible to say
that there had been consistent pattern of conduct from which a court should draw the
inference that the adoption must have taken place. The facts of case of Raghavamma
are clearly distinguishable from the present set of facts. Radhakrishna was not the only
son of his father. It is doubtful at the time of adoption whether 2nd son Trimbak was
born or not born. In the school, name of defendant No. 2 was registered and his
surname was given as Mor and he himself has executed a document i.e. sale deed
exhibit-114 and there he himself had mentioned that his father was given in adoption in
Mor family. The important distinguishable fact is in the present case Radhakrishna has
not challenged his adoption. It is Somnath who is the son of the adopted son challenges
adoption of his father. Neither plaintiff nor Somnath had any personal knowledge of the
adoption. Thus this ruling of Raghavamma is not of any help to the defendant. Thus the
first appellate court and the trial court have rightly accepted the fact of adoption. A
knowledge of a particular old fact or an old incident is always known to the next
generation from their parents and elderly members of the family. This oral information
is a knowledge and the knowledge becomes authentic if corroborative evidence is
tendered by the witnesses. Rule of evidence also supports this proposition of adoption.
Thus, substantial question of law No. 1 is held against the appellant.

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12. The Second question of law involves right of a married daughter in view of the
restriction for partition of the dwelling house under section 23 of the Hindu Succession
Act, 1956. Section 23 of the Hindu Succession Act was omitted by the Hindu Succession
(Amendment) Act of 2005 with effect from 9th September, 2005. Though Second Appeal
is filed in 2005, the suit was filed in the year 1995, therefore, it is necessary to consider
Section 23. Section 23 reads as follows:
23. Special provision respecting dwelling houses.--Where a Hindu intestate has
left surviving him or her both male and female heirs specified in class I of the
Schedule and his or her property includes a dwelling-house wholly occupied by
members of his or her family, then, notwithstanding anything contained in this
Act, the right of any such female heir to claim partition of the dwelling-house
shall not arise until the male heirs choose to divide their respective shares
therein; but the female heir shall be entitled to a right of residence therein:
Provided that where such female heir is a daughter, she shall be entitled to a
right of residence in the dwelling-house only if she is unmarried or has been
deserted by or has separated from her husband or is a widow.
13. Section 23 provides bar on demand of female heir to claim partition of the dwelling
house until the male heirs chose to divide the respective shares therein. Proviso entitles
a daughter who is unmarried, destitute or widow to reside in the dwelling-house. The
learned counsel for the appellant argued that the plaintiff is a married daughter and has
no right to demand partition from Digamber, as Digamber was a sole coparcener after
the death of Trimbak.
1 4 . The learned counsel for respondent No. 1 in reply argued that respondent No.
1/plaintiff is demanding her share under section 6 of the Hindu Succession Act as her
father, who was the coparcener, died. He further submitted that the appellant has no
right to stay in the dwelling-house, as he being the third party, his residence amounts
to alienation of the coparcenary property. Therefore, the first appellate court has taken
correct view and has given 1/4th share in the dwelling share to the plaintiff.
15. Though Digambar was defendant No. 1 and sole coparcener, he did not step in the
box to dislodge the case of the plaintiff on the point of adoption of Radhakrishna. His
evidence would have been treated as the best evidence on the point of adoption and
also while deciding issue of partition of the dwelling house. Moreover, Digambar did not
challenge findings either of the trial court or the first appellate court in any Court. He
did not question the demand of the partition made by the daughter of his brother and
did not refute any averment made and contentions raised by her in respect of partition
and also about the status and relation of the appellant in Mahale family.
16. The first appellate court has formulated point No. (iii) in respect of the bar created
by Section 23 of the Hindu Succession Act. The finding was given in favour of the
plaintiff. The trial court did not frame a specific issue in respect of plaintiff's right to
demand partition in view of Section 23 of the Hindu Succession Act. The first appellate
Court has discussed ruling of Narasimaha Murthy Vs. Susheelabai & Ors. reported in
MANU/SC/0463/1996 : A.I.R. 1996, 1826 and also case of 'Fulsing Ramsingh Rajput &
Anr. Vs. Durgabai w/o. Shivsingh Rajput reported in MANU/MH/0032/1997 : 1996(2)
Mh. L.J. 770 :
... I would like to observe that the scheme of the Act is to the effect that as a
result of introduction of female heirs the share of deceased intestate stands
notionally partitioned from the rest of the male coparceners. Therefore the net

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 result of introduction of female, being a heirs of deceased intestate who expires
in joint family is destruction of co-parcenery and severance of status takes
place which in the result is a partition in the eye of law and, therefore, the
subsequent provisions deal with the rights of heir of the deceased. In this view
of the matter Section 23 has been drafted by the Legislature....
1 7 . In Narasimaha Murthy's case, the Supreme Court has discussed about the
impartability of the dwelling house. In the present case, the appellant was inducted in
an ancestral dwelling house so it was not occupied entirely only by the coparcener and
his family members. As the third person had started residing in the dwelling house, it
looses its character as a dwelling house under Section 23 of the Hindu Succession Act
and therefore that property can be subjected to a partition and it can be demanded by a
female heir from a sole male heir. The appellate court relied on the ratio of the ruling of
'Fulsing Ramsingh Rajput'. In that case, a coparcener died intestate leaving only female
heir. The Single Judge of this Court has taken a view that if there is no male heir left
behind that particular deceased coparcener, then his surviving female heirs, may be a
widow or a daughter, have right to ask for the partition. By way of notional partition,
the share of the deceased coparcener was carved out. In Narashimaha Murthy's case the
Supreme Court has observed as follows :
13.........The male heir(s) thereby evinces animus possedendi. But the moment
the sole heir chooses to let out the dwelling house to a stranger/third party, as
a tenant or a licensee, he or they exhibit (s) animus dessidendi and the
dwelling house thereby becomes partible. Here the conduct of the male heir(s)
is the cause and the entitlement of the female Class-I heir(s) is the effect and
the latter's claim for partition gets ripened into right as she/they is/are to sue
for partition of the dwelling house, whether or not the proviso comes into play.
Here the female heir(s) becomes entitled to not only mere partition of the
dwelling house but also her right to residence after partition."
33........ The provision would have to be interpreted in such manner
that it carries forward the spirit behind it. The second question would
thus have to be answered in favour of the proposition holding that
where a Hindu intestate leaves surviving him a single male heir and
one or more female heirs specified in Class I of the Schedule, the
provisions of section 23 keep attracted to maintain the dwelling-house
impartable as in the case of more than one male heir, subject to the
right of re-entry and residence of the female heirs so entitled, till such
time the single male heir chooses to separate his share; this right of
his being personal to him, neither transferable nor heritable.
18. In the present case, Somnath-defendant No. 2 is admittedly residing in the suit
house. Defendant No. 2, as held above, is a son of Radhakrishna who was given in
adoption in 'Mor' family. Fact of adoption of is proved, therefore Radhakrishna's rights
in the ancestral property are extinguished. Thus, after death of Trimbak, Digambar
remained a sole coparcener of the suit property i.e. dwelling house. The Supreme Court
in Narashimaha Murthy held that dwelling house is not partible if the sole coparcener
remains and occupies the house along with his family members. True, Radhakrishna
was not occupying the premises in capacity of tenant. There is no evidence that he was
occupying the house as a lessee or licensee. He was occupying the premises as a family
member. However, he had no legal right, though he was accepted by Digambar and
Trimbak as a family member. His stay was not objected either by Trimbak or Digamber.

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Family is not defined under Hindu Succession Act. Thus, who can be a member of the
family is not described by the statute. Therefore, the Court has to determine position of
the defendant No. 2 in view of his legal status only. His status as a family member may
be acknowledged by the Trimbak and Digamber, however, Somnath is not a coparcener
in law. He does not have any legal right in the property of his father's natural father.
Due to adoption, Radhakrishna's rights in the property of his natural father were ceased
and so of Somnath. He continued to stay there and continued to look-after the family of
his brothers and other family members yet his right cannot be rejuvenated.
19. As mentioned earlier, Digamber did not challenge the case of respondent No. 1 and
did not adduce any evidence to deny her demand of partition by respondent No.
1/plaintiff. In view of the ratio laid down in Narashimaha Murthy's case and Fulsing
Ramsingh Rajput's case, respondent No. 1/plaintiff is right to demand partition of the
dwelling-house. Question of law No. 2 is also decided against the appellant.
2 0 . Question of law nos. 3 and 4 are whether the suit land i.e. property 2A was
purchased from the nucleus of the joint family property or it was purchased out of
stridhan by the mother of defendant No. 1. Mr. Sathye, learned counsel for the appellant
relied on the point of existence of adequacy sufficient nucleus to purchase the property
Mr. Sathye relied on (i) Baikuntha Nath Paramanik (dead) by his L.Rs. & heirs Vs. Sashi
Bhusan Paramanik (dead) by his L.Rs. & Ors. reported in MANU/SC/0381/1972 : AIR
1972 SCC 253; (ii) K.V. Narayanaswami Iyer Vs. Ramakrishna Iyer & Ors. reported in
MANU/SC/0307/1964 : 1965 SCC 289; (iii) Achuthan Nair Vs. Chinnammu Amma & Ors.
reported in MANU/SC/0361/1965 : AIR 1966 SCC 411. He submitted that the appellant
has tendered evidence that his mother had purchased the suit land out of her 'stridhan'
and the plaintiff could not prove that the property was purchased from the nucleus of
joint family. He argued that burden to prove necleous was on the respondent. However,
the courts below have wrongly placed that burden on the appellant.
2 1 . The suit property described in the plaint originally belonged to the family of
Ramchandra. However, the financial condition of the family became bad, so Ramchandra
was constrained to sell the property. Thereafter, he died and after his death, the
property was purchased by registered agreement of sale by Narmada-mother of
defendant No. 1-Digambar. It was purchased by Naemada-the wife of deceased
Ramchandra in the name of their minor son Digambar. It is a fact that wife of deceased
Ramchandra had no separate independent source of income when the suit land was
repurchased. In the year 1943-44, when the land was purchased, Trimbak, the father of
the plaintiff was 23 years old and was earning. The plaintiff has deposed on oath that
her father gave money to repurchase the suit land out of love and affection so the land
was purchased in the name of Digamber. It is to be noted that the family did not
purchase any other land but the same land which was sold by Ramchandra was re-
purchased. If non-earning wife possesses stridhan and the land is the only piece of an
agricultural land owned by the family and the family is dependent on that land, then in
financial crises generally female member in the family offers her stridhan to save the
land. In the present case, if the case of the defendant is that the suit land was
repurchased by selling stridhan of Narmada, the question emerges as to why she did
not offer her stridhan to her husband when there was financial crises which compelled
him to sell his land. Sale of the land is the last option generally resorted by the joint
Hindu family and anyhow family members will try to save the land. Therefore, the case
of the defendant that it was purchased out of stridhan of his grandmother after death of
her husband, cannot be accepted. Moreover, no evidence on the point of stridhan is
tendered. On the other hand, evidence of the plaintiff, that her father was 23 years old
and he was, after death of her father being the eldest son at the relevant time, gave

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money to his mother, appears plausible.
22. Therefore the first appellate court and the trial court have rightly accepted the case
of the plaintiff and committed no error. Hence, Second Appeal is dismissed. At this
stage, learned Counsel for the appellant prays for staying of the order and interim stay
granted by this Court be continued. Learned counsel for respondent No. 1 opposes this
prayer. However, as there was interim stay, stay is granted for six weeks.
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