Subhash Manohar Bathe vs Sunanda Ramesh Chavan And Ors
2021 Latest Caselaw 10434 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           CIVIL APPELLATE JURISDICTION

                              WRIT PETITION NO.2942 OF 2021



     Mr. Subhash Manohar Bathe                       ....   Petitioner

             Vs.

     Smt. Sunanda Ramesh Chavan & Ors...... Respondents


     Mr. Amey Deshpande for Petitioner
     Mr. Jaydeep Deo for Respondents

                                         Coram : NITIN W. SAMBRE, J.

Date : 5TH AUGUST, 2021

P.C.:

1. Heard.

2. Vide order below Exhibit 184, in a Suit for partition and

declaration, at the fag-end, additional issues were framed, which is

questioned in the petition by the defendant on the ground of absence of

pleadings.

3. Learned counsel appearing for the Petitioner would urge

that even if the suit initiated by the Respondent is for partition, unless

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the pleadings in support of the claim of status of ancestral property and

that of the execution of Will dated 4th December, 2016 by deceased-

Sushila are pleaded, the Court ought not to have framed additional

issues. To substantiate the said contentions, reliance is placed on the

judgment of Hon'ble Apex Court in the matter of Kalyan Singh Chouhan

Vs. C.P. Joshi, reported in (2011) 11 Supreme Court Cases, page 786.

4. The Counsel for the Respondents would support the order

impugned based on the pleadings.

5. I have analysed the submissions in the light of earlier issues

framed by the trial Court, which are at Exhibit '73' in the Suit.

6. The said issues specifically deal with the status of the

property purchased by the mother i.e. deceased- Sushila in the year

1963, out of her own income i.e. to say her self acquired property and

also the construction carried out by her. As such, already there exist an

issue as regards status of the suit property being an ancestral property.

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What is sought to be looked into by the trial Court by framing additional

issues at 12(a) and 12(b) are in relation to the partition of gold

ornaments based on the Will of deceased-Sushila executed on 4 th

December, 2006.

7. The fact remains that the suit for partition, entire suit

property is required to be put in hotchpotch and entitlement of the

claim for partition is required to be adjudicated. The fact remains that

the issues of Will by deceased- Sushila is brought on record through

pleadings of the parties and that being so, the Court felt it necessary to

frame an additional issues as has been empowered under Order 14,

Rule 5(2) of Code of Civil Procedure.

8. In these backdrop, it cannot be said that the additional

issues framed at 12(a) and 12(b) vide the order impugned sans

pleadings. That being so, the claim of the Petitioner that the additional

issues are framed in absence of pleadings cannot be sustained.

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9. As such, the petition is liable to be dismissed and dismissed

accordingly.

10. However, this will not preclude the Petitioner/ Defendant

from canvassing issue that the suit suffers from non-joinder of

necessary parties.

( NITIN W. SAMBRE, J.)