Bombay High Court
Suryabhan Bhau Shirsath And Ors vs Mankarnabai Suryabhan Shirsath ... on 14 February, 2022
Bench: Mangesh S. Patil
.. 1 .. SA.96/2016
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
25 SECOND APPEAL NO.96 OF 2016
SURYABHAN BHAU SHIRSATH AND ORS
VERSUS
MANKARNABAI SURYABHAN SHIRSATH AND ORS
...
Advocate for Appellants : Mr. S.S. Kulkarni h/f. Mr. S.D. Kulkarni
Advocate for Respondent Nos.1, 2 and 8 : Mr. Rahul R. Karpe
...
WITH
CA/15104/2011 IN SA/96/2016
CORAM : MANGESH S. PATIL, J.
DATE : 14-02-2022
PER COURT :
. I have heard both the sides on the point of admission.
2. Respondent nos.1 and 2 claiming themselves to be the
wife and son of appellant no.1 filed a suit for partition and separate
possession of their shares in the suit properties which, according to
them were the ancestral and joint family properties, against the
present appellants who were arrayed as defendant nos.1 to 4. They
also averred that, without there being legal necessity for the joint
family appellant no.1 had sold some of the suit properties to
.. 2 .. SA.96/2016
respondent nos.5 to 8. Therefore, they also sought a declaration that
the sale-deeds executed by appellant no.1 - Suryabhan in favour of
the other respondents were not binding on them. Respondent nos.1
and 2 also inter alia averred that appellant no.2 was not legally
wedded wife of appellant no.1 and the appellant nos.3 and 4 were
not the legitimate sons of the couple. By framing necessary issues,
the parties went to the trial, but the suit was dismissed. It was
specifically held that appellant no.2 was not legally wedded wife of
appellant no.1, but the suit was dismissed holding that appellant no.1
had sold some of the suit properties to cope up legal necessity and
other property was self-acquired property of appellant no.2.
3. Being aggrieved, respondent no.1 preferred an appeal
before the lower appellate court. By the judgment and decree under
challenge, it reversed the findings of the trial court and decreed the
suit. It directed a partition of all the suit properties and also declared
that the sale-deeds executed by appellant no.1 in favour of the other
respondents were not binding on the shares of respondent nos.1 and
2. It also confirmed the finding of the trial court that appellant no.2
was not the legally wedded wife of appellant no.1. This is how the
matter has reached this court in the Second Appeal by the original
defendant nos.1 to 4.
.. 3 .. SA.96/2016
4. After hearing both the sides, it transpires that the right of
the appellant nos.3 and 4 to receive a share calls for the decision in
the present proceeding. Assuming for the sake of arguments that
appellant no.2 is not the legally wedded wife of appellant no.1 and
the appellant nos.3 and 4 are their illegitimate children, still by virtue
of the provisions of Section 16 (3) of the Hindu Marriage Act, they
would be entitled to claim a share in the parents property. Whether
such a right conferred upon illegitimate children extends to derive a
share in the ancestral properties as well, is a matter which has been
referred to a larger bench by the supreme court in the matter of
Revanasiddappa and Ors Vs. Mallikarjun and Ors, [2011] 11 SCC 1.
5. In view of such peculiar state-of-affairs, the Second
Appeal stands admitted on following substantial questions of law:
"Whether the lower appellate court was legally
justified in the teeth of the provisions of Section 16 (3)
of the Hindu Marriage Act in not working out the
shares of the parties and refusing to allot any share to
appellant nos.3 and 4 ?"
6. In view of such admission of the appeal, the interim
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relief that was granted by the order dated 19-12-2011 which is in
operation till date, shall continue till the Second Appeal is decided
finally.
( MANGESH S. PATIL )
JUDGE
...
Gajanan
