Bombay High Court

Ramchandra Gangaram Jadhav vs Madhukar Manikrao Thombare And Ors on 19 August, 2025

2025:BHC-AUG:22514

1 976.SA.146-2025.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

SECOND APPEAL NO.146 OF 2025
WITH
CIVIL APPLICATION NO.11676 OF 2024

1) Ramchandra Gangaram Jadhav
Age: 58 years, Occu. Agriculture,
R/o: Chilwadi, Tq. & Dist. Osmanabad ...Appellant
(Orig. Defendant No.8)

VERSUS

1) Madhukar S/o Manikrao Thombare
Age- 57 Years, Occu-Agri.
R/o: Dhekari Tq. Tuljapur Dist. Osmanabad.
2) Brahmadev S/o Manikrao Thombare
Age-52 Years, Occu-Agri.
R/o: Dhekari Tq. Tuljapur Dist. Osmanabad

3) Dhanaji S/o Manikrao Thombare
Age-53 Years, Occu-Agri.
R/o: Dhekari Tq. Tuljapur Dist. Osmanabad.
4) Savita W/o Harshwardhan Pawar
Age: 54 yrs, Occu Household
R/o: Khandala, Tq. Tuljapur Dist. Osmanabad.

5) Shivaji S/o Bitu Naiknavare
Age-65 Years, Occu-Agri.
R/o: Hinglajwadi,
Tq. & Dist. Osmanabad.
2 976.SA.146-2025.doc

6) Shanta W/o Kumar Naiknavare
Age-60 Years, Occu-H.H & Agri.
R/o: As Above.
7) Tukaram S/o Kumar Naiknavare
Age-64 Years, Occu-Agri.
R/o: As Above.

8) Kaka S/o Kumar Naiknavare
Age-64 Years, Occu-Agri.
R/o: As Above.
9) Mainabai W/o Maruti Kanase
Age-62 Years, Occu Household
R/o. Chincholi (B.) Tq. & Dist. Latur.

10) Chandrakala Bhagwat Ghadage
Age: 57 Years, Occu Household
R/o. Komadwadi,
Tq. & Dist. Osmanabad.

11) Padminbai Gangaram Jadhav
DIED Through Her LRs.
11A) Jayshree Tanaji Suryawanshi
Age: 64 Years, Occu: Household
R/o. Sanja, Tq. & Dist. Osmanabad.

11B) Dhanshree W/o Madhukar More
Age: 56 Years, Occu: Household
R/o: Wadgaon (S.),
Tq. & Dist. Osmanabad. ...Respondents

*****
3 976.SA.146-2025.doc

Advocate for Appellant : Mr.Shrikant Y.Patil h/f.Mr.Sanjay A.Wakure

Advocate for Respondent Nos.1,3 to 5,9 and 10 : Mr.Aniruddha A.Nimbalkar
a/w.Mr.Avishkar P.Patil

Advocate for Respondent Nos.6 to 8: Mr.N.J.Patil
******
CORAM : SHAILESH P. BRAHME, J.

RESERVED ON : 13th AUGUST 2025

PRONOUNCED ON : 19th AUGUST 2025

FINAL ORDER :

1. Heard both sides.

2. Present appeal is emanating from concurrent findings of facts

recorded by courts below in decreeing the suit of Respondent Nos.1

to 4 for partition and possession. The relationship inter se is not

disputed. Appellant No.1 is original-defendant No.8. Respondent

Nos.1 to 4 are the plaintiffs. They had filed R.C.S No.301 of 2011 for

partition and possession which was decreed on 31.07.2017. Being

aggrieved R.C.A No.88 of 2017 was filed which was dismissed on

04.12.2023. To understand the relationship as the matter pertains

to partition of joint Hindu family following genealogy is relevant :
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Genealogy

3. Respondent Nos.1 to 4 had filed suit that in the partition of

1972, Lochanabai/grandmother of the parties was allotted suit land

i.e Gat No.103 which was part and parcel of Sy.No.60. Lochanabai

was not the exclusive owner but she had three daughters who are

also joint owners. She died in 1980 and her daughters became

entitled to 1/3rd shares. There was no partition in the branch of

Maruti or Lochanabai and therefore suit was required to be filed for

partition.

4. Appellant and Respondent No.11 only contested the suit by
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filing written statement. Lochanabai was in possession of land

Sy.No.60. She had given suit land to appellant's father/Gangaram

who was her son-in- law. An agreement to sale was executed on

28.01.1976 between them. Thereafter sale deed was executed on

12.11.1979 for medical expenses and repayment of loan. The record

of right was accordingly mutated and the suit land is inherited by

appellant from his father/Gangaram

5. Learned counsel for the appellant submits that trial court did

not frame issue regarding limitation and the suit land was sold vide

Exhibit-66 for legal necessity. Appellate court also did not frame

such a point for determination, though specific ground was raised. It

is contended that suit is hopelessly barred by limitation because

without challenging sale-deed Exhibit-66, suit is filed for partition.

It is submitted that there are pleadings regarding legal necessity

still perverse findings are recorded by courts below. It is further

contended that plaintiffs did not challenge the sale-deed at Exhibit-

66.

6. Per contra, learned counsel Mr.Nimbalkar for the

Respondents/plaintiffs would submit that Lochanabai was not the
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exclusive owner and she had no authority to sale suit land Exh.66 to

Gangaram. Her three daughters were having equal shares and there

was no legal necessity. It is further submitted that both the courts

below have discussed and assigned reasons holding that there was

no legal necessity. It is further submitted that lower appellate court

elaborately considered plea of limitation though specific point was

not framed. It is further submitted that if sale transaction Exh.66 is

void, there is no necessity to challenge it.

7. I have considered rival submissions of the parties and I have

gone through judgments of both the courts below. It reveals from the

record that in 1972 there was partition amongst four sons of

Shankarrao Survase. Lochanabai was wife of deceased son Maruti.

Plaintiffs and the defendant are from the branch of Maruti and

Lochanabai through three daughters viz. Kusum, Sojarbai and

Padminbai. No evidence is placed on record to show that there is

partition inter se amongst the descendants of Maruti or Lochanabai.

Due to the existence of three daughters, Lochanabai was not the

exclusive owner of land which was allotted to her in partition in

1972. Lochanabai and her three daughters are tenants in common
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having equal share. Both the courts below have rightly recorded

findings in this regard by elaborate reasons.

8. Lochanabai sold suit land to Gangaram/son-in-law on

12.11.1979 vide sale-deed Exhibit-66. She had no authority to

alienate the joint family land. No consent of daughters who were co-

owners were obtained. In the written statement appellant pleaded

that alienation was made for medical expenses and repayment of

loan. The plea of legal issue has been discussed by the trial court in

paragraph No.41 and lower appellate court in paragraph Nos.58 and

59. Those are findings of facts and no perversity can be found in

them.

9. The specific issues regarding limitation and legal necessity

were not framed by trial court. During the course of hearing,

application Exhibit-55 was submitted by the appellant for framing

additional issues including that of limitation. In pursuance of that

Issue Nos.2(A) and 2(B) were framed. The appellant did not

challenge the order passed by trial court for not framing issue of

plea of limitation. Both the courts below have considered both the

pleas and assigned reasons. Therefore, there is no substance in
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saying that plea of limitation and legal necessity are not dealt with.

10. It has also been recorded that the sale-deed Exhibit-66 at the

instance of Lochanabai is void because she was not the exclusive

owner and there was no legal necessity. If the transaction is void

then it would not bind the plaintiffs. In this regard judgment is cited

by learned counsel Mr.Nimbalkar of the Division Bench of

Karnataka High Court in the matter of Ganpati Santaram

Bhosale and another vs. Ramchandra Subbarao Kulkarni

and others reported in AIR 1985 (Karnataka) 143. The relevant

portion is extracted as below :

"19.The second contention that the suit should have failed for lack of
specific relief in regard to the setting aside of the sales is also devoid of
merit. It is now well settled that in a suit for partition by Hindu
coparcener it is not necessary for him to seek the setting aside of the
sale. It is sufficient if he asks for his share in the joint family properties
and he be put in possession thereof and for a declaration that he is not
bound by any alienations or interest of others created in such
properties which fall to his share."

. The lower appellate court has rightly recorded that there was

no necessity for the Respondents/plaintiffs to seek relief of

declaration in respect of sale-deed Exhibit-66.

11. Lower appellate court has elaborately dealt with plea of

limitation. There is no material on record to show that plaintiffs
9 976.SA.146-2025.doc

were aware of sale-deed dated 12.11.1979 Exhibit-66. It's not a case

that they were confronted with the sale-deed but still they remained

silent. Lochanabai died in 1980. Plaintiff's mother/Sojarbai expired

in 1997. Their Aunt/Kusum expired in 1995. In the written

statement a plea of sale-deed Exhibit-66 is taken. Thereafter

plaintiffs found that it was being executed fraudulently and without

there being any authority. The plea of limitation raised by appellant