Bombay High Court
Sumanbai Sudhakar Kshirsagar And ... vs Shantabai Baburao Waghchaure And ... on 8 June, 2016
Bench: T.V. Nalawade
1 S.A. 182...2014 - [J]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 182 OF 2014
WITH
SECOND APPEAL NO. 183 OF 2014
1. Sumanbai w/o Sudhakar Kshirsagar
Age : 47 Yrs., Occ. Agri.,
R/o : Parala, Tq. Vaijapur,
igDistrict : Aurangabad.
2. Mirabai d/o Sudhakar Kshirsagar
Age : 27 Yrs., Occ. Household,
R/o : Parala, Tq. Vaijapur,
District : Aurangabad.
3. Hirabai d/o Sudhakar Kshirsagar
Age : 23 Yrs., Occ. Household,
R/o : Parala, Tq. Vaijapur,
District : Aurangabad.
4. Lilabai d/o Sudhakar Kshirsagar
Age : 21 Yrs., Occ. Household,
R/o : Parala, Tq. Vaijapur,
District : Aurangabad.
5. Savita d/o Sudhakar Kshirsagar
Age : 20 Yrs., Occ. Household,
R/o : Parala, Tq. Vaijapur, ..... APPELLANTS/
District : Aurangabad. [ORI. DEFENDANTS]
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V E R S U S
1. Shantabai w/o Bburao Waghchaure
Age : 72 Yrs., Occ. Household,
R/o : Tilk Road, Vaijapur,
Tq. Vaijapur, District : Aurangabad.
2. Padmabai w/o Harichandra Waghchaure
Age : 67 Yrs., Occ. Household,
R/o : Tilk Road, Vaijapur, ... RESP.NOS. 1 & 2/
Tq. Vaijapur, District : Aurangabad. [ORI.
ig PLAINTIFFS]
3. Somnath s/o Eknath Paithanpagare
Age : 31 Yrs., Occ. Agril.,
R/o : Shivur, Tq. Vaijapur,
District : Aurangabad.
4. Eknath s/o Fakira (Fakirchand)
Paithanpagare, Age : 27 Yrs.,
Occ. Agril., R/o : Shivur,
Tq. Vaijapur, District : Aurangabad.
5. Shalini w/o Bhaginath Takalkar
Age : Major, Occ. Household,
R/o : Kasabkheda, Tq. Khultabad,
District : Aurangabad.
6. Sunanda @ Shila w/o Nitin Dalavi
Age : Major, Occ. Household,
R/o : Bakwalnagar, Post Waluj, ... RESPONDENTS
Tq. Gangapur, District : Aurangabad.
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.....
Mr. J.V.Deshpande, Advocate for Appellants.
Mr. S.G.Thombre, Advocate for R - 1 & 2.
.....
CORAM : T.V.NALAWADE, J.
DATE OF JUDGMENT : 08/06/2016
JUDGMENT :
ig The Appeal is 'admitted'. Notice after
admission made returnable forthwith. Heard by consent
for final disposal.
2. The Appeals are filed by the original
defendants to challenge the Judgment and Decree of
R.C.S. No. 148/2003 which was pending in the Court of
the Civil Judge [Jr.Division], Vaijapur and the Judgment
and decree of R.C.A. Nos. 62/2012 and 171/2012 which
were pending in the Court of the District Judge - 1,
Vaijapur. While admitting the Appeals, both sides
were told that the argument will be heard on the
following substantial question of law :
Whether as per the interpretation of
amendment made to Hindu Succession Act,
1956 in the year 2005, daughter can be
4 S.A. 182...2014 - [J]
treated as co-parcner when her father had
died prior to the date of coming into force of
amended provision ?
3. The Suit was filed in respect of some
agricultural lands for relief of partition. One Parasram
was the common ancestor of the parties. In the year
1970, he died leaving behind 1 son, 3 daughters and
widow. His son Sudhakar died in the year 1992 and
defendant No. 1 is the widow of Sudhakar. Some
defendants are issues of Sudhakar and other defendants
are successors of one of the sisters of 2 plaintiffs.
Plaintiffs are the sisters of Sudhakar.
4. It is not disputed that the suit properties
were ancestral properties of Parasram. In view of this
circumstance, the trial Court made notional partition on
the date of death of Parasram and then calculated the
shares of plaintiffs. 1/6th share was given to each plaintiff
by the trial Court. The first appellate Court allowed the
Appeal of original plaintiffs and held that aforesaid
amended provision of Hindu Succession Act has
retrospective effect and plaintiffs need to be treated as co-
5 S.A. 182...2014 - [J]
parcners. Due to such interpretation, the share of the
plaintiffs was increased to make it 1/4 th for each plaintiff.
Reliance was placed on one case of the Apex Court by the
first appellate Court for holding that the plaintiffs need to
be treated as co-parcners.
5. Learned counsel for the
appellants/defendants placed reliance on the case of the
Apex Court reported in 2016 (1) Mh.L.J. - 1 [Prakash &
Ors. Vs. Phulavati & Ors.]. In this case the Apex Court
has laid down that the disposition or alienation including
partition which may have taken place before 20/12/2005
as per the law applicable prior to the said date will
remain un-affected. In view of this interpretation made
by the Apex Court, this Court holds that the plaintiffs and
their other sisters can not be treated as co-parcners.
Thus, the share given to these sisters by the trial Court
was correctly given and the said decision needs to be
restored.
6. The substantial question of law is, therefore,
answered against the appellants and following order is
made.
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Both Second Appeals are allowed.
The Judgment delivered by the District Court
in two Appeals is hereby set aside to the extent by which
the share of the plaintiffs was increased by the District
Court. The Judgment delivered by the Trial Court is
hereby restored.
The amount deposited as security is to be
adjusted towards mesne profit.
ig In view of disposal of Second Appeals, Civil
Applications stand disposed of.
[T.V.NALAWADE, J.]
KNP/ S.A. 182...2014 - [J]
