Bombay High Court
Tukaram Laxman Sonulkar And ... vs Tarabai Ramdas Malgunde And ... on 9 August, 2016
Bench: T.V. Nalawade
SA No. 573/2015
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
SECOND APPEAL NO. 573 OF 2015
WITH
CIVIL APPLICATION NO. 13138 OF 2015
WITH
CIVIL APPLICATION NO. 8880 OF 2016
WITH
CIVIL APPLICATION NO. 8881 OF 2016
WITH
CIVIL APPLICATION NO. 8882 OF 2016
WITH
CIVIL APPLICATION NO. 8883 OF 2016
ig WITH
CIVIL APPLICATION NO. 8884OF 2016
1] Tukaram S/o Laxman Sonulkar
Age: 47 years, Occ: Agriculture
R/o Gavhanewadi, Sonulkar Vasti
Tal. Shrigonda, District : Ahmednagar.
2] Balu S/o Laxman Sonulkar,
Age : 51 years, Occ: Agriculture
R/o Gavhanewadi, Sonulkar Vasti
Tal. Shrigonda, District : Ahmednagar. ....Appellants.
(Orig. Defendants)
Versus
1] Sau. Tarabi w/o Ramdas Malgunde
Age: 54 years, Occ: Agri & Labour
R/o Dhoksangavi, Post Nimgaon Bhogi
Tq. Shirur. District : Pune.
2] Gangubai W/o Laxman Sonulkar
Age: 86 years, Occ: Nil
R/o Ganji Bhoyare, Tal Parner
District Ahmednagar.
3] Shri. Dagadu Lahanu Sonulkar
Age: 93 years, Occ: Nil
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SA No. 573/2015
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4] Shri. Dadabhau Dagadu Sonulkar
Age: 75 years, Occ: Agri
5] Shri. Dnyandeo Dagadu Sonulkar
Age: 73 years, Occ: Agri
6] Shri. Shivaji Dagadu Sonulkar
Age: 58 years, Occ: Agri
7] Sau. Vimal Shivaji Sonulkar
Age: 53 years, Occ: Household
8] Sau. Deubai Dadabhau Sonulka
Age: 70 years, Occ: household
9]
Sau. Housabai Dnyandeo Sonulkar
Age: 68 years, Occ: Household
10] Shri. Vithoba Lahanu Sonulkar
Age: 91 years, Occ: Nil
11] Shri. Jaywanta Vithoba Sonulkar
Age: 78 years, Occ: Nil
12] Sau. Radhabai Jaywanta Sonulkar
Age: 73 years, Occ: Nil
13] Shri. Sukhdeo Vithoba Sonulkar
Age: 76 years, Occ: Nil
14] Sau. Nababai Sukhdeo Sonulkar
Age: 70 years, Occ: Nil
15] Shri. Gena Vithoba Sonulkar
Age: 72 years, Occ: Nil
16] Sau. Suman Gena Sonulkar
Age: 68 years, Occ: Household
17] Shri. Bhausaheb Sampat Sonulkar
Age: 48 years, Occ: Agriculture
18] Shri. Sandip Sampat Sonulkar
Age: 33 years, Occ: Agriculture
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SA No. 573/2015
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19] Shri. Rama Lahanu Sonulkar
Age: 85 years, Occ: Nil
20] Sau. Indubai Rama Sonulkar
Age: 78 years, Occ: Nil
21] Shri. Namdeo Rama Sonulkar
Age: 68 years, Occ: Agriculture
22] Shri. Chandar Rama Sonulkar
Age: 66 years, Occ: Agriculture
23] Shri. Ramdas Laxman Sonulkar
Age: 47 years, Occ: Agriculture
24]
Shri. Nivrutti Vithoba Sonulkar
Age: 70 years, Occ: Agriculture
25] Smt. Sonabai @ Ratanbai Chima Sonulkar
Age: 83 yeras, Occ: Nil
26] Shri. Sampat Chima Sonulkar
Age: 75 years, Occ; Agriculture
27] Shri. Sonba Chima Sonulkar
Age: 80 years, Occ: Agriculture
28] Shri. Bhau Baban Sonulkar
Age: 73 years, Occ: Agriculture
29] Shri. Dadabhau Baban Sonulkar
Age: 68 years, Occ: Agriculture
30] Shri. Kisan S/o Baban Sonulkar
Age: 63 years, Occ: Agriculture
31] Shri. Popat Sadashiv Sonulkar
Age: 61 years, Occ: Agriculture
32] Shri. Subhash Ananda Sonulkar
Age: 48 years, Occ: Agriculture
33] Shri. Bapu Sadashiv Sonulkar
Age: 53 years, Occ: Agriculture
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SA No. 573/2015
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34] Shri. Banan Sadashiv Sonulkar
Age: 73 years, Occ: Agriculture
35] Shri. Vilas Ananda Sonulkar
Age: 53 years, Occ: Agriculture
36] Shri. Anil Popat Sonulkar
Age: 33 years, Occ: Agriculture
37] Arun Manohar Makhare
Age: Major Occ: Agri
38] Sau. Sundarabai Balu Karhe
Age: Major Occ: Agri
39]
Sau. Anusaya Dattu Karhe
Age: Major Occ: Agri
40] Sachin Somnath Gavhane
Age: Minor, through his
Minor Guardian: Mother
Sau. Lata Somnath Gavhane
Age: Major Occ: Agri
Respondent Nos. 3 to 40 are
R/o Gavhanewadi, Solunkar Vasti
Tal Shrigonda, District Ahmednagar.
41] Hon. Managing Director,
Bajaj Tempo Ltd, Akurdi
Pune.
42] Shri. Jaywant Haribhau Wakhare
Age: 69 years, Occ: Agri
R/o Hingani, Tal. Shrigonda,
District Ahmednagar.
43] Shri. Sampat Prabhakar Kouthale
Age: 64 years, Occ: Agri
R/o Devdaithan, Tal. Shrigonda
District; Ahmednagar. ....Respondents.
( R. No. 1 is Original Plaintiff
and R. No. 2 to 43 are
Original defendant Nos. 3 to
43)
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SA No. 573/2015
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Mr. Niteen V. Gaware, Advocate for appellants.
Mr. R.R. Karpe, Advocate for respondent No. 1.
CORAM : T.V. NALAWADE, J.
DATED : 9th August, 2016.
JUDGMENT :
1) Appeal is admitted. Notice after admission is made
returnable forthwith. Learned counsel Shri. Karpe waives notice
for original plaintiff after admission. Heard both the sides for
final disposal.
2) In short, the facts leading to the institution of the
appeal, can be stated as follows :-
Regular Civil Suit No. 169/2002 was filed by Smt.
Tarabai against her brothers for relief of partition of ancestral
and Joint Hindu Family properties. Some defendants, defendant
Nos. 43 and 44 were the purchasers of some portion from
defendant Nos. 1 to 3.
3) It is the case of plaintiff that her father Laxman died
30 years back, after 1956 and her mother Sakhubai died in the
year 2001. It is contended that during lifetime of mother,
defendant Nos. 1 to 3, her brothers kept on promising that they
will give the share of plaintiff in the properties, but they avoided
SA No. 573/2015
to give the share. It is contended that when the plaintiff realized
that defendants are trying to deprive her of her share in the
properties, she demanded partition. It is contended that
defendants have refused to give her share and partition the
properties and so, cause of action took place for the suit. During
pendency of the suit, one sale deed was made in favour of
defendant Nos. 43 and 44 by defendant Nos. 1, 2, 5 to 7, 11, 20
and 26 and so, they were made parties. Prayer was made to set
aside the sale deed made in favour of defendant Nos. 43 and 44.
4) Defendant Nos. 1 and 2 filed written statement and
contested the suit. Defendant No. 43 also filed written statement
to contest the suit. The defendants contended that defendant
Nos. 1 and 2 had given Rs. 20,000/- to plaintiff as hand loan and
when they demanded back the money, false suit is filed. It is
also contended that some gold ornaments were given by mother
of defendant Nos. 1 and 2 to plaintiff and to avoid to return of
the ornaments, false suit is filed.
5) Issues were framed on the basis of aforesaid
pleadings. The Trial Court held that the amended provision of
section 6 of the Hindu Succession Act needs to be applied in
favour of plaintiff, sister and held that she is entitled to 1/4th
SA No. 573/2015
share in the properties. Equal share was given to brothers and
sister. The Trial Court protected the purchasers by refusing to set
aside the sale deed made in favour of purchasers. The First
Appellate Court in Regular Civil Appeal No. 60/2012, which was
pending in the Court of 4th District Judge, Ahmednagar modified
the judgment and decree and specifically directed to allot the
property to defendants which is already sold by defendants to
purchasers.
6) During arguments, it was submitted that widow of
Laxman is not alive. The learned counsel for appellants placed
reliance on the case reported as (2016) 2 Supreme Court
Cases 36 [Prakash and Ors. Vs. Phulavati and Ors.] and
submitted that the shares calculated by the Courts below are not
correct and shares need to be corrected as per the interpretation
made by the Apex Court in the case cited supra. In view of the
submissions made, following substantial question of law is being
considered in the present matter.
(i) Whether the plaintiff is entitled to have equal
share along with brothers in suit properties which are
admittedly ancestral and Joint Hindu Family properties
of Laxman, father of plaintiff ?
SA No. 573/2015
7) In the case cited supra, the Apex Court has laid down
that the amended provision of section 6 of the Hindu Succession
Act, 1956 as amended in the year 2005 is not retrospective in
operation. It is laid down that the provision applies in favour of
female member only when both coparcener and his daughter
were alive on the date of commencement of the Act i.e.
9.9.2005. In view of this circumstance, it needs to be presumed
that partition had opened at the time of death of Laxman and
whatever property was vested in other coparceners in view of
the previous position of Hindu Law remained as it is. Thus,
notional partition needs to be effected first amongst Laxman, his
wife and two sons. In such notional partition, Laxman would get
1/4th share. After the death of Laxman his 1/4th share can be
equally divided amongst his widow, two sons and one daughter.
So, in the partition in the share of Laxman, plaintiff would get
1/16th (1/4 x 1/4) share. As widow of Laxman was having her
own share as 1/4th share and she would get 1/16th share in the
property of husband, at the time of her death, she was having
5/16th share. This 5/16th share needs to be equally distributed
amongst two sons and one daughter. Thus, in this partition,
plaintiff gets 5/48th share. Thus, the plaintiff can get 1/16th +
5/48th share which comes to 8/48 i.e. 1/6th share. Each son
accordingly gets 20/48th share i.e. 5/12th share. Thus, the
SA No. 573/2015
appeal needs to be allowed partly to change the shares
accordingly.
8) In the result, appeal is partly allowed. The judgments
and decrees of the Courts below are hereby modified to make
the share of plaintiff as 1/6th share and share of each brother as
5/12th. The remaining part of the judgment and decree of the
District Court by which interest of the purchasers is protected
stands as it is. Decree is to be prepared accordingly. All civil
applications are disposed of.
[ T.V. NALAWADE, J. ]
ssc/
