Bombay High Court
Devidas Budhaji Hambarde And ... vs Smt. Chioutrabai Vikaram ... on 21 July, 2016
Bench: T.V. Nalawade
1 S.A. 441.2016 - [J]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 441 OF 2016
1. Devidas Budhaji Hambarde
Age : 58 Yrs., Occ. Agril.,
R/o : Dhanaj, Tq. Naigaon,
(Kh.), Dist. : Nanded.
2. igVimalbai Bhaurao Hambarde
Age : 48 Yrs., Occ. Agril.,
R/o : Dhanaj, Tq. Naigaon, ..... APPELLANT/
(Kh.), Dist. : Nanded. [ORI. DEFT. NOS. 6 & 7]
3. Sheshrao Budhaji Hambarde
Age : 65 Yrs., Occ. Agril.,
R/o : Dhanaj, Tq. Naigaon,
(Kh.), Dist. : Nanded. ..... APPELLANT
V E R S U S
1. Smt. Choutrabai Vikram Suryawanshi
Age : 76 Yrs., Occ. Household,
R/o : Dhanaj, Tq. Naigaon, ..... RESPONDENT/
(Kh.), Dist. : Nanded. [ORI. PLAINTIFF]
2. Laxman Vikram Suryawanshi
Age : 45 Yrs., Occ. Household,
R/o : Dhanaj, Tq. Naigaon,
::: Uploaded on - 27/07/2016 ::: Downloaded on - 30/07/2016 10:13:30 :::
2 S.A. 441.2016 - [J]
(Kh.), Dist. : Nanded.
3. Banarasbai Laxman Suryawanshi
Age : 45 Yrs., Occ. Household,
R/o : Dhanaj, Tq. Naigaon,
(Kh.), Dist. : Nanded.
4. Rukminbai Ranjit Suryawanshi
Age : 43 Yrs., Occ. Household,
R/o : Dhanaj, Tq. Naigaon,
ig(Kh.), Dist. : Nanded.
5. Anjanabai Ranjeet Suryawanshi
Age : 22 Yrs., Occ. Household,
R/o : Dhanaj, Tq. Naigaon,
(Kh.), Dist. : Nanded.
6. Pandurang Ranjeet Suryawanshi
Age : 21 Yrs., Occ. Household,
R/o : Dhanaj, Tq. Naigaon, ... RESP.NOS. 2 TO 6/
(Kh.), Dist. : Nanded. [ORI. DEFT. NOS. 1 TO 5]
.....
Mr. V.V.Bhavthankar, Advocate for Appellants.
Mr. A.V.Patil, Advocate for R - 1.
.....
CORAM : T.V.NALAWADE, J.
DATE OF JUDGMENT : 21/07/2016
3 S.A. 441.2016 - [J]
ORAL JUDGMENT :
1. The Appeal is admitted on following
substantial question of law.
[i] Whether the Courts below have committed
error in not allotting the share of defendant
when defendant No. 3 has admitted that she
ig has sold the property under sale deed which
was under challenge to the present
appellants/original defendant Nos. 6 and 7 ?
2. Notice for the admission is waived by the
learned counsel for the plaintiff and by consent heard
both sides for final disposal.
3. The suit was filed for relief of partition and
separate possession and consequential relief of executing
sale deed by defendant No. 3 in favour of defendant Nos.
6 and 7 was also claimed. The Courts below have held
that the plaintiff is entitled to get share in the suit
property. The trial Court had held that the plaintiff was
entitled to 5/12th share in the suit property and the first
appellate Court in the Appeal filed by original defendant
4 S.A. 441.2016 - [J]
No. 3 and present respondents modified the share and
has made 1/3rd share in favour of the plaintiff.
4. No further relief is claimed by the plaintiff
and defendants in the suit property. In view of these
circumstances and as vendor of defendant Nos. 6 and 7
has admitted that her share is sold to defendant Nos. 6
and 7, the Courts below ought to have given direction
and ought to have made order to the effect that original
defendant Nos. 6 and 7 are entitled to get the property
which will come to the share of defendant No. 3 in
equitable partition. It further needs to be kept in mind
that the present appellants will not get the specific
portion which must have been shown by defendant No. 3
and they can get only the portion which will come to
defendant No. 3 in equitable partition. Only this point is
argued before this Court and so order is made.
5. The Appeal is partly allowed. The
Judgments and decrees are modified. After equitable
partition, the property which will come to defendant No.
3 is to be given to the present appellants/defendant Nos.
6 and 7. It is to be kept in mind that the present
5 S.A. 441.2016 - [J]
appellants will have no right to claim the specific portion
shown to be sold to them by defendant No. 3 and they
are not entitled to obstruct the equitable partition for
execution of the decree.
6. Decree is to be prepared accordingly.
KNP/S.A. 441.2016 - [J]
[T.V.NALAWADE, J.]
