When disputes between members of joint hindu family in respect of land should not referred to tenancy court?
reliance on the decision given by this Court at Principal
Seat in Second Appeal No.375/1993 (between Rajaram
Gopal Govekar and Arjun Gopal Govekar). It appears that
this Court (other Hon'ble Judge) at Principal Seat held
that such proceeding falls under section 70B of the
Bombay Tenancy Act and it needs to be referred to the
tenancy Court. On the basis of this observation, learned
counsel for the appellants submitted that in the present
matter also when there is dispute about certificate
granted under section 32-M of the Tenancy Act, the
dispute ought to have been referred by the Civil Court to
the Tenancy Court. He submitted that it was not open to
the Civil Court to give finding that this property was
cultivated by joint Hindu family and certificate was issued
in favour of defendant No.1 as Karta of the joint Hindu
family.
23) The aforesaid proposition made by the learned
counsel for the appellants is not at all acceptable in this
case. Firstly, the bar of jurisdiction under Bombay
Tenancy Act is applicable only with regard to the subject
matters mentioned in the Bombay Tenancy Act. Secondly,
the bar does not mean that for all purposes the
jurisdiction of Civil Court is taken away. Under the
Bombay Tenancy Act, the tenant's rights are hereditary.
Tenancy rights can be acquired by single person or more
persons or even by joint Hindu family. The disputes which
are between tenant and the landlord are expected to be
considered by the tenancy Court. In the present matter,
the question is, whether the three properties mentioned in
three certificates given under section 32-M of the Bombay
Tenancy Act are joint Hindu family properties. Such
dispute can be and needs to be decided by Civil Court.
This is partition suit and only on the basis of certificate
granted under section 32-M of the Bombay Tenancy Act
defendant No.1 cannot contend that it is his self acquired
property. No such inference is possible when there are
facts and circumstances of the case like present one. This
Court has no hesitation to hold that the dispute of the
present nature cannot be dealt with under the Bombay
Tenancy Act. Reliance is placed on the case reported as
2006 (2) Mh.L.J. 243 (Savitra Bapu v. Rau Rama).
24) When it is proved that at the relevant time the
parties were members of joint Hindu family and they were
having ancestral and joint Hindu family properties, the
burden of proof is on the member who claims that
particular property is his self acquired property. This
burden is more on the Karta of joint Hindu family.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No. 1132 of 2004
Rajaram Mahadu Dahatonde
Versus
Babu Mahadu Dahatonde,
CORAM: T.V. NALAWADE, J.
DATE : 29th OCTOBER 2015
Citation; 2016(2) ALLMR326
https://www.lawweb.in/2016/05/when-disputes-between-members-of-joint.html
