Bombay High Court
Krishna Hari Wagh And Ors vs Dhondiram Krishna Wagh And Ors on 31 January, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-AS:5596
kishor 1/4 52 SA 490 of 2020 (C).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 490 OF 2020
WITH
INTERIM APPLICATION NO.3417 OF 2019
Krishna Hari Wagh And Ors. ...Appellants
Versus
Dhondiram Krishna Wagh And Ors. ...Respondents
....
Mr. Pramod G. Kathane, a/w. Ms. Indu Karunakaran a/w. Mr. Samyak A.
Bhatbor, for Appellant.
Mr. Milind Deshmukh, for Respondent.
....
CORAM : SANDEEP V. MARNE, J.
DATED : 31 JANUARY 2024.
P.C. :
By this Appeal, Appellants challenge Judgment and Order dated
27 August 2019 passed by the District Judge, Sangli partly allowing Regular
Civil Appeal No.317 of 2015 only to the extent of determination of shares of
properties and confirming rest of the decree passed by the Civil Judge, Junior
Division, Sangli in Regular Civil Suit No.48 of 1989.
2. Plantiff No.2-Babutai is the wife of Defendent No.1-Krishna
and Plaintiff No.1 and Defendant No. 10 are their children. It appears that
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Krishna solemnized another marriage with Lakshmi through whom daughter
Chaya was born. Defendant No.5-Vikas and Defendant No.6-Swati are the
children of Chaya. Plaintiffs filed RCS No.48 of 1989 seeking partition and
separate possession and permanent injunction. The Trial Court decreed the
Suit by Judgment and Order dated 22 September 2015 allocating various
shares to Plaintiff Nos.1, 2 and Defendant No.10 on one hand and Defendant
Nos.1, 3 and 4 on other hand. The Trial Court did not grant any share in
favour of Defendant Nos.5 and 6 - Chhaya's children.
3. Aggrieved by non-grant of any share in the suit properties, Vikas
and Swati (Defendant Nos.5 and 6) joined hands with grandfather Krishna-
Defendant No.1 and filed Regular Civil Appeal No.317 of 2015 in the Court
of District Judge, Sangli challenging the decree dated 22 September 2015.
The First Appellate Court has rejected the claim of the Appellants and has
maintained the decree to the extent of non-grant of any share to Appellant
Nos.2 and 3. It has further modified shares granted in favour of Plaintiff
Nos.1, 2 and Defendant No.10 on one hand and Defendant Nos.1, 2 to 4 on
the other hand.
4. The net effect of the decree passed by the Trial Court and the
First Appellate Court is that only Krishna, his wife Babutai, children
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Dhondiram and Kusum and sisters Shantabai, Rajakka and Cheematai are
granted shares in the suit property. The branch of Lakshmi (Krishna's second
wife) has been excluded on account of the fact that marriage between Krishna
and Lakshmi was solemnized during subsistence of his marriage, and is
therefore void. Therefore, neither Chaya nor her children Vikas and Swati
have succeeded in respect of any share in the suit property.
5. Mr. Kathane, the learned counsel appearing for Appellant would
strenuously contend that Vikas and Swati must get share at least through
Krishna. In this regard he would place reliance on the Judgment of the Apex
Court in Revensiddappa Vs. Mallikarjun, Civil Appeal No.2844 of 2011
decided on 01 September 2023 and would submit that even if the marriage
between Krishna and Lakshmi is void, the children grand children born out of
that wedlock must get share in father's property. As on the date of decision of
suit, Krishna was apparently alive. Vikas and Swati can claim share in
Krishna's property only after his death. Being grand children born out of
marriage between Krishna and Lakshmi, Defendant Nos.5 and 6 do not have
independent right to seek share within partition between the joint family
members.
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6. Mr. Kathane has attempted to suggest that sisters had
relinquished their rights in favour of their brother Krishna and that this factor
has not been taken into consideration by Trial Court and First Appellate
Court. Perusal of Orders passed by the Trial Court and First Appellate Court
would indicate that both the Courts have refused to accept theory of
relinquishment only on the basis of statements made by sisters before
Revenue Authority and certification of mutation entry No.165. In absence of
any written and registered instrument of relinquishment, both the Courts
have rightly not taken into consideration the alleged theory of
relinquishment.
7. Considering overall conspectus of the case, I am of the view that
no serious error can be traced in the Orders passed by the Trial Court and
First Appellate Court. No substantial question of law is involved in the
present Appeal. The Appeal is accordingly rejected. Since the Appeal is
rejected, nothing survives in the Interim Applications and the same are also
disposed of.
SANDEEP V. MARNE, J.
