Shri Ashok S/O Shivdas Nandeshwar ... vs Shri Kailash S/O Shivdas ...
2021 Latest Caselaw 14829 Bom

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                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              NAGPUR BENCH, NAGPUR

                          Civil Application [CAS] St. No.9229 of 2021
                                               in
                                 Second Appeal No.58 of 2021

                        Shri Ashok s/o Shivdas Nandeshwar & others
                                             vs.
                       Shri Kailash s/o Shivdas Nandeshwar & another
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Office notes, Office Memoranda of
Coram, appearances, Court's orders                       Court's or Judge's Orders
or directions and Registrar's orders.
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              Shri Harshad Puranik, Advocate for the Applicants/Appellants.


                             CORAM            : S.M. MODAK, J.

DATE : 11th OCTOBER, 2021.

Heard the learned Advocate for the applicants/appellants.

02] Appellant No.1-Ashok Nandeshwar expired on 08/05/2021 He is survived by the legal heirs mentioned in paragraph 3 of the application. This application is filed on 07/08/2021. It is filed in time. The suit is for partition. The present appellants are the defendants before the trial Court. Right to sue survives.

03] Hence, the application is allowed. Name of appellant No.1 be deleted and names of his legal heirs be incorporated. Necessary amendments be carried out.

Second Appeal No.58/2021:

Heard the learned Advocate for the appellants/defendants.

02] The appellants are the legal heirs of one Shivdas Nandeshwar. Whereas, respondent No.1-Kailash and respondent No.2- Meera also claim to be the legal heirs of deceased-Shivdas. Shivdas

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expired on 14/08/2007. Deceased-Shivdas married to two ladies. Appellant No.1 - Ashok and one Pushpa (predecessor-in-title of appellant Nos.2 to 5) were born to Shivdas from wife Rani. Whereas, respondent No.1-Kailash claims that he was born to Shivdas from another wife Meera i.e. respondent No.2.

03] The appellants filed the suit for partition claiming share in the properties left by deceased-Shivdas. Respondents have pleaded that respondent No.2-Meera married to Shivdas after the death of Rani on 14/02/1977. Whereas, the present appellants have denied relationship of the respondents with deceased-Shivdas.

04] After adducing the bulky evidence by both the sides, the trial Court was pleased to consider respondent No.1-Kailash as a son born to deceased-Shivdas from respondent No.2-Meera. However, respondent- Meera was not considered as legally wedded wife, because she married with deceased-Shivdas during lifetime of first wife Rani. So, the trial Court declared the shares as follows:

Plaintiff No.1 Kailash : 1/3rd Share Defendant No.1-Ashok : 1/3rd Share Defendant Nos.2 to 5 : 1/12th Share each (1/4 th of 1/3rd Share)

05] In the appeal filed by the defendants, they could not get any favourable findings in their favour. In fact, the first appellate Court has reversed the findings of the trial Court on the point of marriage of plaintiff No.2-Meera with deceased-Shivdas. While giving those findings, the first appellate Court had given the following reasons:

(a) The finding given by the Court in the proceedings under Section 125 of the Code of Criminal Procedure at Exh.39, wherein the relationship with deceased-Shivdas is admitted.

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(b) Not filing of suit by deceased-Shivdas for declaration that his marriage with plaintiff No.2 was not performed and she is not his wife.

(c) Death Certificate at Exh.70 of Rani, dated 14/02/1977, though it is a public document, presumption under Section 79 of the Indian Evidence Act got rebutted in view of the observations in the judgment at Exh.79.

06] For the above reasons, the first appellate Court has modified the shares as follows:

"Plaintiff No.1, plaintiff No.2, defendant No.1 and the heirs of defendant No.2 were entitled to 1/4th share each."

07] This judgment is challenged by the original defendants. The suit properties consist of house property and agricultural land. The defendants have also disputed the nature of house property as in existence when the suit was filed, as an ancestral property. Because, according to them, the house, which was standing at the time of filing of suit, was constructed by them with their own funds (by demolishing the old house).

08] After hearing the learned Advocate for the appellants and going through the findings recorded by both the Courts below, I am inclined to admit the appeal by framing the substantial questions of law. Hence, the appeal is admitted on the following substantial questions of law:

i. Whether the first appellate Court has erred in accepting the observations made in the judgment at Exh.39 on the point

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of relationship in between deceased-Shivdas on the one hand and plaintiff No.2-Meera on the other hand (considering the fact that a summary enquiry is contemplated in the proceedings under Section 125 of the Code of Criminal Procedure)?

ii. Whether the first appellate Court has committed wrong in disbelieving the Death Certificate of Rani at Exh.70 by comparing with the observations made in the judgment at Exh.39?

iii. Whether the first appellate Court has committed wrong in reversing the findings given by the trial Court about plaintiff No.2-Meera as being a legally wedded wife of deceased- Shivdas?

iv. Whether the first appellate Court has committed a wrong in giving a finding in favour of plaintiff No.2-Meera about legally wedded wife of deceased Shivdas, particularly when she has not preferred an appeal or cross-objection?

09] Issue notice to the respondents, returnable after 12 weeks.

Civil Application [CAS] No.136/2021:

Heard the learned Advocate for the applicants/appellants.

02] There is a prayer for staying the execution of the decree. The suit properties consist of agricultural land, for which a precept is required to be sent to the Collector. It also consists of a house property. It is true that prior to taking possession as per the judgment, certain compliance are yet to be made. It includes sending of precept and appointment of the Court Commissioner.

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             03]           So, the execution of the judgments passed by both the

Courts below are stayed only for the purpose of giving possession of the agricultural land and house property. Except that, the remaining compliance can be done.

JUDGE *sandesh