Bombay High Court
Uttam Krushna Kmble vs Sarubai Tulshiram Karnure And ... on 11 March, 2016
Bench: T.V. Nalawade
1 S.A. 260.2015 - [ J ]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 260 OF 2015
Uttam Krushna Kamble
Age : 76 Yrs., Occ. Agril.,
R/o : Koregaonwadi, Tq. .... APPELLANT/
Omeerga, Dist. Latur. [ORI. DEFT. NO. 1]
ig V E R S U S
1. Sarubai Tulshiram Karnure
Age : 58 Yrs., Occ. Household,
R/o : Koregaonwadi, Tal.
Omerga, Dist. Osmanabad.
2. Parubai Laxman Lavate
Age : 56 Yrs., Occ. Household,
R/o : Koregaonwadi, Tal.
Omerga, Dist. Osmanabad.
3. Chayabai Shankar Kamble
Age : 41 Yrs., Occ. Household,
R/o : Koregaonwadi, Tal.
Omerga, Dist. Osmanabad.
[dismissed vide Court's order
dated 08/09/2015].
::: Uploaded on - 22/03/2016 ::: Downloaded on - 31/07/2016 08:38:41 :::
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4. Islambee Abbas Malage
Age : Major, Occ. Agril.
& Business, R/o : Tal.
Omerga, Dist. Osmanabad.
5. Vivekanand Amrutrao Nawale
Age : Major, Occ. Agril.,
R/o : Kasgi, Tal. Omerga, .... RESPONDENTS/
Dist. Osmanabad. [ORI. PLAINTIFFS]
.............................
Mr. P.V.Barde, Advocate for Appellant.
Mr. N.L.Jadhav, Advocate for R.No. 1.
..............................
CORAM : T.V.NALAWADE, J.
DATE OF JUDGMENT : 11 th MARCH, 2016
...............................
JUDGMENT :
1. The Appeal is 'admitted'. Notice after admission
made returnable forthwith. By consent heard both sides for
final disposal.
2. Original defendant No. 1 of R.C.S. No.
118/2006, which was pending in the Court of the Civil Judge
[Jr. Division], Udgir and who was appellant in R.C.A. No.
3 S.A. 260.2015 - [ J ]
11/2009 which was pending in the Court of the District
Judge - 1, Udgir, has filed the present Appeal to challenge
the decision of the trial Court and first appellate Court. The
Suit filed by the present respondent No. 1 for relief of
partition and separate possession is decided in his favour.
2/9th share was given by the trial Court to respondent No. 1
in the suit properties. In the first appeal of defendant No. 1,
the District Court has increased the share of respondent No. 1
to make it 1/3rd.
3. Plaintiff and defendant No. 2 are sisters of
defendant No. 1. Defendant Nos. 3 to 5 are purchasers from
defendant No. 1 of some portion of suit properties. At the
initial stage of the Suit, defendant No. 4 was deleted from the
Suit by withdrawing the Suit against him. The Courts below
have protected defendant No. 5, other purchaser, by giving
the portion purchased by him from defendant No. 1 to the
share of defendant No. 1. Thus, the purchasers are
automatically protected by the courts below and the
remaining share in the suit properties is available for
partition and possession.
4 S.A. 260.2015 - [ J ]
4. The Suit was filed in respect of following
lands :
[i] G.No. 9/1 admeasuring 1 H. 39 R.
[ii] G.No. 9/4/2 admeasuring 36 R.
[iii] G.No. 9/5 bounded as -
towards West - Land of Madhav Ranga Mane
towards South
ig and North - Land of defendant.
[iv] G.No. 10/4 admeasuring 3 H. 38 R.
All the lands are situated at Koregaonwadi,
Tahsil Omerga.
5. It is the case of plaintiff Sarubai/respondent No.
1 herein that the suit properties were with her father as
ancestral properties and the mother of plaintiff is also dead.
Father died prior to the year 1994.
6. It is the case of plaintiff Sarubai that defendant
No. 1, her brother, is addicted to bad vices and so she asked
the defendants to partition the suit properties and to give her
share. It is contended that defendant denied to give her
share and so the Suit was required to be filed.
5 S.A. 260.2015 - [ J ]
7. Defendant No. 1 admitted the relationship with
plaintiff Sarubai but he denied the other contentions. He
contended that the suit property bearing G.No. 9/4/2 was
purchased by him from one Vasant under registered sale deed
in the year 1998. It is his case that G.No. 9/5 was also
purchased by him, though he has not given year of the
purchase. Thus, it is the case of defendant No. 1 that the two
suit properties are his self-acquired properties.
8. It is the case of defendant No. 1 that R.C.S. No.
58/1990 was filed against him by one Shrimant Sadashiv
Kamble in respect of G.No. 9/4/2 and he was required to
spend huge amount on this litigation. He contended that he
was required to spend ` 25,000/- and he also sustained loss
in the brick kiln business of the family.
9. Defendant No. 5 filed Written Statement and
contended that the property viz. G.No. 10/4 admeasuring 2
H. 43 R. was sold by defendant No. 1 to him for legal
necessity and since the date of purchase he has been in
possession. He requested the Court to protect his interest by
allotting the property purchased by him to the share of
6 S.A. 260.2015 - [ J ]
defendant No. 1.
10. Issues were framed on the basis of aforesaid
pleadings. Both sides gave evidence. The trial Court held
that the suit properties were ancestral properties of father of
the plaintiff. The trial Court held that defendant No. 1 has
failed to prove that the suit properties viz. G.No. 9/4/2 and
G.No. 9/5 are his self-acquired properties. The trial Court
had given the share of 2/9th as per the provisions of Hindu
Succession Act, which was in force prior to the amendment of
1994. The trial Court held that the aforesaid 2 properties
were purchasers by defendant No. 1 from the income of
ancestral property and he had no other source of income and
so they need to be treated as joint family properties, ancestral
properties, and they were available for partition.
11. The District Court gave 1/3th share each to
defendant No. 1 and defendant No. 2, sister of defendant No.
1, by relying on Full Bench decision of this Court, in which
the interpretation of provision of Section 6 of the Hindu
Succession Act, as amended in the year 2006, was made by
the Full Bench. This case is reported as 2014 (5) Mh.L.J. -
7 S.A. 260.2015 - [ J ]
434 [Badrinarayan Shankar Bhandari & Ors. Vs.
Omprakash Shankar Bhandari]. In the Appeal, learned
counsel for the appellant/defendant No. 1 placed reliance on
the case decided by the Apex Court subsequent to the
aforesaid decision viz. 2015 AIR SCW - 6160 [Prakash &
Ors. Vs. Phulavati & Ors.] decided on 16/10/2015. He
submitted that the provisions of the amended Act of 2005
have no retrospective effect in view of the decision given by
the Apex Court and so the trial Court had given proper shares
to the plaintiff and defendant No. 2. He also submitted that
the decision of the trial Court was not challenged by the
plaintiff and defendant No. 2 and so in the Appeal filed by
defendant No. 1, the share could not have been increased by
the first appellate court.
12. On the basis of the aforesaid submissions, learned
counsel for the appellant submitted that the substantial
question of law needs to be formulated and decided which is
as follows :
Whether the plaintiff and
defendant No. 2 are entitled to the shares
in terms of Section 6 of the Hindu
8 S.A. 260.2015 - [ J ]
Succession Act as amended by the Act No.
39/2005 ?
13. In the case cited supra, the Apex Court has laid
down as follows :
" The rights under the amendment
are applicable to living daughters of living
coparceners as on 9th September, 2005
ig irrespective of when such daughters are
born. Disposition or alienation including
partitions which may have taken place
before 20th December, 2004 as per law
applicable prior to the said date will
remain unaffected. Any transaction of
partition effected thereafter will be
governed by the explanation.
The legislature has expressly made
the Amendment applicable on and from
its commencement and only if death of
the coparcener in question is after the
Amendment. Thus, no other
interpretation is possible in view of
express language of the statute. The
proviso keeping dispositions or
alienations or partitions prior to 20th
December, 2004 unaffected can also not
lead to the inference that the daughter
9 S.A. 260.2015 - [ J ]
could be a coparcener prior to the
commencement of the Act. The proviso
only means that the transactions not
covered thereby will not affect the extent
of coparcenary property which may be
available when the main provision is
applicable. Similarly, Explanation has to
be read harmoniously with the
substantive provision of Section 6 (5) by
being limited to a transaction of partition
ig effected after 20th December, 2004.
Notional partition, by its very nature, is
not covered either under proviso or under
sub-section 5 or under the Explanation. "
14. The learned counsel for the appellant submitted
that share given by trial Court can be maintained. In view of
the ratio of the aforesaid case, only 2/9th share can be given
to the plaintiff and defendant No. 2 each. In support of the
contention that the District Court could not have enhanced
the share in the First Appeal, as no Appeal was filed, reliance
was placed by the learned counsel for the appellant on the
case reported as 1982 AIR (SC) 98 [Choudhary Sahu:
Surajbali Sah Vs. State of Bihar]. There is no need to go
into the technicalities in view of the aforesaid case of the
10 S.A. 260.2015 - [ J ]
Supreme Court recently decided. The plaintiff and defendant
No. 2 can not get equal share with the brother in view of the
facts and circumstances of the present case.
15. Reliance was placed by the learned counsel for
the appellant on the case reported as AIR 2007 Supreme
Court - 1062 [Dhanalakshmi & Ors. Vs. P.Mohan &
Ors.] and it was submitted that the purchasers need to be
protected. It is already observed that the purchasers are
protected by the trial Court and also the first appellate court
and this decision is not challenged by the original plaintiff.
So, there is no need to go into the details of merit on that
point. Thus, the property purchased by defendant No. 5 will
remain with him and in equitable partition this property will
be considered as the property allotted to the share of
defendant No. 1. The market value of this property on the
date of the partition will be ascertained and accordingly share
will be given to the plaintiff and defendant No. 2 in this
property and, therefore, shares in other properties will have
to be adjusted. Similarly, if some property was sold to
defendant No. 4 prior to the date of the Suit, this property
will be protected and the price of the share of the plaintiff
11 S.A. 260.2015 - [ J ]
and defendant No. 2 will be ascertained and accordingly the
equitable partition will be effected.
16. So, the aforesaid substantial question of law is
answered in the negative and following order is made.
[i] The Appeal is partly allowed.
[ii] ig The Judgment and Decree of R.C.A. No. 11/2009
is set aside to the extent of the relief granted by
the first appellate Court to the original plaintiff
by increasing her share from 2/9th to make it to
1/3rd. The plaintiff and defendant No. 2 will be
entitled to only 2/9th share each in the suit
property.
[iii] Rights of the defendant No. 5 will be protected.
Similarly, rights of defendant No. 4 to whom
probably some property was sold prior to the
date of the Suit will be protected when equitable
partition is made.
[iv] The amount, if any deposited in the trial Court
for getting stay is to be kept in the trial Court
and is to be considered during execution
proceeding when question of mesne profits or
satisfaction of decree arises.
12 S.A. 260.2015 - [ J ]
[v] Decree is to be prepared accordingly.
[T.V.NALAWADE, J.]
KNP/S.A. 260.2015 - [ J ]
