Bombaybench High Court
Case Details
121 S.A. 342-2017.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO.342 OF 2017WITH CA/6070/2017 IN SA/342/2017 WITH CA/15452/2017 IN SA/342/2017 1.Ishwar S/o Madhav Malshette,Age : 55 Years, Occu. Agriculture,R/o. Limboti Tq. Loha,District. Nanded.2.Shivabai w/o Venkati Awade,Age : 30 Years, Occ. Household,R/o. Opp. Rural Hospital,Gangakhed Tq. Gangakhed,Dist. Parbhani3.Hawaji S/o Ishwar Malshette,Age : 35 Years, Occ. Agriculture,4.Shivling s/o Ishwar Malshette,Age : 33 Years, Occ. Agriculture 5.Shivsamb s/o Ishwar Malshette,Age : 28 Years, Occ. AgricultureAll R/o. Limboti,Tq. Loha, District Nanded. Appellants ( Original Defendants) VERSUS1.Sushma Nagnath Malshette,Age : 19 Years, Occ. Nil2.Naginbai w/o Nagnath Malshette,Age : 48 Years, Occ. Household,Both R/o At post Limboti,Tq. Loha, Dist. Nanded. .. Respondents(Original Plaintiffs)
Legal Reasoning
221 S.A. 342-2017.odt...Advocate for Appellants : Adv. Prayadhnya Talekar Advocate for respondent Nos. 1 and 2 : Mr. U. L. Telgaonkar h/f Mr.S. V. Kurundkar .... CORAM : S. G. MEHARE, J.DATE : 04.12.2023PER COURT :1.Heard the learned counsel for the appellants and the learnedcounsel for respondents.2.Considering the arguments advanced by the respective counsels,the pleadings from both sides appear deficient. Both counsels arguedthat the findings recorded by the first appellate Court and the Court offirst instance were without framing any issues and points fordetermination. A few points they have raised are new.3. The appellants have a case that the Doctor who had examined thedeceased father of the plaintiff No.1 in the proceedings under Section125 of the Cr. P.C. had proved that he was impotent. However, thelearned Court of First Instance held that the Doctor ought to have beenexamined to prove the impotency of the deceased father of theplaintiff. The learned counsel for the appellants would submit thatapart from the finding recorded by the Magistrate under Section 125 of 321 S.A. 342-2017.odtthe Cr.P.C. in an interim application, there was oral evidence that thedeceased father of plaintiff No.1 had no access to his mother. Thelearned counsel for the appellants has also argued that the FirstAppellate Court has erroneously granted 1/3rd share each to thedaughter and the wife of the deceased. She also argued that thedeceased husband and father of plaintiff No.1 had got his share in theyear 1988, and it was mutated in the year 1991. The father-in-law andgrandfather of plaintiff No.1 partitioned the lands during his lifetime.The father and husband of the plaintiffs sold his share. Therefore,nothing remained for partition, at least for the plaintiffs. It is also thequestion raised that the pleading as regards the nature of theacquisition of the properties involved in the suit is vague. It has alsobeen pleaded that the properties described in the plaint were ancestraland joint family. However, it has also been argued that few of themwere purchased and few of them were ancestral, but no detaileddescription was given.4.The learned counsel for the plaintiffs would submit that thefindings of the First Appellate Court are legally correct and proper. Inthe absence of the issue of the earlier partition, the plaintiffs had noopportunity to cross-examine the witnesses on this point. The issue as 421 S.A. 342-2017.odtregards the incomplete description of the suit lands was also notframed.5.The learned counsel for the appellants also raised a similarobjection about not framing the relevant issues.6.Perusal of the impugned judgments and decrees of both theCourts reveals that the issues as regards the earlier partition and defectin the description of the properties were not framed. The issue whetherthe evidence of the Doctor, recorded in the proceeding under Section125 of the Cr. P.C was admissible in the civil suit, was also not framed.The legitimacy of the child and potency of plaintiff No.2/husband andfather of plaintiff No.1 was the core question that goes to the root ofthe rights of the plaintiffs. It appears that the wife of the deceased,Nagnath filed the proceeding under Section 125 of the Code ofCriminal Procedure, and some orders were passed. Both the learnedcounsels have no complete information, whether that proceedingunder Section 125 of the Cr. P.C was finally adjudicated or not. Thefather and husband of the plaintiffs died during the pendency of thefirst appeal. The grandfather and one grandmother also died duringthe pendency of the first appeal. Thereafter, their daughters werebrought on record as legal representatives. In view of the fact 521 S.A. 342-2017.odtsituation, what would be the share of the daughters is also anotherquestion that needs to be determined. It was a suit of partition. Primafacie, it appears that the First Appellate Court erred in determining theshares of the plaintiffs. The question as regards the paternity andpotency of the deceased father and the husband of plaintiffs were to bedetermined. There are two conflicting opinions of the two Courts onthe core questions involved in the case. Prima facie, it appears that theissues were required to be framed. Therefore, this Court is of the viewthat this is a fit case to exercise power under Order XLI Rule 23 of theCode of Civil Procedure. Hence, the appeal is remitted to the trialCourt for fresh decision on the following points/ issues. (i) Whether the suit properties were correctly described?(ii)Was there a partition in 1988 between the grandfather and thefather and husband of the plaintiffs?(ii)Whether the evidence of a doctor recorded in the proceedingunder Section 125 of the Cr.P.C was sufficient to prove thepotency of the husband and father of the plaintiff and was itadmissible in evidence in the absence of his fresh evidence.(iii)Did the father and husband of the plaintiff sell the suit lands for medical treatment of his impotency? 621 S.A. 342-2017.odt(iv)Whether plaintiff No.1 Sushma was the legitimate child of her father Nagnath.(v)Whether the plea of the deceased husband and father of the plaintiffs that his wife Naginabai had illicit relations with someone else and whether such a defence was admissible in theabsence of naming the person specifically with whom she had anillicit relationship?7.It is made clear that the parties are at liberty to lead the freshevidence and amend the plaint and written statement wherever thelaw permits. Hence, the following order:-ORDER(i) The appeal is allowed.(ii)The judgment and decree of the learned passed in R.C.S. No. 88of 2006 decided on 14.03.2008 and the judgment and orderpassed in R.C.A. No. 9 of 2008 dated 15.02.2017 are set-aside.(iii)The trial Court is directed to try the suit afresh considering theissues framed by this Court and other relevant issues if required. (iv) The learned Court of First Instance shall decide the suit within one year from the date of appearance of both parties before the Court of First Instance. 721 S.A. 342-2017.odt(v) Both parties are directed to appear before the Court of FirstInstance on 04.01.2024.(vi)Record and proceeding be returned to the Court of the firstinstance.(vii)All civil applications stand disposed of. ( S. G. MEHARE ) JUDGE ysk