Pandurang Ganpatrao Tadas vs Smt. Suman Bhauraoji Umate And Ors
2017 Latest Caselaw 6953 Bom

348-J-SA-101-11                                                                   1/6


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

                          SECOND APPEAL NO.101 OF 2011



Pandurang Ganpatrao Tadas
Aged about 71 years, Occ. Cultivator, 
Resident of Nandgaon, 
Tahsil : Hinganghat, Dist. Wardha.                   ... Appellant. 

-vs-

1.  Suman Bhauraoji Imate
     Aged about 57 years, Occ. Household, 
     Resident of Shashtri Ward, Hinganghat, 
     Tahsil : Hinganghat, Dist. Wardha 

2.  Manda Damodhar Daf,
     Aged about 46 years, Occ. Household, 
     Resident of Borgaon (Meghe), 
     Tahsil and District Wardha 

3.  Madadeo Ganpat Tadas,
     Aged about 62 years,  Occ. Service, 
     Resident of Police Qrts, Seloo, 
     Tahsil Seloo, Dist. Wardha 

4.  Kisna Ganpat Tadas,
     aged about 56 years, Occ. Service, 

5.  Anjanabai Ganpat Tadas,
     aged about 86 years, Occ. Nil. 

Nos. 4 and 5 are Resident of Nandgaon, 
Tahsil Hinganghat, Dist. Wardha                      ... Respondents.  


Shri K. R. Lule, Advocate for appellant. 
Shri D. T.  Shinde, Advocate for respondents. 




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                                 CORAM  :  A. S. CHANDURKAR, J. 

DATE : September 08, 2017

Oral Judgment :

This appeal was initially decided on 13/02/2015 and the same

was dismissed after confirming the decree for partition and separate

possession. While dismissing the appeal this Court had relied upon judgment

of the Full Bench in Badrinarayan Shankar Bhandari vs. Omprakash

Shankar Bhandari 2014 (5) Mh.L.J. 434 for holding that the plaintiff-

sister of the defendant had equal share in the ancestral property. This

judgment was challenged by the original defendant and the Honourable

Supreme Court in Civil Appeal No.4395 of 2016 decided on 13/04/2016

remanded the proceedings for its reconsideration in the light of judgment in

Prakash and ors. vs. Phulavati and ors. 2016(1) Mh.L.J. 1. Accordingly

the learned counsel for the parties have been heard on the following

substantial question of law :

(i) Whether the learned lower Court below erred in law when it has wrongly interpreted the provisions of amended Hindu Succession Act when those provisions of amended Hindu Succession Act when those provisions are only applicable when father is alive or dead after the year 2005, then only daughters are entitled for equal share with that of sons ?

(ii) If the substantial question of law No.(i) is answered in positive what are the respective shares of the parties ?

348-J-SA-101-11 3/6

2. One Ganpat is the common ancestor who was married with

Anjanabai. They had four sons and three daughters. Ganpat expired on

14/01/1971. One son expired in the year 1974 and another daughter

expired in the year 1984. The plaintiffs who are sisters filed suit for partition

and separate possession of ancestral property against their shares. The trial

Court recorded a finding that the suit properties were ancestral properties

and each coparcener had 1/6th share each in them. The suit was

accordingly decreed. The appellate Court dismissed the appeal.

3. Shri K. R. Lule, learned counsel for the appellant-original

defendant submitted that as per law laid down by the Honourable Supreme

Court in Prakash and ors. (supra), the plaintiffs who are the daughters of

Ganpat would not be entitled to claim any benefit of the provisions of Section

6 of the Hindu Succession Act, 1956 as amended by Act 39 of 2005. As per

the said decision, it was the requirement of law that for the purposes of

claiming benefit of the amended provisions, the daughter and her father

should be alive on the date of the amendment. As the father Ganpat had

expired in the year 1971, the plaintiffs would not be entitled for benefit of

the amended provisions of Section 6 of the said Act. They would get a share

in the property of Ganpat as per the notional partition. It was therefore

submitted that the shares of the parties would be required to be modified in

these terms.

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4. Shri D. T. Shinde, learned counsel for the original plaintiffs

submitted that both the Courts have rightly granted 1/6th share to the

daughter. He however does not dispute the father Ganpat expired in the the

year 1971.

5. I have heard the learned counsel for the parties and I have

perused the impugned judgment. The finding recorded by both the Courts

that the properties as described in the Schedule to the plaint were ancestral

properties is not under challenge. What is under challenge is the extent of

share of the plaintiffs in the light of the legal position laid down by the

Supreme Court. Ganpat, the father expired on 14/01/1971. As per the

judgment in Prakash and ors. (supra) and especially the observations in

paragraph 26.2, for claiming benefit of the amended provisions of Section 6

of the said Act, the requirement is that the daughter and her father should be

alive on the date of amendment as per Act No.39 of 2005. The amendment

came into force on 09/09/2005. Hence it is clear that the plaintiffs would

not be entitled for the benefit of the amended provision of Section 6 of the

said Act. Both the Courts have wrongly interpreted these provisions in the

light of the aforesaid law. Hence substantial question of law No.(i) is

answered by holding that the plaintiffs are not entitled for the benefit of

amended provisions of Section 6 of the said Act.

348-J-SA-101-11 5/6

6. On the basis of aforesaid adjudication the shares of the respective

parties would have to be calculated on the basis of notional partition.

Ganpatrao expired in the year 1971. Thus prior to his death his family

comprised of his wife-Anjanabai who is defendant No.4, his three sons

defendant Nos.1 to 3, another son viz. Bhaskar, another daughter Sunanda

and the two plaintiffs. Thus Ganpatrao, his wife Anjanabai and four sons

would get 1/6th share each. The daughters would not be entitled for any

share as per the notional partition. The 1/6th share of Ganpatrao would

devolve on all the legal heirs who would then get 1/48th share each. The

son Bhaskar expired in the year 1974 and daughter-Sunanda expired in the

year 1984. The share of these issues would devolve upon the mother-

Anjanabai and therefore she would get a total of 19/48th share. The

surviving sons would get 9/48th share each and the plaintiffs would get

1/48th the share each. The decree of the trial Court would thus have to be

modified in these terms.

7. Accordingly the following order is passed :

(i) The decree for partition and separate possession is maintained.

(ii) The plaintiffs-sisters would get 1/48th share each while the

defendant Nos.1 to 3 would get 19/48th share each in the property

of Ganpat. The defendant No.4 Anjanabai would get 9/48 th

share.

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(iii)            The second appeal is partly allowed in aforesaid terms with no

                 order as to costs. 

  

                                                                                 JUDGE




Asmita