Bombay High Court
Smt Kamalabai W/0 Madhaorao ... vs Chindu S/0 Sitaram Samarta And 7 ... on 20 June, 2017
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.203 OF 1990
AND
CROSS-OBJECTION ST. NO.20769 OF 1990
APPELLANT: Smt. Kamlabai w/o Mahadeorao Sahare,
aged about 30, Occupation-Nil, Resident
of Babulkheda, Nagpur.
-VERSUS-
RESPONDENTS: 1. Chindhu S/o Sitaram Samarth, aged
about 44 years, Occupation-Agriculture,
R/o village Sawangi, Post Deoli, Rev.
Circle : Hingna, Tahsil and Distt.
Nagpur.
2. Ramkrishna S/o Sitaram Samarth, Aged
about 41 years, Occupation-Agriculture,
Resident of Sawangi, Post Deoli, Tahsil
and District Nagpur.
3. Smt. Sarjuabai w/o Sitaram Samarth,
aged about 64 years, R/o Sawangi, Post
Deoli, Tahsil and district Nagpur
(Deleted).
4. Smt. Shahanabai w/o Motiram Lakade,
Aged about 35 years, R/o Hingni
(Subhedar), Post Hingni, Tah. And
District - Wardha.
5. Madhaorao S/o Hanumantrao Share,
Aged about 41 years, Occupation:
Service, R/o Balabhaupeth, Nagpur.
6. Smt. Vithabai w/o Santosh Bhajbhuje,
Aged about 27 years, resident of Salai
Dhaba, Rev. Circle Post Salai Dhaba,
Tahsil and District Nagpur.
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7. Bebibai w/o Gopalrao Durbude, aged
about 31 years, Resident of Hingna
Tahsil and District Nagpur (Dead) thr.
Her Legal heirs.
7-i) Shri Pramod S/o Gopalrao Durbude,
Aged about 27 years, Occupation-
Business, R/o Hingana (Raipur) Tahsil &
District Nagpur.
7-ii) Shri Laxman S/o Gopalrao Durbude,
Aged about 23 years,
Occupation:Business, R/o Hingana
(Raipur) Taluka and District: Nagpur.
7-iii) Sau. Kalpana Suresh Nagose, aged about
25 years, R/o C/o Ashok Baburao
Nagose, Behind Bhawani Mandir,
Nagose Traders, Plot No.11, Bhawani
Nagar, Punapur Road, Pardi, Nagpur-8.
8. Natthu S/o Narayan Samarth, Aged
about 66 years, Occupation-Business,
R/o Saongi, Taluka and District :
Nagpur. (Since Dead through Lrs.)
(Deleted) 8-i) Kasabai Wd/o Nathu Samarth
8-ii) Shri Wasudeo S/o Natthu Samarth
(Dead)through Lrs:
a) Smt. Lakshmibai Wasudevji Samarth,
b) Shravan Wasudevji Samarth,
c) Amol Wasudevji Samarth,
d) Chaya Wasantrao Lakhde,
e) Nanda Wamanrao Lakde,
Respondent No.8(ii)(a) to (d) all R/o
Sawangi (deoli), Tah. Hingna, Dist.
Nagpur.
Respondent No.8(ii)(e) R/o Plot No.58,
Kharbi Road, Sahakar Nagar, Behind
Bhakre Rice Mill, Nagpur.
Shri Harish Dangre, Advocate for the appellant.
Shri Anjan De, Advocate for the respondent nos.1, 2 & 4.
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Shri R. Suryawanshi Advocate for respondent 8(ii) (a) to (e)
CORAM: A.S. CHANDURKAR, J.
DATED: 20
th JUNE, 2017.
ORAL JUDGMENT :
1. While admitting this appeal, the following substantial
question of law came to be framed:
Whether the widow a class-I heir not being
co-parcener cannot be governed by Section 6 but
Section 8 of the Hindu Succession Act?
2. The appellant is the original plaintiff who had filed suit for
partition and separate possession of various joint family properties that
were owned by one Sitaram. This Sitaram had two wives. The first wife
was Sarjabai - defendant No.3 and defendant Nos.1, 2 & 4 were the
issues from the first wife. The second wife was Sonabai - defendant
No.5 and defendant Nos.6 & 7 as well as the plaintiff were the issues
from the second wife. Sitaram expired in the year 1968. The plaintiff
filed the present suit claiming 1/7th share in various joint family
properties. In the written statement filed by defendant nos.1 to 4 stand
was taken that as the family had spent on the marriage of the plaintiff as
well as defendant No.7, she was not entitled for any share in the joint
family property.
3. The trial Court by its judgment dated 30-4-1985 dismissed
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the suit. Being aggrieved the plaintiff filed the Regular Civil Appeal
No.547/1985. The appellate Court did not accept the stand of the
defendants that on account of the marriage expenses being borne by the
defendant nos.1 and 2, the plaintiff was not entitled for partition. After
holding that all the properties belonged to Sitaram, the appellate Court
allowed the appeal and granted share to members of the joint family. The
plaintiff was granted 1/28th share. Not being satisfied by grant of this
share, the present second appeal has been filed.
4. Shri Harish Dangre, learned Counsel for the appellant
submits that the plaintiff ought to have been granted 1/7th share in the
suit property inasmuch as she was a class-I heir and that Sitaram has died
intestate. He submitted that the calculation of shares by the appellate
Court was incorrect and to that extent, the decree of the appellate Court
was liable to be modified. He then submitted that the original defendant
nos.1 to 4 had filed Second Appeal No.150 of 1990 and the same was
dismissed on 14-9-1990. Due to this dismissal, the other findings
recorded with regard to the stand of defendant Nos.1 to 4 had become
final.
5. Shri Anjan De, learned Counsel appearing for respondent
Nos.1, 2 and 4 supported the impugned judgment. He submitted that the
shares as worked out by the appellate Court were in accordance with
law. According to him, Sitaram having expired in the year 1968, the
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appellant did not have any share exceeding 1/28th. He did not dispute
that the second appeal filed by defendant Nos.1 to 4 had been dismissed.
6. Shri R. Suryawanshi, learned Counsel appears for legal
heirs of respondent No.8.
7. Having heard the learned Counsel for the parties and having
perused the records of the case, it can be seen that by virtue of dismissal
of Second Appeal No.150 of 1990 filed by defendant Nos.1 to 4, the
stand taken by defendant Nos.1 and 2 of they having spent amounts on
the marriage of the appellant and therefore she was not entitled for any
share cannot be accepted. The question only that remains is with regard
to adjudication of respective shares of the parties. It is to be noted that
the Hon'ble Supreme Court in Prakash and others Vs. Phulavati & Ors.
2015 (11) SCALE 643 while considering the provisions of Section 6 of
the Hindu Succession Act, 1956 as amended has held that for a daughter
to get a share as co-parcener in the joint property, she along with her
father should have been alive on the date of the amendment which is 9-9-
2005. In the present case, the appellant's father Sitaram expired in the
year 1968 and, therefore, it would not be possible to enhance the share of
the appellant on the basis of the amended provisions. Perusal of para 15
of the judgment of the appellate Court indicates that the respective shares
have been correctly carved out and in view of the judgment in Prakash
and others (supra), the appellant would not be entitled for a higher share.
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8. The substantial question of law as framed is accordingly
answered against the appellant. Consequently, the judgment of the
appellate Court is maintained.
9. Second appeal as well as Cross-objection stand dismissed
with no order as to costs.
JUDGE
/MULEY/
