Bombay High Court
Smt. Shubhangi Nandakishor ... vs Shri Damodar Govind Gaidhani on 14 November, 2011
Bench: R. M. Borde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
APPELLATE JURISDICTION.
APPEAL FROM ORDER NO. 782 OF 2011
1. Smt. Shubhangi Nandakishor Gaidhani,
Age 52, Occupation Housewife and Agri.
2. Kumari Mansi Nandkishor Gaidhani,
Age Major, Occupation Housewife,
3. Kumari Monika Nandkishor Gaidhani,
Age Major, Occupation: Student,
All R/o. C/o. Sanjay Dattatraya Mane,
Block No.6, Trilok Co-operative Housing
Society, Nisarga Dattanagar, Behind
Bytco College, Nashik Road,
(now R/o Shantikrupa Apartment, Near
Jajlaxmi Hall, Dhongade Mala,
Opp. Muktidham, Nashik Road, Nashik. ... Appellants.
V/s.
1. Shri Damodar Govind Gaidhani,
Age: 83 years, Occupation: Pensioner.
2. Shri Arvind Damodar Gaidhani,
Age: 50 years, Occupation: Business,
Both r/o. Gaidhani Niwas, Tilak Path,
Nashik Road, Nashik.
3. Ramchandra Govind Gaidhani,
Age 87 years, Occupation: Pensioner,
R/o.Umewsh Dr.Ambedkar Road,
Nashik Road, Nashik.
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4. Shri Nanbhau Govind Gaidhani,
Age 83 years, Occupation Agricultural,
R/o. Palse, Tal. And Dist. Nashik.
5. Bhagwan Govind Gaidhani,
(since deceased through legal heirs)
5-A. Vikas Bhagwanrao Gaidhani,
(since deceased through legal heirs)
5-A1 Smt.Shoba Vikas Gaidhani,
Age 49 years, Occupation: Housewife,
5-A2 Shri Sunil Vikas Gaidhani,
Age 31 years, Occupation Service,
5-A3 Shri Sandip Vikas Gaidhani,
Age 31 years, Occupation Service,
All r/o. Flat No.8, Sanjeevani Apartment,
Near Mahajan Hospital Sane Guruji Nagar,
Pandharkar Colony, Jail Road, Nashik Road,
5-B Shri Vishwas Bhawanrao Gaidhani,
Age 56 years, Occupation:P Business,
r/o. Sanjeevani Apartment, Near Mahajan
Hospital Behind Church, Jail Road,
Nashik Road.
5-C Sau Rajani Sandep Bhiswas,
R/o. Niranjan Society, Near Christian Colony,
Brahagiri Society, Jail Road, Nashik Road.
5-D Sau.Puja Sham Desai,
Age 48 years, Occupation Service,
B44 Plot No.301, Shanti Nagar Sector,
Mira Ropa East, Dist. Thane.
6. Sou Usha Bhaskar Gunjal,
Age Major, Occupation Housewife,
R/o. Hirawadi Panchavati, Dist. Nashik.
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7. Sou. Mangal Eknath Patil,
Age Major, Occupation Housewife,
R/o. Lata Chamber, Raka Colony, Nashik.
8. Smt.Rekhabai Ramesh Mate,
Age Major, Occupation: Housewife,
r/o. Gaidhani Niwas, Tilak Path,
Nashik Road, Nashik.
9. Keshav Shamrao Gaidhani (deceased)
Through his Legal representatives:
9-1) Lilaba Keshavrao Gaidhani,
(since deceased through here legal heirs)
9-2) Meerabai Arun Davkhar,
Age 25 years,
9-3) Dnyaneshwar Keshav Gaidhani,
Age 24 years.
9-4) Anil Keshav Gaidhani,
(9-3 and 9-4 r/o. Palse Dist. Nashik,
And 9-2 is residing at Arun Keruji Davkhar
Tuljabhavani Industries Musalgaon,
MIDC, Musalgaon, Tal. Sinnar.
10. Shri Suresh Shamrao Gaidhani,
Age Major, Occupation Agricultural.
11. Shri Kantilal Shamrao Gaidhani,
Age Major, Occupation Agricultural.
12. Shri Bhausaheb Shamrao Gaidhani,
Age Major, Occupation Agricultural.
13. Smt.Rahibai W/o. Shamrao Gaidhani,
Age Major, Occupation Agricultural.
14. Shri Pundlik Sukdeo Gaidhani,
Age: Major, Occupation Agri.
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15. Shivram Soma Dhamale
(deceased through his legal representatives:
15-A) Chandrakant Shivram Dhamale,
Age 40 years, Occupation.
15-B) Rekha Bhanudas Khandekar,
Age Major, Occupation
15-C) Santosh Shivram Dhamale,
Age Major, Occupation
15-D) Digambar Shivram Dhamale,
Age Major, Occupation:
15-E) Sharad Shivram Dhamale,
Sr.No.16-A is mother and M/G of
Serial No.16D and 16E.
Nos.A, C and D r/o. Palse,
Tal. And Dist. Nashik..
Sr.Nos.B r/o. Cl/o. Bhanudas
Gangadhar Khandekar, Palaskhonde,
Tal. Sangamner, Dist. Ahmednagar. ... Respondents.
K.S.Dewal i/b. Roshan Tanna for the appellants.
S.K.Shinde i/b. Markand Panchakhari for respondent Nos.1 and 2.
P.D.Patil for respondent No.4.
G.M.Savagave for respondent Nos.16 to 18.
CORAM: R.M.BORDE, J.
DATED : 14th November 2011.
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ORAL JUDGMENT. :
Heard.
Admit.
With the consent of parties, appeal is taken up for final
disposal at the admission stage.
2. The appellant is taking exception to the judgment and
decree passed by the District Judge-3, Nashik in Regular Civil Appeal
No.1/2007 decided on 2nd May 2011. The appellants- original plaintiffs
instituted suit being Regular Civil Suit No.133/2000 claiming partition
and separate possession of movable and immovable properties. The
plaintiff No.1 is the widow of deceased Nandkishor Gaidhani and
daughter-in-law of defendant No.1- Shri Damodar Govind Gaidhani.
The plaintiff Nos.2 and 3 are the daughters of plaintiff No.1 out of
wedlock with deceased Nandkishor Gaidhani. Defendant No.2- Arvind
Gaidhani is the son and defendant Nos.6 and 7, namely Usha and
Mangal are daughters of defendant No.1. Defendant Nos.3 to 5 are the
brothers of defendant No.1. According to the plaintiffs, deceased
Nandkishor and defendant No.1 constituted a Hindu Joint Family.
Nandkishor, the husband of plaintiff No.1 died on 26th January 1993.
The other defendants were not maintaining the plaintiffs, as such, she
was compelled to reside separately. The plaintiffs claimed partition and
separate possession of the immovable property situated in villages
Deolali, Lakhalgaon, Palse and Amboli as well as movable property like
cash amount, ornaments etc. The defendants were served with the
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suit summons. They caused their appearance and resisted the suit.
Defendant Nos.6 to 15 failed to file their written statement, as such,
suit was proceeded ex parte against them. Defendant Nos.1 and 2
resisted the suit by filing their written statement. They admitted the
relationship between the parties. However, they contended that there
was love marriage of plaintiff No.1 with deceased Nandkishor and,
therefore, parents of plaintiff No.1 were opposed to the said marriage
and did not participate in the marriage ceremony. The plaintiff No.1
did not get Stridhan from her parental house. Defendant Nos.1 and 2
admitted death of Nandkishor, however, they denied that he was a
member of Hindu Undivided Family and that suit property is joint
family property. Defendant Nos.1 and 2 further admitted that
deceased Mhalsabai Govindrao Gaidhani disposed of property as
mentioned in Schedule-A by her last will dated 8th September 1989.
However, they contended that the land at Survey No.237A/13A,
237A/14 (plot No.14) and plot No.22 as mentioned in Schedule-A is
self acquired property of defendant No.1. He has purchased plot No.14
in the year 1957-58 in the name of Mhalsabai and with the help of
Mhalsabai constructed a building in the year 1960. Defendant No.1
has purchased plot No.22 in the year 1967 and defendant No.3 has half
share in the said open plot. The defendants denied that landed
property situated at village Lakhalgaon as mentioned in Schedule-B
was purchased by deceased Nandkishor and defendant No.2 and,
therefore, they have ½ share in the said property. Defendant Nos.1 and
2 further contended that defendant No.1 purchased the land block No.
298 in the name of his wife Lilavati and block No.303 in the name of
deceased Nandkishor and defendant No.2 and, thus, this property is
self acquired property of defendant No.1. It is further contended that
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Nandkishor was in service of private company since 1982 and he was
getting monthly salary of Rs.1,500/-. It is contended that Nandkishor
has never contributed the amount for purchase of the property. The
defendant No.1 has purchased properties in the names of his wife and
sons. He purchased a landed property at village Amboli out of the
amount which he received at the time of his retirement. Defendants
further contended that the lands situated as village Palse is ancestral
property and all the shareholders are cultivating the said land as per
their shares. So far as claim in respect of share in the cash amount as
well as in the ornaments is concerned, the same has been denied by the
defendants. Similarly, defendant Nos.3 to 5 have also filed their
written statement and contested the claim. All the defendant Nos.1 to
5 have prayed for dismissal of the suit.
3. The trial Court, after considering the evidence led by the
parties decreed the suit presented by the plaintiffs. The plaintiffs are
held entitled for partition and separate possession of deceased
Nandkishor's share in the property City Survey Nos.3750, 3245 and
3246 situated at village Deolali as noted in Will deed at Exh164. The
plaintiffs are also held entitled for partition and separate possession of
1/3rd share in the property Survey Nos.119-A/1, 119-B/1-17, plot No.
22 to the extent of half portion situated at village Deolali; land block
No.298 admeasuring 1 H. 77 R., land block No.303 admeasuring 2 H.
56 R. to the extent of 59R situated at village Lakhalaon and land block
No.191-B/1 to the extent of 2 H. 20 R. situated at village Amboli. The
plaintiffs are also held entitled for partition and separate possession of
1/3rd share in defendant No.1's s/5th share in the ancestral property
land block No.1109 admeasuring 48 R., land block No.1250
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admeasuring 87 R. and land block No.1339 admeasuring 1 H. 17 R.
situated at village Palse. Plaintiffs' claim in respect of movable property
has been dismissed by the trial Court.
4. The defendant Nos.1 and 2, being aggrieved by the
judgment and decree passed by the trial Court, preferred appeal being
Regular Civil Appeal No.1/2007 which came to be heard and disposed
of by the District Court, Nashik on 2nd May 2011. The first appellate
Court after considering the rival contentions of the parties was pleased
to allow the appeal and remitted the matter back to the trial Court with
direction to the plaintiff to add one Sakhubai and legal heirs of
deceased Sonubai as party defendants to the suit. It was also directed
to the trial Court to decide the suit afresh in accordance with the
provisions of law after impleadment of Sakhubai and legal heirs of
deceased Sonubai as party defendants.
5. The judgment and decree passed by the first appellate
Court is subject matter of challenge in this appeal from order. The only
substantial questions of law that arise for consideration are: (1)
whether the first appellate Court was justified in remitting the matter
back to the trial Court for reconsideration when neither of the
defendants raised the issue as regards the non-joinder of the necessary
parties to the suit? and (2) whether the order passed by the first
appellate Court remitting the matter back to the trial Court is in
conformity with the provisions of order 41 rule 23 of Code of Civil
Procedure, 1908 (C.P.C.)?
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6. I have perused the judgment and decree passed by the first
appellate Court and heard arguments advanced by the respective
counsel appearing for the parties.
7. The first appellate Court has referred to the cross-
examination of plaintiff No.1 at page 121 and observed that defendant
No.1 had two real brothers and one step brother and two sisters. The
immovable properties situated at village Palse is joint family property
and sisters of defendant No.1 will have a share in the property. It is
further observed that the trial Court has committed an error in passing
decree in favour of the plaintiffs in the absence of Sakhubai and legal
heirs of deceased Sonubai. In substance, the first appellate Court
proceeded to hold that the suit is bad on account of nonjoinder of
necessary parties. From the pleadings of the suit made available by
the parties, it is clear that none of the defendants have resisted the suit
on the ground of nonjoinder of the necessary parties. It was disclosed
to the Court that defendant No.1 had two sisters one Sakhubai and
other Sonubai who is already dead. In the absence of there being any
objection of nonjoinder of the necessary parties either in the written
statement or having been raised before the first appellate Court in the
memo of appeal, the first appellate Court, in my opinion, has erred in
allowing the appeal and directing the plaintiff to implead Sakhubai and
legal heirs of deceased Sonubai as party defendants to the suit. The
first appellate Court overlooked the fact that the trial Court while
ascertaining the shares admissible to the parties has taken into
consideration the share which can be allotted to Sakhubai as well as
legal heirs of deceased Sonubai. This aspect of the mater has been
considered by the trial Court while ascertaining the share allotable to
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the plaintiffs. I have made a specific query to the counsel appearing for
the parties as to whether impleadment of Sakhubai and legal heirs of
deceased Sonubai is likely to affect the ascertainment of share as has
been done by the trial Court. However, counsel for the parties have
fairly stated before me that there would be no change in the share
which can be allotted to the plaintiffs in spite of inclusion of Sakhubai
and legal heirs of deceased Sonubai. Thus, in my opinion, the first
appellate Court was not justified in remitting the matter back to the
trial Court in absence of there being any objection by any of the
defendants as against non-impleadment of the necessary parties to the
suit. The final outcome of the suit is also not likely to be affected as a
result of non-inclusion of Sakhubai and legal heirs of deceased
Sonubai.
8. The order passed by the first appellate Court remitting the
matter back to the trial Court is also not in consonance with the
principles laid down in rule 23 of order 41 of C.P.C. The appellate
Court should avoid unnecessary remand to the trial Court which
unnecessarily exhausts time and puts the parties to the hardship of
facing prosecution for years together. In the instant matter, in my
opinion, there is absolutely no need to remand the matter to the trial
Court and the first appellate Court could have decided the controversy
after going through the record and the evidence placed by the parties.
It is also to be noted that the first appellate Court has all the powers
which the trial Court has and the first appellate Court could have
exercised such powers for putting an end to the controversy.
9. This appeal from order, therefore, succeeds and stands
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allowed. The order passed by the District Judge-3, Nashik in Civil
Appeal No.1/2007 decided on 2nd May 2011 is quashed and set aside
and the matter is remitted back to the first appellate Court with
direction to deal with the appeal in accordance with the provisions of
law and in consonance with the observations made in this judgment.
Considering the pendency of the matter for a long duration, it would be
proper for the first appellate Court to decide the appeal as
expeditiously as possible, preferably, within a period of six months from
the date of receipt of writ of this order. In the facts and circumstances
of the case, there shall be no order as to costs.
10.
In view of disposal of this appeal, pending civil
applications do not survive and stand disposed of accordingly.
(R.M.BORDE, J.)
