Bombay High Court
Nitin Annaji Warhekar vs Saraswatibai Ambadas Patil And 2 ... on 21 March, 2017
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.264 OF 2004
Nitin Annaji Warhekar,
Residing at Mahuli Jahagir,
Taluka and District Amravati. ....... APPELLANT
...V E R S U S...
1] Saraswatibai Ambadas Patil,
Residing at Walgaon,
Taluka and District Amravati.
2] Panchfula Annaji Warhekar,
Residing at Mahuli Jahgir,
Taluka and District Amravati.
3] Shashikala Barkaji Raut,
Residing at Ner Pinglai,
Taluka Morshi, Dist. Amravati. ....... RESPONDENTS
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Shri J.J. Chandurkar, Advocate for Appellant.
None for Respondents.
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CORAM: R.K. DESHPANDE, J.
st MARCH, 2017.
DATE: 21
ORAL JUDGMENT
1] In Regular Civil Suit No.8 of 1995 the Trial Court
passed a decree for partition and separate possession on
07.08.2001. The plaintiff is held entitled to 1/3rd share in the
field Survey No.94 of village Mahuli Jahagir described in para 1 of
the plaint after its excluding area of 1 H 47 R in possession of the
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defendant No.4. The precept is directed to be sent for division of
the property. The lower Appellate Court allowed Regular Civil
Appeal No.252 of 2001 on 16.02.2004, it passes a decree for
partition and separate possession of 1/3rd share of the plaintiff in
the entire Survey No.94. The original defendant is therefore,
before this Court in this second appeal.
2] The claim of the appellant/defendant to exclude 1 H
47 R of land out of Survey No.94 from partition and separate
possession was based upon registered gift-deed dated 22.11.1994
at Exh.41 from Anjanabai the grand-mother, which was accepted
by the Trial Court. The lower Appellate Court records the finding
that the entire property was the ancestral property, and therefore,
Anjanabai had no authority to execute the gift-deed in respect of
1 H and 47 R of land in favour of appellant/defendant.
3] On 17.07.2006 the second appeal was admitted and
the substantial question of law was framed as under:
Admit.
The question as to what will be the effect of
death of Bhulaji, husband of Anjanabai, in the year
1947. Upon gift deed in favour of appellant and shall
be the substantial question of law for adjudication in
this appeal.
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Mr. Chaudhari, Adv. waives notice on merits for
respondent No.1.
4] Undisputedly, one Bhulaji was the owner of the
property who died intestate in the year 1947 leaving behind him
his widow Smt. Anjanabai and three daughters - (i) Saraswatibai,
(ii) Panchfula and (iii) Shashikala. Smt. Anjanabai died on
18.06.1995 and prior to that she executed registered gift-deed
dated 22.11.1994 at Exh.41 bequeathing 1 H and 47 R of land out
of Survey No.94 to the appellant/defendant No.4. The execution
of the gift-deed at Exh.41 is not in dispute. What is in dispute
according to the lower Appellate Court is the nature of property in
the hands of Smt. Anjanabai. According to the lower Appellate
Court, it was an ancestral property in her hands and she could not
have bequeathed ½ share in the suit property in favour of the
appellant/defendant No.4 by executing gift-deed dated
22.11.1994 at Exh.41.
5] The averments made in the plaint itself shows that it
was the property of Bhulaji. Hence, the question of entertaining
any dispute as to the nature of property did not arise. Be that as it
may, even if the finding of the lower Appellate Court that it was
an ancestral property in the hands of Smt. Anjanabai is accepted,
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the same would not make any difference. The reason being that
Bhulaji died in the year 1947, when the Hindu Women's Rights to
Property Act, 1937 ("said Act") was in force. The daughters were
at that time not treated as coparceners. Upon opening of
succession in the year 1947, the entire property devolved upon
Smt. Anjanabai by way of life interest in terms of sub-section (3)
of Section 3 of the said Act. By virtue of Section 14(1) of the
Hindu Succession Act, Smt. Anjanabai became the absolute owner
being in possession of the suit property and was competent to
dispose it of by executing registered gift-deed in favour of the
appellant/defendant No.4. The lower Appellate Court has
therefore, committed an error in holding that Smt. Anjanabai was
not competent to execute the gift-deed at Exh.41. Consequently, it
will have to be held that due to the effect of death of Bhulaji in
the year 1947 was to confer absolute ownership in respect of the
suit property upon Smt. Anjanabai. The substantial question of
law is answered accordingly.
6] In the result, the second appeal is allowed.
The judgment and order dated 16.02.2004 passed by the lower
Appellate Court in Regular Civil Appeal No.252 of 2001 is hereby
quashed and set aside. The decree passed by the Trial Court
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on 07.08.2001 in Regular Civil Suit No.8 of 1995 is restored.
No order as to costs.
JUDGE
NSN
