High Court
Legal Reasoning
1 CRA.119-2025IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCIVIL REVISION APPLICATION NO.119 OF 20251.Vishwambhar s/o Namdev Nikam,Age 56 years, Occu. Agril.,2.Anant s/o Namdev Nikam,Age 52 years, Occu. Agril.,Both R/o Kasarjavla, Tq. and Dist. Latur.… Applicants. (Ori. Def. Nos.6 & 7)Versus1.Sow. Sunanda w/o Maheshankar Suryawanshi,Age 45 years, Occu. Household, R/o. Prakash Nagar, Latur.2.Prabhavati w/o Sopan Salunke,Age-70 years, Occu. Household, R/o. Khuntegaon, Tq. Ausa, Dist. Latur.3.Rajabai w/o Babru Khedkar,Age 67 years, Occu. Household, R/o. Takli (B.), Tq. and Dist. Latur.4.Sagarbai w/o Uddhav Gavhane,Age 60 years, Occu. Household, R/o Palashi, Tq. Renapur. Dist. Latur.5.Jalasabai w/o Namdev Nikam,Age 90 years, Occu. Household, R/o Kasarjavla, Tq, and Dist. Latur.6.Digambar @ Baburao S/o. Namdev Nikam (died), Deceased though L.Rs. namely;6/1) Rajabai w/o Digambar Baburao, Age-50 years, Occu. Household,6/2) Vilas S/o. Digambar Baburao, Age: 23 years, Occu, Education,
Legal Reasoning
2 CRA.119-20256/3) Sow. Reshma Digambar Baburao, Age: 45 years, Occu. Household,R/o. As above.6/4) Sow. Swati Digambar Baburao, Age: 42 years, Occu. Household, (6/1 to 6/4) R/o. Takli, Tq. and Dist. Latur.7.Pawan s/o Anant Nikam,Age: 20 years, Occu. Education, R/o Kasarjavla, Tq. and Dist. Latur.8.Gunvant S/o. Namdev Nikam (died),Deceased though L.Rs.,8/1)Yash s/o Gunvant Nikam, Age: 19 years, Occu. Education, R/o Kasarjavla, Tq. and Dist. Latur.9.Shalubai w/o. Yuvraj Dhok,Age: 48 years, Occu. Household, R/o. Saman Darga, Tq. Ausa, Dist. Latur.10.Sachin s/o Vishwambhar Nikam,Age: 18 years, Occu. Household, R/o Kasarjavla, Tq. and Dist. Latur.11.Nitin s/o Vishwambhar Nikam,Age: 20 years, Occu. Household, R/o Kasarjavla, Tq. and Dist. Latur.12.Murlidhar s/o Jotiba Nikam,Age: 38 years, Occu. Agri.. R/o Kasarjavla, Tq. and Dist. Latur.13.Sugrive s/o Jotiba Nikam,Age: 35 years, Occu. Agri., R/o Kasarjavla, Tq. and Dist. Latur.… Respondents. (Res. No. 1 is ori. Pl. & R.Nos.2 to 13 ori. Def.)...Advocate for Applicants : Mr. Sushant V. Dixit.Advocate for Respondents : Mr. Swapnil A. Deshmukh.… 3 CRA.119-2025CORAM : SHAILESH P. BRAHME, J.RESERVED ON : 25.08.2025PRONOUNCED ON : 03.09.2025.JUDGMENT :- 1.Present revision is directed against an order dated28.02.2023 below Exh.31, refusing to reject plaint under Order7 Rule 11 of CPC in R.C.S.No.224 of 2022. Applicants areoriginal defendant Nos.6 and 7. Respondent No.1 is originalplaintiff. Respondent No.2 is her mother who is defendantNo.1. The parties are referred by their original status in thesuit. 2.Respondent No.1/plaintiff has filed R.C.S.No.224 of2022 for declaration, partition, possession, perpetualinjunction and mesne profit. Namdev Nikam was maternalgrandfather of the plaintiff. Namdev had four daughters andfour sons. His one of the daughters is defendant No.1Prabhavati, mother of the plaintiff. Namdev and his wifeJalasabai are no more. The suit lands are undivided jointfamily properties of his sons and four daughters. The childrenare entitled to 1/8th share. It is contended that plaintiff’smaternal uncles stopped giving agriculture yield to her mother 4 CRA.119-2025and her 1/8th share is denied. This is the cause of action to filesuit.3.The plaintiff has claimed following reliefs :“1. That the plaintiff may kindly be declare as a ownerand possessor the suit land property of awarded 1/2ndshare in 1/8th share of her mother legal share in the suitproperty.2. That, the plaintiff is entitle to receive mesne profit upto be extent of her 1/8th share legal share of date festivalGudipadva of 2021 to till this date.3. The decree be sent to the collector u/s 54 C.P.C. forpartition and possession. 4. That, the passing of the decree of perpetual injunctionthe defendants their servant and anybody through themkindly be restrain permanently from creating any thirdparty interest of the suit property till disposal of the suit.5. That, Any other just and equitable relief may kindlybe granted in favour of plaintiff, for which she is entitleto.”4.Applicants and other defendants submitted applicationExh.31 under Order 7 Rule 11 contending that plaintiff beinggranddaughter is not entitled to maintain a suit for partitionand claim any share when her mother defendant No.1 is aliveand she is not claiming any partition. The plaintiff has also not 5 CRA.119-2025challenged the alienation made by the defendants. Such a suitis not maintainable. Plaintiff did not file say to the application.By impugned order, application Exh.31 was rejected. 5.Learned counsel would submit that plaintiff is not acoparcener having any birth right. It’s a case of obstructedheritage and therefore such a suit would not lie. It is furthersubmitted that defendant No.1 has not claimed any share orpartition. The suit is premature and cannot be entertained. Itis further submitted that there is no cause of action andwhichever is shown is illusory. It is submitted that learnedTrial Judge committed patent illegality in holding that unlessthere is a full-fledged trial, the issue raised by the presentapplicants cannot be decided and serious injustice would becaused. 6.Per contra, learned counsel Mr. Swapnil Deshmukhsupports impugned order. It is submitted that as per Section 6,the plaintiff is the coparcener. He would submit that if allprayers in the plaint are considered then suit is maintainable.It is further submitted that the defendants are not giving shareto plaintiff’s mother and creating third party interest issufficient to institute the suit. 6 CRA.119-20257.I have considered rival submissions of the parties. I havegone through plaint which is the only document pressed intoservice by both the parties to decide application filed underOrder 7 Rule 11. Undisputedly, suit lands are ancestralproperties of Namdev who was having four daughters and foursons. Plaintiff’s mother Prabhavati is one of the daughters whois alive and who is shown to be defendant No.1. Plaintiff isclaiming half share in 1/8th share allottable to her mother. Theprayers of mesne profit and separate possession of the shareare consequential. The prayer of perpetual injunction iscoached in a fashion of interlocutory prayer. 8.Plaintiff is claiming share in the joint family property ofher maternal side. The suit lands are joint family properties ofher maternal grandfather, mother, maternal side aunts anduncles. It is necessary to examine as to whether the plaintiff ismember of coparcenary and the suit lands are coparcenaryproperties. As per amended Section 6 of The Hindu SuccessionAct, 1956, a daughter is given a birth right and she is at parwith son. In the present matter, plaintiff’s mother Prabhavatican be said to have a birth right, but she has not filed suit forpartition and separate possession. She has not made any 7 CRA.119-2025grievance that she has been denied her share in the joint familyproperty. 9.It is necessary to consider Section 6 (1)“6. Devolution of interest in coparcenary property.(1) ―Onand from the commencement of the Hindu Succession(Amendment) Act, 2005 (39 of 2005), in a Joint Hindu familygoverned by the Mitakshara law, the daughter of a coparcenershall,―(a) by birth become a coparcener in her own right the samemanner as the son;(b) have the same rights in the coparcenery property as shewould have had if she had been a son;(c) be subject to the same liabilities in respect of the saidcoparcenery property as that of a son, and any reference to aHindu Mitakshara coparcener shall be deemed to include areference to a daughter of a coparcener.”10.As per Section 6(1)(a), a daughter only can become acoparcener in her own right in the same manner as the son.Plaintiff is the granddaughter and she is not placed at par withdaughter. As per clause (b), a daughter is given same right inthe coparcenary property. The concept of coparcenary is madeclear by many decisions and lastly by the authoritativepronouncement in the matter of Vineeta Sharma Vs. RakeshSharma ; (2020) 9 SCC 1. Following extracts are relevant. 8 CRA.119-2025“24. Coparcenary property is the one which is inheritedby a Hindu from his father, grandfather, or greatgrandfather. Property inherited from others is held in hisrights and cannot be treated as forming part of thecoparcenary. The property in coparcenary is held as jointowners. 25. Coparcener heirs get right by birth. Another methodto be a coparcener is by way of adoption. As earlier, awoman could not be a coparcener, but she could still be ajoint family member. By substituted section 6 with effectfrom 9.9.2005 daughters are recognised as coparceners intheir rights, by birth in the family like a son. Coparcenaryis the creation of law. Only a coparcener has a right todemand partition. Test is if a person can demand apartition, he is a coparcener not otherwise. Great great-grandson cannot demand a partition as he is not acoparcener. In a case out of three male descendants, oneor other has died, the last holder, even a fifth descendant,can claim partition. In case they are alive, he is excluded.26. For interpreting the provision of section 6, it isnecessary to ponder how coparcenary is formed. Thebasic concept of coparcenary is based upon commonownership by coparceners. When it remains undivided,the share of the coparcener is not certain. Nobody canclaim with precision the extent of his right in theundivided property. Coparcener cannot claim any preciseshare as the interest in coparcenary is fluctuating. Itincreases and diminishes by death and birth in the family. 27. In Sunil Kumar & Anr. v. Ram Parkash & Ors., (1988)2 SCC 77, the Court discussed essential features ofcoparcenary of birth and sapindaship thus: 9 CRA.119-2025“17. Those who are of individualistic attitude and separateownership may find it hard to understand the significance of aHindu joint family and joint property. But it is there from theancient time perhaps, as a social necessity. A Hindu jointfamily consists of male members descended lineally from acommon male ancestor, together with their mothers, wives orwidows and unmarried daughters. They are bound together bythe fundamental principle of sapindaship or familyrelationship, which is the essential feature of the institution.The cord that knits the members of the family is not propertybut the relationship of one another. 18. The coparcenary consists of only those persons who havetaken by birth an interest in the property of the holder andwho can enforce a partition whenever they like. It is anarrower body than a joint family. It commences with acommon ancestor and includes a holder of joint property andonly those males in his male line who are not removed fromhim by more than three degrees. The reason whycoparcenership is so limited is to be found in the tenet of theHindu religion that only male descendants up to three degreescan offer spiritual ministration to an ancestor. Only males canbe coparceners.11.Thus, in the present matter, suit lands cannot be said tobe coparcenary property of the plaintiff. Those are coparcenaryproperty of her mother defendant No.1. But mother is notcoming forward claiming partition. Therefore, learned counselMr. Dixit is right in contending that plaintiff cannot claimpartition. She is not coparcener and suit lands are not thecoparcenary properties. 12.My attention is also adverted to concept of unobstructedand obstructed heritage which are again explained by SupremeCourt in Vineeta Sharma’s judgment. Relevant extract isparagraph No.48. 10 CRA.119-2025“48. In Mitakshara coparcenary, there is unobstructedheritage i.e. apratibandha daya and obstructed heritagei.e. sapratibandha daya. When right is created by birth, itis called unobstructed heritage. At the same time, thebirthright is acquired in the property of the father,grandfather, or great-grandfather. In case a coparcenerdies without leaving a male issue, right is acquired not bybirth, but by virtue of there being no male issue, it iscalled obstructed heritage. It is obstructed because theaccrual of right to it is obstructed by the owner'sexistence. It is only on his death that obstructed heritagetakes place. Mulla on Hindu Law has discussed theconcept thus:"216. Obstructed and unobstructed heritage.Mitakshara divides property into two classes, namely,apratibandha daya or unobstructed heritage, andsapratibandha daya or obstructed heritage.(1) Property in which a person acquires aninterest by birth is called unobstructed heritage, becausethe accrual of the right to it is not obstructed by theexistence of the owner.Thus, property inherited by a Hindu from hisfather, father's father, or father's father's father, but notfrom his maternal grandfather, is unobstructed heritageas regards his own male issue i.e. his son, grandson, andgreat-grandson.61 His male issues acquire an interest init from the moment of their birth. Their right to it arisesfrom the mere fact of their birth in the family, and theybecome coparceners with their paternal ancestor in suchproperty immediately on their birth, and in such casesancestral property is unobstructed heritage.Property, the right to which accrues not by birthbut on the death of the last owner without leaving amale issue, is called obstructed heritage. It is called 11 CRA.119-2025obstructed, because the accrual of right to it isobstructed by the existence of the owner. Thus, property which devolves on parents,brothers, nephews, uncles, etc. upon the death of thelast owner, is obstructed heritage. These relations do nottake a vested interest in the property by birth. Theirright to it arises for the first time on the death of theowner. Until then, they have a mere spes successionis,or a bare chance of succession to the property,contingent upon their surviving the owner. (2) Unobstructed heritage devolves bysurvivorship: obstructed heritage, by succession. Thereare, however, some cases in which obstructed heritage isalso passed by survivorship.” 13.The plaintiff has not acquired any birth right. Therefore,there is no unobstructed heritage. She is not lineal descendantof paternal ancestor. She is claiming partition of the lands ofmaternal grandfather. It’s a case of obstructed heritage. 14.The reliance is placed on the judgment of privy councilin the matter of Muhammad Husain Khan and others Vs.Kishva Nandan Sahai ; AIR 1937 PC 233. In that case, oneGanesh Prasad was the propositus. He was owner of landedproperties and he was survived by son Bindeshri Prasad anddaughter-in-law Giri Bala. Bindeshri Prasad had sufferedmoney decree at the instance of creditor and the propertiesattached were sold in auction. He died and was survived by his 12 CRA.119-2025wife. The sale was challenged by Giri Bala. A defence wastaken that she became owner being legatee under a Willexecuted by Ganesh Prasad during his lifetime. The questionwas as to whether the Will was valid or not. It was challengedon the ground that testator had no authority to dispose of theproperty because the suit properties were inherited by testatorfrom his maternal grandfather Jadu Ram. The following arethe relevant paragraph. “The rule of Hindu law is well settled that the propertywhich a man Inherits from any of his three immediatepaternal ancestors, namely, his father, father's father andfather's father's father, is ancestral property as regards hismale issue, and his son acquhes jointly with him aninterest in it by birth. Such property is held by him incoparcenary with his male issue, and the doctrine ofsurvivorship applies to it. But the question raised by thisappeal is whether the son acquires by birth an interestjointly with his father in the estate which the latterinherits from his maternal grandfather. Now,Vijnanesvara, the author of Mitakshara, expressly limitssuch right by birth to an estate which is paternal orgrand-paternal. It is true that Colebrooke's translation ofthe 27th sloka of the first section of the first chapter ofMitakshara, which deals with inheritance, is as follows: "Itis a settled point that property in the paternal or ancestralestate is by birth." But Colebrooke apparently used theword "ancestral" to denote grand-paternal, and did notintend to mean that in the estate which devolves upon a 13 CRA.119-2025person from his male ancestor in the maternal line his sonacquires an interest by birth. The original text of theMitakshara shows that the word used by Vijnanesvara,which has been translated by Colebrooke as "ancestral", ispaitamaha which means belonging to pitamaha. Now,pitamaha ordinarily means father's father, and, though itis sometimes used to include any paternal male ancestorof the father, it does not mean a maternal male ancestor.Indeed, there are other passages in Mitaksharawhich show that it is the property of the paternalgrandfather in which the son acquires by birth an interestjointly with, and equal to that of, his father. For instance,In the 5th sloka of the fifth section of the first chapter, it islaid down that in the property "which was acquired by thepaternal grandfather the ownership of father and son isnotorious; and, therefore, partition does take place. For,or because, the right is equal, or alike, therefore, partitionis not restricted to be made by the father's choice, nor hashe a double share. Now, this is the translation of the slokaby Colebrooke himself, and it is significant that theSanskrit word, which is translated by him as "paternalgrandfather", is pitamaha. There can, therefore, be nodoubt that the expression "ancestral estate" used byColebrooke in translating the 27th sloka of the firstsection of the first chapter was intended to mean grand-paternal estate. The word "ancestor" in its ordinarymeaning includes an ascendant in the maternal, as well asthe paternal, line; but the "ancestral" estate, in which,under the Hindu law, a son acquires jointly with his fatheran interest by birth, must be confined, as shown by theoriginal text of the Mitakshara, to the propertydescending to the father from his male ancestor in the 14 CRA.119-2025male line. The expression has sometimes been used in itsordinary sense, and that use has been the cause ofmisunderstanding. The estate which was inherited by Ganesh Prasadfrom his maternal grandfather cannot, in their Lordships'opinion, be held to be ancestral property in which his sonhad an interest jointly with him. Ganesh Prasadconsequently had full power of disposal over that estate,and the devise made by him in favour of his daughter-in-law, Giri Bala, could not be challenged by his son or anyother person. On the death of her husband, the devise inher favour came into operation and she became theabsolute owner of the village Kalinjar Tirhati, as of theremaining estate; and the sale of that village in executionproceedings against her husband could not adverselyaffect her title.For the reasons above stated, their Lordships are ofopinion that the decree of the High Court should beaffirmed, and this appeal should be dismissed with costs.They-will humbly advise His Majesty accordingly.”15.It is held that the estate was inherited from maternalgrandfather and that was not ancestral property in whichBindeshri Prasad could have any interest jointly. It is clear fromthe above observations that if the property is inherited fromthe paternal side then and then only it can be treated to beancestral property giving birth right to son or daughter. Thesame ratio can be made applicable in the present case. It is 15 CRA.119-2025rightly submitted by learned counsel Mr. Dixit that plaintiffdoes not have any interest as long as her mother is alive andshe does not claim any partition or share in the property of herfather. 16.Learned counsel for the respondents relied on thejudgment of Uttam Vs. Saubhag Singh and others ; (2016) 4Supreme Court Cases 68. My attention is adverted toparagraph No.14. The facts are distinguishable. It was not acase of the property of the maternal grandfather, ratherproperty of propositus Jagannath Singh is ancestral propertyon paternal side. No reliance can be placed on the judgment. 17.The cause of action shown in the plaint is denial of shareto plaintiff’s mother and plaintiff herself. Her mother is not theplaintiff. During lifetime of mother, plaintiff cannot claim anypartition. It is incomprehensible as to why her mother is unableto file suit for partition and possession. Therefore, it’s a case ofno cause of action. Plaintiff has no locus standi to file suit. Thecause of action shown in the plaint especially in paragraphNos.5, 6 and 7 is illusory. It’s a fit case to exercise power underOrder 7 Rule 11 of CPC. The suit is likely to consume time ofthe Court. The bar of law is camouflaged by devious and clever 16 CRA.119-2025drafting of a plaint. I am of the considered view that learnedTrial Judge committed grave error of jurisdiction in rejectingthe suit. 18.Another facet of the matter is that by implication ofSection 14 of the Act, the plaintiff’s mother defendant No.1will become absolute owner of the property once she is allotteda share in the property. Being absolute owner, the share orestate will be at her disposal. If she dies intestate then onlyplaintiff will have half share in her estate. Due to Section 14,the plaintiff cannot be said to have any vested right or interestin the property or share allottable to her mother. In suchcircumstances, permitting the Trial Court to proceed with thesuit would be exercise in futility.19.The Trial Judge has not dealt with the above aspects ofthe matter and failed to exercise jurisdiction vested with it.Impugned order is unsustainable. I, therefore, pass followingorder :ORDER(i)Civil Revision Application is allowed and order dated28.02.2023 passed by 6th Joint Civil Judge Junior 17 CRA.119-2025Division, Latur below Exh.31 in R.C.S. No.224 of2022 is quashed and set aside.(ii)Application Exh.31 stands allowed and plaint inR.C.S. No.224 of 2022 stands rejected. (SHAILESH P. BRAHME, J.)...vmk/-