Bombay High Court
Ravindra William Gaikwad And Anr vs Komal William Gaikwad And Ors on 29 July, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
912 SECOND APPEAL NO.304 OF 2021
RAVINDRA WILLIAM GAIKWAD AND ANR
VERSUS
KOMAL WILLIAM GAIKWAD AND ORS
...
Advocate for Appellants : Senior Counsel Mr. S. R. Sapkal i/b.
Advocate Mr. A. S. Sakhare
...
CORAM : SMT.VIBHA KANKANWADI, J.
DATE : 29-07-2021.
ORDER :
1. Heard learned Senior Counsel Mr. S. R. Sapkal instructed by
Advocate Mr. A. S. Sakhare for the appellants.
2. Appellants are the original plaintiffs who had filed Special Civil
Suit No.02 of 2015 before the 2nd Joint Civil Judge, Senior Division,
Ahmednagar for declaration and possession. The said suit came to be
decreed. It was declared that the plaintiffs and defendant No.5 are the
owners of the suit property being heirs of deceased Helen. It was also
declared that the sale deed dated 07-05-2008 executed by Dr.William
in favour of defendants No.1 to 3 in respect of the suit property is void
and illegal. The possession of the defendants No.1 to 3 was held to be
illegal in view of the said sale deed and they were directed to hand
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over the possession to the plaintiffs and defendant No.5. Original
defendants No.1 to 4 filed Regular Civil Appeal No.375 of 2016
before District Court, Ahmednagar. It was heard by learned District
Judge-10, Ahmednagar. The appeal came to be partly allowed. The
decree passed by the learned Trial Judge was set aside and
modified. It was declared that the plaintiffs and defendant No.5 are
the owners of the suit property to the extent of 2/3rd share being
legal heirs of deceased Helen. It was declared that the sale deed
executed by Dr.William on 07-05-2008 in favour of defendants No.1
to 3 was void and illegal. Defendants No.1 to 4 were directed to
hand over the suit property to the extent of 2/3rd share to the
plaintiffs and defendant No.5. Hence, the second appeal has been
filed.
3. Learned Senior Counsel submitted that the facts have not been
properly appreciated by the learned First Appellate Court. The
learned First Appellate Court has misinterpreted Section 35 of the
Indian Succession Act and observed that Dr.William was having
1/3rd share in the suit property as a widower of deceased Helen. It
is not in dispute that the suit property was the self-acquired
property of Helen William Gaikwad who was the mother of the
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plaintiffs. She had purchased it from one Namdeo Rakhmaji Pandit
on 20-09-1974 from her salary. Helen expired on 15-02-1978 and,
thereafter, the property came to be mutated in the name of her
husband Dr.William. However, Dr.William performed second
marriage and, therefore, he cannot be said to be a widower and he
could not have succeeded to the property left by Helen. Only the
plaintiffs could have succeeded to the property left by their mother.
The learned Trial Judge was right in decreeing the suit in its entirety.
However, the learned First Appellate Court has misinterpreted and
extended the alleged right of Dr.William till his death. In fact, he
had no authority to sell out the property. The First Appellate Court
failed to consider that Dr.William had performed marriage with
defendant No.4 on 24-04-1978 that is only after two months of
demise of Helen. But then he gave application to the City Survey to
enter his name to the suit property on 30-07-1982. When he was
already married, he could not have been said to be "Widower" and,
therefore, substantial questions of law are arising in this case
requiring admission of the second appeal.
4. It is to be noted that the facts are simple. It is not in dispute
that the property belong to Helen initially as she had purchased it
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from Namdeo Pandit. It appears that though she had purchased
that property in 1974, during her lifetime she never got the property
mutated in her name, she expired on 15.2.1978. Helen and her
husband were Christian and, therefore, their succession would be
governed by Indian Succession Act. Section 31 to 49 of the Indian
Succession Act deal with provisions in respect of intestate other than
Parsis. Section 35 of the Indian Succession Act provides that,
"A husband surviving his wife has the same rights in
respect of her property, if she dies intestate, as a
widow has in respect of her husband's property, if he
dies intestate."
That means, the similar provision as is applicable when husband dies
instate and the widow would get the same rights in respect of her
husband's property. Section 33 of the Indian Succession Act would
be similarly applicable to the widower i.e. the husband whose wife
has expired intestate. Here, Helen has died has died intestate,
therefore, as per Section 35 read with Section 33 of the Indian
Succession Act, Dr. William would get 1/3rd share and the remaining
2/3rd share will go to the lineal descendants i. e. the children. There
is absolutely no provision under the Indian Succession Act divesting
the widower from inherited property. Inheritance would open on the
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date of death of Helen and then as aforesaid by virtue of Section 35
read with Section 33 of the Indian Succession Act Dr.William being
her widower would get 1/3rd share in her property, the plaintiffs
would get 2/3rd share. Therefore, this legal point has been properly
considered by the learned First Appellate Court. A well reasoned
Judgment and decree has been passed. No substantial questions of
law are arising in this case as contemplated under Section 100 of the
Code of Civil Procedure requiring admission of the second appeal
and, therefore, in view of Kirpa Ram (deceased) through L.Rs. and
others vs. Surendra Deo Gaur and others, reported in 2021 (3)
Mh.L.J. 250, the appeal is dismissed without framing substantial
questions of law.
(SMT. VIBHA KANKANWADI)
JUDGE
vjg/-
