High Court

Legal Reasoning

1906-sA-12-2022.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD906 SECOND APPEAL NO. 12 OF 20221.Raosaheb S/o. Mahada BangarAge : 83 Years, Occu. Agril.,R/o Bhayala, Tq. Patoda, District Beed2.Sau Radhabai W/o Raosaheb Bangar,Age : 60 Years, Occu. : Agril.,R/o. Bhayala, Tq. PatodaDistrict Beed.3.Bhausaheb S/o Raosaheb Bangar,Age : 34 Years, Occu. : Agril.,R/o. Bhayala, Tq. Patoda,District Beed.4.Ramesh S/o Raosaheb Bangar,Age : 28 Years, Occu. : Agril.,R/o Bhayala, Tq. Patoda,District Beed.5.Ganesh S/o Raosaheb Bangar,Age : 24 Years, Occu. : Agril.,R/o Bhayala, Tq. Patoda,District Beed....Appellants (Original Deft. Nos.1, 3 to 6)VERSUS1.Meenabai W/o Gokul Vighane,Age : 31 Years, Occu. : Household,R/o. Waghira, Tq. Patoda,District Beed2.Sau. Sumitra W/o Raosaheb Bangar,Age : 73 Years, Occu. : Agril,R/o. Bhayala, Tq. Patoda,District Beed.3.Laxmibai W/o Asaram Mundhe, 2906-sA-12-2022.odtAge : 45 Years, Occu. : Agril.,R/o Tadsonna, Tq. Patoda,District Beed.4.Vimal W/o Sanusen Aghav,Age : 43 Years, Occu : Agril.,R/o Savargaon (Sonel),Tq. Patoda, Dist. Beed.5.Meerabai W/o Babasaheb Nagargoje,Age : 41 Years, Occu. : Agril.,R/o Yawalwadi, Tq. Patoda,District Beed.6.Ushabai W/o Ram Darade,Age : 39 Years, Occu. : Agril.,R/o. Limbarui, Tq. And Dist. Beed....Respondents(Resp. No.1 Orig. Plaintiff)Resp. No.2 Orig. Deft No.2,Resp. No. 3 to 6, Orig. Deft. No.7 to 10)…Advocate for Appellant : Mr. S. S. Thombre Advocate for Respondent No.1 : Mr. Y. K. Bobade & Mr. S. K. Deshmukh…WITHCIVIL APPLICATION NO. 3525 OF 2022 IN SA/12/2022MEENABAI GOKUL VIGHANEVERSUSRAOSAHEB MAHADA BANGAR AND ORS.… WITHCIVIL APPLICATION NO. 424 OF 2022 IN SA/12/2022 3906-sA-12-2022.odtRAOSAHEB MAHADA BANGAR AND ORS.VERSUSMEENABAI GOKUL VIGHANE AND ORS. … CORAM :ROHIT W. JOSHI, J.DATE :13th MARCH, 2025ORAL JUDGMENT .:1.The original defendant Nos.1, 3 to 6 in Regular Civil Suit No.134of 2007 have filed the present Second Appeal challenging concurrentjudgments and decrees passed in the said Civil Suit and Regular CivilAppeal No.64 of 2018.The facts of the case in brief are as under :-2.Defendant No.1, Raosaheb Bangar has two wives namely,Sumitra and Radhabai, who are defendant Nos.2 and 3 respectively inthe said Civil Suit, whereas both Sumitra and Radhabai claim to be thefirst wife of defendant No.1/Raosaheb Bangar, a clear finding of fact isrecorded by both the Courts that defendant No.2/Sumitra being thefirst wife is the legally wedded wife, and since the marriage issubsisting, defendant No.3 cannot be considered as legally wedded wifebeing the second wife. These are clear findings of fact which do notwarrant any interference. Needless to mention that there is a differenceof 20 years in the ages of defendant No.2 and defendant No.3 whichfurther goes to suggest that defendant No.2 is the first wife as has beenheld by the learned Courts. 4906-sA-12-2022.odt3.The plaintiff is daughter of defendant Nos.1 and 2. She had fileda suit for partition and separate possession being Regular Civil SuitNo.134 of 2007. Apart from the father/defendant No.1 and his twowives i.e. defendant Nos.2 and 3, she had arrayed children from thefirst wife and second wife as defendant Nos.7 to 10 and 4 to 6respectively, in the said Civil Suit. The suit properties are agriculturallands which according to the plaintiff are ancestral properties. Theplaintiff claimed that the plaintiff, defendant No.1, defendant No.2 anddefendant Nos.7 to 10 alone had share in the suit properties, defendantNo.1 being the father, defendant No.2 being legally wedded wife offather and plaintiff and defendant Nos.7 to 10 being children begottenfrom the first wife.4.Defendant Nos.1 and 3 to 6 opposed the suit contending that oneof the suit properties bearing survey No.512, i.e. Gut No.306 was selfacquired property of defendant No.1 and with respect to otherproperties, although, it was admitted that the said properties were jointfamily properties, it was claimed that defendant No.3 being the legallywedded wife and defendant Nos.4 to 6 being children begotten fromlegally wedded wife will have a share. Apart from this, a contentionwas also raised in the alternative that even if defendant No.3 was heldto be second wife, in view of Section 16 of the Hindu Marriage Act, 5906-sA-12-2022.odt1955 the defendant Nos.4 to 6 will have to be treated as legitimatechildren of defendant No.1 and therefore they will have right and sharein all the suit properties assuming that the suit properties wereancestral properties.5.The learned Trial Court has granted a decree for partition andseparate possession in favour of the plaintiff holding that defendantNos.3 to 6 cannot claim any share in the suit properties and 1/7th shareeach is granted to the plaintiff, defendant No.1, defendant No.2 anddefendant Nos.7 to 10. The foundation for carving out such shares is afinding that the suit properties are ancestral properties and the secondwife and children begotten from the second wife will not have a sharein ancestral properties. As regards suit property bearing Survey No.512i.e. Gut No.306, the learned Trial Court has referred to admission ofdefendant No.1 in his cross-examination that the said property wasacquired from joint family nucleus.6.As stated above, defendant Nos.1 and 3 to 6 challenged the saiddecree for partition and separate possession passed by the learned TrialCourt by filing an appeal under Section 96 of CPC which came to beregistered as Regular Civil Appeal No.64 of 2018. The learned FirstAppellate Court has confirmed the decree passed by the learned TrialCourt by recording independent reason for the same. Dissatisfied with 6906-sA-12-2022.odtthe said judgments and decrees defendant Nos.1 and 3 to 6 havepreferred the present Second Appeal under Section 100 of the CPC.7.Learned Advocate for the appellant Mr.S. S. Thombre has pressedinto service two principal contentions. Firstly, that the property bearingSurvey No.512 i.e. Gut No.306 was purchased by defendant No.1 andas such was his self acquired property. He contends that the learnedCourts were at error in granting decree and possession with respect tothis property. The other contention of Mr. Thombre is that assuming allthe properties to be ancestral properties, the defendant Nos.4 to 6being legitimate children of their father in view of Section 16 of theHindu Marriage Act, 1955 will also be entitled to a share in the suitproperties.8.Per contra, Mr. Y. K. Bobade appearing for respondent No.1-plaintiff contends that a clear finding of fact is recorded by the learnedCourts that Survey No.512 i.e. Gut No.306 was acquired from incomederived from joint family properties and therefore the said propertyalso a Joint Hindu Family Property. As regards the other properties, thelearned Advocate contends that since the suit properties are JointHindu Family properties, children from second wife cannot claim shareindependently as co-parceners in the said properties, although, byvirtue of Section 16 of the Hindu Marriage Act, 1955, they may claim 7906-sA-12-2022.odtshare in the ancestral property which falls to the share of their father byinheritance. He therefore, prays that the appeal may be dismissed.9.Having heard the respective submissions as aforesaid, I am of theconsidered opinion that there is an unequivocal admission on the partof defendant No.1 that Survey No.512 i.e. Gut No.306, althoughpurchased in his name was acquired out of joint family nucleus. Aproperty acquired out of joint family nucleus, although, purchased inthe name of a co-parcener, will be property of the Joint Hindu Familyand not individual property of the co-parcener in whose name theproperty purchased. There cannot be any quarrel with this propositionof law. The findings recorded by the learned Court that Survey No.512i.e. Gut No.306 is ancestral property, therefore, does not call for anyinterference. 10.As regards the other contention with respect to Section 16 of theHindu Marriage Act, there cannot be any doubt that children begottenfrom second wife are legitimate children of the father. However suchchildren can claim right only over property of the father and notproperties of Joint Hindu Family in which father is a co-parcener or asthe case may be Karta. Children begotten from invalid marriage cannotclaim status of co-parceners in the family. Legal position in this regardis clearly laid down by the Hon’ble Supreme Court in the matter of 8906-sA-12-2022.odtRevanasiddappa & Anr. Vs. Mallikarjun and Ors. reported in (2023) 10SCC 1. The Hon’ble Supreme Court has clearly held that childrenbegotten from an illegitimate marriage cannot claim to be co-parcenersand as such they will not have any independent share in co-parcenaryproperty. However, placing reliance on section 16 of the HinduMarriage Act, it is held that they can claim share in the share of theirfather in the co-parcenery property by virtue of Section 6(3), asamended by Hindu Succession (Amendment) Act, 2005 and Section 8of the Hindu Succession Act, 1956. In that view of the matter in myconsidered opinion, the learned Trial Court has rightly awarded 1/7thshare each to the plaintiff, defendant No.1, defendant No.2 anddefendant Nos.7 to 10 and not awarded any independent share to thedefendant Nos.2 to 6. 11.In the light of the above, in my considered opinion, nosubstantial question of law arises for consideration in the presentappeal. The Second Appeal is therefore dismissed with no order as tocosts.[ROHIT W. JOSHI J.] Narwade/