Bombay High Court
Dattatraya Ananda Salve And Another vs Ananda Sawalaram Salve And Ors. on 5 August, 2025
2025:BHC-AUG:20693
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 627 OF 2021
1] Dattatraya Ananda Salve
Age-40 years, Occupation-Agriculture,
R/o. Ghaigaon,Tq.Vaijapur,
District Aurangabad.
2] Thakubai Ananda Salve
Died Through LR.
I.e present Appellant No.1
Dattatraya Ananda Salve ..Appellants
VERSUS
1] Ananda s/o Sawalaram Salve
Age: 77 years, Occ. Agriculture,
R/o. Ghaigaon, Tq. Vaijapur,
Dist. Aurangabad
2] Savitribai w/o Ananda Salve
Age: 70 years, Occu: Household.
R/o. Ghaigaon, Tq. Vaijapur,
Dist. Aurangabad.
3] Gorakh s/o Ananda Salve
Age: 45 years, Occu: Agriculture,
R/o. Ghaigaon, Tq. Vaijapur,
Dist. Aurangabad
4] Ajay s/o Ananda Salve
Age: 35 years, Occu: Agriculture,
R/o. Ghaigaon, Tq. Vaijapur,
Dist. Aurangabad
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5] Sharda @ Chabubai w/o Ashok Vanjari
Age: 39 years, Occu: Household,
R/o. Ghaigaon, Tq. Vaijapur,
Dist. Aurangabad ...Respondents
*****
Advocate for Appellants : Mr.R.S.Sadaphule
Advocate for Respondent Nos.1 to 5 : Ms.Rakhi V.Sundale
******
CORAM : SHAILESH P. BRAHME, J.
RESERVED ON : 28th JULY 2025
PRONOUNCED ON : 05th AUGUST 2025
FINAL ORDER :
1. Heard both sides.
2. Appellants are original-plaintiffs who are successful before the
trial court in R.C.S No. 294 of 2006 for partition and possession but
the decree is reversed by lower appellate court in R.C.A No. 06 of 2019
vide judgment dated 26.02.2019. They have preferred present second
appeal.
3. It was recorded by earlier orders that second appeal needs
consideration in view of the issues involved and reference decided by
the Supreme Court in the matter of Revanasiddappa and Ors. Vs.
Mallikarjun and Ors. reported in 2011 (11) SCC 1. Impressed by the
submissions of the parties following substantial question of law was
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framed :
"Whether the appellant No.1 i.e original plaintiff No.1 is
entitled to seek partition in the property of respondent No.1?"
4. The matter was directed to be taken up for final hearing in
pursuance of the decision rendered by the Hon'ble Apex Court in the
matter of Revanasiddappa and Ors. (supra). Both the learned
counsels showed their willingness to work out the matter finally. They
did not press any other substantial questions of law.
5. Appellants filed suit for partition and possession in respect of
land gat No.211 and right to take water from gat No.210. It is pleaded
by them that subject matter was joint family property and in partition
it was allotted to the Respondent No.1/Ananda. Appellant
No.2/Thakubai is his legally married wife and Appellant No.1/
Dattatraya is their son. Respondent No.2/Savitribai is not legally
wedded wife and wife of Respondent No.1/Ananda. Respondent Nos.3
to 5 are their children who are illegitimate. Their request for partition
was denied by the respondents. Hence, suit claiming 2/3 rd share was
filed.
6. Respondents contested the claim by filing written statements
denying the relationship of appellant with Respondent No.1. It is
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contended that Respondent No.2 is the legally wedded wife of the
Respondent No.1 and remaining respondents are their children. It is
contended that there is illicit relationship between Applicant
No.2/Thakubai and Respondent No.1/Ananda. Appellants are said to
be not entitled to any relief.
7. Appellants examined two witnesses themselves. Respondents
examined three witnesses including Respondent Nos.1, 2 and Yelubai.
8. Trial court decreed the suit vide judgment dated 26.02.2019
awarding 1/3rd share to the appellant No.1. Appellant No.2 is held to be
not entitled to have any share. It is specifically held that the marriage
of the Respondent No.1 with Respondent No.2 is proved and she is
legally wedded wife and Respondent Nos.3 to 5 are their children. It is
further held that appellant No.1 is begotten from the Respondent No.1
and Appellant No.2.
9. Being aggrieved respondents preferred appeal which was
allowed by common judgment and decree dated 21.12.2021. It is held
that appellants failed to prove marriage between Appellant No.2 and
the Respondent No.1 in terms of Section 7 Sub-section (2) of the
Hindu Marriage Act,1955. It is further held that Respondent No.2 is the
legally wedded wife of Respondent No.1. The appellants were
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permitted to challenge the findings regarding legitimacy of the
appellant No.2 without filing cross-objection. It is held that during
lifetime of Respondent No.1, no share can be granted to the appellant
No.1.
10. Learned counsel Mr.Sadaphule for appellants made
submissions on the basis of substantial questions of law
incorporated in the appeal memo while assailing judgment passed by
lower appellate court. It is vehemently contended that appellant No.1 is
the legitimate child and appellant No.2 is the legally wedded wife. It is
submitted that appellate court should have remanded the matter to
trial court to decide the status of the parties. It is further submitted
that in view of decision of the Apex Court in the matter of
Revanasiddappa and Ors. (supra), appellant No.1 is entitled to receive
share in the property in the suit land at par with other children. It is
submitted that lower appellate court committed patent illegality in
overlooking the inconsistent stand of the Respondent No.1 which is
exposed in his cross-examination.
11. I have considered rival submissions of the parties. The
submissions of the parties need to be addressed in view of
substantial questions of law framed vide order dated 23.07.2024. It is
necessary to examine as to whether appellant No.1 can be treated to
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be legitimate child as per section 16(1) of Hindu Marriage Act so as to
qualify him for claiming partition and share in the suit land. The Hon'ble
Apex Court has laid down in Revanasiddappa and Ors. (supra), that
illegitimate child covered by Section 16(1) or Section 16(2) is entitled to
have share in the property to their parents as per Section 16(3) of the
Act.
12. Both the courts below have recorded that appellant No.1 is the
son of the Respondent No.1 begotten from appellant No.2/Thakubai.
Though the respondents have denied the relationships, there is
material on record to show that he is the son besides Respondent
Nos.3 to 5. It further reveals that gat No.211 was fallen to the share of
Respondent No.1/Ananda and his branch.
13. Both the parties adduced oral evidence only to show marital
relationship. The benefit of the decision rendered by Revanasiddappa
and Ors. (supra) can be given to the appellants provided that they
succeed in proving that there is a marriage between appellant
No.2/Thakubai and the Respondent No.1. The burden of proving
marriage as per Section 7 of the Act was upon the appellants. Except
their oral evidence no other evidence is placed on record to show the
marriage ceremony. Lower appellate court has rightly recorded the
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findings that they failed to discharge the burden.
14. The written statement shows the defence that Respondent No.1
is said to have been in illicit relationship with the appellant No.2 and
appellant No.1 was begotten. The pleadings and the oral evidence do
not indicate that there was marriage as such between appellant
No.2/Thakubai and Respondent No.1/Ananda. Though, Respondent
No.1 admitted in his cross-examination that he had wrongly deposed
about illicit relationship with the appellant No.2/Thakubai, the marriage
between them is not established. The deposition of DW-1 and 3 do
not show factum of marriage between appellant No.2/Thakubai and
Respondent No.1/Ananda at any point of time.
15. The deposition of the DW-3/Yelubai carries significance
because she was present in the marriage of Respondent No.1/Ananda
with Respondent No.2/Savitribai. There is consistent evidence on
record to show that Respondent No.1 was married with Respondent
No.2 and she was legally wedded wife. The cross-examination of the
witnesses fortify this fact. The trial court totally overlooked this
aspect of the matter and committed patent illegality in decreeing the
suit.
16. In the absence of any valid or void or voidable marriage between
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appellant No.2 and Respondent No.1, it is not possible to countenance
the submission that judgment of the Supreme Court in the matter of
Revanasiddappa and Ors. (supra) would enure to the benefit of the
appellants. In other words status of the appellant No.2 is that of
concubine. Both the appellants can have no right to claim either
partition or share in the case of partition. Learned counsel Ms.Rakhi
Sundale is right in her submission that the Appellant No.1 can not
claim any benefit of Section 16(3) of the Act.
17. Another facet of the matter which is totally ignored by the trial
court is that during life of the Respondent No.1/Ananda, his son, albeit
illegitimate, can not demand partition. The appellant No.1 can not be
said to be a co-parcener. He is not entitled to claim any benefit under
Section 16(3) of the Act. He can not lay any claim in the property of the
joint family. I find that lower appellate court has rightly dealt with this
aspect of the matter.
18. It's a matter of record the land of the joint family of respondents
was acquired and both parties claimed the compensation. By interim
orders the appellants were permitted to receive 1/3 rd share. The
respondents are entitled to receive entire compensation.
19. The findings recorded by lower appellate court can not be
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faulted with. The substantial questions of law argued by learned
counsel for the appellants are devoid of any merits. I have no
alternative than to dismiss the second appeal. Hence, I pass following
order :
ORDER
(i) Second Appeal is dismissed.
(ii) There shall be no order as to costs.
(iii) The Respondents shall be entitled to receive the amount
of compensation from the competent authority and they are
entitled to recover the amount with accrued interest
disbursed to the appellants.
[ SHAILESH P. BRAHME, J.]
vsj
