Bombay High Court
Sahebrao Vitthalrao Bhalshankar And ... vs Savita Charlas Pandit And Other on 18 December, 2023
Author: S. G. Mehare
Bench: S. G. Mehare
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APEAL FROM ORDER NO. 8 OF 2019
WITH
CIVIL APPLICATION NO. 2473 OF 2019
IN AO/8/2019
SAHEBRAO VITTHALRAO BHALSHANKAR AND ANOTHER
VERSUS
SAVITA CHARLAS PANDIT AND OTHERS
...
Advocate for Appellants : Mr. Deshmukh H. D.
Advocate for Respondent Nos.1 to 5 : Mr. Jayabhar D. R.
...
CORAM : S. G. MEHARE, J.
DATE : 18.12.2023
PER COURT :-
1. Heard the learned counsel for the appellants and learned
counsel for the respondents.
2. The respondents were the plaintiffs and the appellants
were the defendants. The plaintiffs had filed the suit for
partition under Hindu Succession Act. The defendants had
objected that the parties are not the Hindu by religion. They
are the Christian. A specific defence was raised. The plaintiffs
have given the candid admission that they observe the
Christianity. Appreciating the evidence, learned Court of first
instance dismissed the suit holding that the plaintiffs belong to
Christian community and Hindu Succession Act is not
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applicable. They were governed under the Indian Succession
Act. The plaintiffs had preferred the first appeal. The First
Appellate Court held that the issue as regards to the
Christianity was not framed. The First Appellate Court framed
two issues and remitted the case to the Court of first instance
for fresh trial.
3. Learned counsel for the appellants fairly concedes that
he has no serious objection about remitting the matter for fresh
trial. But, the observations in paragraph No.12 of the said
judgment that parties are at liberty to amend the pleadings
suitably as per the discussion above is not legally correct and
proper.
4. Learned counsel for the respondents would submit that
opportunity needs to be granted to prove that the plaintiffs
were not governed under the Christianity. Therefore, the
impugned order of remand is legally correct and proper.
5. A small question that has been raised is, "whether the
pleading requires the amendment to prove the issue of religion
of the parties to the suit ?"
6. In the operative part of the impugned judgment and
decree of the First Appellate Court, no liberty to amend the
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pleadings suitably was granted. It was barely an observation in
the body of the judgment. The operative order of the First
Appellate Court was not in consonance with the findings
recorded as regards the liberty to amend the pleadings.
Considering the objections raised that the parties were not
governed under the Hindu Succession Act, the Court is of the
view that the necessary amendment as regards the religion of
the parties is not essential. The defendants had specifically
raised the objection that the parties to the suit were not
governed under the Hindu Succession Act. In the
circumstances, the Court is of the view that the observations
recorded in paragraph No.12 would not serve the purpose for
the reasons that the plaintiffs had filed a suit under Hindu
Succession Act and the defendants had raised the issue of
Christianity. So, necessary pleading may not be required. It is a
matter of burden of proof. The Court is of the view that
though the findings have been recorded as regards the liberty
to amend the pleadings it is immaterial. The specific issues
have been framed. That would cover the issues in dispute.
Since the issue was not framed, the First Appellate Court has
correctly remitted the matter to the trial Court. There is no
substance in the appeal. The question as discussed above about
the liberty to amend the pleadings is concerned, it has no
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relevance with the remand and the plaintiffs should not take
the advantage of those findings. The trial Court may consider
the issue framed by the First Appellate Court granting liberty to
them to lead the evidence and produce the documents strictly
as regards to the religion of the parties. Hence, the following
order :
ORDER
(i) The appeal stands dismissed.
(ii) The parties to appear before the First Appellate
Court on 19.01.2024.
(iii) R & P be returned to the Court of first instance.
(iv) Civil Application stands disposed of.
(S. G. MEHARE, J.)
...
vmk/-
Signed by: Vaishali Mahesh Kale
Designation: PA To Honourable Judge
Date: 19/12/2023 19:03:27
