High Court
Legal Reasoning
{1} SA 163.25.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 163 OF 2025WITHCIVIL APPLICATION NO. 4597 OF 2025WALMIK LAXMAN BHAGAT AND ANOTHERVERSUSASRABAI KISAN NIKAM AND OTHERS.…Mr. S.S. Bora, Advocate for appellant,Mr. R.V. Gore, Advocate for respondent. CORAM :S.G. CHAPALGAONKAR, J. DATE : 9th May, 2025. P.C. :-1. The appellants/original applicants impugn the judgmentand decree dated 12.2.2025 passed by District Judge, Vaijapur, in RCANo. 31 of 2024, thereby upholding the judgment and order dated3.11.2023 passed by Civil Jude (J.D.) Vaijapur, in Misc. Civil ApplicationNo. 45 of 2022, thereby, declining prayer for re-determination of sharesin a partition decree passed in Regular Civil Suit No. 4 of 1975.2.Brief facts, giving rise to present appeal, are as under :-One Asrabai instituted RCS No. 4 of 1975 seeking a relief ofdeclaration, partition and possession in respect of suit properties againsther daughters namely, Hansabai and Zumrabai, so also, daughter in law –Gayabai. The suit came to be decreed on 30.7.1980 approving 23/32ndShare of plaintiff. Defendants/daughters Hausabai and Zumrabai were {2} SA 163.25.odtheld entitled for 1/16th share, whereas, Gayabai was held entitled for5/32nd share in the suit property. 3.Gayabai (daughter in law) unsuccessfully challenged thejudgment and decree of trial court in RCA No. 297 of 1981 before theDistrict Judge, Aurangabad. Even Second Appeal No. 115 of 1988 filedby her came to be dismissed. In pursuance to the decree in RCS No. 15 of1975, R.D. No. 15 of 1996 was filed, wherein, precept under Section 54of CPC has been transmitted to the Collector.4.In the year 1995, i.e. during pendency of second appeal,Gayabai executed sale deed in favour of present Appellants/applicants.When the appellants received notice of measurement in pursuance toexecution of decree, they filed Misc. Application No. 45 of 2022 beforethe Civil Judge (J.D.) at Vaijapur contending that original plaintiffAsrabai and one of the daughters Hausabai have been expired afterpassing the decree. The execution is pursued by Zumrabai i.e. anotherdaughter of Asrabai. It is, therefore, necessary to re-determine/augmentall shares and for that purpose recalling of the precept is necessary.The executing court rejected the application. The applicantsfiled appeal before the learned District Judge, which also came to bedismissed. Hence, this second appeal.5.Learned Advocate for appellants submits that the decreepassed in RCS No. 4 of 1975 is subject matter of execution. Theapplicants are purchasers of part of suit lands under registered sale deedexecuted by Defendant No.1 Gayabai, who has been granted 5/32ndShare in the suit property under the decree. Lateron, original plaintiffAsrabai and defendant No.2 Hausabai expired. Therefore, it was {3} SA 163.25.odtnecessary for the executing court to re-determine the shares by recallingthe precept under Section 54 of the CPC, and adjust shares in tune withthe subsequent events. The appellants have stepped into the shoes ofGayabai and entitled for equitable partition and allotment of share ofGayabai. Mr. Bora, relying upon observations of the Supreme Court ofIndia in the case of Ganduri Koteshwaramma and others vs. ChakiriYanadi and others reported in AIR 2012 SC 169, submits that in a suit ofpartition and separate possession, court has always power to revise thepreliminary decree, if the situation in changed circumstances so demand.The suit in partition continues after passing of preliminary decree andproceeding in suit gets extinguished only on passing a final decree. Hewould, therefore, urge that the Executing Court as well as the FirstAppellate Court were clearly in error in declining to consider theapplicants’ prayer. He would urge that it was obligatory on the part ofcourts to exercise jurisdiction under Order 20 Rule 18 of CPC read withSection 47 of the CPC and grant appropriate relief.6.Per contra, Mr. Gore, learned advocate appearing forrespondent No.4 – Caveator vehemently opposes the admission of appeal.He points out that the decree for partition has been passed in the year1980, which has been confirmed upto this court when Second Appealfiled by Gayabai was dismissed on 18.4.1996. The Regular Darkhast hasbeen disposed of on 11.11.2006 after Precept under Section 54 is sent tothe Collector for execution of decree. Mr. Gore would point out thatappellant/applicants are purchasers of suit property during pendency ofsecond appeal. The transaction under sale deed is hit by Section 52 ofthe Transfer of Property Act. They cannot claim independent right in thesuit property. Mr. Gore would further submit that all the questions raisedin this appeal are elaborately considered by the Courts below. As such, {4} SA 163.25.odtno substantial question of law arise for consideration in appeal.7.Having considered submissions it can be observed thatappellants/applicants are purchasers of suit lands during pendency ofsecond appeal. The share of Gayabai has been already determined in thesuit property, under the decree passed in the year 1980, which hasattained finality in the year 1996, after its confirmation in second appeal.The applicants are pendente-lite purchasers. They cannot claim any rightbeyond the entitlement of their vendor/judgment debtor in RCS No. 4 of1975.8.Admittedly, the suit was instituted by Asrabai i.e. mother inlaw of Gayabai/vendor of applicants. Two daughters of Asrabai, namely,Hausabai and Zukrabai were defendants in the suit alongwith Gayabai.When the suit was decreed, Gayabai was allotted 5/32nd share in thesuit properties. According to applicants, Asrabai died on 19.8.1089 andHausabai died on 10.7.2017. Therefore, death of Asrabai occurred duringpendency of second appeal before this Court, whereas, death of Hausabaioccurred even after disposal of execution proceeding and Precept wastransmitted to Collector under Section 54 of CPC.9.Appellants/applicants contend that augmentation of sharesof parties to the suit, is necessary in view of subsequent death of Asrabaiand Housabai. It can be observed that on death Asrabai and Hausabai,only Zumrabai i.e. daughter of Asrabai and sister of Hausabai wouldinherit their share applying Section 8 of the Hindu Succession Act.Gayabai being widow of per-deceased son of Asrabai would not beentitled to claim any right in the property left behind by Asrabai, whenher daughter Zumrabai would inherit the same. Similarly, even in {5} SA 163.25.odtabsence of any other legal heir, share of Hausabai would be available toZumrabai. In that view of the matter, appellants/applicants who areclaiming through Gayabai will have claim only in the share of Gayabai,which is already determined and does not require augmentation or re-determination on death of Asrabai and Hausabai.10.In this background, although there cannot be dispute onlegal proposition that the Executing court can pass preliminary decree orreformulate the shares, in a partition decree in absence of change inentitlement of Gayabai owing to death of Asrabai and Hausabai, there isno occasion of augmentation of shares or to entertain the prayers ofappellants/applicants. The executing Court as well as appellate court is,therefore, justified in rejecting their claim.11.At this stage, it would be apposite to refer certainobservations of the Supreme Court in the case of Khemchand Chaudharivs. Vishnu Hari Patil and others AIR 1983 SC 124, wherein, it is observedas under :“The Collector who has to effect partition of an estate underSection 54 of the Civil Procedure Code has no doubt todivide it in accordance with the decree sent to him. But if aparty to such a decree dies leaving some heirs about whoseinterest there is no dispute should he fold up his hands andreturn the papers to the Civil Court ? He need not do so. Hemay proceed to allot the share of the deceased party to hisheirs. Similarly he may, when there is no dispute, allot theshare of a deceased party in favour of his legatees. In the caseof insolvency of a party : the official receiver may be allottedthe share of the insolvent. In the case of transferees pendentelite also, if there is no dispute, the Collector may proceed tomake allotment of properties in an equitable manner insteadof rejecting their claim for such equitable partition on theground that they have no locus standi. A transferee from aparty of a property which is the subject matter of partition canexercise all the rights of the transferor. There is no disputethat a party can ask for an equitable partition. A transferee
Decision
{6} SA 163.25.odtfrom him, therefore, can also do so.12.In view of aforesaid exposition of law, appellants may pursuethe Collector or Authorized Officer for allotment of properties in anequitable manner to the extent of share of their vendor i.e. Gayabai. Inthat case Collector in his discretion may accept their request and adjustshares accordingly.13.In the light of aforesaid discussion, no substantial question oflaw arises for consideration in this appeal.14.Second appeal is dismissed with liberty in favour ofapplicants/applicants to pursue their remedy before the Collector.Pending civil application stands disposed of.[S.G. CHAPALGAONKAR, J] grt/-