High Court

Legal Reasoning

(1) SA-303-2024.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO.303 OF 2024Baburao r/o Bapurao Kakde,Age : 72 yrs., Occupation : Agriculture,residing at: Yewari, Taluka: Jalkot,District: Latur...Appellant(Original Plaintiff)Versus1.Balaji s/o Bapurao Kakde,Age : 63 yrs., Occupation : Agriculture,2.Dilip s/o Bapurao Kakde,Age : 62 yrs., Occupation : Agriculture,3.Vijaykumar s/o Bapurao Kakde,Age : 56 yrs., Occupation: Teacher,4.Jamubai w/oGangaram Wakade,Age : 64 yrs., Occ : Agriculture & Household,Respondent nos.1 to 4 aboveresiding at: Yewari, Taluka : Jalkot,District: Latur.5.Mirabai w/o Laxman Gound,Age : 61 yrs., Occ : Agriculture & Household,Residing at Hasarni, Taluka: Ahmadpur,District: Latur6.Sushilabai w/o Digambar Pawar,Age : 56 yrs., Occ : Agriculture&Residing at Jirga, Taluka : Jalkot,District: Latur7.Nandabai w/o Bhujangrao Garad,Age : 50 yrs., Occ : Agriculture & Household,Residing at Warkhed, Taluka: Palam,District: Parbhani...Respondents(Original Defendants) …Mr. Hemant Surve, Advocate for the Appellant.… (2) SA-303-2024.odt CORAM : S. G. CHAPALGAONKAR, J.DATE : 11th NOVEMBER, 2024.ORDER:- 1.The appellant/original plaintiff takes exception to thejudgment and decree dated 09.12.2016 passed by the 3rd Joint CivilJudge, Junior Division, Udgir in Regular Civil Suit No.75/2010, aswell as judgment and decree dated 03.05.2323 passed Ad-hocDistrict Judge-1, Udgir in Regular Civil Appeal No.05/2017 in thissecond appeal filed under Section 100 of the Code of CivilProcedure. (Hereinafter, parties are referred as per their originalstatus for the purpose of convenience and brevity).2.The Plaintiff / appellant had instituted Regular Civil SuitNo.75/2010 in the Court of Civil Judge, Junior Division at Udgirclaiming relief of declaration of ownership and perpetual injunctionin respect of land bearing survey no.108 admeasuring 5H 88Rsituated at village Yewari, Tq. Jalkot, Dist. Latur againstdefendants i.e. his real brothers and sisters. 3.It is a case of plaintiff that his father Bapurao partitionedancestral property amongst plaintiff and defendant nos.1 to 3 andretained part of property for his own maintenance. After partition,plaintiff and defendant nos.1 to 3 were put into possession of theirrespective shares. However, Bapurao had retained land (3) SA-303-2024.odtadmeasuring 5H 62R for his maintenance. Bapurao expired on27.09.2005, thereafter, land retained by Bapurao was partitionedbetween plaintiff and defendant nos.1 to 3 with consent ofdefendant nos.4 to 7. The said partition was reduced into writingon stamp paper of Rs.100/-. The plaintiff was put into possession ofhis share since the date of partition. However, on 07.03.2010defendant nos.1 to 3 entered the land and obstructed his possessionunder pretext that Bapurao bequeathed said property in theirfavour under Will. Hence, cause of action arose to file suit claimingrelief of declaration of ownership and perpetual injunction. 4.The plaintiff’s claim was refuted by defendantscontending that Bapurao executed registered will and bequeathedsuit land in their favour. Bapurao was exclusive owner of the suitland and competent to dispose same. The plaintiff raised his claimbased on forged partition deed. They denied respective signaturesthereon and prayed for dismissal of suit. The defendant nos.4 to 7,however, admitted claim of the plaintiff. 5.The Trial Court framed the issues and recordedevidence of parties and concluded that Bapurao was exclusiveowner of land admeasuring 5H 88R out of survey no.108 and hebequeathed same in favour of defendant nos.1 to 3. Consequently,dismissed the suit. The plaintiff assailed judgment and decree of (4) SA-303-2024.odtthe Trial Court before the District Court at Udgir vide RegularCivil Appeal No.05/2017. However, District Court pleased todismissed the Appeal confirmed the judgment and decree of theTrial Court for similar reasons.6.Mr. Hemant Surve, learned Advocate appearing for theappellant vehemently submits that although Bapurao had effectedpartition of ancestral property and allotted shares in the names ofhis sons, he had retained land admeasuring 5H 62R for hismaintenance. Therefore, that much of the land was continued to becoparcenary property. He was not exclusive owner eventually, hehad no right to bequeath the same. Therefore, the will dated30.09.2002 executed by Bapurao would not confer any right infavour of defendants. In support of his contentions he placed hisreliance on the judgments of the Supreme Court of India in cases ofShyam Narayan Prasad Vs. Krishna Prasad and Ors.1 and C.N. Arunachala Mudaliar Vs. C. A. Muruganatha Mudaliarand another2.7.Having considered submissions advanced and after goingthrough the impugned judgments, it can be gathered that therewas no dispute that during lifetime of Bapurao he partitionedancestral property and allotted respective shares to his sons1(2018) 7 SCC 646.2(1953) AIR (SC) 495. (5) SA-303-2024.odtincluding plaintiff. He retained portion of land admeasuring 5H62R for himself. The revenue record transpires that after partitionof coparcenary property Bapurao and his sons were individuallyenjoying respective portions of the land. The only issue that wasraised for consideration of court was as to whether Bapurao wasallotted land admeasuring 5H 62R towards his separate shareduring partition or it was retained by him as undividedcoparcenary property for his maintenance as contended by plaintiff.8.The Trial Court on evaluation of the oral and documentaryevidence, concluded that Bapurao acquired exclusive ownership ofthe land admeasuring 5H 88R in pursuance of allotment of shareduring partition and he had every right to bequeath it by way ofwill. In support of such conclusion, Trial Court relied uponadmissions of PW-1 i.e. Baburao. Further, fact that Bapurao hadinstituted suit for perpetual injunction against plaintiff assertinghis individual right so also entries in the 7/12 extract, depictingseverance of the joint family property and exclusive enjoyment.The plaintiff has also admitted about execution of will dated30.09.2002 by his father Bapurao, thereby bequeathing entireproperty in favour of defendant nos.1 to 3. The Appellate Court onre-appreciation of the evidence, endorsed finding of fact recorded byTrial Court and concluded that Bapurao had acquired exclusiveownership of suit property after partition between himself and his (6) SA-303-2024.odtsons in the year 1975 and suit land was allotted to the share ofBapurao. The Trial Court has specifically observed that plaintiffcould not bring any evidence on record in support of his contentionthat suit land was not allotted to share of Bapuraos but it wasretained by him for his maintenance as undivided share.Pertinently, there is no dispute about partition of the property byBapurao during his lifetime and the fact that Bapurao enjoyedshare of the land to the extent of 5H 62R during his lifetime. Inthat view of the matter, no fault can be found in conclusionrecorded by both the fact finding Courts.9.Although Mr. Surve, learned Advocate endeavours to contendthat land retained by Bapurao would continue status ofcoparcenary property or Bapurao was not competent to bequeaththe same to defendant nos.1 to 3, it is difficult to countenance withhis submissions. Once Bapurao had partitioned ancestral propertyamongst his sons and retained his share, he would be entitled todispose of or bequeath the same as exclusive owner. It is trite thatproperty falling to share of single coparcener would be treated ashis separate property and he would be competent to alienate / dealwith it as per his wish. His sons who had already receivedindividual shares in ancestral property during partition could notclaim any further right in the exclusive share allotted to Bapurao,as a result such partition. The reference can be made to (7) SA-303-2024.odtobservations of Supreme court in case of Rohit Chauhan VsSurinder Singh and Others3. Similarly in Case of M. YogendraVs. Leelamma N.4 the Supreme Court observed thus:“29. It is now well-settled in view of several decisions of thisCourt that the property in the hands of sole coparcenerallotted to him in partition shall be his separate property forthe same shall revive only when a son is born to him. It is onething to say that the property remains a coparcenary propertybut it is another thing to say that it revives. The distinctionbetween the two is absolutely clear and unambiguous. In thecase of former any sale or alienation which has been done bythe sole survivor coparcener shall be valid whereas in the caseof a coparcener any alienation made by the karta would bevalid.” 10.In present case, there is no dispute that Bapurao hadpartitioned ancestral property while retaining his share andenjoyed the same during his lifetime. In that view of the matter,particularly taking into account fact that Bapurao had executedregistered will in favour of defendant nos.1 to 3, therebybequeathing his share of the property and fact that defendant nos.1to 3 have already secured probate certificate from competent Court,plaintiff cannot have any right to claim partition. The Trial Courtas well as Appellate Court have concurrently held that plaintiffsclaim regarding further partition of the property between himselfand defendant nos.1 to 3 with consent of defendant nos.4 to 7 couldnot be established.3(2013) 9 SCC 419.4(2009) 15 SCC 184. (8) SA-303-2024.odt11. In that view of the matter, no substantial question of law ismade out in this Second Appeal. Hence, same is dismissed inlimine. (S. G. CHAPALGAONKAR) JUDGE Devendra/November-2024