Bombay High Court
Sangram Vishws Tate vs Smt. Malan Shetiba Tate And Ors on 4 February, 2021
Bench: C.V. Bhadang
23 sa st 98734-20
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Sneha N. CIVIL APPELLATE JURISDICTION
Chavan
INTERIM APPLICATION NO. 38 OF 2021
Digitally signed
by Sneha N. WITH
Chavan INTERIM APPLICATION NO. 39 OF 2021
Date: 2021.02.05
17:47:01 +0530 IN
SECOND APPEAL (ST) NO. 98734 OF 2020
Mr. Sangram Vishwas Tate .. Applicant/Appellant
V/s.
Smt. Malan Shetiba Tate & Ors. ..Respondents
----
Mr. Rushikesh Barge for the Applicant/Appellant.
----
CORAM : C.V. BHADANG, J.
DATE : 04th FEBRUARY, 2021
P.C.
1. These applications are filed for condonation of delay and for
leave to file second appeal challenging the Judgment and Decree
dated 07.11.2012 passed by the District Judge at Karad.
2. The facts in the present case are peculiar and may be stated
thus:
3. Late Shetiba Tate was married thrice. Chingubai was his first
wife, after whose death, he married Indravati. It appears that
Sneha Chavan page 1 of 6
23 sa st 98734-20
during the subsistence of marriage with Indravati, Shetiba entered
into wedlock with plaintiff Malan. Malan filed Regular Civil Suit No.
482 of 2020 against Vishwash Shetiba Tate and Yashodabai Mane for
partition and separate possession of the suit property. It may be
mentioned that Vishwas Tate (defendant No.1) who is the father of
the present applicant was the adoptive son of Shetiba Tate, while the
second defendant Yashodabai Mane was the daughter born to
Shetiba and his first wife Chingubai.
4. The learned Trial Court by a Judgment and Decree dated
27.07.2004 dismissed the suit, however, declared that defendant
No.1 Vishwas Tate had 3/4th share, while defendant No.2 had 1/4th
share in the suit property.
5. The plaintiff Malan, carried the matter in appeal before the
learned District Judge in Regular Civil Appeal No. 136 of 2004. The
first Appellate Court by a Judgment and Decree dated 07.11.2012
'partly allowed' the appeal with costs and declared that Vishwas Tate
(defendant No.1) and Yashodabai (defendant No.2) has 1½ share
each in the suit property. Following is the operative order passed by
the First Appellate Court.
Sneha Chavan page 2 of 6
23 sa st 98734-20
"ORDER
1) Appeal is partly allowed with costs.
2) The Judgment and decree passed by the learned lower
court is modified as under:
a) It is hereby declared that appellant/plaintiff is the
limited owner of the suit property described in plaint para
No.1-E for her life time. Said property shall revert back to the
respondent Nos. 1 and 2 in equal share after the life time of
appellant/ plaintiff.
b) It is declared that the respondent Nos. 1 and 2
have equal shares in all the suit properties. They are at
liberty to get partitioned the suit properties on payment of
necessary court fees. Suit property in plaint para 1-E be
partitioned when it revert to respondents. Appellant/ plaintiff
has right to reside in the suit house property during her life
time.
c) On payment of necessary court fee stamp by the
respondents, suit landed properties be partitioned through
court Commissioner.
d) Decree be drawn up accordingly."
6. It is necessary to note that neither Vishwas, nor Yashodabai or
the original plaintiff Malan carried the matter any further and same
has attained finality. Atleast it is not shown that there was any
further challenge in the matter. The applicant Sangram, is the son
of Vishwas, who claims that he learnt about the said proceedings,
only when the notice in the execution application was received. He
Sneha Chavan page 3 of 6
23 sa st 98734-20
pointed out that the execution application is at the fag end, in which
the possession is to be handed over on 05.02.2020. It is in these
circumstances, that the present applications were moved.
7. I have heard the learned counsel for the applicant. The
learned counsel submitted that Vishws Tate was suffering from
mental illness and as such was unable to contest the suit or the
appeal and it was only on account of mental illness of Vishwas that
he did not carry the matter any further. The learned counsel has
referred to the document/certificate issued by Doctor Sharad
Kshirsagar of 'Manswastha Clinic' in order to submit that Vishwas
was not keeping good health.
8. It is submitted by the learned counsel for the applicant that in
a suit filed by Malan, the learned Trial Court could not have granted
3/4th and 1/4th share to the defendants, particularly when the suit
was dismissed. It is submitted that in a appeal filed by Malan, the
Appellate Court did not grant any relief to appellant Malan, but
modified the shares of the defendants inter se, which is not
permissible.
Sneha Chavan page 4 of 6
23 sa st 98734-20
9. I have considered the circumstances and the submissions
made. Apparently, the present applicant was not a party to the suit
or the appeal. It is true that in a suit filed by Malan while refusing
partition at her instance, defendants were granted 3/4th and 1/4th
shares respectively, which the first appellate court modified to 1½
share to each of the defendants. However, presently the merits of
the second appeal need not to be gone into inasmuch as there is a
delay of over 8 years in challenging the judgment and decree passed
by the first appellate court. The execution is at the fag end. The
learned counsel for the applicant in all fairness did not dispute that
the applicant was residing with his father i.e. defendant no.1
Vishwas Tate. The record further discloses that in the civil suit a
written statement was filed by Vishwas and he has also appeared in
the appeal before the learned District Judge. Thus, it is not possible
to accept that on account of his illness, Vishwas was unable to
contest the suit or the appeal or to challenge the judgment and
decree passed by the first Appellate Court. It is also not possible to
accept that applicant was unaware of any such proceedings
particularly, when he was admittedly residing with his father, all
through out.
Sneha Chavan page 5 of 6
23 sa st 98734-20
10. It is now well settled that although the Court can take a
liberal view, where there is a delay of short duration, however the
cases where the delay is gross or substantial, warrant a stricter
approach (see decision in the case of Esha Bhattacharjee v/s.
Managing Committee of Raghunathpur Nafar Academy and Ors 1). It
is also well settled that where the reasons and the grounds shown
for the delay are not acceptable or fanciful, the court should not
expose the adversary to the litigation. In this case, there is a long
litigation between the parties as the suit dates back to the year 2000
and the judgment of the first Appellate Court is of the year 2012.
11. Considering the over all circumstances, I do not find that the
applicant has made out 'sufficient cause' for condonation of delay
and for grant of leave. In the result, both the applications are
dismissed. The registration of second appeal stands refused.
C.V. BHADANG, J.
1 (2013) 12 Supreme Court Cases 649
Sneha Chavan page 6 of 6
