Civil Application No. 3424 of 2025 · High Court · 2025

SA 121 25 Or.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 121 OF 2025WITH CIVIL APPLICATION NO. 3424 OF 2025 IN SA/121/2025BALASAHEB IRAPPA CHAVAN AND OTHERSVERSUSSARUBAI W/O GANGADHAR DHUMAL AND OTHERS…Advocate for Appellants : Mr. Mahendra B. KolpeAdvocate for Respondent nos. 2 and 3 : Mr. Arun S. LomteCORAM: SHAILESH P. BRAHME, J.RESERVED ON PRONOUNCED ON:: 19.09.2025 25.09.2025PER COURT : Heard both sides.2.A common judgment and decree dated 25.06.2024 passed in RegularCivil Appeal No. 198/2015 and Regular Civil Appeal No. 204/2015confirming the judgment and decree dated 31.10.2015 passed in RegularCivil Suit No. 87/2009, is impugned in the present second appeal.3.The appellants are original defendant nos. 3, 5 and 6. The respondentnos. 1 to 3 are the plaintiffs. The respondent nos. 4 to 6 are defendant nos.1, 2 and 4 respectively. The parties are referred by their original status inthe suit. Undisputedly, Irappa died in 1993. His wife Lochanabai died in1998 and they have six children comprising of five daughters and one son.4.Three daughters namely Sarubai, Mudrikabai and Chabubai insitutedRegular Civil Suit No. 87/2009 for partition and possession in respect ofland Gat No. 215, Gat No. 76 and house property bearing GrampanchayatHouse No. 155. The suit properties are contended to be undivided jointfamily properties. They are married daughters. One of the daughters1/8 SA 121 25 Or.odtKaveribai had three sons namely Suryakant, Balasaheb and Sanjay. It isfurther contended that Balasaheb is alleged to have been adopted bygrandfather. Balasaheb got executed a sale-deed on 13.06.1986 in respect ofland Gat No. 215 in favour of his brother Suryakant, which is stated to bebogus. Further sale-deeds were executed on 19.12.1996 in favour ofdefendant no. 5 and 6, which are also bad in law. When the plaintiffsclaimed their share, the defendants especially Balasaheb refused the same,which is the cause of action for filing the suit for partition and possession.5.The defendants filed distinct written statements contesting the suit.The relationship was not disputed by them. The adoption of Balasaheb isstated to be valid and as per custom. A registered adoption deed dated09.09.1976 is relied upon. They justified execution of the sale-deed byIrappa in favour of Suryakant for the legal necessity and further alienationby Suryakant in favour of defendant no. 5 Narsing and defendant no. 6Amol. It is contended that the suit is barred by limitation. It is contendedthat the plaintiffs are not entitled to any share in the partition.6.Parties adduced oral evidence before the Trial Court. The suit washeld to be within limitation. The adoption deed was held to be valid. Thesale-deeds executed on 13.06.1986 and 19.12.1996 were held to be notbinding on the plaintiffs. Land Gat No. 215 was excluded from partition. 7.By judgment and decree dated 31.10.2015 suit was decreed partlygranting 1/9th share to the plaintiffs and the defendant nos. 1 and 2 in landGat No. 76 and house property No 155. The defendant no. 3 Balasaheb isgranted 4/9th share in the above properties. Whereas, land Gat No. 215 isexcluded from the partition and the suit to that effect is dismissed.8.Being aggrieved by the judgment and decree passed by the Trial CourtRegular Civil Appeal No. 198/2015 is preferred by defendant nos 3, 5 and 6mainly against decree of partition and Regular Civil Appeal No. 204/2015 ispreferred by plaintiffs against denial of partition in respect of land Gat No.2/8 SA 121 25 Or.odt215 and upholding of adoption. By a common judgment and decree dated25.06.2024 both appeals are dismissed.9.At the outset it needs to be clarified that both Courts belowconcurrently held that sale-deed dated 13.06.1986 executed by Irappa infavour of defendant no. 4 Suryakant is binding on the parties because it wasrequired to be alienated for legal necessity. Therefore, land Gat No. 215 wasexcluded from decree of partition. The adoption of defendant no. 3Balasaheb by Irppa his grand father is evidenced by a registered adoptiondeed executed on 09.09.1976, is concurrently held to be valid. Theplaintiffs have also preferred second appeal, which can be dealt withseparately as no attempts are made for clubbing it with the present appeal.Presently, the submissions of the appellants are restricted to issue oflimitation and entitlement of the plaintiffs to claim partition andconsequentially shares in land Gat no. 76 and house no. 155.10.The learned counsel for the appellants Mr. Kolpe submits that Irappadied in 1993 and the suit is instituted in 2009, which is grossly barred bytime. It is further submitted that being adopted son, defendant no. 3Balasaheb is the sole surviving co-parcener and entitled to receive the suitproperties. It is submitted that plaintiffs being married daughters are notentitled to claim partition due to implication of section 29A of the HinduSuccession Act, 1956 (hereinafter referred to as ‘the Act’). The learnedcounsel has also pressed into service Proviso to Section 6 of Amended Act.It is contended that no reasons are assigned by both Courts below fordeciding the issues of limitation and demarcation of shares. According tolearned counsel above submissions constitute substantial questions of law.11.Per contra, learned counsel Mr. Lomte for the respondent nos. 2 and3 supports both the judgments. It is contended that plaintiffs have alsopreferred separate second appeal challenging findings of validity of adoptiondeed and exclusion land Gat No. 215 from the partition. It is submitted that3/8 SA 121 25 Or.odtBalasaheb was incompetent to be taken in adoption and no custom wasproved. It is further submitted that allotment of shares cannot be faulted.12.It is cursorily argued by the learned counsel for the appellants that thepoint of limitation was not properly dealt with. Record reveals that TrialCourt had framed an issue to that effect. Lower Appellate Court also framedpoint for determination. Both the Courts below have recorded reasons forholding that suit filed in the year 2009 is within limitation. The cause ofaction shown in the plaint is that of 27.10.2009. A stray admission of theplaintiffs’ witness that he was not allowed to come to the family housewould not constitute the starting point of the limitation. I find that suit isfiled within period of limitation from the exclusion of the plaintiffs fromjoint family properties. The findings recorded in that regard cannot be saidto be perverse.13.It is emphasized by the learned counsel for the appellants that theshares demarcated by the Courts below are not in accordance with law. Theadoption is proved and appellant no.1 Balashaeb would become coparcener.Irappa died in 1993 and his wife Lochanbai died in 1998. When partitionopened, appellant no. 1 stated to be the only male coparcener, who isentitled to inherit the joint family properties. Learned counsel madereference to Section 29-A of State Amendment of 1994. I am unable to bepersuaded by the submissions that appellant no. 1 Balasaheb being malecoparcener is entitled to get entire property. No specific provision has beenpointed out to give preference to male coparcener. The State Amendment of1994 may not make any difference because thereafter Central Amendmentwas introduced to Section 6 with effect from 09.09.2005. The case isgoverned by amended Section 6 instead of State Amendment of Section29-A. The Central Amendment of 2005 would prevail. It does not provideany disqualification from claiming partition or share in the joint family bythe married daughters. 4/8 SA 121 25 Or.odt14. The amended Act is held to be retroactive by Supreme Court in caseof Vineeta Sharma Vs. Rakesh Sharma and others;(2020) 9 SCC 1.Therefore, amended section 6 would have full force even presuming thatpartition would have opened in 1993. I find no merit in the submission oflearned counsel for the appellant.15.It is necessary to reiterate the conclusion drawn by Apex Court inVineeta Sharma (supra) which is very relevant to disapprove thesubmissions made by the counsel for the appellants. Following are therelevant findings :“137. Resultantly, we answer the reference as under :137.1. The provisions contained in substituted Section 6of the Hindu Succession Act, 1956 confer status ofcoparcener on the daughter born before or after theamendment in the same manner as son with same rightsand liabilities.137.2. The rights can be claimed by the daughter bornearlier with effect from 9-9-2005 with savings as providedin Section 6(1) as to the disposition or alienation, partitionor testamentary disposition which had taken place beforethe 20th day of December, 2004.137.3. Since the right in coparcenary is by birth, it is notnecessary that father coparcener should be living as on9-9-2005.137.4. The statutory fiction of partition created by theproviso to Section 6 of the Hindu Succession Act, 1956 asoriginally enacted did not bring about the actual partitionor disruption of coparcenary. The fiction was only for thepurpose of ascertaining share of deceased coparcener when5/8 SA 121 25 Or.odthe was survived by a female heir, of Class I as specified inthe Schedule to the 1956 Act or male relative of suchfemale. The provisions of the substituted Section 6 arerequired to be given full effect. Notwithstanding that apreliminary decree has been passed, the daughters are tobe given share in coparcenary equal to that of a son inpending proceedings for final decree or in an appeal.”16.Trial Court worked out the shares of the parties on the basis ofnotional partition. The exercise undertaken is against amended Section 6 ofthe Act. The plaintiffs would be the co-parceners having birth right and theywould be at par with Balasaheb. By implication of amended Section 6, fivedaughters and a son will have equal share in land Gat No. 76 andGrampanchayat house No. 155. They will get 1/6 share each. Thesubmissions of the appellants in respect of allotment share are against thepurport of the pronouncement of Supreme Court in the matter of VineetaSharma (supra).17.It is tried to be contended that as per law laid down in Prakash Vs.Fulwati (2016) 2 SCC 36 plaintiffs stand disqualified being marrieddaughters. It is contended that on the date of amendment i.e. 09.09.2005daughters were alive but Irappa passed away in the year 1993. It is relevantto refer to following extract of the Supreme Court in the matter of VineetaSharma (supra).“80. A finding has been recorded in Prakash v.Phulavati that the rights under the substituted Section 6accrue to living daughters of living coparceners as on9-9-2005 irrespective of when such daughters are born. Wefind that the attention of this Court was not drawn to theaspect as to how a coparcenary is created. It is notnecessary to form a coparcenary or to become a coparcenerthat a predecessor coparcener should be alive; relevant isbirth within degrees of coparcenary to which it extends.6/8 SA 121 25 Or.odtSurvivorship is the mode of succession, not that of theformation of a coparcenary. Hence, we respectfully findourselves unable to agree with the concept of "livingcoparcener", as laid down in Prakash v. Phulavati. In ouropinion, the daughters should be living on 9-9-2005. Insubstituted Section 6, the expression "daughter of a livingcoparcener" has not been used. Right is given underSection 6(1)(a) to the daughter by birth. Declaration ofright based on the past event was made on 9-9-2005 and asprovided in Section 6(1)(b), daughters by their birth, havethe same rights in the coparcenary, and they are subject tothe same liabilities as provided in Section 6(1)(c). Anyreference to the coparcener shall include a reference to thedaughter of a coparcener. The provisions of Section 6(1)leave no room to entertain the proposition that coparcenershould be living on 9-9-2005 through whom the daughteris claiming. We are unable to be in unison with the effect ofdeemed partition for the reasons mentioned in the latterpart. 81. In Mangammal v. T.B. Raju 18, the Courtconsidered the provisions made in the State of Tamil Nadu,the State Government enacted the Hindu Succession (TamilNadu Amendment) Act, 1989, made effective from25-3-1989, adding Section 29-A in the Hindu SuccessionAct, 1956. Section 29-A was held to be valid regardingsuccession by survivorship. Section 29-A provided equalrights to daughters in coparcenary property. The provisionswere more or less similar, except Section 29-A(iv) treated amarried daughter differently. The provisions were notapplicable to the daughters married before the date ofcommencement of the Amendment Act, 1989. Thus,married daughters were not entitled to equal rights. Thattoo, has been taken care of in Section 6, as substituted bythe 2005 Act, and no discrimination is made againstmarried daughters. In the said case, Mangammal gotmarried in 1981, and Indira got married in or about 1984i.e. before the 1989 Amendment. Therefore, it was heldthat because of Section 29-A(iv) of the Amendment Act,the appellant could not institute a suit for partition andseparate possession as they were not coparceners. The7/8 SA 121 25 Or.odtdecisions in Prakash v. Phulavati and Danamma werereferred, and it was opined that Prakash v. Phulavati wouldstill hold the value of precedent for right of a daughter inancestral property and only "living daughters of livingcoparceners" as on 9-9-2005 would be entitled to claim ashare in the coparcenary property.”18.One of the substantial question of law posed before this Court in thepresent appeal is that the applicability of section 6 prospectively. That hasalso been settled by the Supreme Court that Section 6 is retroactive. For thereasons stated above, I find no merit in the second appeal exceptmodification of the shares.19.Second Appeal is dismissed.20.The appellant no. 1 Balasaheb, the respondent nos. 1 to 5 shall beentitled to equal 1/6th share in land Gat No. 76 and Grampanchayat houseNo. 155. With this modification the judgment and decree passed by theTrial Court in Regular Civil Suit No. 87/2009 dated 31.10.2015 standsconfirmed.21.Pending Civil Application is disposed of. ( SHAILESH P. BRAHME, J.) mkd/-8/8