Dhanraj Bakaram Tadas vs Smt.Jankibai Wd/O Pandurang ...
2016 Latest Caselaw 3966 Bom

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                                                                 sa444.02.odt

         IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                          
                   NAGPUR BENCH, NAGPUR




                                                  
                       Second Appeal No.444 of 2002


      Dhanraj s/o Bakaram Tadas,




                                                 
      Aged about 53 years,
      Occupation - Agricultural,
      R/o Khairi, Post-Khairi
      (Akashwani), Tahsil-Kamptee,
      District-Nagpur.                                ... Appellant




                                       
           Versus            
      *1. Smt. Jankibai wd/o Pandurang
          Admane,
                            
          Aged about 63 years,
          Occupation :

           (*Deleted as per Hon'ble Court's
      

           Order dated 10-6-2016).
   



      2. Smt. Panchafula wd/o Pandurang
         Admane,
         Aged about 53 years,
         Occupation :





      3. Dharamraj s/o Pandurang Admane,
         Aged about 25 years,
         Occupation :





      4. Laxman s/o Pandurang Admane,
         Aged about 23 years,
         Occupation :




    ::: Uploaded on - 26/07/2016                  ::: Downloaded on - 30/07/2016 09:56:05 :::
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                                                                   sa444.02.odt

      5. Gunwant s/o Pandurang Admane,




                                                                            
         Aged about 19 years,
         Occupation :




                                                    
      **6.Ku. Jyoti d/o Pandurang Admane,
          Aged about 18 years,
          Occupation :




                                                   
           (**Deleted as per Hon'ble Court's
           Order dated 2-7-2003)

           All R/o Mouza Khairi, Post-Khairi




                                        
           (Akashwani), Tahsil-Kamptee,
           District-Nagpur.   ig                      ... Respondents


      Shri   Anand   Jaiswal,   Senior   Advocate,   assisted   by
                            
      Shri N.G. Moharir, Advocate, for Appellant.


                   Coram : R.K. Deshpande, J.

th Date : 11 July, 2016

Oral Judgment :

1. This second appeal is by the original plaintiff, who claims

to have purchased the suit property by the registered sale-deed

dated 2-4-1985 at Exhibit 49 from one Pandurang Admane. The

original defendant No.1 Jankibai was the first wife, whereas the

original defendnt No.2 Panchafula was the second wife of

Pandurang Admane. The original defendant Nos.3 to 6 are the

sa444.02.odt

children born from the second wife.

2. Regular Civil Suit No.1888 of 1988 was filed for

possession on the basis of title. The Trial Court dismissed the suit

by its judgment and order dated 31-3-1994. The lower Appellate

Court has dismissed Regular Civil Appeal No.296 of 1994 on

5-7-2002, confirming the decision of the Trial Court. One of the

issues framed by the Trial Court was "Whether defendants prove

that late Pandurang Admane was addicted to liquor, taking

disadvantage of this fact the plaintiff got executed sale-deed from

Pandurang?" The issue was answered in the affirmative. It is

held that the property in the hands of Pandurang Admane was an

ancestral property and the sale-deed was obtained from

Pandurang by taking advantage of the fact that Pandurang was

addicted to liquor. The lower Appellate Court has added the

reason that the property was an ancestral property and

Pandurang Admane was acting as Karta and the property was

required to be shown for legal necessity.

sa444.02.odt

3. On 11-10-2007, this Court passed an order as under :

" Heard.

The second appeal is ADMITTED on the following substantial questions of law.

(1) Whether the illegitimate wife and children could have laid challenge to the sale transaction

dated 02.04.1985?

(2) Whether the Courts were justified in recording a negative finding on the issue of

ownership of the plaintiff over the suit property purchased by him by registered sale-deed

dated 02.04.1985, specially when the defendants had not laid any challenge to the sale-deed by

filing a counter claim and a suit filed by the defendants for a declaration that the sale-deed was void and not binding on them was dismissed in default?"

4. On the first substantial question of law, Shri Anand

Jaiswal, the learned Senior Advocate, assisted by

sa444.02.odt

Shri N.G. Moharir, Advocate, for the appellant, has urged that

even if it is assumed that the property in the hands of Pandurang

Admane was an ancestral property, the defendant-children born

from the second wife of Pandurang Admane cannot be termed as

'coparceners', entitled to claim the property by survivorship.

According to him, they would be entitled to succeed to the estate

of Pandurang only upon his death as per the provisions of

Section 8 of the Hindu Succession Act. The Courts below have,

therefore, committed an error of law in holding that Pandurang

was not entitled to dispose of the said property on the ground

that the defendants were the coparceners having undivided

interest in the suit property and that the alienation was not

proved to be for legal necessity.

5. On the second substantial question of law framed by this

Court, Shri Anand Jaiswal, the learned Senior Advocate, has

urged that the sale-deed was obtained from Pandurang Admane,

taking advantage of the fact that he was addicted to liquor. He

further submits that the attesting witness PW 2-Chirkut Shende

sa444.02.odt

was examined by the plaintiff and his evidence that the

deceased-Pandurang Admane was not under the influence of

liquor when the property was sold, has not been considered. He

submits that the sale in question must be voidable and not void

and the challenge to avoid such sale, raised by the defendants by

filing independent Regular Civil Suit No.988 of 1988, did not

survive, as the said suit was dismissed for want of prosecution

and it was never restored.

6. Put up this matter on 18-7-2016, so as to provide an

opportunity to the respondents to address this Court on the

substantial questions of law framed by this Court.

Judge.

Lanjewar

19-7-2016 :

7. In spite of waiting for the respondents to appear in the

matter and address this Court, no one appears. Hence, this Court

proceed to decide the matter on its own merits.

sa444.02.odt

8. The undisputed factual position emerging from the

finding recorded by the Courts below is that the Regular Civil

Suit No.1888 of 1988 challenging the registered sale-deed dated

2-4-1985 was dismissed in default and it was not restored.

In response to the Regular Civil Suit No.1888 of 1988 filed by the

appellant there was no counter claim filed by the defendants

challenging the validity of the registered sale-deed dated

2-4-1985 at Exhibit-49. Even if it is assumed that the property in

the hands of Pandurang Admane the vendor of the plaintiff was

an ancestral property, he was the sole surviving coparcener.

No doubt that on the date of execution of the registered sale-deed

dated 2-4-1985, Pandurang Admane had two surviving wives and

the children born from the second wife. The second marriage was

performed by Pandurang Admane during the subsistence of first

valid marriage.

9. In the decision of the Apex Court cited by Shri Jaiswal in

the case of M. Yogendra and others vs. Leelamma N. and others

reported in (2009) 15 SCC 184, the question was whether the

provisions of Section 6 of the Hindu Succession Act were

sa444.02.odt

applicable or the succession was governed by Section 8 therein.

In the light of the factual aspect that the owner was survived by

two wives and the marriage with the second wife was held to be

illegal as it was hit by Section 5 of the Hindu Marriage Act, being

performed during the subsistence of the first marriage, the Apex

Court has held that the son born from the second wife would

inherit the properties not as a coparcener, but would be entitled

to succeed in the estate of his father as per the rules prescribed

under Section 8 of the Hindu Succession Act. The question of law

at Sr. No.1 involved in the present matter remains no longer res

integra. It is, therefore, held that the challenge to the said

transaction dated 2-4-1985 at the instance of the wife and the

children from the second wife was not maintainable.

10. On the second substantial question of law it has to be

held that the sale-deed by Pandurang Admane in favour of the

plaintiff at any rate would become voidable at the instance of the

wife and the children. The suit challenging the validity of the

sale-deed dated 2-4-1985 was dismissed in default and there was

no counter claim made in response to the present suit. The Courts

sa444.02.odt

therefore, committed an error in dismissing the suit filed by the

plaintiff for possession on the basis of title conferred upon him by

registered sale-deed dated 2-4-1985 at Exhibit-49 issued by

Pandurang Admane. The substantial question of law at Sr. No.2 is

answered accordingly.

11. In the result, the second appeal is allowed.

The judgment and order dated 31-3-1994 passed in Regular Civil

Suit No.1888 of 1988 and the judgment and order dated

5-7-2002 passed in Regular Civil Appeal No.296 of 1994

delivered by the lower Appellate Court are hereby quashed and

set aside. Regular Civil Suit No.1888 of 1988 filed by the plaintiff

is decreed as under:

The defendants are directed to deliver the possession

of the suit property to the plaintiff, as described in

schedule to the plaint. No order as to costs.

Judge.

NSN

sa444.02.odt

C E R T I F I C A T E

"I certify that this Judgment uploaded is a true and correct copy of original signed Judgment."

                Uploaded by :                      Uploaded on : 26.07.2016.
                N.S. Nikhare,
                P.A. to Hon'ble Judge