Bombay High Court
Pandurang Arjun Wadavkar (Deceased) ... vs Alkabai Dattatraya Auti on 19 January, 2024
2024:BHC-AUG:1245
Judgment-SA-691-2019.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 691 OF 2019 WITH CA/15321/2019
1. Pandurang Arjun Wadavkar
(Since deceased)
2. Sau. Tulsabai Pandurang Wadavkar,
Age: 75 years, Occ: Household,
R/o. Wadavkar Vasti, Velu Road,
Shrigonda, Tq. Shrigonda,
Dist. Ahmednagar
3. Sau. Shakuntala Dnyandev Auti,
Age 57 years, Occ. Household,
As above
4. Dnyandev Sitaram Auti,
(Since deceased, through his L.R.s)
4A. Shivaji Dnyandev Auti,
Age 32 years, Occ. Agriculture,
R/o. Wadavkar Vasti, Velu Road,
Shrigonda, Tq. Shrigonda,
Dist. Ahmednagar
4B. Balasaheb Dnyandev Auti,
Age 29 years, Occ. Agriculture,
As above
4C. Manisha Ramdas Labade,
Age 27 years, Occ. Household,
R.o. C/o. Ramdas Mathurdas Labade
At and post. Belvandi (Bk),
Tq. Shrigonda, Dist. Ahmednagar ...Appellants
(Orig. Defendants)
Versus
Smt. Alkabai Dattatraya Auti,
Age 58 years, Occ. Household,
R/o. Velu, Tq. Shrigonda,
Dist. Ahmednagar ...Respondent
(Orig. Plaintiff)
Page 1 of 14
Judgment-SA-691-2019.odt
...
Mr. A. D. Sonkawade h/f Mr. A. V. Hon, Advocate for
Appellants
Mr. U. S. Palsikar, Advocate for Respondent
...
CORAM : R.M. JOSHI, J
RESERVED ON : JANUARY 09, 2024
PRONOUNCED ON : JANUARY 19, 2024
JUDGMENT :
1. This Appeal filed under Section 100 of Code of
Civil Procedure takes exception to the judgment and
decree dated 13.07.2018 passed by First Appellate Court
in RCA No. 695/2012 dismissing the Appeal and
confirming the judgment and decree dated 08.11.2012
passed by trial Court in RCS No. 260/2003 whereby the
suit filed by the Plaintiff for partition and separate
possession in respect of her share in the suit property
came to be allowed.
2. The facts which led to the filing of the
present Appeal can be narrated in short as under:
Plaintiff filed suit for partition and
separation of possession of the agricultural land
bearing block nos. 1961/2, 1961/5 and 2069 to the
extent of 95R situated at Tq. Shrigonda against her
parents, real sister and her husband. It is the case of
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the Plaintiff that the suit properties are ancestral
joint family properties of Plaintiff and Defendants. It
is claimed that Plaintiff and defendant no. 3 are
married, however, due to differences with her husband
Plaintiff is residing at her parental home. Defendant
Nos. 3 and 4 are also residing along with them. It is
further claimed that out of suit properties Gut Nos.
1961 after death of Arjun, property came into the share
of Defendant No. 1 i.e., father of Plaintiff. The suit
property is now known as Gut Nos. 1961/2 and 1961/5.
Similarly, Gut No. 2069 also came to the share of
Defendant No. 2 pursuant to mutation entry no. 5749. It
is claimed that since then Plaintiff and Defendants are
jointly cultivating suit properties. According to
Plaintiff, in order to grab property, Defendant Nos. 3
and 4 by pressurizing parents of the Plaintiff mutated
some part of Gut No.1961 in their name without any
right therein. Plaintiff has asked for the partition
but the defendants denied parties and hence, suit came
to be filed.
3. Defendant Nos. 1 to 4 filed written statement
at Exh. 17 and except for the relationship between the
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parties, rest of the contentions of Plaintiff was
denied. It was the case of the defendants that suit
came to be filed and in the said suit Gut No. 2070, 40
R land came to the share of defendant no. 1. It is also
claimed by these defendants that Plaintiff was married
prior to 22 years. It is claimed that husband of the
Plaintiff has land at Shrigonda. There is allegation
that Plaintiff was in illicit relation and hence, to
avoid disrepute to the family of the Plaintiff, she
came to the parental home. It is further case of these
defendants that Defendant No. 1 had two brothers namely
Zhumbar and Shrirang during the lifetime of their
father Arjun there was a partition of suit properties
between the brothers and accordingly, they were
cultivating the land, however, no entries were taken in
respect of the same in the revenue record. Since, some
dispute arose between them, suit came to be filed
bearing no. 265/2003 for partition and injunction. The
said suit was decreed pursuant to the compromise
between parties. It is the case of Defendant Nos. 1 and
2 that they treat Defendant No. 4 as their adopted son
and hence, land was transferred in the name of
Defendant Nos. 3 and 4.
Judgment-SA-691-2019.odt
4. Learned Trial Court framed issues including
issue as to the effect of decree passed in RCS No.
265/2003. On the basis of evidence on record, issues
were decided in favour of the Plaintiff and suit for
partition was decreed. The said judgment and decree was
unsuccessfully challenged in RCA No. 695/2012. The
First Appellate Court also went through the pleadings
of the parties, evidence on record and also considered
the judgment and decree passed by the trial Court and
confirmed the decree with modification in respect of
shares determined by the trial Court.
5. Learned Counsel for Defendants submit that
both the Courts below committed error in not taking
into consideration the provisions of Maharashtra
amendment of 1994 by addition of Section 29 A to Hindu
Succession Act. It is his contention that since
Plaintiff was already married and as such, by virtue of
said amendment, she had no right in the ancestral
properties. Apart from this, it is submitted that in
absence of challenge to the decree passed in RCS No.
265/2003 it was not open for the Courts below to hold
that the decree is not binding on the Plaintiff. It is
Judgment-SA-691-2019.odt
also submitted that as the partition was effected by
virtue of decree amended provisions of Section 6 of
Hindu Succession Act have no application to the present
case. He placed reliance on following judgments :
Kenchegowda V. Siddegowda alias Motegowda, (1994) 4 SCC
294 & Sneh Gupta V. Devi Sarup and Others, (2009) 6 SCC
194.
6. Learned Counsel for Plaintiff opposed the said
contention by stating that admittedly Plaintiff was not
party to the suit for partition filed in collusion by
Defendants and others. It is submitted that after
receipt of summons of the present suit, the said suit
came to be filed excluding the Plaintiff. It is further
his submission that if it is the case of the defendant
that there was earlier partition, i.e., during the
lifetime of their father Arjun question of filing of
any suit for partition does not arise. It is submitted
that decree obtained by fraud and collusion is no
decree in the eyes of law and as such, decree can be
challenged even in a collateral proceeding. It is
submitted that defendant no. 3 was also married at the
relevant time and as such, question of discrimination
Judgment-SA-691-2019.odt
between two daughters does not arise. It is submitted
that amendment of 2005 to Section 6 of Hindu Succession
Act, squarely applies to the present case, as the suit
was pending decision at time of coming into force of
amended provision. To support his submissions,
reference is made to following judgments: Babu s/o.
Jyotiram Jadhav and Others. Vs. Muktabai w/o. Wamanrao
Somwanshi, 2021 DGLS (Bom.) 1740 & Vineeta Sharma v.
Rakesh Sharma and Others, AIR 2020 SC 3717.
7. In order to appreciate rival submissions, it
is necessary to take into consideration certain
relevant facts.
Suit properties are ancestral properties
originally owned by his father Arjun. According to
Defendants they were partitioned during his lifetime
between his sons. Suit properties came to the share of
Defendant No. 1. Plaintiff and Defendant No. 3 are
daughters of Defendant No. 1. Both married prior to
1994. Plaintiff admitted this fact in her evidence
whereas in the cross-examination Defendant No. 3 has
claimed that prior to 20 years before recording of hear
evidence she was married to Defendant No. 4. The said
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evidence was recorded on 23.02.2012. Thus, marriage of
Defendant No. 3 also relates back to period prior to
year 1994. Defendant No. 3 in her evidence has candidly
admitted that Plaintiff has share in her father's
(Defendant No. 1) property, which was denied to her.
8. In the written statement Defendants never
challenged right of Plaintiff to get partition of the
suit properties on the ground that she was married
prior to 1994 and hence, in view of Maharashtra
Amendment with introduction of Section 29A to the Hindu
Succession Act, she is not entitled to seek share in
the ancestral properties. This issue is not pure
question of law but is mixed question of fact and law.
If such issue was raised, it would have been incumbent
on the part of the Trial Court to decide the rights of
Plaintiff and Defendant No. 3 in the context of their
marriage and Plaintiff could have shown her right in
parity to Defendant No. 1. Having not raised the said
issue in the written statement, now it is not open for
the Defendants to seek aid of Section 29A to deny right
of Plaintiff to get share in ancestral properties,
particularly, in view of amendment to Section 6 of the
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Act. In any case, both Plaintiff and Defendant No. 3
stood on the same footing as both were married prior to
1994. Hence, even otherwise there could be no reason or
justification for discriminating against Plaintiff.
9. During the pendency of present suit being RCS
No. 265/2003 came to be filed by Defendants excluding
Plaintiffs and decree is obtained therein behind back
of the Plaintiff. Record indicates that filing of the
suit being RCS No. 265/2003 aimed at frustrating the
claim of the Plaintiff seeking share in the ancestral
properties. In RCS No. 265/2003 Defendant No. 4 who is
not the member of joint family and had no right in the
ancestral properties was made Defendant and the
property to share of the Defendant No. 1 herein was
allotted to him. It is sought to be contended by
Defendant No. 1 that he treated Defendant No. 4 as his
son. In the next breath contention is raised he being
adopted. Admittedly, Defendant No. 4 is not biological
son or even adopted son of Defendant Nos. 1 and 2.
There is absolutely no evidence on record to hold that
he was ever adopted as son by Defendant Nos. 1 and 2 in
order to create any right of whatsoever nature in his
Judgment-SA-691-2019.odt
favour in respect of the ancestral properties. Giving
of share to defendant No. 4 by way of compromise decree
is one of major circumstance indicating fraud played
upon the Court.
10. Trial Court has held that for want of being
party to the suit, decree passed in RCS No. 265/2003 is
not binding on Plaintiff. It is trite law that decree
which is obtained by fraud is nullity and as such, it
was not necessary for Plaintiff to challenge the same
independently and exception to the same could be taken
in the present proceeding. On the basis of contentions
raised by Defendants in written statement the issue to
the effect of compromise decree passed in RCS No.
265/2003 was rightly framed and answered by the trial
Court holding that the same does not bind affect the
rights of Plaintiff.
11. Defendant No. 3 also claims absolute right in
the properties came to her share pursuant to compromise
decree by taking aid of Section 14 of Hindu Succession
Act. No doubt a property legitimately come to Hindu
women becomes her absolute property. However, pre-
condition thereof would be that such property must come
Judgment-SA-691-2019.odt
to her lawfully. As held by the First Appellate Court
that said acquisition is not lawful being obtained
under compromise decree by playing fraud, this
defendant is not entitled to seek plea of absolute
ownership under Section 14 of Hindu Succession Act.
12. It is sought to be contended by learned
Counsel for the Defendants that right of Plaintiff in
suit property got extinguished in view of Maharashtra
amendment of 1994 (Section 29A) and in view of decree
passed in RCS No. 265/2003, amendment to Section 6 of
Hindu Succession Act, does not apply to present case.
Considering the fact that the suit bearing RCS No.
265/2003 was filed for the partition and separate
possession of the ancestral properties, meaning
thereby, admittedly as on the day of filing of the
present suit, properties were not partitioned and its
status remained as ancestral properties only. Present
suit came to be decided on 08.11.2012. The amendment to
Section 6 of Hindu Succession Act came into effect from
05th September, 2005. As held by Hon'ble Apex Court in
case of Vineeta Sharma (supra) the provisions contained
in substituted Section 6 of Hindu Succession Act
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confers status of coparcener on the daughter born
before or after amendment in the same manner as son
with same rights and liabilities. It is further held
therein that provisions of said 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. Thus, there is no impediment in applying the
amended provisions of Section 6 of Hindu Marriage Act
to the present case, since the suit filed by the
Plaintiff was pending for decision and even no
preliminary decree was passed therein.
13. Since this appeal is filed under Section 100
of Code of Civil Procedure, this Court cannot entertain
the same unless substantial question of law is involved
therein. Now what is substantial question of law is
well settled to say that question of law must be
debatable, not settled earlier by any binding precedent
and it must have material bearing on the decision of
the case or rights of parties before it, if decided
either way. In the instant case, law applicable is
Judgment-SA-691-2019.odt
fairly settled by binding precedents and this Court
finds no perversity in the findings of facts recorded
by both Courts.
14. In view of above discussion, this Court finds
no perversity in the impugned judgment and decrees. The
concurrent findings recorded by both Courts do not
deserve interference for want of involvement of any
substantial question of law in this Appeal. Hence,
appeal stands dismissed. Pending applications are also
disposed of.
(R. M. JOSHI, J.)
After pronouncement:
1. Learned Counsel for the Appellants seek
extension of interim relief by four weeks to approach
the Hon'ble Apex Court.
2. Learned Counsel for Respondents opposed the
said request by contending that the Plaintiff is denied
her right since year 2003.
3. There is no dispute made about the fact that
the decree passed by trial Court was stayed during the
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pendency of First Appeal. Similarly status quo was
directed to be maintained during this Second Appeal.
Hence, in the interest of justice, order of status quo
to continue for four weeks from today.
(R. M. JOSHI, J.)
Malani
