High Court

Legal Reasoning

{1} SA 15.25.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 15 OF 2025withCIVIL APPLICATION NO. 343 OF 2025.Shyam s/o. Dattatray Rakhe(died) Through legal heirs1/1] Gangabai w/o. Shyam Rakhe, Age 50 years, Occ. Household, R/o. Lohgaon, Tq. Biloli, Dist. Nanded.1/2] Digambar S/o. Shyam Rakhe, Age 31 years, Occ. Labour, R/o. Lohgaon, Tq. Biloli, Dist. Nanded.1/3] Mangesh S/o. Shyam Rakhe, Age 29 years, Occ. Labour, R/o. Lohgaon, Tq. Biloli, Dist. Nanded.1/4] Durga Ganesh Kurude, Age 27 years, Occ. Household, R/o. Vasmat, Tq. And Dist. Hingoli,2] Dilip S/o. Dattatray Rakhe Age 52 years, Occ. Agriculture, R/o. Lohgaon, Tq. Biloli, Dist. Nanded.3] Jayant S/o. Dattatray Rakhe, Age 45 years, Occ. Agriculture, R/o. Lohgaon, Tq. Biloli, Dist. Nanded.4] Transposed as Respondent No.6 as per leave granted by this Court vide order dated 16.4.2025 {2} SA 15.25.odt.. APPELLANTSVERSUS1] Balaji s/o. Dattatrry RakheAge 50 years, Occ. Agril,At present Rajapur Tq. DharmabadDist. Nanded.2]Dattatray s/o Jalba Rakhe (Died)3]Vijayalaxmi w/o. Pandurang Shinde,Age 55 years, Occ. Household,R/o. Tulsiram Nagar, Malgegaon Road,Nanded.4]Maltabai w/o. Gangaprasad Hurde,Age 50 years, Occ. Household,R/o. Somwar Peth Galli, Vasmat,Dist. Hingoli.5]Rajkumar s/o. Jayprakash Gangamwar,Age 39 years, Occ. BusinessR/o. Lohgaon, Tq. Biloli,Dist. Nanded. 6]Janabai w/o. Dattatray Rakhe,Age 70 years, Occ. HouseholdR/o. Lonegaon, Tq. Biloli,Dist. Nanded. (original defendant No.5)... RESPONDENTS.Mr. Sanjaykumar Chavan, Advocate for appellants. CORAM :S.G. CHAPALGAONKAR, J. DATE : 2ND MAY, 2025. P.C. :-1.The appellant/original defendant impugns the judgment and {3} SA 15.25.odtdecree dated 14.8.2024 passed by the District Judge, Biloli, in RCA No.,21 of 2019, thereby upholding the judgment and decree dated 30.3.2019passed by Civil Judge (J.D.) Biloli, in RCS No. 86 of 2015 ( Hereinafterparties are referred as per their original status in the suit)2.The respondent/plaintiff filed suit seeking a decree ofpartition and separate possession in respect of suit properties contendingthat the land Gat Nos. 244, 245 and 235 situated at village Lohgaon,Taluka Biloli, are ancestral properties of plaintiff and defendant Nos. 1 to5. Defendants refuted the entitlement of plaintiff to the share in suitproperties. Therefore, he filed a suit seeking partition and separatepossession and perpetual injunction.3.Defendants caused their appearance and refuted plaintiff’sclaim. According to them, plaintiff after marriage started residing withfamily of wife and even adopted the surname of father in law. Herelinquished his share in the joint family properties against the amount ofRs. 10,000/- paid to him at the time of marriage. As such, plaintiff hasnot right to claim share in the suit properties. In the light of pleadings ofthe parties, the learned trial court framed issued, recorded evidence ofparties and concluded that plaintiff is entitled for partition and separatepossession of 1/7th share in the suit properties. It is further held that saledeed executed by defendant No.3 in favour of defendant No.8 is notbinding on plaintiff’s rights. Defendants filed appeal vide R.C.A. NO. 21of 2019, which came to be dismissed vide impugned judgment and orderdated 14.8.2024.4.Learned advocate for the appellant submits that plaintiff hadgone in adoption to the family of wife. As such, he lost right in his {4} SA 15.25.odtfamily. He had vested interest in adoptive father side and seized to haveinterest in the family of biological father and his properties. He heavilyrelies upon the evidence of mother i.e. Janabai, who states that plaintiffhas relinquished his rights after receiving an amount of Rs. 10,000/-. Thelearned advocate further submits that surname of plaintiff s mentioned asBanewar in the 7 x 12 extract. Similarly, his sons are using that surname.The adoption of surname of that family itself is sufficient to prove thatplaintiff relinquished his rights and relationship with family of hisbiological father. In support of his contention, he relies upon thejudgment of the Supreme Court of India in the case of Chandrabhava vs.Saraswati reported in (2022) 20 SCC 199, and judgment of this Court inthe case of Nivrutti Pandurang Nale vs. Uttam Nale reported in (2025)SCC Online Bom. 1135.5.Having considered the submissions advanced, it is appositeto refer to the pleadings in written statement filed by defendants. Carefulreading of contents of written statement would show that there is specificpleading that plaintiff has ben adopted in the Banewar family. It iscontention in the written statement that plaintiff has no right to claimpartition as he has gone as illatom-son-in-law with his father in law priorto 22 years. It is further contention while going to his house as illatomson-in-law, he has taken his share in the property of his father byaccepting an amount of Rs. 10,000/- and relinquished his share in thesuit land and house of his father.6.The aforesaid pleading in written statement cannot beconstrued to mean that plaintiff is given in adoption to his father in law.The concept of “illatom son in law”, is different than the concept of“adoption”. The Hindu Adoption and Maintenance Act prescribes specific {5} SA 15.25.odtrequirements for valid adoption, wherein giving and taking is a pre-condition. In present case, from pleadings or evidence of the parties,nothing is discernible to show that plea of adoption was put into play onbehalf of defendants. Defendants merely took a plea that plaintiff hasrelinquished his right in joint family properties as against receipt of cashamount of Rs. 10,000/- at the time of his marriage.7.The trial court specifically framed issue, as to whether theplaintiff relinquished his share in the joint family property. It appearsfrom evidence that the defendants have heavily relied on statement ofdefendant No.5 Janabai recorded before the trial court, wherein, shestates that plaintiff received an amount of Rs. 10,000/- at the time ofmarriage and relinquished his share, however, during cross examination,she admits that she makes a statement about the relinquishment of shareby plaintiff as per the say of his other sons and there is no evidence tosupport receipt of Rs. 10,000/- and consequential relinquishment ofshare. The appellate court, on re-appreciation of evidence, upheld thefinding of trial court that theory of relinquishment of share by plaintiff isnot proved. As such, both the courts have concurrently recorded afinding of fact in favour of the plaintiff that he is entitled for 1/7th sharein the joint family properties and decreed the suit.8.As far as reliance of the learned advocate for appellant onobservations of the Supreme Court in the case of Chandrabhan, it isobserved that when there is misconstruction of document or wrongapplication of principles of law, in constructing a document, thesubstantial question of law arises. There cannot be two views about thelaw laid down by the Supreme Court of India. Any question of lawhaving a material bearing on decision of the case, answer to which affects {6} SA 15.25.odtrights of parties to the suit, will be a substantial question of law.Particularly, when it si not exempted by a specific provision of law andsettled principles. Similarly, where a crystallized legal position having aforce of binding precedent has been ignored, substantial question of lawwould arise, however, general rule is that High Court will not interferewith the finding of fact approved by the courts. In present case, thesubmissions advanced on behalf of appellant that the courts belowignored the adoption of plaintiff is baseless and does not find support inthe pleadings of evidence. Courts have rightly appreciated the defenceput forth in written statement to the effect that plaintiff relinquished hisright in the joint family property and ultimately recorded a finding thatsuch defence could not be established by leading cogent and reliableevidence. Therefore, the concurrent findings recorded by courts below donot require interference in second appeal. No substantial question of lawarises for consideration in this second appeal. Second appeal sans merit,hence, dismissed. Pending civil application stands disposed of.[S.G. CHAPALGAONKAR, J] grt/-