Bombay High Court
Shri Dattatraya S/O Narayan ... vs Sau. Annapurna Sakharam Tondare on 4 May, 2022
Bench: Manish Pitale
1/6 915.sa126.2022
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
SECOND APPEAL NO. 126 OF 2022
Dattatraya s/o Narayan Yogewar
Vs.
Sou. Annapurna Sakharam Tondare
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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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Mr. P.D. Randive, Advocate for appellant.
Mr. Rohit Joshi, Advocate for respondent.
CORAM : MANISH PITALE J.
DATE : 04.05.2022.
By this second appeal, the appellant
(original defendant) who is brother of the
respondent (original plaintiff) is before this Court
challenging judgment and order dated 06.01.2022
passed by the District Judge - 2, Pusad (hereinafter
referred to as 'appellate Court'), whereby the
appellate Court has dismissed the appeal and allowed
the cross objection of the respondent, thereby
declaring that the respondent i.e. original plaintiff is
entitled to half share in the suit property.
2. The respondent filed suit for partition and
separate possession, stating that the father of the
parties had purchased property and on 22.05.1998,
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he died. It was claimed that after the death of the
father, the respondent and the appellant were entitled
to half share each in the suit property.
3. The appellant resisted the suit by filing
written statement but, he did not deny the fact that
the father had purchased the property prior to his
death on 22.05.1998. One of the objections raised
was on the aspect of limitation, contending that the
suit filed in the year 2011 was barred by limitation.
4. The Court of Civil Judge Junior Division,
Himmatkhed, (hereinafter referred to as the 'trial
Court') passed judgment and order dated 05.05.2017,
holding that the suit was filed within limitation. But,
proceeding on the basis that Section 6 of the Hindu
Succession Act, 1956 was applicable the trial Court
concluded that the respondent was entitled to 1/3rd
share in the suit property, while the appellant was
entitled to 2/3rd share.
5. The appellant filed first appeal before the
appellate Court challenging the said judgment and
decree, claiming that the trial Court had erred in
appreciating the law pertaining to the manner in
which the shares ought to have been determined and
allotted to the rival parties. The respondent filed
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cross objection, claiming that she was entitled to half
share in the suit property.
6. The appellate Court passed judgment and
order dated 06.01.2022 and upon appreciating the
material on record, found that it was undisputed that
the father had died intestate. By applying general
Rule of succession under Section 8(a) of the aforesaid
Act, the appellate Court found that the parties were
entitled to equal share as brother and sister. It was
categorically held that there was no question of
applicability of Section 6 of the aforesaid Act. Yet,
the appellate Court proceeded to discuss the position
of law, assuming that section 6 of the aforesaid Act
was applicable. By taking into consideration latest
judgment of the Hon'ble Supreme Court in the case of
Vinita Sharma vs. Rakesh Sharma and others AIR
2020 SC 3717, the appellate Court concluded that
even as per the said position of law, the respondent
was entitled to half share in the suit property.
Accordingly, the appeal filed by the appellant herein
was dismissed and the cross objection of the
respondent was allowed in above terms.
7. In the present appeal, Mr. Randive,
learned counsel appearing for the appellant
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submitted that the Courts below failed to appreciate
the effect of Section 29-A of the said Act applicable in
the State of Maharashtra and its interplay with the
amendment of Section 6 of the said Act in the year
2005. It was submitted that even the latest judgment
of the Hon'ble Supreme Court in the case of Vinita
Sharma(supra) did not refer to and deal with the
effect of Section 29-A of the said Act, as applicable in
the State of Maharashtra. On this basis, it was
submitted that substantial questions of law arose in
the present appeal for consideration. It was further
submitted that the material on record indicated that
the plaintiff was of unsound mind and that she had
approached the Court below through her son as her
power of attorney holder and in that regard
mandatory requirements of Order 32 Rule 1 to 14
were not complied with. On this basis, it was
submitted that the present appeal deserved to be
entertained.
8. On the other hand, Mr. Rohit Joshi,
learned counsel appearing for the respondent
submitted that in the present case there was no
question of applicability of Section 6 of the said Act.
Therefore, the questions sought to be raised on behalf
of the appellant were wholly irrelevant. It
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was submitted that only Section 8 of the aforesaid Act
is applicable, which the appellate Court correctly
appreciated and hence, while dismissing the appeal of
the appellant herein, the cross objection of the
respondent was correctly allowed. On the question of
alleged unsoundness of mind of the respondent, it
was submitted that there were neither any pleadings
nor any evidence to that effect. The aforesaid issue
therefore, did not arise in the present appeal.
9. This Court has perused the judgments and
orders passed by the two Courts below. A perusal of
the plaint and written statement clearly shows that
nowhere in the pleadings was it claimed that either
the suit property was ancestral property or that it was
purchased by the father through nucleus of the joint
family property. The pleadings indicate a simple case
of property left behind by the father who had
purchased the same during his life time. Considering
the pleadings on record, this Court finds that the
appellate Court was justified in concluding that in the
present case, general rule of succession under Section
8(a) of the aforesaid Act applied and accordingly, the
parties being brother and sister were entitled to half
share each in the suit property. This Court is in
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complete agreement with the said finding rendered
by the appellate Court and therefore, there is no
question of applicability of Section 6 of the aforesaid
Act to the facts of the present case. Accordingly, it is
found that the questions of law sought to be raised on
behalf of the appellant regarding the effect of Section
29-A of the said Act applicable in the State of
Maharashtra to Section 6 of the said Act as amended
Act in the year 2005, do not arise.
10. As regards the aspect of alleged
unsoundness of mind of the respondent, it is found
that there is neither any pleading nor any evidence to
that effect on record. This issue was not raised before
the two Courts below and therefore, there is no
substance in the contention raised on behalf of the
appellant in that regard.
11. In view of the above, it is found that no
substantial questions of law arise in the present
appeal. Accordingly, the appeal is dismissed.
JUDGE
Digitally signed
by PRITY S
PRITY S GABHANE
GABHANE Date:
2022.05.06
16:25:17 +0530
Prity
