Sau. Megha W/O. Raju Choudhari, ... vs Smt. Shantabai Wd/O. Vinayakrao ...
2017 Latest Caselaw 5831 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH, NAGPUR.

                          SECOND APPEAL NO.450 OF 2015


1.  Megha w/o Raju Choudhari
     aged 33 years, Occ. Cultivator, 
     R/o Shegaon, Tahsil Samudrapur, 
     Dist. Wardha. 

2.  Rahul s/o Vinayakrao Deshmukh,
     Aged about 24 years, Occ. Cultivator 
     
3.  Asha wd/o Vinayakrao Deshmukh,
     Aged about 55 years, Occ. Household, 

     Nos.2 and 3 both are R/o Talegaon (Talatule) 
     Tahsil and Dist. Wardha.                                  ... Appellants

-vs- 

1.  Shantabai wd/o Vinayakrao Deshmukh,
     Aged 65 years, Occ. Household, R/o Deulgaon, 
     Tahsil : Seloo, Dist. Wardha. 

2.  Pramila w/o Vitthalrao Wele,
     Aged about 52 years, Occ. Household, 
     C/o Shobha Shankarrao Pohane, 
     R/o at Post Talegaon (Talatoli) 
     Tah. And Dist. Wardha.                                    ... Respondents. 


Shri A. C. Dharmadhikari, Advocate with Ms R. Jog, Advocate for appellants. 
Shri K. R. Lule, Advocate for respondent No.1. 


                                 CORAM  :  A. S. CHANDURKAR, J. 

DATE : AUGUST 10, 2017

Oral Judgment :

This appeal under Section 100 of the Code of Civil Procedure,

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1908 has been filed by original defendant Nos.1 to 3 who are aggrieved by

the decree for partition and separate possession passed by the trial Court and

maintained by the Appellate Court.

2. Facts relevant for adjudication of this appeal are that one Harbaji

was the common ancestor. He had two wives Radhabai and Girjabai.

Harbaji and Radhabai had a son Vinayak and a daughter Pramila. Girjabai

however died issueless. Said Vinayak married the plaintiff Shantabai. He

however subsequently contracted a second marriage with defendant No.3

Ashabai. Defendant Nos.1 and 2 are the children born out of the wedlock

between Ashabai and Vinayak. Said Vinayak expired on 15/08/2001.

Shantabai, the first wife had filed proceedings for grant of maintenance in

which relief was granted to her. She thereafter filed suit for partition and

separate possession.

3. Defendant Nos.1 to 3 took the stand that the suit properties were

already partitioned on 05/01/1991 and respective shares were alloted to the

legal heirs. On 08/07/1994 Girjabai had executed a Will in favour of

defendant No.2 in respect of two lands and on that basis defendant No.2 had

become an exclusive owner thereof.

4. The trial Court after considering the evidence on record held that

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the defendants had failed to prove the oral partition. It further held that the

Will dated 08/07/1994 was also not proved. Accordingly the plaintiff was

held entitled for partition and separate possession of 2/9th share in the suit

property. The appeal filed by the said defendants was also dismissed. Hence

this second appeal.

5. Ms R. Jog, learned counsel for the appellants submitted that the

suit for partition and separate possession at the behest of Shantabai, first

wife was not maintainable. Shantabai as a widow could not have filed the

suit for partition for claiming the share in her husband's ancestral property.

By placing reliance on judgment of learned Single judge in Ananda Krishna

Tate, Thr.Lrs. Sanjay Anand Tate and ors. vs. Draupadibai Krishna Tate

and ors. 2010(3) Mh.L.J. 631, it was submitted that Shantabai was not a

co-parcener and the right to have a share in the ancestral property would

accrue to her only if the co-parceners had decided to partition the suit

property. No co-parcener had sought partition. She also referred to

judgment of learned Single Judge in F. A. No.238 of 2011 decided on

22/10/2013 (Ushabai wd/o Vijaykumar Agrawal vs. Omprakash

Rambilas Agrawal and ors.) following the earlier judgment in Ananda

Krishna Tate (supra). It was then submitted that in Second Appeal

Nos.119 and 405/2013 (Santosh Popat Chavan vs. Sulochana Rajiv)

MANU/MH/2482/2014, the earlier judgment of learned Single Judge in

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Ananda Krishna Tate (supra) has been held to have been rendered per

incuriam. According to her, the learned Single Judge however did not notice

the earlier judgment of the same Court in Ushabai Vijaykumar Agrawal

(supra). It was pointed out that though this decision was challenged before

the Honourable Supreme Court, the Spl. Leave Petition was dismissed but the

question of law was kept open. Relying upon the judgment of Special Bench

in State of Maharashtra and ors. vs. Murarao Malojirao Ghorpade and

ors. 2009 (6) Mh.L.J. 788 it was urged that considering the aforesaid

divergent views the matter needs to be referred to a larger bench. It was

therefore also submitted that the decree passed by the trial Court was not

sustainable.

6. Per contra, Shri K. R. Lule, learned counsel for the original

plaintiff supported the decree passed by the trial Court. According to him, on

the death of Vinayak, the succession would open thereby giving right to his

widow to claim her share in the suit property. According to him, the

judgment in Santosh Popat Chavan (supra) has correctly considered this

question and it has been held that it was open for a widow to file a suit for

partition and separate possession. He then submitted that both the Courts

have rightly applied the correct legal position while holding in favour of the

plaintiff. It was thus submitted that the plaintiff has been rightly granted a

share in the property coupled with possession.

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7. I have heard the learned counsel for the parties on the following

substantial question of law :

" Whether the suit for partition filed by the widow-Shantabai was maintainable ?"

8. The relationship between the parties is not in dispute. While

plaintiff-Shantabai was first wife of Vinayak, defendant Ashabai was his

second wife. Defendant Nos.1 and 2 were born out of the wedlock between

Vinayak and Asha. It is also not in dispute that the suit properties are the

ancestral properties of Harbaji. As regards the case of defendant Nos.1 to 3

that Girjabai had executed a Will on 08/07/1994 in their favour is

concerned, both the Courts have held that this execution of Will has not been

proved inasmuch as copy of said Will was itself not produced on record. This

finding has been affirmed by the Appellate Court. The said finding does not

call for any interference. The only question that remains is therefore the

maintainability of the suit at the behest of Shantabai, the widow.

9. In Santosh Popat Chavan (supra) the question that fell for

determination was whether a widow could file a suit on her own for claiming

the share of her husband in the ancestral property of her husband's joint

family in absence of other co-parceners in the family deciding the partition of

joint family properties. After considering the judgment of learned Single

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Judge in Ananda Krinshna Tate (supra) as well as the judgment of

Honourable Supreme Court in Gurupad Khandappa Magdum vs. Hirabai

Khandappa Magdum and ors. (1978) 3 SCC 833, it was held that a right

having been given to a widow or a mother under the Hindu Succession Act,

1956, she could not be told that though she had a right to get a share, a suit

for recovery of the share of her deceased husband could not be filed. After

referring to other decisions of the Honourable Supreme Court it was further

observed that the judgment of learned Single Judge in Ananda Krishna

Tate (supra) was rendered per incuriam. This judgment in Santosh Popat

Chavan (supra) was challenged before the Honourable Supreme Court and

though the Special Leave Petition was dismissed, the question of law raised

was kept open.

10. Though it is true that the learned Single Judge in Ushabai

Vijaykumar Agrawal (supra) has followed the earlier decision in Ananda K.

Tate, I find that the decision in Santosh P. Chavan (supra) has considered

the decision in Ananda K. Tate (supra) and after referring to various

decisions of the Honourable Supreme Court proceeded to hold that the

judgment in Ananda K. Tate (supra) has been rendered per incuriam. As the

entire law on the subject has been considered in the decision in Santosh P.

Chavan (supra) which I find is in accordance with the law laid down by the

Honourable Supreme Court, I do not find it necessary to further make a

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reference to a larger bench in that regard. The learned Single Judge in

Santosh P. Chavan (supra) has followed the law laid down by the

Honourable Supreme Court and has accordingly held that the plaintiff-widow

had a right to file a suit for partition to recover the share of her deceased

husband. Hence reliance placed by the learned counsel for the appellant on

the decision in Murarao Malojirao Ghorpade and ors. (supra) in these

facts does not support the contention of the appellants.

11. In a recent decision in Ramnath Sao @ Ram Nath Sahu (since

deceased) Thr. L.Rs. and ors. vs. Goberdhan Sao (since deceased) Thr.

LRs. And ors. JT 2017 (3) SC 627, the Honourable Supreme Court after

referring to its earlier decision in Gurupad Khandappa Magdum (surpa)

reiterated the legal position that the share of the widow of a Hindu male co-

parcener by virtue of notional partition stands recognized. Similarly in

Cherotte Sugathan (D) by L.R.s and ors. vs. Cherotte Bharathi and ors.

AIR 2008 SC 1467 it was held that a widow inherits the property of her

husband on his death and would become its absolute owner. Subsequent

remarriage would not divest her of the property in view of Section 14 of that

Act. It is therefore clear that Shantabai had a legal right to file a suit for

partition and separate possession as regards the share of her husband in the

suit properties.

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12. In view of aforesaid legal position, the substantial question as

framed is answered by holding that Shantabai had a right to file a suit for

partition to claim the share of her deceased husband. Both the Courts have

accordingly upheld her right and granted her 2/9th share in the suit property.

In that view of the matter there is no merit in the second appeal which is

liable to be dismissed. Accordingly second appeal stands dismissed with no

order as to costs.

C.A.S. No.838 of 2015 stands disposed of accordingly.

13. At this stage learned counsel for the appellants seeks continuation

of interim order of stay that was operating during pendency of the appeal.

Learned counsel for the respondent No.1 opposes the prayer.

As the interim order was operating since 14/10/2015, the same

shall continue to operate for a period of eight weeks from today. It shall

cease to operate automatically thereafter.

JUDGE

Asmita