Bombay High Court
Bharat Raghunath Lanjewar And 4 Others vs Raghunath S/O. Kisan Lanjewar And ... on 22 May, 2026
1 19 SA 308.12 (J).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO.308 OF 2012
1] Bharat Raghunath Lanjewar,
Aged 28 years, Occupation,
R/o. Nimba, Tahsil-Kamptee,
District-Nagpur.
2] Smt. Rukhmabai w/o Raghunath
Lanjewar, Aged 58 years,
Occupation-Agriculture Labour,
R/o. Nimba, Tahsil-Kamptee,
District-Nagpur.
3] Sau. Vandana w/o Prakash Bhanare,
Aged 32 years, Occupation-Household,
R/o. Telipura Khewta, Itwari, Nagpur.
4] Sau. Sunita w/o Prakash Dorle,
Aged 30 years, Occupation-Household.
R/o. Binaki Mangalwari, Nagpur.
5] Lalita w/o Sanjay Dhawde,
Aged 28 years, Occupation-Household,
Tahsil-Khewta Colony, Telephone Exchange
Chowk, Nagpur. ..
Appellants
.. Versus ..
1] Raghunath s/o Kisan Lanjewar,
R/o. Plot No.1 and 2, Swagat Nagar,
Near Believers Church, Bhandewadi,
Pardi, Nagpur.
2] Smt. Jayawantibai w/o Hansraj Gajbhiye,
Aged Major, R/o. Nimba, Tahsil-Kamptee,
District-Nagpur. ..
Respondents
2 19 SA 308.12 (J).odt
Shri P.C. Marpakwar, Advocate for Appellants.
Shri A.A. Sambaray, Advocate for Respondents
CORAM : ROHIT W. JOSHI, J.
DATE : 22.05.2026.
1. The present Second Appeal arises out of judgment and decree dated 24.4.2009 passed by the learned 5th Joint Civil Judge, Senior Division, Nagpur in Special Civil Suit No.351/2006 and judgment and decree dated 2.8.2011 passed by the learned District Judge-4, Nagpur in Regular Civil Appeal No.339/2009.
2. The appellants are the original plaintiffs. The respondents are original defendants. The parties will be referred as plaintiffs and defendants hereinafter.
3. The plaintiff no.1 is son, plaintiff no.2 is wife and plaintiff nos.3 to 5 are daughters of the defendant no.1. The defendant no.1 had agreed to sell part of the suit property bearing Survey No.124 admeasuring 0.81 H.R., and survey No.125/2 ad- measuring 0.30 H.R., to the defendant no.2 vide agreement of sale dated 29.6.1989. The defendant 3 19 SA 308.12 (J).odt no.2 has filed a suit for specific performance of contract against the defendant no.1 which was registered as Special Civil Suit No.428/1989. This suit for specific performance of contract was decreed by the learned 4th Joint Civil Judge, Senior Division, Nagpur, vide judgment and decree dated 14.3.1991. Appeal preferred by the defendant no.1, being Regular Civil Appeal No.293/1991 was partly allowed by setting aside the decree for specific performance of contract and granting a decree for refund of consideration. The defendant no.2 preferred Second Appeal No.105/1996 before this Court which came to be allowed on 1.12.2005. This court has confirmed the decree for specific performance of contract passed by the learned Trial Court.
4. In this backdrop the plaintiffs who are son, wife and daughters of the defendant no.1/vendor filed a suit for partition and separate possession in which the sale transaction interse between the defendant nos.1 and 2 is also challenged on the ground of the sale being without legal necessity. 4 19 SA 308.12 (J).odt The case of the plaintiff is that the suit property is ancestral property and that in the absence of any legal necessity, the defendant no.1 acting as Karta could not have alienated the same in favour of the defendant no.2. The defendant no.1 filed written statement admitting that the suit property was an ancestral property. The defendant no.2/purchaser filed his written statement opposing the suit. The defendant No.2 denied the claim of the plaintiffs. She made reference to findings recorded in the suit for specific performance of contract filed by her against the defendant No.1 wherein it was held that the transaction was entered into by the defendant No.1 acting as Karta of the family in order to satisfy legal necessity.
5. Based on rival pleadings, the learned Trial Court framed the issues and recorded evidence of the parties. The defendant nos.1 and 2 did not enter the witness box. The learned Trial Court held that the suit properties were ancestral properties and further held that the plaintiff had established his right over the suit properties bearing Gat No.59 5 19 SA 308.12 (J).odt which was included in Schedule B of the plaint. Decree for partition and separate possession accordingly came to be passed only with respect to suit property bearing Gat No.59. The suit was dismissed with respect to land bearing Gat No.124, ad-measuring 0.81 HR and Gat No.125/2 admeasuring 0.30 HR.
6. The learned Trial Court has held that the issue as to whether the sale deed was executed by defendant no.1 for legal necessity or not had assumed finality between the parties in the earlier suit for specific performance of contract and the same operated as res judicata. The learned Trial Court accordingly dismissed the suit with respect to land bearing Gat No.124/1 and 125/2 which were subject matter of agreement of sale between defendant nos.1 and 2 and passed a decree for partition and separate possession with respect to land bearing Survey No.59. The prayer for declaration that the judgment and decree in suit for specific performance of contract was not binding on the plaintiff is rejected. Likewise, the prayer for 6 19 SA 308.12 (J).odt preemption with respect to land bearing Gat No.124/1 and 125/2 is also rejected.
7. Aggrieved by aforesaid decree, the plaintiff preferred appeal being Regular Civil Appeal No.339/2009. The learned First Appellate Court has dismissed the appeal by maintaining the judgment and decree passed by the learned Trial Court. The learned first Appellate Court has observed that the challenge to the decree passed in a suit for specific performance was premature since the agreement had not fructified into a completed sale transaction since sale deed was not registered.
8. In this backdrop, the original plaintiffs have preferred the present Second Appeal challenging the aforesaid decree passed by the learned Trial Court. The subject matter of the Second Appeal is restricted to the suit properties bearing Gat No.124 and 125/2 which are subject matter of the agreement of sale and suit for specific performance.
7 19 SA 308.12 (J).odt
9. The Second Appeal came to be admitted vide order dated 22.4.2016 on the following substantial questions of law :
(1) Whether the Judgment and decree passed in earlier proceeding between the Respondent No.1 and 2 bearing RCS No.408/1989 for specific performance of contract an execution thereof is pending for execution of sale deed through Court amounts to alienation.?
(2) Whether the Appellate Court has considered the scope and effect of Section 6 of the Hindu Succession Act, as amended by Hindu Succession (Maharashtra Amendment) Act, 1994 and Section 6 of the Hindu Succession (Amendment) Act, 2005, which confers the status of coparcener on a daughter from the date of her birth.?
Substantial question of law No.1 :
(1) Whether the Judgment and decree passed in earlier proceeding between the Respondent No.1 and 2 bearing RCS No.408/1989 for specific performance of contract an execution thereof is pending for execution of sale deed through Court amounts to alienation.?
10. This question arises for consideration in the peculiar backdrop of facts were the defendant no.1, as vendor, had entered into an agreement of sale with respect to the suit property 8 19 SA 308.12 (J).odt with the defendant No.2 as purchaser, and the property is found to be an ancestral property and suit for specific performance filed by defendant No.2 came to be decreed against the defendant No.1. The plaintiffs filed a general suit for partition in which the transaction between defendant Nos.1 and 2 is also challenged. The learned First Appellate Court has held that since sale deed is not executed and registered pursuant to decree for specific performance is not maintainable since the sale is not completed. It is held that right of co- paceners to challenge alienation accrues only once the property is alienated.
11. Having regard to the aforesaid the first substantial question of law is rephrased as under:-
"Whether a coparcener has a right to challenge a decree for specific performance of contract passed against Karta of the family with respect to a joint hindu family property although sale deed is not executed in terms of decree for specific performance?"
12. The defendant no.1 is the eldest male member and Karta of the family. The defendant no.2 filed suit for specific performance against the 9 19 SA 308.12 (J).odt defendant no.1 which has been decreed. The plaintiffs want to avoid the transaction between the defendant nos.1 and 2 and had accordingly impugned the transaction in a general suit for partition which includes properties other than the properties forming subject matter of agreement of sale between defendant Nos.1 and 2 with respect to which decree for specific performance is passed.
13. It is well settled that a Karta of does not have absolute right to alienate properties of Joint Hindu Family. However, he has a qualified right to transfer ancestral properties in case of legal necessity, discharge of debt etc. It is also well settled that alienation of ancestral properties by Karta is not void ab initio even in the absence of legal necessity. A coparcener is required to challenge an alienation of property by Karta and have it set aside if the alienation is not for reason sufficient to authorise a Karta to alienate ancestral property. The alienation can be challenged in a general suit for partition or by filing a suit limited for challenging the alienation.
10 19 SA 308.12 (J).odt
14. In a suit for specific performance of contract, the Court adjudicates upon right of the plaintiff to purchase property forming subject matter of the agreement. Once the suit is decreed, the plaintiff is entitled to sale deed with respect to suit property. In the event the defendant does not execute sale deed in compliance of decree, the same can be executed and registered through process of Court. The title is transferred upon execution and registration of sale deed.
15. It is well settled that alienation of ancestral property by a Karta can be questioned in a general suit for partition. When a coparcener does not agree with act of a Karta of entering into agreement of sale with respect to an ancestral property he will be well within his right to institute a suit for partition. In order to file such a general suit for partition, the coparcener need not wait till the sale transaction being completed. Sale of an ancestral property is not a conditition precedent for finling suit for partition. A coparcener can file a suit for partition as and when he deems it appropriate 11 19 SA 308.12 (J).odt to have his share separated. In a suit for partition all the properties of the family will have to be included, which implies that properties forming subject matter of agreement of sale by Karta will also have to be included. In cases where a Karta enters into agreement of sale with respect to ancestral property, right to institute suit for partition cannot be deferred till completion of the transaction of sale. In the considered opinion of this Court, the learned First Appellate Court has erred in holding that the suit was premature and without cause of action with respect to suit properties forming subject matter of agreement of sale between defendant No.1 as Karta/vendor and defendant No.2 as purchaser.
16. The fact that a Karta enters into agreement of sale, in the opinion of a coparcener without legal necessity, that by itself will offer the coparcener a right to institute suit for partition. In such suit for partition, a challenge that the alienation of property sold by Karta was not for legal necessity can be raised. In case of agreement 12 19 SA 308.12 (J).odt of sale without legal necessity, which is not fructified into a sale deed, the coparcener may well institute a suit for partition based on his apprehension that the coparcenery properties are not safe and may be alienated without legal necessity by the Karta. Such act of Karta entering into agreement of sale can offer a coparcener right to file a general suit for partition.
17. The suit filed by the plaintiff is, therefore, maintainable as the agreement of sale and subsequent decree for specific performance did offer a cause of action to institute the suit for partition. In this suit for partition it was necessary to decide the question of legal necessity or such other cause authorizing the Karta to sell the suit property or as in the present case enter into agreement of sale with respect to suit property. The first substantial question of law is answered accordingly.
Substantial question of law No.2 Whether the Appellate Court has considered the scope and effect of Section 6 of the Hindu Succession Act, as amended by Hindu Succession 13 19 SA 308.12 (J).odt (Maharashtra Amendment) Act, 1994 and Section 6 of the Hindu Succession (Amendment) Act, 2005, which confers the status of coparcener on a daughter from the date of her birth?
18. The second substantial question of law pertains to Section 29-A of the Hindu Succession Act, 1956. The Hindu Succession Act, 1956 was amended with respect to its applicability to the State of Maharashtra vide Hindu Succession (Maharashtra Amendment) Act by introducing Section 29-A which provided that a daughter in a Joint Hindu Family was entitled to right in ancestral properties as a coparcener if her marriage is solemnized after commencement of the said Act which came into force on 22.6.1994. It will also pertinent to state that since then Section 6 of the Hindu Succession Act, 1956 is also amended by virtue of Hindu Succession (Amendment) Act, 2005 which has come into force with effect from 9.9.2005. The amended provision confers status of a coparcener on a daughter from the date of her birth. The second substantial question of law is therefore modified as under :
14 19 SA 308.12 (J).odt (2) Whether the Appellate Court has considered the scope and effect of Section 6 of the Hindu Succession Act, as amended by Hindu Succession (Maharashtra Amendment) Act, 1994 and Section 6 as amended by Hindu Succession (Amendment) Act, 2005, which confers the status of coparcener on a daughter from the date of her birth.?
19. As stated above, the dispute in the Second Appeal is restricted the properties which form subject matter agreement of sale dated 14.12.198 and decree for specific performance passed in favour of defendant No.2 on 14.3.1991. The decree is since then confirmed by this court vide judgment dated 01.12.2005. As per proviso to Section 6 of HSA, alienations made prior to 20.12.2004 are not subject to the amended provisions of Section 6. Likewise, as per Section 29-A of HSA as introduced by the Maharashtra amendment, daughter is entitled to share in ancestral property if her marriage is solemnized after 22.06.1994. In view of these provisions it is required to be considered as to from which date the decree for specific performance of contract will become effective since the said issue will have bearing on the share of parties with respect to the 15 19 SA 308.12 (J).odt properties forming subject matter of agreement of sale.
20. This Court has in the case of Prataprai Trambaklal Mehta Vs. Jayant Nemchand Shah, reported in 1996 (2) Mh.L.J 885 held that when a suit for specific performance of contract is decreed in favour of the plaintiff, the title of plaintiff relates back to the date of agreement. Similar view is taken by the Punjab High Court in the case of Gurdial Singh and ors Vs. Sewa Singh and ors., reported in AIR 1973 P&H 254.
21. The agreement in question is dated 14.03.1988 and decree for specific performance is passed on 14.03.1991. Both these dates are prior to introduction of Section 29-A as also amended Section 6 of the Hindu Succession Act. Although the title will finally pass in favour of defendant No.2 only upon registration of sale deed pursuant to decree for specific performance passed in her favour, the decree will relate back to the date of agreement or at best from the date on which 16 19 SA 308.12 (J).odt decree for specific performance is passed by the learned Trial Court.
22. In case of alienation of property by a Karta with respect to ancestral property it is found that the same was without legal necessity still the the alienation will be valid to the extent of share of the Karta as on the date of alienation and not the share that he may be entitled to on the date of decree for partition. Legal position in this regard is settled by Full Bench judgment of this Court in the case of Sakarchand Satidas Vs. Narayan Salva Vani and ors, reported in AIR 1951 BOM 10.
23. It is, therefore, necessary to determine the share of the defendant no.1-Karta/Vendor as on the date of agreement or the date on which the decree for specific performance was passed. As on the said date, there were two coparceners in the family namely plaintiff and defendant no.1 and wife of the Karta/defendant no.2. It is well settled that in a partition of joint hindu family property, the wife of Karta is also entitled to one share equal to share of 17 19 SA 308.12 (J).odt coparceners. In view of the aforesaid, as on the date of agreement and even as on the date of decree for specific performance by the learned Trial Court, the plaintiff nos.1 and 2 and defendant no.1 will have 1/3rd share each in the suit property. It is well settled that alienation of suit property by Karta is valid to the extent of his share, even if it is without legal necessity. The 1/3rd share of the defendant no.1 Vendor must go to the defendant no.2 who is the purchaser. It is also well settled that in case of alienation of undivided property by a coparcener, in a suit for partition, if possible, the property alienated by the coparcener should be allotted to his share and the same should then be allotted to the purchaser.
24. Since Section 29-A and amended Section 6 of HSA have come into force after the date of agreement of sale and decree for specific performance passed by the learned Trial Court, the share of defendant No.2 in the properties forming subject matter of agreement with respect to which decree for specific performance is passed will have 18 19 SA 308.12 (J).odt to be determined ignoring the said provisions. Substantial question of law No.2 is decided accordingly.
25. The learned Trial Court has held that the findings recorded in the earlier suit for specific performance will amount to res judicata and has accordingly upheld the sale transaction between the defendant nos.1 and 2. The learned First Appellate Court has recorded that the decree for specific performance did not amount to alienation since sale deed was not executed pursuant to decree for specific performance. Thus, the issue of legal necessity is not dealt with by the learned Courts.
26. The plaintiff No.1, who is a coparcener is entitled to share in the coparcenary property since birth in his individual right. He does not claim the property through his father, the defendant No.1. Plaintiff No.1 was not party to earlier suit for specific performance. In view of the above, following additional substantial questions of law are required to be framed in the appeal:-
19 19 SA 308.12 (J).odt I. Whether plaintiff No.1 claims right in the suit property which according to him is an ancestral property through his father, defendant No.1 or in his individual right as a coparcener?
II. Whether finding with respect to legal necessity recorded in suit for specific performance of contract filed by defendant No.2 against defendant No.1 i.e. Special Civil Suit No.428 of 1989 operate as res judicata in subsequent suit for partition filed by the plaintiffs although they are not parties to the earlier suit for specific performance?
27. List the appeal for further consideration on 09.06.2026.
28. Since the order is pronounced during vacation and learned advocates for the respective parties are not present, Office is directed to sent a separate communication to the respective learned advocates who are not present on their registered email address and cell phone numbers.
(ROHIT W. JOSHI, J.) Gulande/TANMAY