Bombay High Court
Sou. Jyoti W/O. Arunrao Bhongade ... vs Sumant S/O. Pandhari Chafle And ... on 25 August, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.57 OF 2016
1] Sou. Jyoti w/o Arunrao Bhongade,
Aged about 45 years,
Occ: Agriculture,
R/o Kanholibara,
Tah. Hingna, Dist. Nagpur.
2] Shri Kishor s/o Mannalal Sanchariya,
Aged about 54 years,
Occ: Agriculture,
R/o Ajni (Mothi),
Tah. & Dist. Wardha. ....... APPELLANTS
...V E R S U S...
1] Sumant s/o Pandhari Chafle,
Aged about 27 years,
Occ: Student, R/o Sukli (Ubar),
Tah. Arvi, Dist. Wardha.
2] Sou. Manisha w/o Naresh Nistane,
Aged about 36 years,
Occ: Household, R/o Telipura,
Wardha, Tah. & Dist. Wardha.
3] Sou. Bharti w/o Bhaskarrao Dadhe,
Aged about 34 years, Occ: Household,
R/o Ganesh Nagar, Near Hanuman Mandir,
Wardha, Tah. & Dist. Wardha.
4] Ku. Bhakti w/o Pandharinath Chafle,
Aged about 28 years,
Occ: Student, R/o Sukli (Udhar),
Tah. Arvi, Dist. Wardha.
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5] Shri Pandhari s/o Yadavrao Chafle,
Aged about 58 years,
Occ: Agriculture, R/o Pulai,
Tah. & Dist. Wardha.
6] Sou. Jijabai w/o Pandhari Chafle,
Aged about 55 years,
Occ: Household, R/o Sukli (Ubhar),
Tah. Arvi, Dist. Wardha.
7] Sau. Swati w/o Dhirajrao Kawale,
Aged about 32 years,
Occ: Service, R/o D-34,
Naxati Building, Suruchi Complex,
Sector-2, Near Bhakti Vedant Hospital,
Meera Road, East Thane, Mumbai. ....... RESPONDENTS
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Shri P.D. Randive, Advocate for Appellants.
None for Respondents.
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CORAM: R.K. DESHPANDE, J.
th AUGUST, 2016.
DATE: 25
ORAL JUDGMENT
1] The trial court dismissed Regular Civil Suit No.54 of 2007
for setting aside alienation of the suit property in the year 2007 by the
defendant No.1 in favour of the defendant No.2 and subsequently by the
defendant No.3 in favour of the defendant No.5 and for partition and
separate possession on 15.06.2011. Regular Civil Appeal No.211 of 2012
filed challenging the said order and for passing a decree for separate
possession and setting aside the alienation by the defendant No.1 in
favour of the defendant No.2 and by defendant No.3 in favour of the
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defendant No.5 was allowed. The original defendant Nos.2 and 5, are
before this Court in this second appeal.
2] The lower Appellate Court has recorded the finding that the
properties were joint family properties and the plaintiff had an interest in
it, being the coparcener. The defendant No.1 father of the plaintiff has
alienated the suit property in favour the defendant No.2, and there upon
the defendant No.2 alienated it in favour of the defendant No.5 without
consent, knowledge and authority of the plaintiff. The plaintiff was
therefore, not bound by the said alienation and the decree for partition
of the ancestral property has been passed.
3] The learned counsel appearing for the appellant has relied
upon the decision of the Apex Court in case of Bhanwar Singh vs. Puran
& Ors. reported in 2008 (3) SCC 87, to urge that the suit property was
self-acquired property in the hands of defendant No.1-Pandhari, as he
received it in partition effected in the year 1970 between himself and his
brother Purushottam. According to the learned counsel, the defendant
No.1 was competent to dispose of the property without consent,
knowledge and authority of the plaintiff and the lower Appellate Court
has committed an error in holding that the property was governed by
Section 6 of the Hindu Succession Act and not by Section 8.
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4] It is not in dispute that the property was owned by one
Yadaorao, who had two sons Pandhari-defendant No.1 and Purushottam.
Yadaorao died in the year 1968, and thereafter in the year 1970 there
was partition of the property between Pandhari and Purshottam.
The plaintiff No.1, the son of Pandhari was born some time in the year
1986-1987 and the challenge is to the alienation dated 04.01.2007 by
defendant No.1 in favour of the defendant No.2. It is not possible to
accept the contention of the learned counsel for the appellant that the
suit property became separate property in the hands of
Pandhari-defendant No.1.
5] In the decision relied upon by the learned counsel, the
alienation was made by Sant Ram, who was the sole coparcener of
Bhima, who died in the year 1970. The appellant was the son of Sant
Ram, born in the year 1977. The alienation challenged was made in the
year 1985. After the death of Bhima the property devolved upon Sant
Ram and three daughters of Bhima in accordance with Section 8 of the
Hindu Succession Act, and there upon the property became separate
property of Sant Ram.
6] In the facts of the present case, Yadaorao died in the year
1968, and he was survived by two coparceners Pandhari and
Purshottam. Obviously, upon partition of the suit property in the year
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1970 and after the birth of the plaintiff in the year 1986-1987, the
property became joint family property in the hands of Pandhari, which
he could not have alienated, except for legal necessity in the year 2007.
The legal necessity has not been established.
7] In view of above, no substantial question of law arises, the
second appeal is dismissed.
ig JUDGE
NSN
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C E R T I F I C A T E
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