Bombay High Court
Bhagwan Sitaram Kale And Others vs Laxmibai Marotrao Kale And ... on 20 July, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.441 OF 2018
WITH
CIVIL APPLICATION NO.7641 OF 2018
1 Bhagwan Sitaram Kale,
Age 59 yrs., Occ. Agri.,
R/o Dhanora Kale, Tq. Purna,
Dist. Parbhani.
2 Haribhau Sitaram Kale,
Age 54 yrs., Occ. Agri.,
R/o Dhanora Kale, Tq. Purna,
Dist. Parbhani.
3 Nilawati w/o Gangadhar Bhalerao,
Age 44 yrs., Occ. Household,
R/o Nandgaon, Tq. & Dist. Parbhani.
4 Kalawati w/o Pralhad Khating,
Age 39 yrs., Occ. Household,
R/o Sayala Khating,
Tq. & Dist. Parbhani.
5 Balasaheb Daulatrao Kale,
Age 34 yrs., Occ. Agri.,
R/o Dhanora Kale, Tq. Purna,
Dist. Parbhani.
6 Kapil Manchakrao Kale,
Age 34 yrs., Occ. Agri.,
R/o Dhanora Kale, Tq. Purna,
Dist. Parbhani.
7 Dnyanraj Laxmanrao Khating,
Age 44 yrs., Occ. Agri.,
R/o Sayala Khating,
Tq. & Dist. Parbhani.
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8 Ramesh Marotrao Kale,
Age 39 yrs., Occ. Agri.,
R/o Dhanora Kale, Tq. Purna,
Dist. Parbhani.
9 Bhagwat Madhavrao Kale,
Age 44 yrs., Occ. Agri.,
R/o Dhanora Kale, Tq. Purna,
Dist. Parbhani.
10 Ramdas Haribhau Kale,
Age 39 yrs., Occ. Agri.,
R/o Dhanora Kale, Tq. Purna,
Dist. Parbhani.
11 Dnyanoba Baliramji Dhawale,
Age 49 yrs., Occ. Agri.,
R/o Dhanora Kale, Tq. Purna,
Dist. Parbhani.
... Appellants
... Versus ...
1 Laxmibai w/o Marotrao Kale,
Age 54 yrs., Occ. Agri.,
R/o Dhanora Kale, Tq. Purna,
Dist. Parbhani.
2 The Sub-Registrar,
Registrar office, Purna,
Tq. Purna, Dist. Parbhani.
... Respondents
...
Mr. P.N. Kalani, Advocate for appellants
Mr. S.B. Ghatol Patil, Advocate for the respondent No.1
Mr. A.M. Phule, AGP for the respondent No.2
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3 SA_441_2018
...
CORAM : SMT. VIBHA KANKANWADI, J.
RESERVED ON : 13th JULY, 2021.
PRONOUNCED ON : 20th JULY, 2021.
ORDER :
1 Heard learned Advocate Mr. P.N. Kalani for appellants, learned
Advocate Mr. S.B. Ghatol Patil for the respondent No.1 and learned AGP Mr.
A.M. Phule for the respondent No.2.
2 Present Second Appeal is awaiting its admission and in the
background of the said fact it is required to be seen, as to whether the
appellants, who are the original defendant Nos.1 to 11, can point out
substantial questions of law. Present respondent No.1 had filed Regular Civil
Suit No.375/2013 for declaration that she has 1/5th share in the suit
property and then further prayed for partition and separate possession of her
share as well as perpetual injunction. Further declaration was also sought
that the sale deeds executed in favour of defendant Nos.5 to 12 by defendant
Nos.1 and 2 be declared as null and void and not binding on her share.
Learned Joint Civil Judge Senior Division, Parbhani decreed the suit on
22.11.2016. The said Judgment and Decree was challenged by the original
defendant No.1 in Regular Civil Appeal No.147/2016. The appeal was heard
4 SA_441_2018
by learned District Judge-1, Parbhani and he dismissed the appeal on
12.04.2018, thereby confirming the Judgment and Decree passed by the
learned Trial Judge. Therefore, now, in fact, all the defendants i.e. defendant
Nos.1 to 11 have filed the present Second Appeal (Though defendant Nos.2
to 12 appears to be the respondents in the appeal before learned District
Judge-1, Parbhani).
3 It has been vehemently submitted on behalf of the appellants
that both the Courts below have not considered the facts as well as law
involved in the case. The Judgment and Decree of both the Courts below
suffer from illegality and they are perverse. The property originally belong to
Dharubai i.e. mother-in-law of the original plaintiff and mother of original
defendant Nos.1 to 4. She expired on 18.11.2010. Plaintiff's husband
Marotrao had pre-deceased Dharubai. Marotrao had expired on 01.06.2007.
Under the said circumstance, the property had become exclusive property of
Dharubai under Section 14 of the Hindu Succession Act, and therefore,
devolution of the suit property was only as per Sections 15 and 16 of the
Hindu Succession Act and the widowed daughter-in-law is not legal heir in
Schedule-I. The plaintiff could not have claimed any share in the suit
property. This aspect has not been properly considered. Further, it has been
wrongly observed by both the Courts below that Dharubai's husband Sitaram
5 SA_441_2018
was the original owner of in all three properties and he had partitioned two
properties, and therefore, probably the third property i.e. the suit property
was the separate property of Sitaram and after death of Dharubai it can
devolve on all the legal heirs left by Sitaram. There could not have been
partial partition in the past. The revenue record has not been properly
considered by both the Courts below. The second point is in respect of Court
fee. It has already come on record that the suit property, which was earlier
the agricultural land, was then converted into non agricultural and it was
divided in plots. It was sold to defendant Nos.5 to 11 by separate sale deeds.
Plaintiff herself has produced the certified copies of those sale deeds on
record, which shows that consideration amount, that has been paid in each of
the sale deed is Rs.60,000/-. Under such circumstance, the Court fee ought
to have been paid and the suit ought to have been valued based on the
consideration amount. There could not have been an exemption to the
plaintiff from payment of Court fee, as the suit for partition, that has been
brought by her, cannot be said to be "matrimonial dispute".
3.1 He placed reliance on the decision of this Court in Writ Petition
No.7479 of 2011, Shrinivas Ramnathji Kathod and others vs. Smt. Savitribai
wd/o Sureshchandra Kathod and others, decided on 13.09.2012, wherein
reliance was placed on the Division Bench decision of this Court in Girish
6 SA_441_2018
Kanaiyalal Munshi vs. Sudha Girish Munshi and another, 2008(4) Bom.C.R.
787.
3.2 Further it has been observed in this writ petition by the Single
Judge that -
"The Full Bench of this Court very clearly mentioned that the term
'matrimonial matter' appearing in Notification of 2000 is not
replaceable by the word 'matrimonial relationship'. Therefore, if a
woman after her husband's death seeks any relief against her in-laws
and if such relief is relating to her relationship with the deceased
husband, the exemption given by the Notification will not be available
to her."
3.3 Further reliance has been placed on the decision in A. Nawab
John and others vs. V.N. Subramaniyam, 2012(4) ALL MR 481 (S.C.),
wherein it has been held that "Determination of Court fee is a matter
between the plaintiff and the Court. Defendant has no right to file revision
petition against the decision of the Trial Court." However, it has been held
that "Such point can be raised in appeal and in view of the finality attached
under sub-section (1) to Section 12 of the Court Fees Act, 1870 to the
decision of the Trial Court and the time of the limited scope of the Appellate
Court's power to examine whether the lower Court wrongly decided the
question to the detriment of the revenue, the conclusion obviously is
inevitable. The defendant has no right to file a revision petition against the
7 SA_441_2018
decision of the Trial Court."
4 Taking into consideration these aspects, there are substantial
questions of law arising in this case, though there is concurrent findings by
both the Courts below. Learned Advocate for the appellants, therefore,
canvassed for admitting the Second Appeal and grant of stay to the impugned
Judgment and Decrees.
5 Per contra, the learned Advocate appearing for the respondent
No.1-original plaintiff submitted that both the Courts below have given
perfect and correct legal reasonings which require no interference. The facts
have been properly appreciated on the basis of mutation entries, which have
been filed by the defendants themselves. Now, the defendants were
interested in denying the rights to the plaintiff at any costs, and therefore,
they went on to the extent of making contentions that the plaintiff was
divorced by her deceased husband and since she has not returned to her
village for about 20-25 years, she has no right. But they have not led any
evidence in respect of legal divorce. Though the property was standing in the
name of Dharubai, yet the mutation entry, which is at Exh.63, would clearly
show that after death of Sitaram it was decided that the suit property should
be mutated in her name only. The said mutation entry cannot give her
exclusive ownership, and therefore, there was no question of invoking
8 SA_441_2018
provisions of Sections 14, 15 and 16 of the Hindu Succession Act. It was the
property of the Joint Family, and therefore, plaintiff's husband had share in
the same and after his death that share was devolved on plaintiff. Further, as
regards question of Court fees is concerned, the learned Trial Judge has
considered all the aspects. He has not exempted the plaintiff from payment
of Court fee and it has been specifically observed that as the suit is not
matrimonial dispute, therefore, plaintiff is required to pay necessary Court
fee of Rs.400/-. The calculation of Rs.400/- has been given and it is stated
that it is as per Section 6(v)(c) of The Bombay Court Fees Act, 1959. In the
operative order along with Decree it has been specifically stated that the
plaintiff should pay deficit Court fee within a period of one month.
Definitely, it has been paid and now this question cannot be raised as a
substantial question of law, by the present appellants, in this Second Appeal.
Learned Advocate for the respondent No.1 has vehemently submitted that
substantial questions of law are not arising in this case, and therefore, the
Second Appeal be dismissed at the stage of admission.
6 Learned AGP submitted that respondent No.2 was the original
defendant No.2 and it appears that the said authority is only a formal party.
7 Taking into consideration the above points raised with some
facts, we may arrive at the conclusion, as to whether any substantial question
9 SA_441_2018
of law is arising or not. Perusal of the record would show that most of the
public record has been produced by the defendants themselves. It appears
from Mutation Entry No.84 (Exh.69), Mutation Entry No.228 (Exh.70), 7/12
extract (Exh.72) and 7/12 extract (Exh.73) of land Sy. No.168 and 407
respectively that those properties were purchased by Sitaram - father of
deceased Marotrao and present defendant Nos.1 to 4. Further, that
document also shows that present suit property i.e. Gat No.19 admeasuring
01 H 69 R including potkharab was purchased by Sitaram on 22.11.1967.
Thereafter, there is Mutation Entry No.115 (Exh.62) showing that Sitaram
had partitioned land Gat Nos.168 and 407 amongst his three sons and it
appears that it had taken place somewhere in the year 1990. The said
mutation entry specifically states that, that Sitaram had partitioned those
lands and gave 01 H 48 R land from Gat No.168 and 00 H 27 R from land
Gat No.407 to each of the sons i.e. Marotrao, Bhagwan and Haribhau. It
appears that there is no dispute as such in respect of this partition because
nobody had challenged that mutation entry nor filed any suit including two
daughters left by Sitaram. In fact, they themselves have come with the case
that they had relinquished their share but there is no such entry or statement
made by them before the competent authority. These two lands, which were
partitioned between as above said, are not the suit properties in the suit. At
the costs of repetition, it can be said that only Gat No.19 admeasuring 01
10 SA_441_2018
90 R is the suit property. We can get further mutation entry at Exh.63,
wherein it is stated that Sitaram had expired three months prior to the said
mutation entry, which was taken on 14.05.2001 and then it was decided
amongst the three sons and the two daughters that this land i.e. Gat No.19
admeasuring 01 H 19 R should be mutated in the name of Dharubai. Though
it is mentioned that it was given as owner to her, it is a well settled law from
the catena of Judgments of the Hon'ble Supreme Court that mutation entry
cannot create or extinguish title. Both the Courts below have correctly held
that only on the basis of mutation entry (Exh.63) Dharubai cannot become
the exclusive owner as contemplated under Section 14 of the Hindu
Succession Act, and therefore, there was no question of invoking Sections 14,
15 or 16 of the Hindu Succession Act, in this case. A family property can be
mutated in the name of one member and that does not give him/her
exclusive ownership. Now, as regards the partial partition is concerned, both
the Court have rightly interpreted Exhs.62 and 63. In fact, when all the
properties were purchased properties of Sitaram, he was at liberty to disburse
those properties. If it is to be taken into consideration that those properties
were purchased from the Joint Family property income, then also parties may
settle to a certain extent and there can be a partial partition. Even if we
consider that at the time of that partition Gat No.19 was retained by Sitaram
with him; yet, since it was his separate properties, that is, which was
11 SA_441_2018
purchased by him by sale deed dated 22.11.1967, after his death the said
property had devolved on all his heirs, but at the costs of repetition, as per
mutation entry Exh.63 they decided to mutate it in the name of Dharubai
alone. Therefore, Dharubai cannot be said to be the exclusive owner of the
property debarring widowed daughter-in-law from succeeding. Definitely,
the plaintiff has 1/5th share in the suit property, as there is nothing on record
to show that the daughters had relinquished their share from Gat No.19.
8 Now, turning towards the point regarding Court fee, in fact, the
Trial Court has not given any concession to the plaintiff, though it appears
that she had claimed it. It has been rightly held that the suit for partition
filed by her against her in-laws cannot be said to be a matrimonial dispute. It
has also been correctly held that plaintiff is required to pay Court fee of
Rs.400/- and the calculation given by the Trial Court in para No.20 of its
Judgment is correct. It was not necessary for the plaintiff to get those sale
deeds set aside and it was sufficient for her to get a declaration in respect of
those sale deeds. The defendant No.1 in his cross-examination has admitted
that he and defendant No.2 had not taken consent of the plaintiff before
entering into the sale deeds with defendant Nos.5 to 11. Under such
circumstance, taking into consideration the concurrent findings based on
elaborate discussion and dealing with all the legal aspects, no substantial
12 SA_441_2018
question of law is arising, in this case.
9 The Three Judge Bench of Hon'ble Apex Court in Kirpa Ram
(deceased) through L.Rs. and others vs. Surendra Deo Gaur and others, 2021
(3) Maharashtra Law Journal, 250 has laid down -
"Therefore if the substantial question of law framed by the appellants
are found to be arising in the case, only then the High Court is
required to formulate the same for consideration. If no such question
arises, it is not necessary for the High Court to frame any substantial
question of law. The formulation of substantial question of law or
reformulation of the same in terms of the proviso arises only if there
are some questions of law and not in the absence of any substantial
question of law. The High Court is not obliged to frame substantial
question of law, in case, it finds no error in the findings recorded by
the First Appellate Court."
10 Under such circumstance, this appeal deserves to be dismissed at
the admission stage, as no substantial question of law is arising. Accordingly
it is dismissed. The Civil Application also stands rejected, in view of the
dismissal of the Second Appeal.
( Smt. Vibha Kankanwadi, J. )
13 SA_441_2018
Date : 20.07.2021.
Later on :
11 After the pronouncement of the order, the learned Advocate for
the appellants prayed for the interim relief to continue for a period of four
weeks, as the appellants intend to approach the higher Court.
12 It is to be noted that the three Courts are against the appellants
and by detailed orders the contentions raised by the appellants have been
rejected. Under such circumstance, the oral request is rejected.
( Smt. Vibha Kankanwadi, J. )
agd
