sa460.04
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Second Appeal No.460 of 2004
1. Yadaorao son of Mahadeorao Umredkar,
aged about 60 years,
occ : business,
2. Wasudeo son of Mahadeorao Umredkar,
aged about 46 years,
occ : business,
being insane through Yadaorao
Mahadeorao Umrekar,
3. Ishwar Tikaram Umredkar,
aged about 35 years,
occ : business,
nos. 1 to 3 all residents of Bhishikar
Mohalla, near Itwari Post Office,
Itwari, Nagpur. ..... Appellants
Org. Deft. Nos.1 to 3
Versus
1. Smt. Yashodabai widow of Laxmanrao
Umredkar,
aged about 70 years,
occupation - Household,
2. Pandurang Laxmanrao
Umredkar,
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aged about 46 years,
occupation - Labourer,
3. Puurushottam Laxmanrao
Umredkar,
aged about 40 years,
occupation - service,
4. Dilip Laxmanrao
Umredkar,
aged about 38 years,
occupation - Tailor,
5. Rajesh Laxmanrao
Umredkar,
aged about 32 years,
occupation - Service,
all nos. 1 to 5 residents of
Bhishikar Mohalla, near
Itwari Post Office,
Itwari, Nagpur.
6. Smt. Kusumbai wife of Deonath
Bawane,
aged about 51 years,
occupation - Household,
resident of Wakodi Khapa,
Tq. Saoner, Distt. Nagpur.
7. Smt. Meenabai Shridhar Nandanwar,
aged about 43 years,
occupation - Household,
resident of Nawargaon,
Tq. Sindewashi,
Distt. Chandrapur.
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8. Chudaman Mahadeorao Umredkar,
aged 52 years,
occupation - business,
resident of Devidas Parate's
House, Naik Talao, Ward No.17,
Bangladesh, Nagpur.
....Org. Deft. Nos. 4 to 6.
9. Smt. Parbatibai Mahadeo Khapekar,
since deceased through L.Rs. :
9[i] Sau. Pramila Ganesh Mohadikar,
[Pramila Bokde],
resident of C/o Khanpise's House,
near Ramteke Kirana Stores,
behind Prince Decoration, in front
of Dr. Babasaheb Ambedkar Statue,
Hanuman Chowk, inside Shivaji
Nagar Gate, Gangabai Ghat Road,
Shivaji Nagar, Nagpur.
9[ii] Sau. Chanda Ashok Sadawarti,
resident of C/o Ashok Sadawarte,
Plot No.92, Galli No.2,
Vitthal Nagar,
Manewada Ring Road,
Nagpur-34.
9[iii] Smt. Baby Rambhau Sadavarti,
resident of C/o Ashok Sadawarte,
Plot No. 92, Galli No.2, Vitthal
Nagar, Manewada Ring Road,
Nagpur-34.
9[iv] Prabhakar Mahadeo Khapekar,
resident of near Bhawani Mata Mandir,
Koshtipuura, Pardi,
Bhandara Road, Nagpur.
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10. Waman Baburao Pathrabe,
aged 58 years,
occupation - business,
resident of behind Bata Company,
near Radhabai Pathrabe's House,
Khapripura, Itwari, Nagpur-2. ..... Respondents.
*****
Mr. A. M. Ghare, Adv., for the appellants.
Mr. D. G. Paunikar, Adv., for respondent nos. 1 to 7.
*****
CORAM : A.S. CHANDURKAR, J.
Date : 16th January, 2018 ORAL JUDGMENT:
01. This appeal has been preferred by the original defendant nos. 1 to 3 who are aggrieved by the decree for partition and separate possession passed by the appellate Court.
02. The facts relevant for adjudication of the appeal are that it is the case of the respondent nos. 1 to 7 - original plaintiffs that one Narayan was the owner of House No. 225 which is the suit property. Said Narayan was married with one Mainabai; but they had no issues. After the death of Narayanrao, the suit property was inherited by the widow Mainabai and Maroti. Said Maroti from his first marriage had a ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 00:35:34 ::: sa460.04 5 son Mahadev and from his second marriage that was performed about fifty-five years before filing the suit he had two sons, namely Ramkrishna and Laxman. According to the plaintiffs, they being the legal heirs of Laxman were entitled for a share in the joint family property being House No. 225. Hence, a suit seeking one-third share after partition came to be filed.
03. In the Written Statement, the legal heirs of Mahadev opposed the suit. They took the stand that as Narayan and his wife were issueless, their father Mahadev had been adopted by the couple. Hence, they alone were entitled to the suit property. Other defendants also filed their Written Statement.
04. The trial Court after considering the evidence on record held that the plaintiffs had failed to prove that the suit property was a joint family property. On that count, the suit came to be dismissed. The appellate Court after re-considering the evidence found that after the death of Narayan, the suit property was inherited by his widow and Maroti who was his brother. The plaintiffs being sons of Laxman who was the son of Maroti had a right in the suit property. Accordingly, the suit was decreed and plaintiffs were granted one-third share in the suit property. Being aggrieved, the defendant nos. 1 to 3 have filed this ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 00:35:34 ::: sa460.04 6 Second Appeal.
05. The following substantial questions of law were framed while admitting the appeal :
"1. Whether the first appellate Court has fell in error in holding that Maroti was brother of Narayan in absence of the pleadings?
2. Whether the appellate Court also fell in error in holding that plaintiff was entitled to possession in absence of proof of relation of the plaintiff with deceased Narayan?
06. Shri A. M. Ghare, learned counsel for the appellants, submitted that in absence of any pleadings in the plaint to indicate the relationship between Maroti and Narayan, the first appellate Court could not have granted share to the original plaintiffs on the assumption that they were the successors of Maroti. He referred to the averments in the plaint and submitted that pleadings in that regard were conspicuously absent. The trial Court rightly found that the plaintiffs were not entitled to claim any share in the suit property and as the appellants were the successors of Mahadev, they alone were entitled to the suit property. Relying upon the judgment of the Honourable Supreme Court in Rajgopal (dead) by L.Rs. Vs. Kishan Gopal & another [AIR 2003 SC 4319] and that of Karnataka High Court in Smt. Nalini Sunder Vs. Sri G.V. Sunder [AIR 2003 ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 00:35:34 ::: sa460.04 7 Karnataka 86], it was submitted that in absence of any pleadings, no relief could be granted to the original plaintiffs.
Referring to Civil Application No. 38 of 2018, it was submitted that the plaintiffs claiming through Laxman had no right in the suit property as Ramkrishna and Laxman were the issues of Maroti from his second wife. As the said marriage was void, the plaintiffs could claim entitlement only in the share of the properties that were self-acquired and not in the ancestral properties. In that regard, the learned counsel placed reliance on the decisions in [1] Neelamma & others Vs. Sarojamma & others [ (2006) 9 SCC 612] and [2] Bharatha Matha & another Vs. R. Vijaya Renganathan & others [ (2010) 11 SCC 483]. It was submitted that this substantial question of law also arose for consideration.
O7. Shri D. G. Paunikar, learned counsel for respondent nos. 1 to 7 - plaintiffs, supported the impugned judgment. According to him, the pleadings as made in the plaint were not specifically denied by the defendant nos. 1 to 3. On the contrary, the defendant no.1 in his deposition clearly admitted that Narayan and Maroti were brothers. In view of this clear admission, the appellate Court did not commit any error in taking this piece of evidence into consideration for decreeing the suit. He referred to the Written Statement as well as the evidence ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 00:35:34 ::: sa460.04 8 on record and submitted that the relationship between Narayan and Maroti was never challenged in the cross-examination of the plaintiffs' witnesses. It was, thus, submitted that the first appellate Court rightly decreed the suit.
As regards the additional question sought to be urged on behalf of the appellants, it was submitted that in the plaint itself, it was pleaded that the second marriage of Maroti had taken place about fifty-five years prior to filing of the suit. The suit was filed on 12th September, 1994 and it was, thus, clear that the second marriage was contracted before the Hindu Marriage Act, 1955 [for short, "the said Act"] came into operation. Relying on the decisions in [1] Smt. Chandramathi K. & another Vs. Smt. B. N. Usha Devi & another [ AIR 2013 Karnataka 1], [2] Ganduri Koteshwaramma & another Vs. Chakiri Yanadi & another [ 2011 (4) CCC 125 (SC], and [3] Union of India & another Vs. V.R. Tripathi [ 2016 (3) Mh. L.J. 913], it was submitted that second marriage in question could not be said to be void.
08. I have heard the learned counsel for the parties at length and with their assistance, I have perused the records of the case.
09. In the plaint, it was pleaded that Narayan was the owner of ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 00:35:34 ::: sa460.04 9 the suit property. After his death, the same was inherited by his widow Mainabai and Maroti. Mainabai thereafter expired intestate and, thus, the suit property devolved on Maroti. It was further pleaded that Maroti had married twice and the plaintiffs were claiming through the issues from the second marriage. In the Written Statement, it was pleaded that Maroti did not have any right in the suit property and it was held by Mainabai and Mahadev after the death of Narayan. It was pleaded that Narayan and Mainabai had adopted Mahadev and hence the legal heirs of Mahadev alone were entitled to succeed to the suit property. The plaintiffs examined Plaintiff No.3 below Exh.49. He deposed on the basis of the plaint averments. In his cross- examination, he stated that there was no document to show the manner in which the property devolved on Maroti after the death of Narayan and Mainabai. On behalf of the defendants, the defendant no.1 was examined at Exh.66. In his cross-examination, he admitted in clear terms that Narayan and Maroti were brothers and that Narayan had no issues. It is on the basis of this admission that the first appellate Court found that the plaintiffs who were the grand-sons of Maroti were entitled to inherit his property. From the pleadings and evidence on record, it can be seen that though it was not pleaded in very clear terms that Narayan and Maroti were brothers, in the light of the clear admission of defendant no.1 that they were, in fact, brothers, ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 00:35:34 ::: sa460.04 10 the contention as sought to be urged on behalf of the appellants that the first appellate Court was not justified in holding Maroti to be the brother of Narayan in absence of pleadings was erroneous cannot be accepted. It would have been a different matter if there was no admission on the part of defendant no.1 with regard to the relationship between them. However, when the defendant no.1 had clearly admitted that Narayan and Maroti were brothers, the absence of specific pleadings in that regard pales into insignificance. It is not the case that there was no pleading, whatsoever, in respect of Maroti in the plaint. It had been pleaded that after the death of Narayan, the suit property was inherited by his widow Mainabai and Maroti. When these pleadings are read along with the admission of defendant no.1 in his cross-examination, it cannot be said that the first appellate Court committed an error in holding that Narayan and Maroti were brothers. In that view of the matter, in the facts of the present case, the decisions in Rajgopal and Smt. Nalini Sunder [supra] do not assist the case of the appellants. The substantial questions of law as framed are, thus, answered by holding that the first appellate Court did not commit any error in holding that Maroti was the brother of Narayan in absence of any pleadings or that the plaintiffs were entitled to possession despite absence of proof of relationship of the plaintiffs with Narayan.
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10. As regards the findings of the second marriage of Maroti, it is to be seen that in the plaint it was specifically pleaded that Maroti had contracted a second marriage about fifty-five years prior to filing of the suit. As noted above, the suit was filed on 12th September, 1994. These contents of paragraph 2 of the plaint were not disputed by the defendant nos. 1 to 3. It is, thus, clear that the second marriage was contracted sometime in the year 1939 or so. The said Act came into force in the year 1955. As per Section 11 of the said Act, any marriage solemnized after the commencement of the said Act would be null and void and such declaration can be sought if the marriage contravenes any of the conditions specified in Section 1 (I),
(iv) and (v) of the said Act. As per Section 5 (I), neither party should have a spouse living at the time of the marriage. Considering the fact that it is an admitted position on record that Maroti had contracted his second marriage prior to coming into force of the said Act, the contention that the plaintiffs were the children from a void marriage and, thus, illegitimate cannot be accepted. If the second marriage would have been contracted during the subsistence of the first marriage after the Act came into force, it would have been a different matter. Hence, the aspect of voidness of the second marriage does not arise for consideration. After considering the decisions sought to be ::: Uploaded on - 25/01/2018 ::: Downloaded on - 26/01/2018 00:35:34 ::: sa460.04 12 relied upon by the appellants, I do not find that any substantial question of law in that regard falls for consideration.
11. As a result of the aforesaid discussion, the judgment of the first appellate Court stands confirmed. Second Appeal stands dismissed with no order as to costs.
12. At this stage, learned counsel for the appellants seeks continuation of interim relief. This request is opposed by the learned counsel for the respondents. As the interim relief was operating since 5th October, 2004, it shall continue to operate for a period of eight weeks from today and shall cease to operate thereafter automatically.
Judge
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