Bombay High Court
Sarjerao Ramkrishna Jadhav-Uplani vs Vatsala Vijay Pawar And Others on 6 May, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-AS:21308
Neeta Sawant 18-SA-426-2019.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 426 OF 2019
WITH
CIVIL APPLICATION NO. 970 OF 2019
Sarjerao Ramkrishna Jadhav-Uplani } ...Appellant
(Orig. Defendant No.3)
: Versus :
Vatsala Vijay Pawar and Ors. } ..Respondents
___________________________________________________
Mr. Surel Shah a/w. Mr. Pawar Nikhil Narendra, for the Appellant.
Mr. Umesh Mankapure a/w. Ms. Stefy J. Dias, for Respondent No.1.
CORAM : SANDEEP V. MARNE, J.
Dated : 6 May 2024.
P.C. :
1) By this Appeal, the Appellant challenges the Decree dated 30
August 2018 passed by the District Judge-3, Islampur in Regular Civil Appeal
No. 67 of 2013 by which the First Appellate Court has partly allowed the
Appeal fled by the Plaintif and has granted 1/3rd share to the Plaintif in the
suit properties. Earlier, the Trial Court while partly decreeing the suit vide
Decree dated 30 April 2013 had granted 1/3 share to the Plaintif in the share
of Defendant No.1 (father) in the land properties and 1/9th share in the
house property. The frst Appellate Court, while allowing Trial Court's
Decree, has now granted 1/3rd share to the Plaintif in the entire suit
properties.
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Neeta Sawant 18-SA-426-2019.docx
2) I have heard Mr. Shah, the learned counsel appearing for the
Appellant and Mr. Mankapure, the learned counsel appearing for Respondent
No.1 (original plaintif ).
3) Mr. Shah has essentially contended that the Plaintif neither
pleaded nor proved before the Trial Court that the suit property is of a Hindu
coparcenary or that she had a share as a co-parcener. He would submit that
the suit property was succeeded by Defendant No.1-father through his
adoptive mother and in absence of availability of three lineal descendants,
there was no Hindu coparcenary, which is a requirement for seeking share by
the daughter under amended provisions of Section 6 of the Hindu Succession
Act. In support of his contentions, Mr.Shah has relied upon judgment of the
Apex Court in Vineeta Sharma Versus. Rakesh Sharma and Ors. 1
4) Another contention raised by Mr. Shah is that the suit properties
were partitioned in the year 2004 under the provisions of Section 85 of the
Maharashtra Land Revenue Code. That at the time when the partition took
place, admittedly the Plaintif did not have any right. That as per Proviso to
Section 6, it is impermissible to open the partition so efected for the purpose
of granting share to the married daughter. He would submit that a partition
efected in accordance with law under Section 85 would also be covered in
the exception carved out to Proviso to Section 6 of the Hindu Succession
Act.
5) I have considered the submissions canvassed by Mr. Shah.
Firstly, the fne distinction that is sought to be raised about absence of Hindu
(2020) 9 SCC 1
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coparcenary by Mr. Shah is difcult to accept. It is an admitted case that the
property is not a self-acquired property of Defendant No.1-father. He
succeeded the same through his adoptive mother. What the Apex Court has
observed in paragraphs-22 and 23 of the judgment in Vineeta Sharma
(supra), is about the point of time at which a partition can be sought.
However, there is nothing in the judgment to suggest that there is a
distinction between a joint family property and property of a Hindu
coparcenary. Even if such distinction exists, in my view, there is nothing in
the present case to indicate that the suit property is not the property of a
Hindu coparcenary. It is admittedly not a self acquired property of
Defendant No.1, who has inherited the same. Daughter's share in such
inherited property cannot be frustrated on such specious plea of absence of
Hindu coparcenary.
6) So far as the second aspect about partition is concerned, the
Proviso to sub-section (1) of Section 6 read with Explanation to sub-section
(4) would indicate that only the partitions which are registered or efected by
Decree of Court are protected. In the present case, admittedly the partition
of 2004 is neither registered nor efected by the Decree of any Court.
Though Mr. Shah has taken me through the observations of the Apex Court
in para-135 of judgment in Vineeta Sharma in support of his contention that a
cogent, impeccable and contemporaneous evidence in the form of public
document can be accepted for partition within the meaning of sub-section (1)
of Section 6, in my view, the partition efected in the present case between
the father and his two sons, specifcally for excluding the daughter/Plaintif,
cannot be excepted within the meaning of the said Proviso. In any case,
Plaintif challenged the said partition by seeking a prayer that the same was
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not binding on her share. Even the plea of limitation sought to be raised by
Mr. Shah in respect of challenge to the said partition cannot be entertained in
view of the mere declaration sought by the Plaintif that the said partition
does not have any efect on her share.
7) Considering the overall conspectus of the case, I am of the view
that no substantial question of law is involved in the Second Appeal. The
Second Appeal is rejected.
8) With rejection of the Appeal, Civil Application taken out for stay
does not survive. The same also stands disposed of.
9) After the order is pronounced, Mr. Shah would pray for
extension of interim relief granted by this Court by order dated 6 December
2021. The request is opposed by Mr. Mankapure. Considering the fact that
interim relief is operational for a considerable period of time, the same is
extended by a period of 8 weeks from today.
[SANDEEP V. MARNE, J.]
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