High Court · 2024

Legal Reasoning

Tauseef 924-SA.407.2024.odtININ THETHE HIGHHIGH COURTCOURT OFOF JUDICATUREJUDICATURE ATAT BOMBAYBOMBAYBENCH AT AURANGABADBENCH AT AURANGABADSECOND APPEAL NO.407 OF 2024SECOND APPEAL NO.407 OF 2024Deepak Bhalchandra KodreDeepak Bhalchandra Kodre...Appellant...AppellantVersusVersusMinabai W/o. Pradip Nahlave (Nalave) & Ors. Minabai W/o. Pradip Nahlave (Nalave) & Ors. …Respondents…RespondentsWITHWITHCIVIL APPLICATION NO.12923 OF 2024CIVIL APPLICATION NO.12923 OF 2024ININSECOND APPEAL NO.407 OF 2024SECOND APPEAL NO.407 OF 2024 Deepak Bhalchandra KodreDeepak Bhalchandra Kodre...Applicant...ApplicantVersusVersusMinabai W/o. Pradip Nahlave (Nalave) & Ors. Minabai W/o. Pradip Nahlave (Nalave) & Ors. …Respondents…Respondents_____________________________________________________Adv. S. P. Tiwari h/f. Adv. Shantilal J. Gaike for Appellant._____________________________________________________CORAM :S. G. CHAPALGAONKAR, J.DATED : 10th DECEMBER 2024.P.C.:-1. The Appellant/Original Defendant No.2 impugns judgmentand decree dated 19th June 2023 passed by learned District Judge-5,Latur in Regular Civil Appeal No.31 of 2018 as well as judgment anddecree dated 19th January 2018 passed by learned Civil Judge, JuniorDivision, Ausa in Regular Civil Suit No.356 of 2011. [Hereinafterparties are referred as per original status in the suit for brevity andconvenience]. 1 of 8 Tauseef 924-SA.407.2024.odt2.The Respondent Nos.1 to 5 (Original Plaintiffs) instituted suitfor partition and separate possession in respect of lands SurveyNos.9/A, 9/B and 67 along with House Property Nos.1605 and 2076,situated at Ausa, contending that Plaintiff Nos.1 to 4 are daughters andDefendant Nos 1 and 2 are the Sons of Plaintiff No.5 and LateBhalchandra Kodre, who died in the year 1997. The Plaintiffs andDefendants are members of joint family and governed by Mitaksharalaw. 3.The suit properties are ancestral properties. The Defendantsare in possession of aforesaid properties as tenants in common. Therewere some other properties belonging to joint family, however, thosehave been alienated long back, therefore, Plaintiffs are not claimingany relief in respect of earlier sale deeds, being barred by limitation.The Defendants have prepared false documents pretendingrelinquishment of share by plaintiffs in their favour, accordingly,mutated their names into revenue record. Plaintiffs contend thatmutation would not prejudice their right in suit property. On 4th April2011, Plaintiffs claimed for partition but Defendants refused, hencefiled present suit. Defendants refuted Plaintiffs’ claim contending thatthere was previous partition during life time of Bhalchandra. TheDefendant Nos.1 and 2 were allotted the shares from Survey No.9/B.After demise of Bhalchandra on 14th December 1997, the land to the2 of 8 Tauseef 924-SA.407.2024.odtextent of 4 Hec. 85 R from Survey No.9/A was mutated in the name ofPlaintiff No.5. The Plaintiff Nos.1 to 4 relinquished their right in suitproperty. They executed consent deed dated 7th December 1998 fortransfer of lands. As such Plaintiffs have no more claim in suitproperties left by deceased Bhalchandra. The Defendants furthercontends that Plaintiff No.5 orally partitioned land out of SurveyNo.9/A and allotted share to Defendant Nos.2. The Plaintiff No.5 hasrelinquished her right in property by accepting cash of Rs.25,000/-.The memorandum of the partition between Defendant Nos.2 andPlaintiff No.5 is prepared on 19th July 2008. Consequently, mutationentry is sanctioned. According to Defendants, suit is barred bylimitation. Neither necessary parties nor entire joint family propertyhas been included in suit. 4.The Trial Court framed issues, recorded evidence of theparties and finally concluded that properties described in paragraph 2of the plaint are joint properties of Hindu Undivided Family andPlaintiffs are entitle for partition. The other contentions of Defendantsare rejected. Eventually, Plaintiff Nos.1 to 4 were held entitled for1/28th share each and Plaintiff No.5 was held entitled for 2/7th share inthe suit properties. 5.The Plaintiffs as well as Defendants challenged judgment anddecree passed by the Trial Court by filing appeal and cross-objection3 of 8 Tauseef 924-SA.407.2024.odtrespectively. The Appellate Court modified the decree of Trial Courtand concluded that Plaintiff Nos.1 to 5 and Defendant Nos.1 and 2 areentitled for 1/7th share each in the suit property. Consequently,dismissed the appeal and allowed the cross-objection. 6.Mr. S. P. Tiwari, learned Advocate appearing for theAppellant (Original Defendant No.2) submits that both the Courts havefailed to consider Defendants’ contention as to previous partition of theproperties by Bhalchandra during his lifetime. On 14th December 1997Bhalchandra expired thereafter lands from Survey No.9/A stoodmutated in the name of Plaintiff No.5. The Plaintiff Nos.1 to 4 hadexecuted consent dated 7th December 1998 in favour of Plaintiff No.5to alienate the suit properties. On 19th July 2018, Plaintiff No.5relinquished her share in favour of Defendant Nos.1 and 2. As such,there was nothing left for the partition of the ancestral property. Hewould further submit that since Bhalchandra died on 14th December1997, Plaintiffs could have filed suit for partition within 3 years fromhis death, hence, suit filed after lapse of 12 years is barred bylimitation. Mr. Tiwari points out that there were many previoustransfers of the land. The document dated 20th March 1999 placed atExhibit-87 is a registered partition deed executed by Plaintiff No.5 infavour of Defendant Nos. 2. He would, therefore, submit that Courts4 of 8 Tauseef 924-SA.407.2024.odtbelow have committed serious error of law and casually recordedfindings without framing material issues. 7.Having considered submissions advanced, it cannot bedisputed that the suit properties were originally owned by Bhalchandrai.e. father of Plaintiff Nos.1 to 4 and Defendant Nos.1 and 2. ThePlaintiffs instituted suit in the year 2011 seeking partition and separatepossession in respect of suit properties. The Defendants have contestedsuit mainly on the ground of previous partition. The first documentrelied upon by the Defendants is Mutation Entry No.3078 sanctionedon 5th October 1986, which shows that Plaintiff No.5 and deceasedBhalchandra had purchased the landed property. The second documentrelied upon by Defendants is consent deed dated 7th December 1998placed at Exhibit-86. The Defendants have pleaded that Plaintiff Nos.1to 4 relinquished their right in suit property. The third document reliedupon by Defendants is partition deed executed by Plaintiff No.5 dated20th March 1999 placed at Exhibit-87. The fourth document reliedupon by Defendants is the partition deed dated 19th July 2008 placedat Exhibit-85. 8.Insofar as the previous partition of 1985 is concerned, thereis no supporting document, on other hand, the pleading in the writtenstatement filed by legal representatives of Defendant No.1 shows that5 of 8 Tauseef 924-SA.407.2024.odttill death of Bhalchandra, suit lands were jointly owned and after hisdeath, the Defendants and Plaintiffs inherited same. 9.The Defendants have pleaded that they were allotted theshare in the suit properties vide partition deed dated 20th March 1999(Exhibit-87). However, said document depict that it was the partitionby Defendant Nos.1 and 2 among themselves after death ofBhalchandra. No share was allotted to Plaintiffs under that document.Therefore, said document would not create right in favour ofDefendant Nos.1 and 2 to exclusion of right of Plaintiffs. TheDefendants have further relied upon document at Exhibit-86 stating itto be document of relinquishment of rights by Plaintiffs in favour ofDefendants. However, stipulations in said document simply suggestthat Plaintiffs have given no objection for alienation of lands andasserted not to have any right or concern in the property. Pertinently,the document of relinquishment of existing right in immovableproperty is compulsorily registerable as per Section 17 of theRegistration Act, otherwise, such document would not be admissible inthe evidence. Apparently, such document cannot be accepted asevidence of relinquishment of the right by the Plaintiffs. Further it canbe observed that Plaintiff No.2 is not party to the said document. Shewas not present at the time of execution of the document. However,her signature is affixed. The evidence of scribe-DW-2 suggest that the6 of 8 Tauseef 924-SA.407.2024.odtPlaintiff No.2 was not present at the time of writing of deed. TheAppellate Court observed that even signature of Plaintiff No.2 is indifferent ink than others. The Courts below have, therefore, rightlyrefused to rely upon such documents. 10. Next document relied upon by the Defendants is dated 19thJuly 2008 placed at Exhibit-85 in form of Memorandum of OralPartition by which the land Survey No.9/A is shown to have beenallotted to Defendant Nos.1 and 2. Whereas, Defendant No.5 acceptedRs.25,000/- towards her share. Pertinently, Plaintiff No.5 not enteredin the witness box. The Defendants have also not examined her astheir own witness. Nothing is brought on record to prove oral partitiondated 19th July 2008. In case of memorandum of partition, fact ofpartition ought to have independently proved. The memorandum itselfdo not create any right unless factum of the partition is independentlyproved. Eventually defendants can not draw advantage from it toadvance their case.11.Pertinently, as per amendment in Hindu Succession Act,(HSA) the daughters have been conferred with co-parcenary right inthe ancestral properties. The Supreme Court of India in case ofVineeta Sharma Vs. Rakesh Sharma & Ors.1 interpreted Section 6 ofHSA as amended in 2005. In the absence of proof of previous1(2020) 9 SCC 17 of 8 Tauseef 924-SA.407.2024.odtpartition, after death of Bhalchandra, Plaintiff Nos.1 to 5 are definitelyentitle to claim equal share in property along with brothers andmother. Pertinently in State of Maharashtra right in coparcenaryproperty has been recognized to daughters as per Hindu Succession(Maharashtra Amendment )Act, 1994.12.In that view of the matter, no substantial question of lawarises for consideration in this appeal. Second Appeal standsdismissed. 13.In view of dismissal of second appeal, civil application doesnot survive and also disposed of. (S. G. CHAPALGAONKAR, J.)8 of 8