Bombay High Court
Shri.Prakash Dhaval Patil vs Sumantai Nimba Pagar And Anr on 22 January, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:3624
sa_mandawgad 45sa316-18+
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.316 OF 2018
WITH
CIVIL APPLICATION NO.722 OF 2018
WITH
INTERIM APPLICATION NO.17654 OF 2023
WITH
INTERIM APPLICATION NO.4211 OF 2023
WITH
INTERIM APPLICATION NO.1632 OF 2022
Prakash Dhaval Patil ... Appellant.
Versus
Smt.Sumanbai Nimba Pagar ... Respondents.
WITH
INTERIM APPLICATION NO.17660 OF 2023
Shri. Raosaheb Dattatray Patil ... Applicant.
Versus
Smt.Sumanbai Nimba Pagar ... Respondents.
------
Mr.Pramod N. Joshi, Advocate for the Appellant.
Mr. S.S.Kulkarni, Advocate for the Applicant in IA/4211/2023 and
IA/1632/2022.
Mr.Shilpan Gaonkar a/w. Mr. Dnyaneshwar Jadhav, i/by Legasis
Partners for Respondents.
Mr.Swapnil Mhatre i/by Mr.Sachin Chavan, Advocate for the
Intervener in IA No.17660/2023.
------
CORAM : SHARMILA U. DESHMUKH, J.
DATE : JANUARY 22, 2024
P. C.:
45sa316-18+
1. Being dissatisfied with the judgment dated 21 st January,
2017 passed in Regular Civil Appeal No.146 of 2014 confirming
the findings of the trial Court in Special Civil Suit No.59 of 2009,
whereby the trial Court has declared that the plaintiff and the
defendant nos.1 and 2 are entitled to 1/3rd share in the suit
property described in paragraph Nos.1(a) to 1(d) i.e. the ancestral
property and that the plaintiff and the defendant no.2 are entitled
to half share each in the property described in paragraph Nos.1E to
1P, the original Defendant No.1 is before this Court.
2. Briefly stated the facts of the case are that Special Civil
Suit No.59 of 2009 was filed by the Respondent No.1-plaintiff for
declaration, injunction, partition and separate possession of the
suit properties. The properties described in paragraph No.1(a) to
1(d) of the plaint are the joint family ancestral properties of the
plaintiff and the defendants, whereas, the properties described in
paragraph No.1(i), 1(j) to 1(l), 1(n), 1(o) and 1(p) are the self
acquired properties of late Supdu Daval Patil and the properties
described in paragraph No.1(f) are the self acquired properties of
late Kesharbai Daval Patil, and the properties mentioned in
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paragraph No.1(h), 1(i)(part), 1(j)(part), 1(m), 1(p) (part) and
plot No.19 are the self acquired properties of late Pushpalata
Supdu Patil and the properties described in paragraph No.1(h)
(part) and 1(p)(part) are the self acquired properties of late
Rakesh Supdu Patil.
3. The case of the plaintiff was that the Appellant, who is the
Defendant No.1 is her real brother, and the defendant no.2 is her
sister. On 24th October, 2016, the defendant no.1 committed the
murder of his brother Supdu Daval Patil, his wife Pushpalata
Supdu Patil, son-Rakesh Supdu Patil and daughters Poonam and
Rupali alongwith their mother Kesharbai Daval Patil on account of
family dispute of partition. The defendant no.1 was convicted for
life imprisonment for the murders. It was pleaded by the plaintiff
that the defendant no.1, through his daughter Manjusha Prakash
Patil, under the pretext of effecting partition of the suit properties
played fraud on the plaintiff and defendant no.2 fraudulently got
executed registered sale deed in respect of the suit properties on
5th December, 2006 and thereafter, on 12th December, 2006 under
the pretext of correction of some clerical mistakes got executed
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correction deed from the plaintiff and defendant No.2.
4. It was further pleaded that the said fact came to the
notice of the plaintiff when public notice was issued in respect of
alienation of some of the suit properties. It was pleaded that the
partition was sought from the defendant no.1 however, it was
refused and as such, the suit was filed. The summons was served
upon the defendant no.1 in jail. He did not cause any appearance
through his advocate and as such, the suit proceeded against the
defendant no.1. Despite service of summons, the defendant no.2
did not appear and the proceedings proceeded ex-parte against the
defendant no.2 also. The trial Court framed the issues which read
thus:
"Points Findings
1 Whether plaintiff prove that the release
deed dated 05/12/2006 and correction
deed dated 12/12/06 got executed by the
daughter of defendant No.1 by mis-
representation and playing fraud on her ? .. In affirmative
2 Whether plaintiff prove that she is entitle
for 1/3 share in the properties described
in para 1(a) to 1(d) of the plaint ? .. In affirmative
3 Whether plaintiff prove that she is entitle
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for 1/2 share and defendant No.1 is also
entitle for 1/2 share in the properties
described in para 1(e) to 1(p) of the
plaint ? .. In affirmative
4 Whether plaintiff is entitle for declaration
as prayed for ? .. In affirmative
5 Whether plaintiff is entitle for relief of
injunction, partition and separate
possession of her share in the suit
properties ? .. In affirmative
6 What order ? Suit is decreed
with costs."
5. The trial Court decreed the suit declaring that as regards
the ancestral properties plaintiff and defendant nos.1 and 2 have
1/3rd share each and in other properties plaintiff and defendant
no.2 are entitled to ½ share each. As against the judgment of trial
Court, Regular Civil Appeal No.146 of 2014 was filed which came
to be dismissed.
6. Heard learned counsel for the respective parties.
7. Learned counsel appearing for the Appellant submits that
as the Appellant was convicted, the proceedings went ex-parte
against the defendant no.1 before the trial Court. He would further
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submit that the Appellate Court failed to consider that the
relinquishment deed was duly executed by the plaintiff and the
defendant no.2 in favour of the defendant no.1 and as the suit
proceeded ex-parte, no evidence in that behalf could be led. He
submits that the substantial question of law which arises in the
case is that in absence of Manjusha, the daughter of the Appellant
in respect of whom the allegations of fraud was made was not
made a party and in her absence the suit itself was not
maintainable. He would further submit that the trial Court and the
Appellate Court failed to consider that by virtue of the release
deed, the Appellant became owner of the suit property of Supdu
Daval Patil and as such was entitled to the share of the plaintiff
and the defendant no.2 in the properties of the Supdu Patil.
8. Considered the submissions and perused the record.
9. The position is not disputed that the Appellant has
committed the murder of his brother-Supdu Daval Patil, Supdu's
wife, Supdu's son and two daughters as well as his mother
Kesharbai and was undergoing life imprisonment for murders
committed. There is also no dispute that property at paragraph
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no.1(a) to 1(d) of the plaint are the only ancestral properties of
the parties and the other properties are the self acquired properties
of Supdu or his wife or their mother Kesharbai. Provisions of
Section 25 of the Hindu Succession Act is clear and disqualifies a
person who commits a murder from inheriting the property of the
person murdered or any other property in furtherance of the
succession to which he or she committed or abetted the
commission of the murder. Thus apart from the ancestral
properties, the Appellant had no right to claim any share in the
properties of the person whom he has murdered. Even if the
relinquishment deed by the plaintiff and the defendant no.2 is
assumed to have been executed, the same in my opinion, will have
no consequence as the statutory provisions itself disqualifies a
murderer from inheriting the property of the person whose murder
has been committed.
10. In my opinion, the contractual deed if any will have to
yield to the statutory provisions and even if the relinquishment
deed has stated to have been executed the same will not entitle the
Appellant to claim any right in the properties of Supdu, his wife,
45sa316-18+
his son or their mother-Kesharbai. Before the Appellate Court there
is no application which is made under Order 41 Rule 27 of the
Code of Civil Procedure, 1908 for leading evidence and therefore,
at the stage of Second Appeal it cannot be contended that the
Appellant by virtue of being in jail had not been granted an
opportunity to lead evidence. The Appellant had filed the appeal
against the order of trial court and had ample opportunity to file
an application under Order 41 Rule 27 for leading of the evidence
which has not been done in the present case. As regards the
submissions that the daughter of the Appellant has not been made
as a party. If the averments in plaint are perused, the contention is
that defendant no.1 through his daughter got executed
relinquishment deed through fraud. By the averments, the plaintiff
has provided specific details of the manner in which fraud was
played. That does not make Manjusha a necessary party. The
Appellant was served with the copy of the summons and he has
chosen neither to depute his constituted attorney to contest the
proceedings nor appointed an Advocate. As such, the testimony of
the plaintiff as regards the execution of the fraudulent deed at the
instance of the daughter has remained unchallenged.
45sa316-18+
11. The trial Court on the basis of the evidence of the plaintiff
considered the undisputed fact as regards the murder by the
defendant no.1 of his brother Supdu and his family as well as his
mother and that for the same, the defendant no.1 is undergoing
sentence of life imprisonment. The trial Court considered the
deposition of the plaintiff that the property described in paragraph
No.1(a) to 1(d) are ancestral properties whereas, the other
properties are the self acquired properties of Supdu Patil, her
mother and the wife and sons of Supdu Patil. In her deposition, the
plaintiff has deposed about the execution of the release deed by
fraud and cheating. In support, the plaintiff examined a witness
named Zumbar Chaitram Patil, who supported the version of the
plaintiff. Upon consideration of the evidence come on record and
in view of Section 25 of the Hindu Succession Act, the trial Court
declared that the plaintiff and the defendant nos.1 and 2 are
entitled to 1/3rd share each in the ancestral properties and that in
respect of the other properties the plaintiff and the defendant
nos.1 and 2 are entitled to 1 ½ share. The Appellate Court
conquered with the findings of the trial court and dismissed the
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Appeal.
12. The submission of the learned counsel for the Appellant
entered into realm of appreciation evidence which is not
permissible under the provisions of Section 100 of the Code of
Civil Procedure, 1908. Having regard to the discussion above, no
substantial question of law arises. Appeal stands dismissed.
13. In view of the dismissal of the Appeal, Interim and Civil
Applications do not survive for consideration and stand dismissed.
( Sharmila U. Deshmukh, J.)
Signed by: Sanjay A. Mandawgad 10/10
Designation: PA To Honourable Judge
Date: 24/01/2024 15:46:36
