High Court
Legal Reasoning
1901-sa-54-2024.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD901 SECOND APPEAL NO. 54 OF 20241.Babasaheb s/o. Raghunath Makode,Age: 43 Years, Occu. : Agri,R/o. Markenday Nagar, Manwath,Tq. Manwath, District Parbhani2.Balasaheb s/o. Raghunath Makode,Age:41 Years, Occu : Agri,R/o. Markenday Nagar, Manwath,Tq. Manwath, District Parbhani.3. Radhabai w/o. Raghunath Makode,Age: 66 Years. Occu : Agri.R/o. Markenday Nagar, Manwath,Tq. Manwath, District Parbhani.4.Ratnamala w/o. Jagannath Deshmane,Age: 5l Years, Occu : Household,R/o. House No.73, Gondhale Nagar,Lokhandi Pul Road, Hadapsar, Pune 28,Tq. & District Pune.5.Ashabai w/o. Vaijanath Shastri,Age:49 Years. Occu : Agri,R/o. Godu Galli, Manwath,Tq. Manwath, District Parbhani.6.Ushabai w/o. Bandu Dehadare,Age; 46 Years, Occu : Household,R/o. Shevgaon, Tq.Pathardi,District Ahmednagar....APPELLANT (Ori. Defendant No.l to 6)VERSUS1.Leelabai @ Neelabai w/o. Babulal DeshmaneAge: 72 Years, Occup: Household,R/o. Pargaon Japti, Tq. & District Beed,At Present House No.73, Survey No.16,Gondhale Nagar,, Lokhandi Pul Road,Hadapsar, Pune 28, Tq . & District Pune. ...RESPONDENT(Ori. Plaintiff) 2901-sa-54-2024.odt...Mr. Jaju Nikhil Santosh, Advocate for AppellantsMr. Avinash A. Khande, Advocate for Respondent/sole...CORAM :ROHIT W. JOSHI, J.DATE :2ND APRIL, 2025ORAL JUDGMENT :1.Appellants in the present appeal are original defendants andrespondent is the original plaintiff. Respondent/plaintiff is sister ofRaghunath who is deceased father of appellant Nos.1, 2, 4 to 6 andhusband of appellant No.3. The parties will be referred in the body ofthe judgment as plaintiff and defendants.2.The plaintiff has filed a suit for partition and separate possessionagainst defendants who are widow and children of her late brotherRaghunath being Regular Civil Suit No.68 of 2013 inter alia claimingpartition and separate possession with respect to the suit propertieswhich comprise of an agricultural land. She has given up right to seekpartition with respect to residential house. The defendants appeared inthe matter and opposed the suit contending that the plaintiff hadrelinquished her share in the properties of the family in the year 1988and was therefore not entitled to the relief of partition and separatepossession.3.Maruti i.e. father of the plaintiff and deceased Raghunath, is theoriginal owner of the suit property. He expired on 04.05.1981, leaving 3901-sa-54-2024.odtbehind three class-I legal heirs, namely Thakubai, his widow, plaintiff,his daughter and Raghunath, his son. The contention of the plaintiffand defendants is that the suit property was ancestral property of lateMaruti.4.The learned Trial Court has decreed the suit granting a decree forpartition and separate possession in favour of the plaintiff videjudgment and decree dated 06.04.2016. The learned Trial Court hasgranted 1/4th share to the plaintiff in the suit property and it is held thatdefendant Nos.1 to 6 are entitled to the remaining 3/4th share. Theplaintiff has not challenged this decree passed by the learned TrialCourt, however, the defendants filed first appeal being, Regular CivilAppeal No.53 of 2016 which came to be dismissed vide judgment anddecree dated 06.01.2024 passed by the learned District Judge-IParbhani. It will be pertinent to mention that although the plaintiff didnot file appeal or cross-objection, the learned District Judge hasmodified the decree thereby enhancing the share of the plaintiff fromone-fourth as was decreed by the learned Trial Court to half.5.Aggrieved by the said decrees the original defendants have filedthe present Second Appeal. The learned advocate for the appellantscontends that the plaintiff had relinquished her share in the suitproperty in the year 1988 itself. It is then contended that the suit isbarred by limitation since relinquishment of the property amounts to 4901-sa-54-2024.odtexclusion. Apart from this, it was contented that there was a partitionwith respect to suit property inter se between the defendants andtherefore suit for partition filed by the plaintiff was not maintainable.The learned Counsel for the appellant contends that the learned FirstAppellate Court has not framed proper points for determination in asmuch as point for determination is not framed with respect to questionof limitation. He further contends that the issue of limitation is also notdiscussed by the learned First Appellate Court. Apart this this , hecontends that the learned First Appellate Court has erred in law byenhancing the share awarded by the learned Trial Court although, theplaintiff did not challenge the decree passed by the learned Trial Court.6.As regards the contention raised by learned Counsel for theappellant with respect to relinquishment, it is his case that the plaintiffhad relinquished her share in the properties of her father in the year1988. Assuming that the plaintiff had indeed relinquished her share inthe year 1988, as contended, in my considered opinion, the same willnot be bar the suit for partition filed by her. The Hindu Succession(Amendment) Act, 2005 has made a sea change to the HinduSuccession Act, 1956 and uncodified Hindu Law. Daughter, who wasearlier not considered to be a co-parcener under the uncodified HinduLaw is conferred with status of a co-parcener from the date of her 5901-sa-54-2024.odtbirth. This right has been conferred by the Hindu Succession(Amendment) Act, 2005 for the first time w. e. f 09.09.2005. It needs tobe mentioned that although, the provisions of Hindu Succession(Amendment) Act, 2005 have come into force from 09.09.2005 thestatus of co-parcener is conferred to the daughter from the date of herbirth. In the year 1988 when the plaintiff has allegedly relinquished hershare in the suit property she was not a co-parcener. This right is vestedwith her for the first time w.e.f 09.09.2005, although the date of vestingwill be the date of her birth. It is obvious that a right which is notvested in a person cannot be given up or relinquished. In that view ofthe matter, in my considered opinion, the alleged relinquishment of theyear 1988 is inconsequential and will not close the doors on the face ofthe plaintiff to file a suit for partition and separate possession withrespect to ancestral properties of her father.7.That apart according to the defendants the allegedrelinquishment is an oral relinquishment. Placing reliance on thejudgment of this Court in the matter of Ramdas Chimna V/s. PralhadDeorao & Others.1 and Shailesh Harilal Poonatar Vs. District Collectorof Stamps and Ors.2 the learned Counsel for the appellant contends thatoral relinquishment is permissible. It is well settled that oralrelinquishment is permissible with respect to coparcenary property.1AIR 1965 Bombay 7422005 (2) Mh.L.J. 6901-sa-54-2024.odtHowever, if relinquishment is with respect to the other property it hasto be by a registered document only.8.The father of the plaintiff has expired on 04.05.1981. He wassurvived by two class-I female legal heirs, namely his widow and hisdaughter-the plaintiff. Section 6 of the Hindu Succession Act as it stoodprior to amendment, provides that when a Hindu male dies aftercommencement of the Hindu Succession Act, 1956, his share or interestin undivided Hindu family will be inherited by his class-I legal heirs, incase he dies intestate or by testamentary disposition if he dies executinga will. It is thus clear that the share of a deceased co-parcener who diesafter commencement of the Hindu Succession Act, 1956 leaving behindfemale Class-I legal heirs, devolves on the Class-I legal heirs bysuccession or inheritance and not by survivorship. This succession orinheritance is as per Section 8 of the Hindu Succession Act, 1956 or bytestamentary disposition. A property which is inherited under Section 8of the Hindu Succession Act is a separate property of all the legal heirs.It does not have ancestral character. In view of Section 19 of the HinduSuccession Act, 1956, the property is inherited as tenants in commonand not as joint tenants. It is well known that tenants in commonimplies unity of possession and separate title as against joint tenancywhich implies unity of possession and unity of title. The legal position 7901-sa-54-2024.odtthat property inherited under Section 8 of Hindu Succession Act, 1956in a separate property not a coparcenery property is no legal res integraas can be seen from the Judgements of Hon’ble Supreme Court in thematter of Commissioner of Wealth Tax, Kanpur Vs. Chander Sen 1,Yudhishter Vs. Ashok Kumar2,Makhan Singh Vs. Kulwant Singh3. 9.Now since the property inherited as a separate property, thealleged oral relinquishment by the plaintiff will not be of anyconsequence. It is well settled that relinquishment of right inimmovable property has to be by a registered document, exceptrelinquishment of joint Hindu family property. 10.In matter of Ramdas Chimna (supra), the relinquishment waswith respect to joint Hindu family property. It is held thatrelinquishment by a person of share in joint Hindu family property isnot necessarily required to be made by a registered document. It willalso be pertinent to mention that the said judgment pertains to oralrelinquishment of share in joint Hindu family property. In the judgmentof Shailesh Harilal Poonatar (supra) the order passed by the Collectorof Stamps was challenged. A release deed was treated as a conveyanceand order was passed to pay stamp duty on the said documents as per1AIR 1986 SCC 17532(1987) 1 SCC 2043(2007) 10 SCC 602
Legal Reasoning
8901-sa-54-2024.odtArticle 25(b)(5) of Schedule I to the Maharashtra Stamp Act, 1958. Thequestion was whether a release deed under which property wastransferred from one co-owner to another co-owner would beassessable to stamp duty as per Article 25 or as per Article 52. In thiscontext, in paragraph 9 of the said judgment it is held that arelease/relinquishment deed is not an alienation. Thereafter, reliance isplaced on the judgment in the matter of Ramdas Chimna (supra)which is relied by the learned Counsel for the appellant. Placingreliance on the said judgment it is held that stamp duty for arelease/relinquishment deed leviable as per Article 52 and not Article25. The said judgment does not advance the case of the appellant thatrelinquishment deed need not be registered. The controversy in thisregards is squarely covered by judgment of this Court in the matter ofGangaram Sakharam Dhuri Vs. Gangubai Raghunath Ayare1, this Courthas held in paragraph 22 of the said judgment that when release orrelinquishment is with respect to share or interest in joint Hindu Familyproperty the release or relinquishment can be done orally and there isno necessity of executing any written document for the same andregistration of written document is also not mandatory. It is furtherheld that however, if the property is self acquired property of the fatherwhich has devolved on his daughter by intestate succession, thenregistration of the relinquishment deed will be compulsory. Therefore,12007 (5) Mh.L.J. 136 9901-sa-54-2024.odtthe answer to the question as to whether the relinquishment deed inthe present case was required to be compulsorily registered or notdepends upon the nature of the property. The relinquishment deed is ofthe year 1988. As stated above, the father of the plaintiff had expired inthe year 1981 leaving behind him two female class-I legal heirs.Therefore, assuming the suit property to be an ancestral property, hisshare in the same would devolve on his class-1 legal heirs by successionand not by survivorship. It cannot be disputed now in view ofjudgments of the Hon’ble Supreme Court referred above, such propertywhich is inherited by class-1 legal heirs is inherited as a separate or selfacquired property, the property cannot be said to be a co-parcenary or ajoint Hindu family property.11. Since the property which is allegedly relinquished in the year1988 was held by the plaintiff by virtue of inheritance by operation ofproviso to Section 6 read with Section 8 and Section 19 of the HinduSuccession Act, the said property was held by her as her separateproperty which could not have been relinquished orally. In that view ofthe matter, the contention of the learned Counsel for the appellant withrespect to alleged oral relinquishment is liable to be rejected.12.The learned Advocate for the appellant contends that although, 10901-sa-54-2024.odtthe relinquishment may not have effect in law, still for the limitedpurpose of limitation the aspect of relinquishment can be taken intoconsideration. This argument is also liable to be rejected since theplaintiff is entitled to seek share in the property as a co-parcener onlyfrom 09.09.2005. This right was not available to her prior to the saiddate. The suit is filed on 25.10.2013 i.e. after commencement of theHindu Succession (Amendment) Act, 2005. The limitation for seekingpartition of Joint Family Property is governed by Article 110 of thelimitation Act which provides for limitation of 12 years and the periodof limitation commences from the date on which exclusion from theproperty becomes known to the plaintiff. Likewise, if it is assumed thatthe property is not joint Hindu family property then the limitation willbe governed by Article 65 for which the limitation prescribed is of 12years from the date on which the possession of defendant becomesadverse. It is thus filed within the prescribed period of limitation. Thecontention of the learned Counsel for the appellant is thereforerejected. Perusal of the written statement does not demonstrate anypleading with respect to exclusion or ouster. In that view of the matterthe point for limitation does not arise for consideration at all. It is wellknown that a court of law is bound to dismiss a suit which is barred bylimitation, although limitation is not set up as a defence. This is themandate of Section 3 of the limitation act. However suits for partition 11901-sa-54-2024.odtand suits for possession based on title are an exception to the generalrule, since the limitation commences from the date of exclusion or fromthe date on which possession becomes adverse. It is well settled thatfact of exclusion and possession becoming hostile has to be pleaded andproperly proved. The defendants have miserably failed to plead ousteror possession becoming adverse, in that view of the matter the point forlimitation does not even arise for consideration. 13.The learned Counsel for the appellant draws my attention to thepoints for determination and findings recorded by the learned FirstAppellate Court to contend that the learned First Appellate Court hasnot framed any point for determination with respect to limitation andhas also not dealt with the said aspect. The learned Counsel is right inhis submission, however, as stated above, the point of limitation doesnot arise in the present case for want of pleadings of exclusion oradverse possession. In that view of the matter although the learnedFirst Appellate Court has not framed point for determination on theaspect of limitation and has also not considered the aspect of limitation,to my mind the question of limitation does not arise for considerationfor want of pleadings of exclusion or ouster. Alternatively, even if it isassumed that there is a lapse on the part of the learned First AppellateCourt, the same does not cause any prejudice to the appellants. In that 12901-sa-54-2024.odtview of the matter, the said contention will also not give rise to anysubstantial question of law.14.The last contention raised by the learned Counsel for theappellants is that the learned Trial Court had granted only one-fourthshare in the suit property to the plaintiff and although the plaintiff hasnot filed substantive appeal or cross objection challenging the saiddecree, the learned First Appellate Court has enhanced the share fromone-fourth to half. This, according to me gives rise to the followingsubstantial question of law:-In the absence of any appeal or cross objection by theplaintiff, could the decree passed by the learned Trial Court bemodified by the learned First Appellate Court to enhance theshare awarded by the learned Trial Court to the plaintiff ?15.During the course of hearing of the appeal when the learnedCounsel for the appellant advanced submissions on this aspect, a querywas put to the learned Counsel for the respondent as to whether he willbe prepared to argue this point finally. The learned Counsel for therespondent expressed readiness to argue the point finally and agreedthat the substantial question of law can be framed in this regard anddecided forthwith. In that view of the matter with the consent of both 13901-sa-54-2024.odtthe learned counsel, I am framing the question and deciding the sameforthwith although normally I would have admitted the appeal on thesubstantial question of law so framed.16.It is a well settled proposition of law that a person who does notchallenge an adverse decree passed against him is bound by the same.In the event a person is aggrieved by a decree passed against him, he isexpected to challenge the same by filing an appeal or by takingrecourse to other remedies available in law. A decree, though, may notbe legal, will nonetheless bind a party who does not choose tochallenge the same. In the present case, the learned Trial Court hasgranted 1/4th share to the plaintiff. The plaintiff was satisfied with thisand did not assail the decree any further. The decree came to bechallenged by the defendants by filing a substantive First Appeal. It iswell settled that when a party files an appeal he cannot be relegated toa worse position than to the one he would have been had he not filedthe appeal. If the appeal was not filed by the defendants, the plaintiffwould have got only 1/4th share. This share could not have beenenhanced to 1/2 in the appeal preferred by the defendants. In myconsidered opinion the plaintiff, having failed to challenge the decreepassed in her favour is bound by the decree and cannot seekenhancement in the share in the appeal preferred by the defendants. 14901-sa-54-2024.odtThe substantial question of law framed above therefore needs to beanswered in favour of the appellants/original defendants and againstthe respondent/original plaintiff. In view of the reasons recordedabove, the appeal is disposed of in the following terms:ORDER(i)The decree dated 06.01.2024 passed by the learnedDistrict Judge-I Parbhani in Regular Civil Appeal No.53 of2016 is quashed and set aside and the decree dated06.04.2016 passed by the learned Civil Judge Junior Division,Manvat in Regular Civil Suit No.68 of 2013 is confirmed.(ii)Pending Civil Applications, if any, stand disposed of.[ROHIT W. JOSHI J.] Narwade/