Sukhdeo Khushalrao Kalpande Thr. ... vs Ramesh Wasudeorao Navsalkar And ...
2017 Latest Caselaw 3741 Bom

              sa300.03n301.03.odt                                                                        1/11


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

                                           SECOND APPEAL NO.300 OF 2003

               APPELLANT:                             Sukhdeo   S/o   Suryabhan   Hadole,   Aged
               (Original Defendant                    about   74   years,   Occu.   Cultivator,   R/o
               No.1 on R.A.)                          Somwarves, Akot, Tq. & Distt. Akot.
                                                                                                               
                                                           -VERSUS-

               RESPONDENTS: 1.                                Smt.   Shantabai   Wd/o   Sitaram   Nawale

(L.Rs of Original Plaintiff (Since dead, by L.Rs.) on R.A.)

i) Sahebrao Sitaram Nawale, aged about 45 yrs, Occ. Cultivator,

ii) Shankar Sitaram Nawale, aged about 40 yrs, Occ. Cultivator,

iii) Vinayak Sitaram Nawale, aged about 35 yrs, Occ. Cultivator,

iv) Gopal Sitaram Nawale, aged about 25 yrs, Occ. Cultivator,

v) Sau. Mangalabai w/o Ramkrishna Bansod, aged about 30 years, Occ. Housework, All R/o Akot, Tq. Akot, Distt. Akola. Original Plaintiff No.2 2. Smt. Shewantabai Wd/o Wamanrao on R.A.

Huse, Aged 62 yrs., Occu. Cultivator, R/o Shegaon, Tq. Shegaon, Distt. Buldana.

L.Rs of Original 3. Ramrao S/o Narayan Hadole (since Plaintiff No.3 on R.A.

dead by L.Rs)

i) Smt. Vimalbai Ramrao Hadole, Aged 45 years, Occ. Household,

ii) Dipak Ramrao Hadole, Aged 28 years, Occ. Cultivator,

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iii) Nilesh Ramrao Hadole, Aged 25 years, Occ. Cultivator,

iv) Ku. Shubhangi d/o Ramrao Hadole, Aged 21 years, Occ. Education, All R/o Somwarves, Devdarpura Akot, Tq. Akot, Distt. Akola.

L.Rs of Original 4. Pandurang Suryabhan Hadole (since Plaintiff No.4 on R.A.

dead by L.Rs) Second Appeal abates. i) Smt. Shewantabai Wd/o Pandurang Hadole.

ii) Devendra S/o Pandurang Hadole, Aged about 40 yrs., Occu.Cultivator,

iii) Ravindra S/o Pandurang Hadole, Aged about 35 yrs., Occ. Cultivator Lrs I) to iii) R/o Deodarpara, Akot Distt. Akot.

iv) Sau. Anjanabai w/o Shrikrishna Revaskar, aged adult, Occ. Household, R/o Shaniwarpura, Akot, Dist. Akola.

v) Sau. Nirmalbai Shankarrao Nathe, Aged adult, Occ. Household, R/o Somwanves, Akot, Dist. Akola.

vi) Sau. Mangalabai w/o Prabhakarrao Lahane, Aged adult, Occ. Household, R/o Akolkhed, Tq. Akot, Dist. Akola. Vii) Sau. Devkanyabai W/o Vithalrao Pawar, Aged adult, Occ. Household R/o Kakada (Kolha Kakada) Tq. Achalpur, Distt. Amravati.

L.Rs of Original 5. Bainabai Wd/o Suryabhan Jawarkar Plaintiff No.5 on R.A.

(Since dead by L.Rs)

i) Sau. Sushilabai W/o Uttamrao Ravaskar, Aged 76, Occ. Housework

ii) Sau. Savatrabai Deorao Belokar, Aged 73 yrs., Occ. Housework,

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iii) Keshaorao Suryabhan Jawarkar, Aged 70 yrs., Occ. Cultivator

iv) Ramrao Suryabhan Jawarkar, Aged 55 yrs., Occ. Cultivator

v) Sheshrao Suryabhan Jawarkar, Aged 68 yrs., Occ. Cultivator, All R/o Akot, Tq. Akot, Dist. Akola. S.A. Dismissed. vi) Vimal Tulshiram Navkar, Aged 45 yrs., Occ. Housework, R/o Gopal Colony, Near Janata Printing Press, Akola.

vii) Suman Onkar Fuse, Aged 48 yrs., Occ. Housework, R/o Shegaon, Dist. Buldana.

Original Plaintiffs No.6 6. Dhrupadabai Wd/o Jairam Nathe, aged & 7 on R.A.

78 yrs, Occ. Cultivator.

7. Alokabai w/o Shalikram Bale, Aged 67 yrs., Occ. Cultivator, Respondents No.6 to 7 both R/o Somwarves, Akot, Distt. Akola.

Shri D. R. Khapre Advocate with Shri R. L. Khapre, Advocate for the appellant.

AND SECOND APPEAL NO.301 OF 2003

APPELLANT: Sukhdeo S/o Suryabhan Hadole, Aged (Original Defendant about 74 years, Occu. Cultivator, R/o No.1 on R.A.) Somwarves, Akot, Tq. & Distt. Akot.

-VERSUS-

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RESPONDENTS: 1. Smt. Shantabai Wd/o Sitaram (L.Rs of Original Plaintiff Nawale (Since dead, by L.Rs.) on R.A.)

2. Shewantabai Wd/o Wamanrao Huse, Aged 62 yrs., Occ. Cultivator, R/o Shegaon, Tq. Shegaon, Distt.

Buldhana.

3. Ramrao S/o Narayan Hadole, Aged 62 yrs, Occ. Cultivator, R/o Somwarves, Akot, Tq. & Distt. Akola. Original Plaintiff Nos.2 & 4. Pandurang Suryavhan Hadole, 3 on R.A.

1-A R-1(i) Sahebrao Sitaram Nawale, Aged about 45 yrs., Occ. Cultivator, R-1(ii) Shankar Sitaram Nawale, Asged about 40 yrs, Occ. Cultivator, R-1(iii) Vinayak Sitaram Nawale, Aged about 35 yrs, Occ. Cultivator, R-1(iv) Gopal Sitaram Nawale, Aged about 25 yrs, Occ. Cultivator, R-1(v) Sau. Mangalabai w/o Ramkrishna Bansod, Aged about 30 years, Occ. Housework, All R/o Akot, Tq. Akot, Distt. Akola.

1-B R-3(i) Smt. Vimalbai Ramrao Hadole, Aged 45 years, Occ. Household, R-3(ii) Dipak Ramrao Hadole, Aged 28 years, Occ. Cultivator, R-3(iii) Nilesh Ramrao Hadole, Aged 25 years, Occ. Cultivator, R-3(iv) Ku. Shubhangi d/o Ramrao Hadole, Aged 21 years, Occ. Education,

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All R/o Somwarves, Devdarpura Akot, Tq. Akot, Dist. Akola.

1-C L.Rs. Of deceased respondent No.4. R-4(i) Smt. Shewantabai wd/o Pandurang Hadole, aged 60 yrs, Occ. Household, R-4(ii) Devendra S/o Pandurang Hadole, Aged about 40 yrs., Occ. Cultivator, R-4(iii) Ravindra S/o Pandurang Hadole, Aged about 35 yrs., Occ. Cultivator, Lrs I) to iii) R/o Deodarpara, Akot, Distt. Akot.

R-4(iv) Sau. Anjanabai w/o Shrikrishna Revaskar, aged adult, Occ.

Household, R/o Shaniwarpura, Akot, Distt. Akola.

R-4(v) Sau. Nirmalabai Shankarrao Nathe, Aged adult, Occ. Household, R/o Somwanves, Akot, Dist. Akola. R-4(vi) Sau. Mangalabai w/o Prabhakarrao Lahane, Aged adult, Occ. Household R/o Akolkhed, Tq. Akot, Dist. Akola. R-4(vii) Sau. Devkanyabai W/o Vithalrao Pawar, Aged adult, Occ. Household R/o Kakada (Kolha Kakada) Tq.

Achalpur, Distt. Amravati.

5. Bainabai Wd/o Suryabhan Jawarkar, Aged about 80 yrs, Occu: Cultivator Respondent Nos.4 and 5 both Residents of : Somwarves, Tq. Akot, Distt. Akot.

                                                                    LEGAL   HEIRS   OF   RESPONDENT
                                                                    NO.5





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                                                  R-5(i)            Sau.   Sushilabai   w/o   Uttamrao
                                                                    Ravskar, 

Aged about 76 years, Occ:Household work, R-5(ii) Sau. Savatrabai Deorao Belokar, Aged about 73 years, Occ: Household work, R-5(iii) Keshaorao Suryabhan Jawarkar, Aged about 70 years, Occ: Cultivator, R-5(iv) Ramrao Suryabhan Jawarkar, Aged about 55 years, Occ:Cultivator, R-5(v) Sheshrao Suryabhan Jawarkar, Aged about 68 years, Occ: Cultivator, All R/o Akot, Tq. Akot, Distt. Akola. R-5(vi) Vimal Tulshiram Navkar, Aged about 45 years, Occ:Household Work, R/o Gopal Colony, Near Janta Printing Press, Akola.

R-4(vii) Suman Onkar Fuse, Aged about 48 years, Occ:Household Work, Both r/o Shegaon, Distt. Buldhana. Original Defendant 6. Dhrupadabai Wd/o Jairam Nathe, No.2 & 3 on R.A.

aged 78 yrs, Occ. Cultivator

7. Alokabai w/o Shalikram Bale, Aged 67 yrs, Occ. Cultivator, Respondents No.6 and 7 both R/o Somwarves, Akot, Tq. & Distt. Akot.

Shri D. R. Khapre Advocate with Shri R. L. Khapre, Advocate for the appellant.

CORAM: A.S. CHANDURKAR, J.

                                               DATED:  29
                                                          th     JUNE,  2017.



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              ORAL JUDGMENT :  

1. The following substantial questions of law were

framed while admitting both the appeals:

(1) Whether the Courts were justified in holding that each of the parties were entitled to 1/6th share in the suit property by ignoring the rule of notional partition as laid down in Section 6 of the Hindu Succession Act, 1956? (2) Whether every party to the litigation was entitled to seek a share in 1/5th share of Kasabai receivable by her on notional partition when admittedly, the plaintiff no.1, the defendant no.2 and the plaintiff no.3 were step sons and daughters of Sarjabai and were not entitled to seek any share in her property?

2. The appellant in Second Appeal No.300 of 2003 is

the original defendant No.1 in Regular Civil Suit

No.192/1993. This suit was filed by the original plaintiffs for

partition and separate possession of the joint family property.

One Suryabhan is the common ancestor who received Survey

No.591/2 in a partition in May 1959. Suryabhan expired in

January, 1974. He was survived by the plaintiffs as well as the

defendant Nos.1 to 3. On that basis, suit for partition and

separate possession came to be filed by two sons and a sister.

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The defendant no.1 took the stand that the plaintiffs had no

right in the suit property and that he had occupied the same

during the life time of his father Suryabhan. The other

defendants also filed their written statement.

3. The trial Court on consideration of the evidence

led by the parties held that the suit property was joint family

property and that each party was entitled for 1/6th share

therein. The suit accordingly was decreed. The appeal filed

by the defendant no.1 was also dismissed.

4. Shri D. R. Khapre, learned Counsel for the

appellant submitted that both the Courts erred in calculating

the shares of the plaintiffs and the defendants. According to

him, Suryabhan was survived by three sons being the plaintiff

nos.1 and 2 and defendant no.1. They also had three sisters.

On the death of Suryabhan his notional share would have to

be worked out and accordingly, the coparcenars would get

1/4th share each. The daughters would only get a share from

that of their father Suryabhan. Thus, according to learned

Counsel, equal 1/6th share could not have been granted to all

the parties. In that regard, he placed reliance upon the

decision of the Hon'ble Supreme Court in Anar Devi and Ors.

vs. Parmeshwari Devi & Ors AIR 2006 SC 3332. He further

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submitted that the amendment to provisions of Section 6 of

the Hindu Succession Act, 1956 would not apply to the case in

hand because the father Suryabvhan had already expired in

the year 1974.

5. There is no appearance on behalf of the

respondents though they are duly served. However, with the

assistance of the learned Counsel for the parties, I have

perused the records of the case and I have given due

consideration to the submissions as made.

6. The finding that the suit property was joint family

property is a finding which is recorded on the basis of the

evidence on record. This finding is not arrived at in any

perverse manner. The only question that requires

determination is the respective shares of the parties. The

relationship between the parties is not in dispute. On the

death of Suryabhan in 1974, a notional partition would have

to be worked out by which each coparcenar including

Suyabhan would get 1/4th share. The plaintiff No.3 and

defendant Nos.2 & 3 being the daughters of Suyabhan they

would get their share in his property along with the shares of

their brothers. They would, therefore, get 1/6th share each

from the 1/4th share of Suyabhan. The Hon'ble Supreme

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Court in Anar Devi (supra) has held that pursuant to notional

partition, the undivided interest of the deceased would be

divided amongst other members and the shares would be

worked out in that manner. Similarly, the amendment to

provisions to Section 6 of the Hindu Succession Act, 1956 and

would not apply as Suryabhan had expired in 1974.

7. Both the Courts, therefore, committed error while

determining the share of the parties. The trial Court awarded

a greater share to the daughters and lesser share to the sons

ignoring the aforesaid position.

8. In so far as Second Appeal No.301 of 2003 is

concerned, the appellant is the plaintiff who had filed suit for

permanent injunction seeking to restrain the defendants from

interfering with this position. This suit was dismissed by the

trial Court and said judgment was affirmed by the appellate

Court. However, once the shares of the parties are determined,

their rights would be governed by said adjudication.

9. In view of aforesaid, the substantial question of

law as framed is answered by holding that Suryabhan and his

three sons would be entitled to 1/4th share each while the

daughters would be entitled for 1/6th share in the share of

Suryabhan. In other words, they would get 1/24th share each

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while the sons would get 7/24th share each.

10. The decree passed by the trial Court in Regular

Civil Suit No.192/1993 is accordingly partly modified. Second

Appeal No.300 of 2003 is accordingly partly allowed.

11. In so far as the decree passed in Regular Civil Suit

No.119/1993 is concerned, the direction to recover the

amount of Rs.2400/- is set aside on the count that this aspect

would be considered while determining mesne profits. Second

Appeal No.301/2003 is disposed of in aforesaid terms. There

would be no order as to costs.

JUDGE

/MULEY/