J-SA-450-15 1/8
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.450 OF 2015
1. Megha w/o Raju Choudhari
aged 33 years, Occ. Cultivator,
R/o Shegaon, Tahsil Samudrapur,
Dist. Wardha.
2. Rahul s/o Vinayakrao Deshmukh,
Aged about 24 years, Occ. Cultivator
3. Asha wd/o Vinayakrao Deshmukh,
Aged about 55 years, Occ. Household,
Nos.2 and 3 both are R/o Talegaon (Talatule)
Tahsil and Dist. Wardha. ... Appellants
-vs-
1. Shantabai wd/o Vinayakrao Deshmukh,
Aged 65 years, Occ. Household, R/o Deulgaon,
Tahsil : Seloo, Dist. Wardha.
2. Pramila w/o Vitthalrao Wele,
Aged about 52 years, Occ. Household,
C/o Shobha Shankarrao Pohane,
R/o at Post Talegaon (Talatoli)
Tah. And Dist. Wardha. ... Respondents.
Shri A. C. Dharmadhikari, Advocate with Ms R. Jog, Advocate for appellants.
Shri K. R. Lule, Advocate for respondent No.1.
CORAM : A. S. CHANDURKAR, J.
DATE : AUGUST 10, 2017 Oral Judgment :
This appeal under Section 100 of the Code of Civil Procedure, ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 01:29:42 ::: J-SA-450-15 2/8 1908 has been filed by original defendant Nos.1 to 3 who are aggrieved by the decree for partition and separate possession passed by the trial Court and maintained by the Appellate Court.
2. Facts relevant for adjudication of this appeal are that one Harbaji was the common ancestor. He had two wives Radhabai and Girjabai. Harbaji and Radhabai had a son Vinayak and a daughter Pramila. Girjabai however died issueless. Said Vinayak married the plaintiff Shantabai. He however subsequently contracted a second marriage with defendant No.3 Ashabai. Defendant Nos.1 and 2 are the children born out of the wedlock between Ashabai and Vinayak. Said Vinayak expired on 15/08/2001. Shantabai, the first wife had filed proceedings for grant of maintenance in which relief was granted to her. She thereafter filed suit for partition and separate possession.
3. Defendant Nos.1 to 3 took the stand that the suit properties were already partitioned on 05/01/1991 and respective shares were alloted to the legal heirs. On 08/07/1994 Girjabai had executed a Will in favour of defendant No.2 in respect of two lands and on that basis defendant No.2 had become an exclusive owner thereof.
4. The trial Court after considering the evidence on record held that ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 01:29:42 ::: J-SA-450-15 3/8 the defendants had failed to prove the oral partition. It further held that the Will dated 08/07/1994 was also not proved. Accordingly the plaintiff was held entitled for partition and separate possession of 2/9th share in the suit property. The appeal filed by the said defendants was also dismissed. Hence this second appeal.
5. Ms R. Jog, learned counsel for the appellants submitted that the suit for partition and separate possession at the behest of Shantabai, first wife was not maintainable. Shantabai as a widow could not have filed the suit for partition for claiming the share in her husband's ancestral property. By placing reliance on judgment of learned Single judge in Ananda Krishna Tate, Thr.Lrs. Sanjay Anand Tate and ors. vs. Draupadibai Krishna Tate and ors. 2010(3) Mh.L.J. 631, it was submitted that Shantabai was not a co-parcener and the right to have a share in the ancestral property would accrue to her only if the co-parceners had decided to partition the suit property. No co-parcener had sought partition. She also referred to judgment of learned Single Judge in F. A. No.238 of 2011 decided on 22/10/2013 (Ushabai wd/o Vijaykumar Agrawal vs. Omprakash Rambilas Agrawal and ors.) following the earlier judgment in Ananda Krishna Tate (supra). It was then submitted that in Second Appeal Nos.119 and 405/2013 (Santosh Popat Chavan vs. Sulochana Rajiv) MANU/MH/2482/2014, the earlier judgment of learned Single Judge in ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 01:29:42 ::: J-SA-450-15 4/8 Ananda Krishna Tate (supra) has been held to have been rendered per incuriam. According to her, the learned Single Judge however did not notice the earlier judgment of the same Court in Ushabai Vijaykumar Agrawal (supra). It was pointed out that though this decision was challenged before the Honourable Supreme Court, the Spl. Leave Petition was dismissed but the question of law was kept open. Relying upon the judgment of Special Bench in State of Maharashtra and ors. vs. Murarao Malojirao Ghorpade and ors. 2009 (6) Mh.L.J. 788 it was urged that considering the aforesaid divergent views the matter needs to be referred to a larger bench. It was therefore also submitted that the decree passed by the trial Court was not sustainable.
6. Per contra, Shri K. R. Lule, learned counsel for the original plaintiff supported the decree passed by the trial Court. According to him, on the death of Vinayak, the succession would open thereby giving right to his widow to claim her share in the suit property. According to him, the judgment in Santosh Popat Chavan (supra) has correctly considered this question and it has been held that it was open for a widow to file a suit for partition and separate possession. He then submitted that both the Courts have rightly applied the correct legal position while holding in favour of the plaintiff. It was thus submitted that the plaintiff has been rightly granted a share in the property coupled with possession.
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7. I have heard the learned counsel for the parties on the following substantial question of law :
" Whether the suit for partition filed by the widow-Shantabai was maintainable ?"
8. The relationship between the parties is not in dispute. While plaintiff-Shantabai was first wife of Vinayak, defendant Ashabai was his second wife. Defendant Nos.1 and 2 were born out of the wedlock between Vinayak and Asha. It is also not in dispute that the suit properties are the ancestral properties of Harbaji. As regards the case of defendant Nos.1 to 3 that Girjabai had executed a Will on 08/07/1994 in their favour is concerned, both the Courts have held that this execution of Will has not been proved inasmuch as copy of said Will was itself not produced on record. This finding has been affirmed by the Appellate Court. The said finding does not call for any interference. The only question that remains is therefore the maintainability of the suit at the behest of Shantabai, the widow.
9. In Santosh Popat Chavan (supra) the question that fell for determination was whether a widow could file a suit on her own for claiming the share of her husband in the ancestral property of her husband's joint family in absence of other co-parceners in the family deciding the partition of joint family properties. After considering the judgment of learned Single ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 01:29:42 ::: J-SA-450-15 6/8 Judge in Ananda Krinshna Tate (supra) as well as the judgment of Honourable Supreme Court in Gurupad Khandappa Magdum vs. Hirabai Khandappa Magdum and ors. (1978) 3 SCC 833, it was held that a right having been given to a widow or a mother under the Hindu Succession Act, 1956, she could not be told that though she had a right to get a share, a suit for recovery of the share of her deceased husband could not be filed. After referring to other decisions of the Honourable Supreme Court it was further observed that the judgment of learned Single Judge in Ananda Krishna Tate (supra) was rendered per incuriam. This judgment in Santosh Popat Chavan (supra) was challenged before the Honourable Supreme Court and though the Special Leave Petition was dismissed, the question of law raised was kept open.
10. Though it is true that the learned Single Judge in Ushabai Vijaykumar Agrawal (supra) has followed the earlier decision in Ananda K. Tate, I find that the decision in Santosh P. Chavan (supra) has considered the decision in Ananda K. Tate (supra) and after referring to various decisions of the Honourable Supreme Court proceeded to hold that the judgment in Ananda K. Tate (supra) has been rendered per incuriam. As the entire law on the subject has been considered in the decision in Santosh P. Chavan (supra) which I find is in accordance with the law laid down by the Honourable Supreme Court, I do not find it necessary to further make a ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 01:29:42 ::: J-SA-450-15 7/8 reference to a larger bench in that regard. The learned Single Judge in Santosh P. Chavan (supra) has followed the law laid down by the Honourable Supreme Court and has accordingly held that the plaintiff-widow had a right to file a suit for partition to recover the share of her deceased husband. Hence reliance placed by the learned counsel for the appellant on the decision in Murarao Malojirao Ghorpade and ors. (supra) in these facts does not support the contention of the appellants.
11. In a recent decision in Ramnath Sao @ Ram Nath Sahu (since deceased) Thr. L.Rs. and ors. vs. Goberdhan Sao (since deceased) Thr. LRs. And ors. JT 2017 (3) SC 627, the Honourable Supreme Court after referring to its earlier decision in Gurupad Khandappa Magdum (surpa) reiterated the legal position that the share of the widow of a Hindu male co- parcener by virtue of notional partition stands recognized. Similarly in Cherotte Sugathan (D) by L.R.s and ors. vs. Cherotte Bharathi and ors. AIR 2008 SC 1467 it was held that a widow inherits the property of her husband on his death and would become its absolute owner. Subsequent remarriage would not divest her of the property in view of Section 14 of that Act. It is therefore clear that Shantabai had a legal right to file a suit for partition and separate possession as regards the share of her husband in the suit properties.
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12. In view of aforesaid legal position, the substantial question as framed is answered by holding that Shantabai had a right to file a suit for partition to claim the share of her deceased husband. Both the Courts have accordingly upheld her right and granted her 2/9th share in the suit property. In that view of the matter there is no merit in the second appeal which is liable to be dismissed. Accordingly second appeal stands dismissed with no order as to costs.
C.A.S. No.838 of 2015 stands disposed of accordingly.
13. At this stage learned counsel for the appellants seeks continuation of interim order of stay that was operating during pendency of the appeal.
Learned counsel for the respondent No.1 opposes the prayer. As the interim order was operating since 14/10/2015, the same shall continue to operate for a period of eight weeks from today. It shall cease to operate automatically thereafter.
JUDGE Asmita ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 01:29:42 :::