Bombay High Court
Mankarnabai Sarangdhar Kuber ... vs Saraswatibai Rangnath Kuber And ... on 26 August, 2021
Bench: V. V. Kankanwadi
sa-412-2020.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.412 OF 2020
WITH CA/8103/2020 IN SA/412/2020
MANKARNABAI W/O SARANGDHAR KUBER
VERSUS
SARASWATIBAI W/O RANGNATH KUBER AND ANR
...
Mr. S. S. Thombre, Advocate for appellant.
Mr. C. V. Thombre, Advocate for Respondent no.1.
...
CORAM : SMT. VIBHA KANKANWADI, J.
Reserved on : 11.08.2021
Pronounced on : 26.08.2021
ORDER :-
. Present appeal has been filed by the original plaintiff challenging
the judgment and decree passed in Regular Civil Appeal No.219 of 2017
by learned District Judge-1, Jalna on 17.10.2019 thereby reversing the
judgment and decree passed in Regular Civil Suit No.17 of 2011 dated
08.12.2017 by learned Civil Judge Junior Division, Bhokardan, Dist.
Jalna.
2. Heard learned Advocate Mr. S. S. Thombre for the appellant and
learned Advocate Mr. C. V. Thombre for respondent No.1.
3. It has been vehemently submitted on behalf of the appellant -
plaintiff that the learned Trial Judge had decreed the suit, which was
sa-412-2020.odt
filed for partition and separate possession. The relationship between the
parties is not denied. Both the original defendants were the real sisters
of plaintiff. Their father Himmatrao Gavhad had left agricultural land
Gut No.11 admeasuring 1 H 58 R situated at village Talegaon, Tq.
Bhokardan, Dist. Jalna. He expired in the year 1994. The plaintiff had
come with the case that the father had purchased said property in the
name of defendant No.1, but the consideration was paid by the father
and during the life time of the father itself, defendant No.2 was given
amount and, therefore, she had relinquished her share in the suit
property. Only plaintiff and defendant No.1 have ½ share each in the
suit land. The learned Trial Judge held that the relinquishment of the
share by defendant No.2 has not been proved by the plaintiff and,
therefore, all the three sisters have 1/3rd share in the property. A
specific issue was framed regarding absolute ownership of defendant
No.1 as she had claimed it and the finding has been given in the
negative. The learned first Appellate Court on the appeal filed by
original defendant No.1 have not framed proper points for
determination. Important point to be noted is that both the parties i.e.
plaintiff as well as defendant No.1 had examined their Power of
Attorney's and they themselves have not entered into the witness box.
The learned first Appellate Court invoked the provisions of amendment
sa-412-2020.odt
to Section 6 of Hindu Succession Act made by the Maharashtra State in
the year 1994 for the first time in the first appeal and no opportunity
was given to the parties to make submissions regarding the legal effect.
It has been contended that since Himmatrao himself has transferred the
suit land to defendant No.1 by way of sale deed it was held that the
plaintiff and defendant No.2 have no right. The documentary evidence
has not been properly considered by the first Appellate Court and
therefore, substantial questions of law are arising. He also relied on
three judge Bench decision of the Hon'ble Supreme Court in Vineeta
Sharma Vs. Rakesh Sharma and Ors., (AIR 2020 SS 3717), wherein the
effect of provisions of Section 6 of the Hindu Succession Act have been
laid down.
4. Per contra, the learned Advocate appearing for respondent No.1
supported the reasons given by the first Appellate Court and submitted
that the transfer of the suit land in the name of defendant No.1 by their
father Himmatrao was in the year 1973 and it was for a consideration of
Rs.2000/-. None of the parties including Himmatrao had ever
challenged that transaction and, therefore, when defendant No.1 had
become absolute owner of the suit property by virtue of sale deed dated
08.02.1973, there was no question of effecting partition of that property.
Those facts which were not considered by the learned Trial Court were
sa-412-2020.odt
considered by the learned first Appellate Court and, therefore, it cannot
be stated that merely there are contrary findings, the appeal deserves to
be admitted.
5. At the outset, it is to be definitely noted that all the sisters were
married prior to 1971, but then in the written statement it was
contended by defendant No.1 that their father Himmatrao had sold the
suit property in the year 1973 in favour of defendant No.1 for
Rs.2000/-. According to the plaintiff, the suit property was the ancestral
property. Plaintiff intends to contend that since they were the
coparceners, father had no right to sell the property, but then we are
required to consider the position which was prevailing in the year 1973
when the alleged sale deed took place. We are required to see whether
Himmatrao had authority to sell the entire property or not. The learned
Trial Judge has held that the plaintiff had 1/3rd share and also
defendant Nos.1 and 2 have 1/3rd share each in the said land. When
the suit was decreed and the learned first Appellate Court wanted to
reverse it, whether he had followed the requirements of Order 41 Rule
31 of the Code of Civil Procedure, is also required to be considered.
Reliance can be placed on the decisions in Barnes School and another
Vs. Arzoo Allan Baker, [2012 (3) Mh.L.J. 310], Hazrat Ali Mohamad (D)
through Lr. Vs. Prabhakar Dattaram Sirvoicar, [(2015 (5) ALL.M.R.
sa-412-2020.odt
7300], H. Siddiqui (Dead) By Lrs. Vs. A. Ramalingam, [(2011) 4 SCC
240], Khatunbi wd/o Mohammad Sayeed and others Vs. Aminabai w/o
Mohammad Sabir, [2006 (6) Mh.L.J. 759] and Santosh Hazari Vs.
Purushottam Tiwari deceased by Lrs., [2001 (2) Mh.L.J. 786].
Therefore, case is made out to admit the second appeal. Accordingly,
second appeal is admitted. Following are the substantial questions of
law :-
I) Whether the judgment passed by the first Appellate
Court fulfills the requirement of Order 41 Rule 31 and 22
of the Code of Civil Procedure. If not, whether it requires
remand?
II) Whether defendant No.1 had become absolute
owner of the suit property by virtue of sale deed dated
08.02.1973 by father Himmatrao Gavhad in her favour?
III) Whether plaintiff has share in the suit property. If
yes, to what extent?
6. Issue notice to the respondents. Learned Advocate Mr. C. V.
Thombre waives notice for respondent No.1. Notice of respondent No.2
is made returnable on 04.10.2021.
sa-412-2020.odt
7. Call record and proceedings.
8. Civil Application No.8103 of 2020 to be considered at the time of
final hearing and disposal of the second appeal.
[SMT. VIBHA KANKANWADI, J.]
scm
