Mr. R. B. Temak, Advocate for v. Dharurkar
Legal Reasoning
(1) sa-188-2023.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO.188 OF 2023WITHCIVIL APPLICATION NO.9229 OF 2018Vijay Suraybhan Lagad,Age: 45 years, Occu: Agriculture,R/o: Hiwara, Tq: Ashti,Dist. Beed...Appellant (Original Defendant)Versus1.Vimal Mohan Manmode,Age: 53 years, Occu: Agriculture,R/o: Wahali (Chikhali), Tq: Patoda,Dist. Beed.(Original Plaintiff)2.Kalinda w/o Dattatraya Chavandeceased through her legal representative,2-A.Avinash s/o. Dattatraya Chavan,Age: 27 years, Occu: Agricultural,R/o. Khalal Pimpri, Tq. Newasa,Dist. Ahmednagar.2-B.Jayshri Hemand Shinde,Age: 38 years, Occu: Agricultural,R/o. Bel Pimpalgaon, Tq. Newasa,Dist. Ahmednagar.2-C.Usha Santaji Deshmukh,Age: 34 years, Occu: Agricultural,R/o. Near Mohniraj Temple, Newasa,Tq. Newasa, Dist. Ahmednagar.2-D.Pooja Dipak Pathare,Age: 30 years, Occu: Agricultural,R/o. Bab Pimpri, Tq. Shrigonda,Dist. Ahmednagar.2-E.Priyanka Dhananjay Magar,Age: 25 years, Occu: Agricultural,R/o. Waghunde Kh, Tq. Parner,Dist. Ahmednagar.2-F.Dattatraya s/o. Mulidhar Chavan,Age: 62 years, Occu: Agricultural,R/o. Khalal Pimpri, Tq. Newasa,Dist. Ahmednagar (2) sa-188-2023.odt3.Kausabai w/o Dattatraya Lagad (Dead)..Respondents (Original Defendants)…Mr. R. B. Temak, Advocate for Appellant.Mr. C. V. Dharurkar, Advocate for Respondent Nos.1, 2A to 2F.… CORAM : S. G. CHAPALGAONKAR, J. DATED : 13th MARCH, 2025.ORDER:-1.The appellant (original defendant no.1) impugns judgmentand decree dated 03.08.2016 passed by District Judge, Beed inRegular Civil Appeal No.91/2013, thereby upholding judgment anddecree dated 02.05.2013 passed by Civil Judge, Junior Division,Ashti in Regular Civil Suit No.134/2009, by which suit filed byrespondent no.1 seeking decree for partition and separatepossession of suit property has been decreed. (Hereinafter, partiesare referred to by their original status for the sake of convenienceand brevity).2.The respondent no.1/original plaintiff filed Regular Civil SuitNo.134/2009 seeking relief of partition and separate possession inrespect of agricultural land as described in plaint. She contendsthat suit property is ancestral property of plaintiff and defendants.The land Survey No.149/A has been purchased by her father underregistered sale deed out of income of joint family. Later on,defendant no.1 got sale deed executed in his favour from fatherwithout any consideration. Those sale deeds are sham, bogus and (3) sa-188-2023.odtwithout legal necessity. The plaintiff is having lawful share inproperty. According to plaintiff, on 15.03.2009, she claimed forshare in suit land from defendant no.1, but he refused to effectpartition.3.The defendants refuted plaintiff’s claim by filing writtenstatement. The Trial Court framed issues based on pleadings ofparties. Finally, decreed suit accepting that plaintiff has 1/4thshare in suit property alongwith defendant nos.1 to 3 and declaredthat sale deed executed by father of plaintiff in favour of defendantno.1 is not binding upon her right. The defendant no.1 assaileddecree of Trial Court in Appeal before District Judge, Beed, whoconcurred with findings recorded by Trial Court and dismissedAppeal.4.The defendant no.1 filed present Appeal assailing concurrentjudgment and decree. During pendency of this Appeal, defendantno.2-Kalinda Chavan expired. Her legal representatives arebrought on record as respondent nos.2A to 2F. On 13.03.2024,parties personally appeared before this Court and expressedwillingness to settle dispute through Mediation. Eventually, thisCourt referred parties to Mediator. Mr. S. K. Kadam, learnedMediator forwarded his report of mediation dated 31.01.2025alongwith terms of compromise entered between appellant (originaldefendant no.1) and legal representatives of respondent no.2 i.e. (4) sa-188-2023.odtKalinda Chavan, which is taken on record and marked as ‘A’ foridentification. The legal representatives of respondent no.2relinquished their rights in suit property in favour ofappellant/defendant no.1 by accepting amount of Rs.22,00,000/-,parted to them by way of Demand Drafts. In result,appellant/defendant no.1 acquired interest of late Kalinda inancestral property. A separate pursis is passed on recordconfirming receipt of amount by legal representatives of respondentno.2 (respondent nos.2A to 2F), which is taken on record andmarked as ‘X’ for identification. The original defendant no.3-Kausabai, who is mother of plaintiff and defendant nos.1 and 2 alsoexpired during pendency of this Appeal. The plaintiff anddefendant nos.1 and 2 are her legal representatives. Therefore, herinterest would devolve in equal proportion upon them.5.Mr. Temak, learned Advocate appearing for the appellant(original defendant no.1) endeavours to contend that sale deedsbearing Nos.2481 and 2482 of 2006 executed by deceased-Dattatraya for legal necessity. Further, those sale deeds are notexpressly challenged or no prayer for setting aside those sale deedshave been employed in plaint. Therefore, Courts below havecommitted patent illegality while decreeing suit in respect of land,which were subject matter of sale deeds. (5) sa-188-2023.odt6.Per contra, Mr. Dharurkar, learned Advocate appearing forrespondents submits that defendant no.1 has miserably failed toprove existence of legal necessity.7.The Trial Court on appreciation of evidence observed thatdefendants could not bring on record any evidence to show thatDattatraya had legal necessity to sell out joint family property. Thedefendant no.1 cannot be said to be bonafide purchaser for value.Even, defendant no.1 could not bring on record circumstancesdepicting medical expenses borne for treatment of Dattatraya. Thecontents of sale deeds shows that land has been sold for householdexpenses and for maintenance during old age. It is, therefore, clearthat no specific instance as regards to existence of legal necessityas on date of execution of sale deed is brought on record. Thefindings recorded by Trial Court on aspect of legal necessity areendorsed in Appeal by learned District Judge. 8.It cannot be disputed that suit property was ancestralproperty of Dattatraya. The plaintiff and defendants being legalheirs were having equal shares. In absence of evidence as to legalnecessity, sell of property by Dattatraya in favour of defendant no.1would not be binding on rights of other coparcener. Such sale deedcan be ignored by them while claiming partition and separatepossession of their shares. In such cases, it is not necessary to seek (6) sa-188-2023.odtrelief for setting aside sale deeds. The disposition by Karta, beingwithout legal necessity can be ignored. In that view of the matter,no substantial questions of law arises for consideration in thisSecond Appeal. However, decree passed by Trial Court andconfirmed by Appellate Court needs modification taking note ofcompromise terms recorded between appellant (defendant no.1)and legal representatives of respondent no.2 (original defendantno.2) and death of Kausabai. Hence, following order:ORDERa.Second Appeal is partly allowed.b.The impugned judgment and decree is modified in tune withcompromise terms appended to Mediation report dated 31.01.2025,which is marked as ‘A’ for identification.c.The plaintiff, defendant no.1 and legal representatives ofdefendant no.2 are held entitled for 1/3rd share in suit property. d.In light of amicable settlement recorded between appellant(defendant no.1) and respondent nos.2A to 2F (legalrepresentatives of defendant no.2), defendant no.1 shall be entitledto get his own share and share of late Kalinda during partition.Rest of decree as passed by Trial Court is maintained as it is.e.Decree be modified accordingly.
Decision
(7) sa-188-2023.odtf.In view of disposal of Second Appeal, pending CivilApplication stands disposed of accordingly.(S. G. CHAPALGAONKAR)JUDGEDevendra/March-2025