Bombay High Court
Prakash S/O Laxman Bharti vs Dipak S/O Laxman Bharti And Others on 21 September, 2022
Bench: Avinash G. Gharote
(1) 917.sa.159.2022
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
SECOND APPEAL NO.159 OF 2022
Prakash s/o Laxman Bharti
Vs.
Dipak s/o Laxman Bharti and others
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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. A. D. Dangore, Advocate for appellant.
CORAM : AVINASH G. GHAROTE, J.
DATE : 21/09/2022
Civil Application (CAS) No.979 of 2022 and
Civil Application (CAS) No.980 of 2022
1. Since notices are yet to be issued, Civil
Application No.979 of 2022 which seeks setting aside of
abatement and bringing legal heirs of deceased appellant
on record and Civil Application No.980 of 2022 seeks
condonation of delay on account of the appellant having
passed away due to Covid - 19 on 20.5.2021, the
applications are hereby allowed.
2. The legal heirs be brought on record,
forthwith.
3. The Civil Applications are disposed of.
Civil Application Stamp No.556 of 2021
1. Civil Application Stamp No.556 of
2021 seeks condonation of delay in filing of Second
Appeal.
2. The delay is of 87 days and is attributed to
the Covid - 19 pandemic, considering which, the same is
(2) 917.sa.159.2022
condoned.
3. The application is allowed and disposed of.
SECOND APPEAL NO.159 OF 2022
1. Heard Mr. Dangore, learned counsel for the
appellant.
2. The appeal challenges the judgment and
decree passed by the learned Appellate Court, dated
27.2.2020, in Regular Civil Appeal No.262 of 2015,
whereby the judgment and decree dated 13.3.2015
passed by the learned trial Court in Regular Civil Suit
No.46 of 2003, directing partition and separation
possession of the land of Survey No.1, admeasuring 3.34
H.R. has been quashed and set aside and the suit for
partition came to be dismissed on the ground that the
land in question was self-acquired property of late
Laxman Bharti. It is however a matter of record, that the
plea raised by the present respondent nos.2 and 3, who
were the original defendant nos.4 and 5 in Regular Civil
Suit No.46 of 2003, that a gift deed was executed by late
Laxman in their favour on 10.1.2002, in respect of the
property in question, has been answered in the negative
by the both the Courts below holding that the deed of
gift, was never placed on record (paras 20 and 21 of
learned trial Court judgment at page 50 and point No.3
of the learned Appellate Court judgment page 23), in
view of which, the claim by the respondent nos.2 and 3
based upon the gift deed dated 10.1.2002 did not
(3) 917.sa.159.2022
survive, and the finding regarding the Will dated
22.2.1996, claimed to have been executed by Laxman in
favour of Dipak the defendant no.3 in Regular Civil Suit
No.46 of 2003 (respondent herein), and the claim based
upon the same was barred by limitation and the bequest
was not proved, would indicate that late Laxman died
intestate, as a result of which, the succession would be
governed by the Hindu Succession Act, as a result of
which, issue notice to the respondents on the following
substantial question of law.
"Whether in absence of the claim on account
of the gift deed dated 10.1.2002 and the will
dated 22.2.1996 having being proved, what
is the mode in which the succession to the
property of Late Laxman would be
governed."
3. Notices is made, returnable on 6.10.2022.
4. The appellant to serve the respondents by all
modes permissible in law. Hamdast granted.
5. Mr. Dangore, learned counsel for the
appellant shall file the paper book as well as all exhibited
documents on record, since it is contended that the gift
deed dated 10.1.2002 is claimed to have been executed
and registered by Laxman, during his life time in favour
of his grand-sons Dinesh and Avinash, the defendant nos.
4 and 5 in Regular Civil Suit No.46 of 2003.
JUDGE
Digitally signed byANANT R
SARKATE Sarkate
Signing Date:22.09.2022
13:59
