Bombay High Court
Shivaji Raghunath Gaikwad vs Shriram Shivaji Gaikwad And ... on 14 September, 2016
Bench: S.P. Deshmukh
1 CRA-177.15.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO. 177 OF 2015
Shivaji s/o Raghunath Gaikwad,
Age 63 years, occup. Agril., .. Petitioner/ Orig.
R/o Waigaon, Tq. Udgir, Dist.Latur Defendant No.1
versus
1. Shriram s/o Shivaji Gaikwad,
Age 32 years, occup. Agril.,
R/o Waigaon, Tq.Udgir, Dist.Latur
2. Surekha w/o Sanjay Mundkar,
Age 34 years, occup. HOusehold,
R/o Wadhwana, Tq.Udgir, Dist.Latur
3. Vimalbai w/o Shivaji Gaikwad,
Age 59 years, occup. Household,
R/o Waigaon,Tq. Udgir, Dist. Latur
4. Nirmala w/o Shivaji Gaikwad,
Age 54 years, occup. Household,
R/o Waigaon, Tq. Udgir, Dist. Latur
5. Vijaykuimar s/o Raghunath Gaikwad,
Age 54 years, occup. Agril.,
R/o Waigaon, Tq. Udgir, Dist. Latur
6. Ashok s/o Raghunath Gaikwad,
Age 44 years, occup. Agril.,
R/o as above
7. Dhondiba s/o Raghunath Gaikwad,
Age 69 years, occup. Agril,
R/o as above
8. Vandanabai w/o Bhagawan Patil,
died, through her L. R.:
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2 CRA-177.15.doc
8/A Uttambai w/o Mohanrao Makne,
Age 39 years, occup. Household,
R/o Nagthana, Tq. Ahmedpur,
Dist. Latur
9. Kantabai w/o Babu Jadhav,
Age 53 years, occup. Household,
R/o Bhaskaskheda, Tq. Udgir,
Dist. Latur.
10. Shantabai w/o Sopan Ingole,
Age 49 years, occup. Household,
r/o Talegaon, Tq. Deoni,
Dist. Latur,
11. Panchafulabai w/o Pandit Jadhav,
Age 49 years, occup. Household,
R/o Bhaskaskheda, Tq. Udgir,
Dist. Latur,
12. Kashibai w/o Ashok Gaikwad,
Age 49 years, occup. Agril.,
R/o Waigaon, Tq. Udgir,
Dist. Latur
.. Respondents/
13. Pandit s/o Narsing Jadhav, Resp. Nos. 1 to 3
Age 59 years, occup. Agril., are orig. Plaintiffs,
R/o Bhaskaskheda, Tq. Udgir, Respondents No. 4
Dist. Latur. to 13 are original
Defts. no. 2 to 11
--------
Mr. Rajiv B. Deshmukh, Advocate for applicants
Mr. T. M. Venjane, Advocate for respondents no. 1 to 3
CORAM : SUNIL P. DESHMUKH, J.
DATE : 14th September, 2016
ORAL JUDGMENT:
1. Rule. Rule made returnable forthwith. Heard learned
counsel for parties by consent, finally.
3 CRA-177.15.doc
2. Learned counsel for applicant points out that save
respondents no. 1 to 3, rest of the respondents are formal
parties and notices are also stated to have been issued
accordingly.
3. Application Exhibit - 126 had been moved by defendant
no. 1 seeking rejection of plaint in regular civil suit no. 80 of
2012, particularly on two grounds, contending that the son
cannot ask for and compel partition of joint family properties
during lifetime of father who is joint with his brothers and
further that when earlier suit bearing regular civil suit no. 341 of
2003 filed by present respondents no. 1 to 3 had been
withdrawn by them, costs were imposed at the rate of ` 500/-
per defendant, however, respondents herein had failed to
deposit cost of ` 500/- in respect of defendant no. 6-
Vandanabai in that suit and as such the plaint should be
rejected, pursuant to Order VII Rule 11(d) of the Code of Civil
Procedure, 1908.
4. Learned counsel for the applicant purports to rely on plaint
in present suit i.e. regular civil suit no. 80 of 2012 referring to
that the pleadings would indicate that the plaintiffs considered
father - the defendant no. 1 to be joint with his brothers, and
referring to a decision by Gujarat High Court in the case of
4 CRA-177.15.doc
Jaswantlal Linabhai vs. Nichhabhai Vallabhbhai and others, reported in AIR
1964 Guj 283, particularly paragraph no. 15 of the same which
reads thus ;
'' 15. There is no doubt that the Full Bench decision of the Bombay
High Court in Apaji's case, ILR 18 Bom 29 (FB) is binding on us. The
question that arises for determination is that, in deciding Apaji's case IR
16 Bom 29 (FB) did the learned Judges also decide the question
regarding the maintainability of a suit for partition by metes and bounds
by a son without the assent of his father ? In Apaji's case, ILR 16 Bom 29
(FB) the suit was by a son against his father and uncial (uncle),
defendants No. 1 and 3 being uncles and defendant No. 2 being father of
the plaintiff. The plaintiff alleged that he and the defendants were
members of an undivided Hindu family and he claimed partition of the
family property and possession of his share. He alleged that his father
(Defendant No.2) was a man of weak intellect and that his uncles
(defendants No. 1 and 3) ill-treated the plaintiff and had turned him out of
the family house. The uncles (defendants Nos. 1 and 3) filed a written
statement contending that the plaintiffs' father had relinquished his rights
in the ancestral properties in their favour by a release in the year 1863
and that, therefore, the plaintiff had no claim to a share. The learned
subordinate Judge passed a decree for the plaintiff which was confirmed
by the District Court. The matter came up in appeal before a Division
Bench of the Bombay High Court and the Court referred the following
question for determination to a Full Bench :
'' Under Hindu law applicable to this Presidency, (the Satara
District in this case), can a son in the lifetimes of his father sue his
father and uncles for a partition of the immovable ancestral
family property and for possession of his share therein, the father
not assenting thereto ? ''
The matter came up before the Full Bench consisting of the above
mentioned Judges. Sargent C. J. and Bayley and Candy JJ answered this
question in the negative. In the course of the judgment the learned justice
relied on certain original Sanskrit text and in their view, on a correct,
interpretation of these texts, a son had no general right of partition
without the assent of his father. Telang J, delivered a dissenting judgment
from the majority view and also considering the various texts in the
Mitakshara and other texts. It may be mentioned in passing that the lone
dissenting voice of Telang J. in Apaji's case, ILR 16 Bomb. 29 (FB), found
an echo in the Judgments of various other High Courts in this country, but
as far as the High Court of Bombay was concerned, the view taken by the
majority of the Full Bench in Apaji's case, ILR 16 Bom 29 (FB), held the
filed and was followed in subsequent cases. The law, therefore, laid down
by the majority in Apaji's case, ILR 16 Bom 29 (FB) is the law which is
5 CRA-177.15.doc
binding on us. We will, therefore, proceed to find out what is precisely
laid down by Sargent C. J. and Baley and Candy, JJ, in Apaji's case, ILR
16 Bom 29 (FB). '',
submits that the suit itself would not be maintainable and as
such, application Exhibit-126 moved by defendant No.1 ought to
have been allowed.
5. He further contends that while earlier suit i.e. regular civil
suit no. 341 of 2003 for the same purpose had been withdrawn
with permission to file fresh suit, such withdrawal had been on
the condition of payment of costs of ` 500/- per defendant and
since present respondents no. 1 to 3 - plaintiffs in said suit have
not made payment of ` 500/- to Vandanabai - defendant no. 6
in said suit, the plaint in present suit is liable to be rejected. He
contends that while considering such an application under Order
VII, rule 11 of the Code of Civil Procedure, 1908, it is the
pleadings in the plaint which are germane and not the defence.
He, therefore, urges to intervene in the matter and reject the
plaint.
6. On the other hand, Mr. Venjane, learned advocate
appearing on behalf of respondents no. 1 to 3 - original plaintiffs
contends that the suit has progress far and further; evidence on
either side has been closed under the orders of the court and in
such a situation, adjudication of rights should take place based
6 CRA-177.15.doc
on appreciation of evidence as has been adduced by parties
rather than on the objection as is sought to be taken under
application Exhibit - 126. He submits that over and above, albeit
it is being contended that the pleadings would be material, this
is a peculiar matter wherein defendant no. 1 himself has
adverted to and admitted the position of partition having taken
place among him and his brothers around 1988 and with one of
the brothers way back in 1965. In such a case, the plea about
pleadings of the plaintiffs being germane is rendered too
technical. He, therefore, submits that having regard to the
advanced stage which has been reached in the matter and
further that the application has been rejected by the trial court
giving reasons which are sound in law and based on facts may
not be intercepted by exercise of discretionary powers vested in
this court. He submits that the plaintiffs are kept away from the
properties under machination of defendant no. 1 who wants to
deprive the plaintiffs from their legitimate claims in the suit
property.
7. After hearing learned counsel and on perusal of the
judgment of the trial court, the position emerges that although it
has been contended on behalf of defendant no. 1-applicant
before this court that the plaint pleadings would be germane, the
factual position remains unchallenged that defendant no. 1
7 CRA-177.15.doc
himself admits partition having taken place in 1988 and even
before that in 1965 in respect of a brother and the same having
been acted upon and the revenue record being maintained
accordingly. In such a case, though request has been made for
rejection of plant placing reliance on the judgment of the Gujarat
High court referred to hereinbefore, in the facts and
circumstances of this case said judgment may not be able to
hold sway to truncate the proceedings which have reached
advanced stage as referred to earlier. Further, the trial court has
addressed to legal and factual position and almost all the
defendants admit to the position of partition among father of
plaintiff and his brothers. Defendants have also filed written
statement concurring with the position as referred to by
defendant no. 1 with regard to partition having been effected in
1988.
8. As far as non payment of costs of ` 500/- to Vandanabai -
(who is no more) defendant in earlier suit is concerned, the trial
court has aptly considered that the same would not matter in the
present suit as the plaintiffs have deposited costs for rest of the
defendants in the earlier suit.
9. Although the applicant contends that pleadings of plaintiff
shall be determinative, in the peculiar circumstances or that
8 CRA-177.15.doc
case wherein defendant no. 1 himself adverts to earlier partition
among himself and brothers, it would hardly be open for
defendant no. 1 to raise objection to maintainability of suit on
the ground of pleadings. However, having regard to
overwhelming circumstances, the ultimate outcome of the
decision of the trial court is not liable to be faulted with.
10. It does not appear to be a case requiring intervention.
11.
Civil revision application as such fails and is dismissed.
Rule is discharged.
SUNIL P. DESHMUKH,
JUDGE
pnd
