Rambhau Gopinath Lokhande And ... vs Shilpa Satish Surwase And Others
2022 Latest Caselaw 1460 Bom

                                                                          18.SA.674.18.odt


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD

                           SECOND APPEAL NO.674 OF 2018
                         WITH CA/11434/2017 IN SA/674/2018

1.       Rambhau s/o Gopinath Lokhande,
         (Mali), Age : 64 years, Occu: Agril.,
         R/o. Pangaon, Tq. Kallam,
         Dist. Osmanabad.
2.       Siddheshwar s/o. Rambhau Lokhande,
         (Mali), Age : 40 years, Occu: Agril.,
         R/o. Pangaon, Tq. Kallam,
         Dist. Osmanabad.                           ...     APPLICANTS
                                                    (Org. Deft Nos. 7 and 8)
                VERSUS
1.       Shila w/o Satish Surwase,
         Age : 39 years, Occu: Household,
         R/o. Behind Dayanand College,
         Latur, Tq. & Dist. Latur.

2.       Mahadeo Shankar Mali,
         Age : 63 years, Occu: Agril.,
         R/o. Pangaon, Tq. Kallam,
         Dist. Osmanabad.
3.       Sou. Mainabai w/o. Mahadeo Mali,
         Age : 57 years, Occu: Household,
         R/o. Pangaon, Tq. Kallam,
         Dist. Osmanabad.
4.       Vijaya Anil Newase,
         Age : 36 years, Occu: Household,
         R/o. Piracha Mala, Tq. Bhor,
         Dist. Pune.
5.       Dattakumar Mahadeo Mali,
         Age : 29 years, Occu: Labour,
         R/o. Pangaon, Tq. Kallam,
         Dist. Osmanabad.
         C/o. Tukaram Borate,
         Dehu Road, Borate Vasti, Deepak
         Niwas, Moshi, Tq. Haveli,
         Dist. Pune.
6.       Satyabhamabai Mahadeo Mali,
         Age : 23 years, Occu: Education,
         R/o. Pangaon, Tq. Kallam,
         Dist. Osmanabad.
7.       Swati Mahadeo Mali,                     dismissed vide order dtd 16.12.15

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         Age : 22 years, Occu: Education          in R.C.A. No.22/14
         R/o. Pangaon, Tq. Kallam,
         Dist. Osmanabad.
8.       Sunita w/o. Bhaskar Surwase,
         Age : 38 years, Occu: Agril & Household,
         R/o. Behind Agni Temple, Malkapur Road,
         Near Durga Hotel, Karad,
         Tq. Karad, Dist. Satara.                     ... RESPONDENTS
                                                  (No.1 Org. Pltf & No.2 to 8
                                                        Org. Deft. 1 to 6.
                                        ...
                   Advocate for Appellants : Mrs. M.A. Kulkarni
             Advocate for Respondent Nos.1 to 6 : Mr. R.K. Jadhavar
                                        ...
                              CORAM           : MANGESH S. PATIL, J.
                                    Reserved on     : 08.02.2022
                                    Pronounced on   : 11.02.2022
ORDER :

I have heard both the sides at the stage of admission and

perused the papers including the written notes of arguments tendered by the

learned advocate Mrs. Kulkarni for the appellants.

2. In spite of the mandate of Section 100 of the Code of Civil

Procedure the appeal memo does not contain specific substantial questions

of law calling upon this Court to respond to. Perhaps realizing this

irregularity, Mrs. Kulkarni in her written notes of argument has provided

following substantial questions of law :

"i) In the absence of prayer for setting aside sale deeds is the suit maintainable ?

ii) The learned Judge granted 1/6th share to plaintiff by applying provisions of Amended Act which came into force on 09.09.2005 can provisions of Amended Act are applicable to the present case ?

iii) During the lifetime of parents can plaintiff being daughter has

18.SA.674.18.odt

birth right to claim partition married long back ?

iv) Can alienation be quashed by plaintiff under Amended Act and can daughter claim share in alienated property which took place prior to effect of Amended Act ?"

Apart from such substantial questions deviced by Mrs. Kulkarni,

having considered the facts and circumstances, couple of additional

substantial questions of law need to be answered in this Second Appeal :

• Whether the courts below have committed gross error in not

allocating an equal 1/6th share to each of the other sharers even

though it was a suit for general partition of all the ancestral and joint

family properties ?

• Whether the courts below have committed gross error in not directing

adjustment of equities to the extent of the share of the defendant

Nos.1 and 2 in favour of the defendant Nos.7 to 9 ?

3. In order to appreciate the genesis for formulation of such points

by the learned advocate one needs to refer to the material facts. The

appellants are the original defendant Nos.7 and 8, whereas respondent No.1

is the original plaintiff, respondent Nos.2 to 7 are the original defendant

Nos. 1 to 6 and respondent No. 8 is the original defendant No.9. For the

sake of avoiding confusion the parties would hereinafter be referred to by

their status in the suit.

4. The defendant Nos.1 and 2 are the parents of the plaintiff and

defendant Nos.3 to 6. The family owned the suit properties described in the

18.SA.674.18.odt

paragraph No.1 of the plaint. Avering that all these suit properties are the

ancestral and joint family properties but have been illegally sold by the

defendant Nos.1 and 2 in favour of the defendant Nos.7 to 9, the plaintiff

claimed partition and separate possession of her share with a declaration

that the sale deeds executed by the defendant Nos.1 and 2 were not binding

on her share.

5. The defendant No.1 did not contest the suit whereas defendant

Nos.1 to 6 by their respective written statements conceded to the claim put

up by the plaintiff. The defendant Nos.7 to 9 also filed their separate

written statements. They did not dispute the relation between the plaintiff

and the defendant Nos.1 to 6. They denied that the suit properties were the

ancestral and joint family properties. They admitted about the defendant

Nos.1 and 2 having sold the portion of the suit properties to them. However,

they contended that they had sold it to meet the legal necessity of the family.

They further contended that since the sale deeds were executed more than

three years prior to the filing of the suit it was time barred.

6. The defendant No.4 who is the only son of the defendant Nos.1

and 2 while admitting the claim filed a counter claim and prayed for his

share to be separated. The parties went to trial. Conspicuously, only the

plaintiff stepped into the witness box but she was neither cross-examined by

the contesting defendant Nos.7 to 9 nor they themselves stepped into the

witness box to substantiate their contentions. Holding the issues to have

been duly proved the trial court decreed the suit further declaring that the

18.SA.674.18.odt

sale deeds executed by the defendant Nos.1 and 2 were not binding on

plaintiff. It held that she and the defendant No.4 to be entitled to 1/6 th

share each which they were entitled to claim by way of partition.

7. Being aggrieved and dissatisfied by such a decree the defendant

Nos.7 to 9 preferred Regular Civil Appeal No.22/2014 raising all the

grounds which they had raised before trial court including that the suit was

decided ex parte against them. By the judgment and order under challenge

the appellate court has dismissed the appeal. Hence this Second Appeal.

8. The learned advocate Mrs. Kulkarni in consonance with the

points formulated by her, submitted that there was no specific prayer for

setting aside the sale deeds executed by the defendant Nos.1 and 2. The

plaintiff being a married daughter was not entitled to claim any benefit by

virtue of the amendment carried out in the Hindu Succession Act which

came into force on 09.09.2005 and that by virtue of the proviso to Sub-

Section 1 of Section 6, she was not even entitled to question the dispositions

effected prior to 20.12.2004. In support of submissions she placed reliance

on the recent judgment in the case of Vineeta Sharma Vs. Rakesh Sharma

and Ors.; (2020) 9 Supreme Court Cases 1 and few other decisions :

• Ramti Devi Vs. Union of India ; 1994 DGLS (SC) 966,

• Prem Singh & Ors. Vs. Birbal & Ors.; 2006 DGLS (SC) 383

• Ganduri Koteshwaramma and Anr. Vs. Chakiri Yanadi and Anr.;

2011 DGLS (SC) 847

• Badrinarayan Shankar Bhandari and Ors. Vs. Ompraskash Shankar Bhandari and Ors.; 2014 (5) B.C.R. 481

18.SA.674.18.odt

• Prakash and Ors. Vs. Phulavati and Ors.; 2015 DGLS (SC) 1006

9. The learned advocate for the defendant Nos.1 to 6 vehemently

contended that in view of the decision in the case of Vineeta Sharma (supra)

no substantial question of law arises for the determination in this Second

Appeal. He would submit that specific issues were framed touching the

aspect of the challenge put up to the alienations made by the defendant

Nos.1 and 2. The burden was on the defendant Nos. 7 to 9 to demonstrates

that some of the suit properties were sold to them for legal necessity of the

family. However they had failed to substantiate such contentions having not

participated in the trial. No error is committed by the courts below in

recording a concurrent finding on facts which cannot be interfered in this

Second Appeal.

10. I have carefully considered the rival submissions and perused

the papers. As far as the first bone of contention of Mrs. Kulkarni that there

was no challenge to the alienation made by the defendant Nos.1 and 2 it

would be sufficient to remember that specific Issue Nos.2 to 5 and additional

Issue No.1 were framed by the trial court touching this very aspect. The

wording of the issues clearly indicated that the burden was cast on the

defendant Nos.7 to 9 to prove that these alienations were made for the legal

necessity of the joint family. In spite of such state of affairs, the defendant

Nos.7 to 9 failed to not only cross-examine the plaintiff but even

conspicuously remained absent from the witness box. In view of such state

of affairs, no exception can be taken to the observations and conclusions of

18.SA.674.18.odt

the courts below in drawing an adverse inference and recording a finding to

these issues against them. There is no substance in this submission of Mrs.

Kulkarni that there was no specific challenge put up to the alienations.

11. As far as the nature of the suit properties is concerned, again

their being no contrary evidence to disprove the testimony of the plaintiff

which was duly corroborate by the documentary evidence in the form of

consistent revenue record and the Mutation Entry No.546, the courts below

have rightly arrived at an inescapable conclusion of the suit properties being

the ancestral and joint family properties of the family.

12. As far as the effect of the amendment in the Hindu Succession

Act which has come into force w.e.f. 09.09.2005, none of the issues being

raised by Mrs. Kulkarni are res integra in view of the decision in Vineeta

Sharma (supra). It has been settled that such amendment has the effect of

elevating a daughter, married or otherwise and born before or after the

enforcement of such amendment, to the status of a coparcener entitled to

claim a share in the ancestral and joint family property. It has also been laid

down that the amendment has the retroactive application.

13. Obviously, even the Supreme Court has saved a challenge to the

transfer of properties of the joint family effected prior to the specified date

in view of the proviso to Sub-Section 1 of Section 6 which reads thus :

"6. Devolution of interest in coparcenary property. -- (1)

(a) ...

(b) ...

18.SA.674.18.odt

(c) ...

Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004."

14. In my considered view, this proviso does not have and cannot be

interpreted to put any prohibition on the power of a coparcener including a

daughter, who has been elevated as a coparcener, of putting up challenge to

such alienations made prior to such amendment which have been hitherto

available to a son to question those on the ground of want of legal necessity,

which challenge he has been entitled to put up under the personal law

applicable to the parties. This would bring about a harmony between the

two concepts of saving the challenge to the alienations made prior to

20.12.2004 as also right of a coparcener to challenge the alienations made

by the Karta or the Manager on the ground of want of legal necessity. Such

a right now would be available even to a daughter. If the proviso is be to

interpreted to mean that a coparcener particularly the daughter has no

power to challenge the alienations effected prior to 20.12.2004 it would be

clearly be inconsistent with the personal law. No such interpretation can be

accepted.

15. In view of such an interpretation, irrespective of the fact that

the defendant Nos.1 and 2 had executed the sale deeds of some of the suit

properties prior to the amendment in the Hindu Succession Act which came

into force w.e.f. 09.09.2005, the plaintiff even if she is a daughter has a right

to challenge such alienations on the ground of want of legal necessity, the

18.SA.674.18.odt

burden to prove which was taken over by the defendant Nos.7 to 9, but who

have miserably failed to discharge it.

16. No error much less giving rise to any substantial questions of

law as formulated by Mrs. Kulkarni arise for the determination in this

Second Appeal.

17. In view of such state of affairs, there is no substance in the

Second Appeal and it is liable to be dismissed in limine.

18. However, there is one more aspect which needs to be

considered which calls upon this Court to correct the error committed by the

courts below in, firstly, not allotting any share to the defendant Nos.3, 5 and

6 who are along with the plaintiff entitled to receive same 1/6 th share.

Secondly, in ignoring the fact that the defendant Nos.1 and 2 having

executed the sale deeds which though not binding on the plaintiff and the

defendant Nos.3 to 6, both the courts below could have passed appropriate

orders for adjusting the equities vis-a-vis the share of the defendant Nos.1

and 2 which they had consciously sold to the defendant Nos.7 to 9. It is

only to this extent that a substantial questions as formulated herein above

by me arise for the determination of this Court and have to be answered in

the affirmative.

19. Once it is found that it was a suit for general partition where

apart from the plaintiff, defendant Nos.1 to 5 are having 1/6 th share each,

courts below have fallen in error in not directing separation of everybody's

share and merely directing the share of plaintiff and defendant No.4 to be

18.SA.674.18.odt

separated.

20. As a logical and legal corollary, though the plaintiff and the

defendant Nos.3 to 5 are entitled to raise a dispute about the alienations of

some of the suit properties by the defendant Nos.1 and 2, the latter would

be bound by such dispositions. Therefore to this extent, the courts below

ought to have directed the equities to be adjusted in favour of the defendant

Nos.7 to 9. I therefore answer these substantial questions formulated by me

(supra) in the affirmative.

21. In the result, in substance the Second Appeal fails, however, to

the limited extent discussed herein above a modification in the judgment

and decree would be needed.

22. The Second Appeal is partly allowed. The Second Appeal to the

extent of challenge to the judgment and decree is dismissed. Pending Civil

Application is disposed of.

23. However, the decree shall stand modified and shall be read with

following directions:

i) The plaintiff and the defendant Nos.1 to 5 are entitled to have 1/6th share each in all the suit properties.

ii) While effecting partition, as far as possible, the share to be allotted to the defendant Nos.1 and 2 to the extent they have sold the portions of the suit properties to the defendant Nos.7 to 9 shall be allotted to them (defendant Nos.7 to 9).

(MANGESH S. PATIL, J.) habeeb