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3-SA-177-25+.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABAD3 SECOND APPEAL NO. 177 OF 2025WITHCIVIL APPLICATION NO. 5146 OF 20251.Prabhakar S/o. Nanasaheb Tat,Age: 37 years, Occu: AgricultureR/o. Apegaon, Tq. Ambejogain, Dist. Beed.2.Bhausaheb S/o. Nanasaheb Tat,Age: 35 years, Occu; AgricultureR/o. Apegaon, Tq. Ambajogai,Dist. Beed.….APPELLANTS (Orig. Def. No. 4 & 5)VERSUS 1.Uma @ Urmila W/o. Audumber Shinde,Age:37 years, Occu: Household,R/o. Apegaon, Tq. Ambajogai,Dist. Beed. ….(Orgi. Plaintiff)2.Yuvraj S/o. Vishwanath Tat,Age: 67 years, Occu. AgricultureR/o. Apegaon, Tq. Ambajogai, Dist. Beed.3.Kamalbai W/o. Yuvraj Tat,Age: 60 years, Occu: Household,R/o. Apegaon, Tq. Ambajogai, Dist. Beed.4.Nanasaheb S/o. Vishwanath Tat,Age: 75 years, Occu; AgricultureR/o. Apegaon, Tq. Ambajogai,Dist. Beed.….(Res. No.2 to 4 are Ori. Def. No.1 to 3)5.Parimalabai W/o. Bhagwantrao Shinde,Age: 80 years, Occu: Household,R/o. Apegaon, Tq. Ambajogai, Dist. Beed. ….RESPONDENTS(Res. No.5 is Orig. Def. No.6) 1 of 8 (( 2 ))3-SA-177-25+Mr. Khadap Rahul Dattoba, Advocate for Appellant Mr. Abhijit G. Choudhari, Advocate for Respondent No.1-(Caveator).…CORAM: S. G. CHAPALGAONKAR, J.DATE:07.05.2025ORDER :- .The appellant/original defendant Nos. 4 & 5 impugn thejudgment and decree dated 23.07.2024 passed by the District Judge-2, Ambajogai, in Regular Civil Appeal No. 47 of 2022, therebyupholding the judgment and decree dated 08.07.2022 passed by theCivil Judge, Senior Division, Ambajogai, District Beed, in Regular CivilSuit No. 79 of 2012 by which suit filed by Respondent No. 1/originalplaintiff for partition and separate possession came to be decreed.2.The plaintiff filed suit contending that she is daughter ofdefendant Nos. 1 and 2. The other defendant Nos.3 and 6 are brotherand sister of defendant No.1 and defendant Nos.4 and 5 are the sonsof defendant No.3. Defendant No.2 is the wife of defendant No.1. Forthe purpose of brevity, the relationship between parties is given asunder: 2 of 8 (( 3 ))3-SA-177-25+Vishwanath!-------------------------------------------------------------------------------------------!!!Nanasaheb (Son) Yuvraj (Son)Parimalabai(daughter)(deft No.3) (Deft. No.1) (Deft. No.6)!!---------------------------------------------------------------- !!!!Prabhakar BhausahebKamalbai Uma(Son) Deft.4 (Son) Deft.5 (Wife) Deft.2(daughter)pltf. 3.According to plaintiff, during lifetime of Vishwanath, suitproperties were joint family properties. However, after death ofVishwanath, his son Nanasaheb became Karta of joint family andpurchased some properties in the names of his sons. The plaintiffalleges that Defendant No. 3, in collusion with revenue officers,effected Mutation Entry No. 453, depicting partition betweenDefendant Nos. 1 and 3. According to plaintiff, she married on04.06.2002. Her father i.e., defendant No.1 was habitual to drinkliquor and failed to maintain defendant No.2. Plaintiff asked for 1/3share in share allotted to defendant No.1; however, he refused.Therefore, she filed the suit seeking decree of partition, separatepossession, and injunction.4.The defendants refuted the plaintiff’s claim, contendingthat Vishwanath died on 22.11.1989. During his lifetime, he 3 of 8 (( 4 ))3-SA-177-25+partitioned the suit properties and distributed them among DefendantNos. 1 and 3, whereas his daughter, Parimalabai (Defendant No. 6)relinquished her share. It is further pleaded that Defendant No. 1again effected partition between himself and Defendant No. 3.Accordingly, Mutation Entry No. 620 has been sanctioned. Accordingto defendants, lands in Block No. 90/3 and Block No. 90/1 are self-acquired properties of Defendant Nos. 4 and 5.5.The Trial Court framed issues, recorded evidence of theparties, and partly decreed the suit of the plaintiff, upholding herclaim that she, along with Defendant Nos. 1 and 2, have 1/3 shareeach in the land Survey Nos. 90/1, 90/3, and house propertiesbearing Nos. 63 and 66. The aforesaid decree was subjected tochallenge in Regular Civil Appeal No. 47 of 2022 by Defendant Nos. 4& 5. The learned District Judge dismissed appeal, upholding decreepassed by the Trial Court.6.Mr. Khadap vehemently submits that Defendant No. 1 wasthe exclusive owner of his share after partition between himself andhis brother. The plaintiff, who is the daughter of Defendant No. 1,cannot claim partition. He relies upon the observations of theSupreme Court of India in case of Angadi Chandranna Vs. Shankar 4 of 8 (( 5 ))3-SA-177-25+and Others, in Civil Appeal No. 5401 of 2025, decided on 22.04.2025.He would further submit that the lands in Survey Nos. 90/2 and thehouse properties bearing Nos. 63 and 66 has to be treated as self-acquired properties of Defendant No. 1 hence plaintiff cannot assertany right during his lifetime. He would also submit that DefendantNo. 1 has transferred suit lands from Survey Nos. 90/4 and 90/2 infavour of Respondent Nos. 4 and 5, vide Mutation Entry No.620. Thetransfer was made for consideration to satisfy his legal necessity.Hence, he urges to admit appeal.7.Per contra, Mr. Choudhary, learned Advocate appearingfor Respondent (Caveator) supports the judgment and decree passedby the courts below. 8.According to Mr. Khadap, defendant No.1, i.e., father ofplaintiff, had received property in a partition effected by his father,Vishwanath. As such, defendant No.1 became absolute owner of hisshare. In support of his contention, he relies upon observationsrecorded in paragraph No.17 of the judgment in case of AngadiChandranna Vs. Shankar and Others 255 SCC OnLIne SC 877, whichreads thus: 5 of 8 (( 6 ))3-SA-177-25+“17.It cannot be disputed that the properties divided amongDefendant No. 1 and his brothers through partition deed dated09.05.1986, are joint family properties. However, as per Hindu law,after partition, each party gets a separate and distinct share and thisshare becomes their self-acquired property and they have absoluterights over it and they can sell, transfer, or bequeath it as they wish.Accordingly, the properties bequeathed through partition, become theself-acquired properties of the respective sharers.”9.There cannot be dispute over the aforesaid preposition oflaw. Although a coparcener, who receives property in a partitionenjoys his share as an absolute owner, this position is not static. Solong as the ancestral property remains in hands of a single person, itcan be treated as separate property. But if a son is born, the propertybecomes coparcenary property, and son would acquire interest in itand become a coparcener.10.In view of amendment to the Hindu Succession Act, adaughter also enjoys status of coparcener. Therefore, a son ordaughter born to the person would have a birth right in coparcenaryproperty. At this stage, reference can be given to the observations ofSupreme Court of India in case of Rohit Chauhan Vs. Surinder Singhand Others, Civil Appeal No.5475 of 2013 which are based on theobservations in earlier judgment in case of M. Yogendra V, LeelammaN., (2009) 15 SCC 184, which reads thus: 6 of 8 (( 7 ))3-SA-177-25+“It is now well settled in view of several decisions of this Courtthat the property in the hands of a sole coparcener allotted to him inpartition shall be his separate property, same shall revive only when ason is born to him. It is one thing to say that the property remains acoparcenary property but it is another thing to say that it revives.”11.In light of aforesaid observations, the contention of Mr.Khadap that defendant No.1, after receiving his share in the partitionfrom his father, was absolute owner, cannot be accepted. After birthof plaintiff, she acquired share in coparcenary ancestral propertyreceived by her father from his father.12.Mr. Khadap raises second contention that defendant No.1admitted that land survey Nos. 90/4 and 90/2 were partitioned bydefendant No.1 in favour of his nephews, i.e., defendant Nos. 4 and5. According to him, mutation entry No. 620, Exhibit-37, clearlydemonstrates such partition, and therefore, the plaintiff is not entitledto raise any claim in that property. However, learned District Judgerightly observed that mutation entry No.620 has been effected on30.10.2010 which is not preceded by any registered document oftransfer of title. Apparently, defendant No.1 was not free to transferproperty by partition in favour of defendant Nos.4 and 5 particularlywhen the plaintiff and her mother were having existing right in thatproperty. 7 of 8 (( 8 ))3-SA-177-25+13.There is nothing on record to show that plaintiffrelinquished her right in property or consented for transfer ofproperty in favour of defendant Nos.4 and 5. Therefore, on the basisof mutation entry No.620, no title can pass in favour of defendantNos.4 and 5 or defendant No.1 cannot frustrate right of plaintiff onbasis of mutation entry depicting transfer by partition in favour ofdefendant Nos.4 and 5. Learned District Judge rightly rejected claimof defendant that land survey Nos.90/4 and 90/2 were not availablefor partition. Even assuming that the transfer of property undermutation entry No.620 was given effect, the fact remains thatdefendant No.1 has no right to transfer suit property ignoringplaintiff’s right.14.In that view of the matter, such transfer would not bindthe right of plaintiff in the coparcenary joint family property. Inresult, no substantial question of law arises for consideration in thisappeal. Hence, the Second appeal is dismissed. In view of dismissalof the appeal, the civil application stands disposed of. [ S. G. CHAPALGAONKAR, J. ] HRJadhav 8 of 8