Vaijinath Trimbakrao Shinde vs Tulsabai Bhaskarrao Shinde And ...
2022 Latest Caselaw 4431 Bom

                                                                                       40.SA.715.17.odt


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD

                             SECOND APPEAL NO.715 OF 2017
                                        WITH
                             CA/14301/2017 IN SA/715/2017

                        VAIJINATH TRIMBAKRAO SHINDE
                                     VERSUS
                  TULSABAI BHASKARRAO SHINDE AND OTHERS
                                        ...
                       Advocate for Appellant : Mr. P.F. Patni
                 Advocate for Respondent Nos.1 to 3 : Mr. S.S. Tope
                                       ...
                              CORAM             : MANGESH S. PATIL, J.
                                      Reserved on           : 25.04.2022
                                      Pronounced on         : 27.04.2022
ORDER :

Heard the learned advocates of both the sides on the point of

admission.

2. This is a Second Appeal by the original defendant No.4. One

Trimbakrao was the common ancestor. He died on 17.11.2003 leaving

behind his widow Anusayabai who also died on 28.03.2011 and in all six

issues Jagannath (Deft. No.1), Vaijinath (Deft. No.4), one Bhaskar,

Shashikala (Deft. No.2), Suman (Deft. No.3) and Mangal (Deft. No.5).

3. The widow and two sons of Bhaskar (Plaintiffs) filed a suit for

partition and separate possession of land Gat No.51 which consists of a well

and land Gat No.52. It was asserted that during his life time, Trimbakrao

had allotted two other lands to Jagannath which he had disposed of. It was

also averred that Jagannath had filed RCS No.510/2001 against Trimbakrao

and other siblings for partition and separate possession of the

40.SA.715.17.odt

aforementioned two lands plus a land Gat No.50. However, holding that he

was already allotted couple of lands and was separated from the family, the

suit was dismissed.

4. The appellant Vaijinath contested the suit by filing a written

statement. He admitted the genealogy and also did not dispute the fact that

the land Gat No.50, 51 and 52 were the ancestral properties. However, he

contended that the land Gat No.50 was already divided between him and

Bhaskar and there was no dispute about that. He also contended that the

land Gat No.52 was sold by Trimbakrao for legal necessity which he

(appellant Vaijinath) subsequently repurchased it and was his separate and

self acquired property.

5. The trial court holding that the suit properties Gat No.51 and

52 continued to be joint family properties and holding that the land Gat

No.52 was not separate and self acquired property of appellant Vaijinath and

even holding that land Gat No.50 was also not divided by metes and

bounds, decreed the suit for partition in respect of all the three properties

i.e. land Gat Nos.50, 51 and 52 and declared that except Jagannath the

other five siblings had 1/5th share each in all the three properties and

directed partition.

6. Being aggrieved and dissatisfied, the appellant Vaijinath

preferred appeal before the lower appellate court. By the judgment and

order under challenge the lower appellate court dismissed the appeal,

however, modified the decree holding that the land Gat No.50 was not the

40.SA.715.17.odt

suit property and that the daughters Shashikala, Suman and Mangal were

married before the amendment to the Hindu Succession Act was brought

into effect on 9 September 2005. It directed partition and separate

possession of only the suit properties land Gat No.51 and 52 and held

appellant Vaijinath and the branch of Bhaskar represented by the

respondents plaintiffs entitled to 1/2 share each.

7. Though there are concurrent findings of facts by the courts

below, in my considered view, the Second Appeal deserves to be admitted on

following substantial questions of law :

i. Whether the courts below have grossly erred in appreciating the

fact that the land Gat No.50 which was also the ancestral

property was excluded by the plaintiffs while claiming the

partition by asserting that to that extent it was already divided

and partitioned between appellant Vaijinath and Bhaskar and

also the fact that even Jagannath was separately allotted couple

of other lands, which circumstances were indicative of a

previous partition and still, expected the appellant Vaijinath to

prove that the suit property Gat No.52 was purchased by him

from his separate income ?

ii. Whether the courts below have grossly erred in overlooking the

circumstance that in RCS No.510/2001 in the joint written

statement filed by father Trimbakrao and the appellant Vaijinath,

it was specifically contended that the land Gat No.52 was

40.SA.715.17.odt

separate and self acquired property of Vaijinath, more so when

the respondent Bajrang (Pltf. No.2) was also a party to the suit ?

iii. Whether the lower courts could have legally referred to the

replies given by appellant Vaijinath in his testimony recorded in

earlier suit RCS No.510/2001 even when it was not confronted

to him during his cross examination in this suit ?

iv. Whether the lower appellate court was legally justified in

upsetting the finding of the trial court that even the land Gat

No.50 was still undivided ?

v. Whether in view of the decision in the matter of Vineeta

Sharma Vs. Rakesh Sharma; (2020) 9 SCC 1, daughters of

Trimbakrao namely Shashikala, Suman and Mangal are entitled

to receive a share in the suit properties when admittedly they

have not been allotted any share in any of the ancestral

properties and it is not the case of either of the party about they

having legally relinquished their shares ?

8. In view of the admission of the Second Appeal none of the

parties shall create any third party interest in any of the lands Gat No.50, 51

or 52 till decision of the Second Appeal. The execution may go on but

actual possession shall not be delivered.

9. The Civil Application No.14301/2017 is disposed of.

(MANGESH S. PATIL, J.) habeeb