Bombay High Court
Ravindra Vithal Khomane vs Hausabai Uttam Atole on 9 February, 2021
Bench: C.V. Bhadang
3 sa 497-18=
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Sneha N.
Chavan SECOND APPEAL NO. 497 OF 2018
Digitally signed by
Sneha N. Chavan Ravindra Vithal Khomane and Ors. .. Appellants
Date: 2021.02.09
16:03:22 +0530 V/s.
Hausabai Uttam Atole and Anr. ..Respondents
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Mr. Tushar Sonawane i/b Rupesh Zade for the Appellants.
Mr. Shriram Kulkarni for the Respondent No.1.
----
CORAM : C.V. BHADANG, J.
DATE : 09th FEBRUARY, 2021
P.C.
1. The challenge in this appeal is to the Judgment and Decree
dated 20.09.2017 passed by the learned District Judge at Baramati
in Regular Civil Appeal No. 115 of 2013. By the impugned
judgment, the learned First Appellate Court, has partly allowed the
appeal filed by the respondent No.1 (original plaintiff) thereby
declaring that respondent No.1 has 1/5th share in the suit property
bearing Gut No. 99 and a share to the extent of 11 Ares from out of
land Gut No. 87, situated at village Korhale Budruk. There was
third property bearing Gut No. 148, which was also subject matter
of the suit filed by respondent No.1. However, the Appellate Court
Sneha Chavan page 1 of 4
3 sa 497-18=
has not granted any share to respondent No.1 in the land bearing
Gut No. 148.
2. The brief facts are that respondent No.1 filed Regular Civil
Suit No. 178 of 2010, against the appellants and her late parents for
partition and separate possession of the properties bearing Gut Nos.
87, 99 and 148 of village Korhale Budruk, Taluka Baramati, District
Pune. The case made out in the plaint is that these properties were
ancestral properties, in which the respondent No.1 had a share by
birth. The learned Trial Court framed in all six issues. The first
issue was whether the suit properties were ancestral properties of
the joint family, which was answered in the negative. In that view of
the matter, the learned Trial Court by a Judgment and Decree dated
27.06.2013 dismissed the suit. That was challenged by the
respondent No.1 before the learned District Judge, in which the
appeal was partly allowed as aforesaid. It is in these circumstances
that the original defendants have come up in appeal.
3. I have heard the learned counsel for the appellants and the
learned counsel for the respondent No.1. Perused record.
Sneha Chavan page 2 of 4
3 sa 497-18=
4. The learned counsel for the appellants submitted that there
was a registered partition deed effected by Vitthal Bajirao Khomane
(defendant No.1) between himself and defendant Nos.3 and 4 on
17.07.2009. It is submitted that thus, the first Appellate Court
could not have granted a share to the respondent No.1.
5. The learned counsel for the respondent No.1 placing reliance
on the decision of the Supreme Court in the case of Vineeta Sharma
v/s. Rakesh Sharma & Ors.1 has submitted that partition having
been effected after coming into force of 2005 amendment of the
Hindu Succession Act, to the exclusion of the plaintiff, was invalid
and could not be acted upon. He, therefore, submitted that the
impugned Judgment and Decree does not call for interference.
6. I have considered the rival circumstances and the submissions
made. It is trite that by virtue of 2005 amendment to the Hindu
Succession Act, a daughter gets a share by birth in the ancestral
property. Thus, partition effected subsequently in the year 2009 is
of no avail. For this reason alone, in my considered view no case for
interference in the impugned Judgment and Decree is made out.
1 (2020) 9 SCC 1
Sneha Chavan page 3 of 4
3 sa 497-18=
7. At this stage, it is not shown that the original plaintiff has
challenged the refusal of the partition to the extent of land Gut No.
148 is concerned.
8. The appeal does not raise any substantial question of law. The
appeal is without any merit and is accordingly dismissed with no
order as to costs.
9. A decree be drawn accordingly.
10. Pending Civil Applications, if any, are disposed of as
infructuous.
C.V. BHADANG, J.
Sneha Chavan page 4 of 4
