sa476.16
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Second Appeal No. 476 of 2016
1. Maroti Kisan Giri
since dead, through
his legal heirs:
[a] Smt. Indirabai widow of Maroti
Giri,
since dead, through her
legal representatives:
[b] Sharad son of Maroti Giri,
aged 56 years,
occupation - cultivation,
[c] Sanjay son of Maroti Giri,
aged 51 years,
occupation - cultivation,
both residents of village Net,
Tq. Maregaon,
Distt. Yavatml.
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[d] Sau. Pramila wife of Praful Giri
aged 35 years,
occupation - Household,
resident of village Parsodi,
Post - Sarva,
Tq. Kalamb,
Distt. Yavatmal.
2. Smt. Saraswatibai Kisan Giri
[declared as dead], ..... Appellants
Defendants
Versus
1. Smt. Kantabai wife of Hari Giri,
aged about 75 years,
occupation - Agriculturist/Labour/
Household,
resident of village Net,
Tq. Maregaon,
Distt. Yavatmal.
.....Org. Plaintiff.
2. Sau. Kusum wife of Pramod Giri,
aged about 40 years,
occupation - Household,
resident of C/o Pramod Giri,
at Post Junona,
Tq. Seloo, Distt. Wardha.
.....Org. Defendant No.3. ..... Respondents
*****
Mr. S. D. Ingole, Adv., for the appellants.
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Mr. S. C. Bhalerao, Adv., for respondent no.1.
*****
CORAM : A.S. CHANDURKAR, J.
Date : 09th August, 2017 ORAL JUDGMENT:
01. Admit on the following substantial question of law:-
Whether the appellate Court has rightly apportioned the shares of the parties pursuant to the decree for partition?
Heard finally with consent of learned counsel for the parties. The respondent no.2 has been duly served with the notice issued earlier in the appeal.
02. Brief facts are that one Kisan Gosai was the common ancestor. He had married one Saraswatibai and they had three issues
- being one son and two daughters. One of the daughters - Kantabai filed a suit for partition and separate possession of the ancestral ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 01:35:57 ::: sa476.16 4 property against her brother and sister, claiming that the suit property was the self-acquired property of Kisan. In the Written Statement filed by the defendants, it was denied that the suit property was the self- acquired property of Kisan. It was pleaded that it was his ancestral property. The trial Court recorded a finding that the suit property was ancestral property and the plaintiff was entitled for a share in the same. Accordingly, it decreed the suit and granted half share to the defendant no.1 who was the son. It further granted 1/6th share each to the plaintiff and the defendant no.3 who were his sisters. Saraswati had expired during pendency of the proceedings.
03. Being aggrieved, the plaintiff filed an appeal claiming that she had 1/4th share in the suit property and that it was the self- acquired property of Kisan. The appellate Court set aside the decree passed by the trial Court and granted 1/4th share to the original plaintiff. The legal heirs of Maroti were granted half share in the suit property. Being aggrieved, the legal heirs of Maroti had filed the present appeal.
04. Shri S.D. Ingole, learned counsel for the appellants, submitted that the trial Court had rightly passed the decree by granting half share in the suit property to Maroti and 1/6th share to the ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 01:35:57 ::: sa476.16 5 original plaintiff and the defendant no.3. He submitted that there was no evidence to indicate that the suit property was the self-acquired property of Kisan and, in fact, it was an ancestral property. The appellate Court without coming to the conclusion that this finding was incorrect has reversed the decree. He submitted that there was no document to indicate that the suit property was the self-acquired property of Kisan. It was, therefore, submitted that the decree passed by the trial Court was liable to be restored.
05. Shri S.C. Bhalarao, learned counsel for the respondent no.1, supported the impugned judgment. According to him, the appellate Court rightly determined the shares of the parties. He submitted that the trial Court committed an error while adjudicating the manner in which Gat No.7 was to be partitioned. Similarly, the observations made with regard to Gat No.80 were also incorrect. According to him, this aspect was required to be considered by the executing Court. He, therefore, submitted that the judgment of the appellate Court did not call for any interference.
06. I have heard the learned counsel for the parties at length.
07. The trial Court after considering the evidence on record, and ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 01:35:57 ::: sa476.16 6 especially the documents at Exhs.70 to 72 recorded a finding that the suit property was an ancestral property. The documents at Exhs. 22 and 23 relied upon by the plaintiff were not accepted as they did not indicate that the suit property was the self-acquired property of the plaintiff. The evidence of the mother - Saraswatibai was also accepted while arriving at that conclusion. The first appellate Court, however, has not considered this finding nor has it held that said finding of the trial Court is incorrect or not based on evidence. Without reversing that finding, the appellate Court has reversed the decree of the trial Court. Such course was not permissible. Even otherwise, the evidence relied upon by the trial Court was sufficient to hold that the suit property was an ancestral property.
08. In so far as determination of respective shares is concerned, Saraswati expired during pendency of the suit. The property was, therefore, to be divided between the brother and two sisters. The trial Court, therefore, on the basis of notional partition granted half share to the defendant no.1 and 1/6th share each to the plaintiff and defendant no.3. This determination of share is legally correct once it is found that the suit property is ancestral property. The appellate Court erred in coming to the conclusion that the plaintiff was entitled for 1/4th share along with her sister. The substantial question of law is ::: Uploaded on - 16/08/2017 ::: Downloaded on - 17/08/2017 01:35:57 ::: sa476.16 7 answered by holding that the plaintiff and defendant no.3 would be entitled for 1/6th share each, while the defendant no.1 would be entitled for 4/6th share in the suit property.
09. In so far as the manner in which the shares in Gat Nos. 7 and 80 are to be determined, I find that this adjudication can be done by the executing Court by considering the provisions of the Maharashtra Prevention of Fragmentation & Consolidation Act, 1947 as well as the Maharashtra Tenancy & Agricultural Lands Act, 1958.
10. Hence the following order is passed:-
ORDER [a] Judgment of the appellate Court in Regular Civil Appeal No. 19 of 2006 dated 2nd August, 2016 is quashed and set aside.
[b] The suit as filed is decreed. The plaintiff and defendant no.3 are entitled to 1/6the share each in the suit property. The legal heirs of defendant no.1 are entitled to 4/6th share in the suit property.
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sa476.16 8 [c] Preliminary decree be accordingly drawn and precept be sent to the Collector for executing the decree.
[d] A separate enquiry be held for determining mesne profits.
11. Second Appeal is allowed in aforesaid terms with no order as to costs.
Judge
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