Bombay High Court
Bandu S/O Bhojraj @ Bhojya Bangde vs Smt. Shantabai Wd/O Parasram ... on 6 September, 2022
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 4992 OF 2022
Bandu s/o Bhojraj @ Bhojya Bangde Vs. Smt. Shantabai Wd/o
Parasram Pise (Dead) & Ors.
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. M.R. Joharapurkar, Advocate for Petitioner
CORAM : MANISH PITALE, J.
DATE : 6th September, 2022
Heard learned counsel for the petitioner.
2. It is submitted that the Court below was committed an error
in rejecting the application at Exh.87, seeking modification of the
preliminary decree. The said application was moved in the light of
the change in position of law as clarified by the Hon'ble Supreme
Court in the case of Vineeta Sharma Vs. Rakesh Sharma and
others reported in (2020) 9 SCC 1. It is submitted that the
application for modification of the preliminary decree was moved
specifically in the light of directions given in the said judgment of
the Hon'ble Supreme Court at paragraph No.137.4, which reads as
follows :
"137.4. The statutory fiction of partition created by
the proviso to Section 6 of the Hindu Succession Act, 1956
as originally enacted did not bring about the actual
partition or disruption of coparcenary. The fiction was
only for the purpose of ascertaining share of deceased
coparcener when he was survived by a female heir, of Class
MP Deshpande
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I as specified in the Schedule to the 1956 Act or male
relative of such female. The provisions of the substituted
Section 6 are required to be given full effect.
Notwithstanding that a preliminary decree has been passed,
the daughters are to be given share in coparcenary equal to
that of a son in pending proceedings for final decree or in
an appeal."
3. It is further submitted that the full effect ought to be given
to the said position of law and that the Court below failed to
appreciate the same further committing an error in rejecting the
application, inter-alia, by relying upon order dated 17/09/2021,
passed by this Court in Writ Petition No.1680 of 2019. It is
submitted that paragraph No.6 of the said order passed by this
Court specifically kept the issue open as regards the rights of the
parties in terms of the position of law clarified in the said
judgment of the Hon'ble Supreme Court in the case of Vineeta
Sharma Vs. Rakesh Sharma and others.
4. Issue notice for final disposal, returnable on 06/10/2022.
5. In the meanwhile and till the next date of listing, there shall
be ad-interim stay in terms of prayer clause (2).
JUDGE
Digitally signed by:MILIND
P DESHPANDE
Signing Date:06.09.2022
18:16
MP Deshpande
