Bombay High Court
Sonyabai Kaharu Jadhav (Dead-Deleted) vs Aniruddha @ Rudha Shankar Jadhav ... on 5 March, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-AS:11613
Sonali Mane 905-SA-555-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 555 OF 2023
WITH
INTERIM APPLICATION NO. 15600 OF 2023
IN
SECOND APPEAL NO. 555 OF 2023
Smt. Sonyabai Kaharu Jadhav (Dead Deleted) & Ors. .. Appellants
Versus
Aniruddha @ Rudha Shankar Jadhav (Padir) & Ors. .. Respondents
...
Mr. Pramod Narayan Joshi for the Appellant.
Mr. Rajiv Patil, Senior Advocate a/w Mr. Prashant D. Patil for Respondent
No. 1 B, 1-C-A, 1-C-B, 1-C-C.
...
CORAM : SANDEEP V. MARNE J.
DATE : 5 MARCH 2024.
P.C. :-
1) This Second Appeal is filed by Appellants challenging the
Judgment and Decree dated 30 January 2023 passed by District Judge-4
Nashik, dismissing Regular Civil Appeal No. 72 of 2013 and confirming the
Decree dated 31 January 2013 passed by Civil Judge Junior Division Nashik
Digitally
signed by
MANE
MANE SONALI
SONALI DILIP
DILIP Date:
2024.03.11
03:10:43
+0530
Sonali Mane 905-SA-555-2023.doc
Road in Regular Civil Suit No. 7 of 2008. The Trial Court has decreed the suit
filed by the Plaintiff for partition and perpetual injunction and has declared
that the Plaintiff (his heirs) along with Defendant Nos. 1 to 6 and Defendant
No. 7 have 1/3 share each in the suit property bearing Survey No. 28/4 and
that Plaintiff and Defendant Nos. 1 to 6 are entitled to 1/2 share in the other
suit properties.
2) The suit properties were originally owned by Shankar Bapu
Padir (Jadhav) who had two wives Anandabai and Tulsabai. Out of Shankar's
wedlock with Tulsabai, five children were born viz three sons - Kachru,
Aniruddha and Sakharam and 2 daughters - Bhimabai and Shantabai. The
suit was filed by the son Aniruddha claiming partition essentially against the
heirs of Kachru (Defendant Nos. 1 to 6). The third son Sakharam was
apparently separated from the family and was given his share in the year
1956.
3) Defendant Nos. 1 to 6, who are Appellants before me, resisted
the suit filed by Aniruddha denying that Suit properties were ancestral
properties and claim that their father-Kachru had purchased suit properties.
The second defence of Defendant Nos. 1 to 6 was about partition already
effected between the brothers in the year 1956, in which Defendant No.7
Sakharam received separate share whereas Plaintiff- Aniruddha received
monetary benefit.
4) The Trial Court however rejected both the claims of Defendant
Nos. 1 to 6 about suit properties not being ancestral properties as well as
alleged partition effected between the three brothers and decreed Plaintiffs
suit. It appears that Plaintiff- Aniruddha expired during pendency of the suit
and his heirs (Plaintiff Nos. 1a to 1c) were brought on record. The Trial
Sonali Mane 905-SA-555-2023.doc
Court accepted that Defendant No.7-Sakharam had separated from family
and was given his own share in the properties of the family. Therefore,
Sakharam has been denied in the share in the suit property except Survey
No. 28/4. Thus the Plaintiff- Aniruddha and Defendant Nos. 1 to 6-Kachru
(his heirs) are held to be entitled to one-half share each in all suit properties
except Survey No. 28/4. So far as the land bearing Survey No. 28/4 is
concerned all the three brothers are granted 1/3 share each.
5) Aggrieved by the decree of the Trial Court, Defendant
Nos. 1 to 6 filed Regular Civil Appeal No. 72 of 2013 in the Court of District
Judge-4 Nashik. The First Appellate Court has however proceeded to dismiss
the Appeal by its decree dated 30 January 2023. Aggrieved by the decisions
of the Trial and the First Appellate Court, Defendant Nos. 1 to 6 have filed
the present Appeal.
6) I have heard Mr. Joshi the learned counsel appearing for the
Appellants and Mr. Patil the learned senior advocate appearing for the heirs
of Plaintiff-Anirudha (Respondent Nos. 1 B, 1-C-A, 1-C-B, 1-C-C).
7) Mr. Joshi has raised following three contentions in support of
challenge to the Orders passed by the Trial Court and the First Appellate
Court:
i) Non joinder of necessary properties and parties: Mr. Joshi submits
that Properties given to Sakharam (Defendant No.7) were not
brought into the common hotchpot. That since Defendant No.7 was
impleaded in the suit and has been granted share in land bearing
Survey No. 28/4, all properties given to the share of Sakharam
ought to have been included the suit properties. He would rely
Sonali Mane 905-SA-555-2023.doc
upon judgment of the Apex Court in Kenchegowada (Since
Deceased) by Legal Representatives Vs. Siddegowda Alias
Motegowda1. Additionally, Mr. Joshi would contend that
subsequent purchasers of some of the lands were not impleaded to
the suit who were necessary parties.
ii) Previous Partition: That previous partition was proved by
Defendant Nos. 1 to 6 as both Trial and the First Appellate Court
have proceeded on a footing that Sakharam separated from the
joint family in the year 1956 by taking his share.
iii) Erroneous grant of share to Sakharam: Sakharam is erroneously
given share in land bearing Survey No. 28/4 despite recording a
finding that his share was already partitioned and separated in the
year 1956.
iv) That the shares grantable to the daughters-Bhimabai and Shantabai
were not ascertained and it was erroneously assumed that they
relinquished their share without holding an enquiry about the exact
party, in whose favour such relinquishment was made.
8) I have considered the submissions canvassed by Mr. Joshi which
are opposed by Mr. Patil.
9) So far as the first submission about non-joinder of properties
given in share of Sakharam during partition in 1956 is concerned, it is seen
that the same has no effect on the rights between Plaintiff- Aniruddha and
Defendant Nos. 1 to 6 (Kahru's heirs). The main contest before the Trial
Court was between the two brothers Aniruddha and Kachru. Both the Courts
below proceeded on footing that Sakharam was already separated and was
not to be given share in suit properties. In that view of the matter, non-
(1994) 4 SCC 294.
Sonali Mane 905-SA-555-2023.doc
inclusion of properties given to Sakharam in the year 1956 did not affect the
rights between Kachru and Aniruddha. In fact, it was the case of Defendant
Nos.1 to 6 that Sakharam walked away with his share of properties in 1956
and was not entitled to any share in the suit properties. The claim of
Plaintiff- Aniruddha was contested by the heirs of Kachru (Defendant Nos. 1
to 6) essentially by raising twin pleas of suit properties is being self-acquired
properties of Kachru and Anirudha being given mandatory compensation in
lieu of his share. Both the defences have been negatived by the Trial Court
and the First Appellate Court. In that view of the matter, non-inclusion of
properties coming to the share of Sakharam did not have any impact on suit
for partition instituted by Plaintiff Anirudha. Reliance of Mr. Joshi on
judgment of the Apex Court in Kenchegowda (supra) is therefore misplaced
in the facts and circumstances of the present case. In fact, concluding
observations made by the Apex Court in Para 16 of the judgment completely
go against the Appellants. In para 16 of the judgment, the Apex Court has
held as under:
16. Therefore, what has been held is that the property had not been allotted in favour
of the first defendant in the partition. That is very different from holding that the case
of partition had not been accepted by the first appellate court. This being so, a decree
for partition could not have been passed on a mere application for amendment. In fact,
as rightly urged by the learned counsel for the appellant that the declaration and
injunction are larger reliefs and smaller relief for partition could be granted is
incorrect. Even otherwise, a suit for partial partition in the absence of the inclusion
of other joint family properties and the impleadment of the other co-sharers was
not warranted in law. Thus, we find no difficulty in allowing these appeals which are
accordingly allowed. The judgment and decree of the trial court as affirmed by the first
appellate court are restored. However, there shall be no order as to costs.
(emphasis supplied)
10) Thus in Kenchegowda, the Apex Court has recognized filing of
suit for partial partition by not including other joint family properties. Thus
judgment of the Apex Court in Kenchegowda, far from assisting the case of
Appellants, actually militates against them. So far as objection of non-joinder
of subsequent purchasers is concerned, I do not see any reason why the same
Sonali Mane 905-SA-555-2023.doc
would affect the suit for partition instituted by Plaintiff-Aniruddha to claim
share in properties held by the heirs of his brother Kachru.
11) So far as the second objection of alleged previous partition is
concerned, the same could not be proved by the Appellants before the Trial
Court. The concurrent findings of fact are recorded that no previous partition
took place between the three brothers Kachru, Aniruddha and Sakharam.
Mere grant of share to Sakharam in the year 1956 did not mean elimination
of share on Plaintiff-Aniruddha in the suit properties. Defendant Nos. 1 to 6
took of false plea before the Trial Court that Plaintiff-Aniruddha was given
monetary compensation in lieu of his share. The said defence is negatived by
the Trial Court. I do not find any reason to interfere in concurrent finding of
fact recorded by the Trial and the First Appellate Court about absence of
previous partition between Aniruddha and Kachru.
12) The third issue raised by Appellants is about grant of share to
Defendant No.7 Sakharam in part of the suit property. I must admit that this
issue of grant of share to Sakharam in land bearing Survey No. 28/4 at one
point of time made the Court curious about reason behind grant of that
relief. However after going through the evidence of Defendant No.7-
Sakharam, it is seen that though Sakharam was granted his own share in
respect of agricultural lands, the three brothers had apparently carved out
land bearing Survey No. 28/4 by construction of their respective houses
thereon. It is because of this reason that the Trial Court has granted the 1/3
share to Defendant No.7-Sakharam in Survey No. 28/4. It has also come on
record that Defendant Nos. 1 to 6 have sold part of the land in Survey
No. 28/4 to Defendant No. 26. The area sold by them is 14 Ares. Though
Mr. Joshi attempted to create a dispute about validity of the said transaction,
I am afraid this is not the issue involving the suit. Suffice it to observe that
Sonali Mane 905-SA-555-2023.doc
the Appellants have already sold part of their share in land bearing Survey
No. 28/4 and the disputes sought to be created about grant of share to
Defendant No.7-Sakharam in that land, in that sense, becomes academic for
them.
13) The last contention is about relinquishment of shares by sisters
Bhimabai and Shantabai. Here again, I fail to comprehend as to how this
objection can enure to the benefit of Appellants. By questioning
relinquishment by sisters Bhimabai and Shantabai, Appellants are actually
attempting to reduce their own shares in the suit properties. Though it is
vaguely contended by them that the Trial Court ought to have ascertained
the exact shares of Bhimabai and Shantabai and ought to have conducted an
enquiry into the exact party in whose favour the relinquishment is made,
Appellants did not plead or prove that the two sisters relinquished their
shares exclusively in favour of Kachru. Therefore, the point that is sought to
be raised by them about relinquishment of shares by the sisters is again
totally baseless.
14) After considering the overall conspectus of the case, I am of the
view that no serious error can be traced in the concurrent findings recorded
by the Trial Court and the First Appellate Court. No question of law, much
less any substantial question of law, is involved in the Appeal. The Second
Appeal is accordingly rejected without any orders as to costs.
15) In view of the rejection of the Second Appeal, Interim
Application No. 15600 of 2023 does not survive and the same is also
disposed of.
[SANDEEP V. MARNE J.]
