[Cites 12, Cited by 0]
Bombay High Court
Smt Meena Kishor Maliye And Others vs Arun S/O Narayan Kale on 16 December, 2025
2025:BHC-NAG:14301
SA 455 of 2023 - Judgment.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO.455/2023
APPELLANT : Arun s/o Narayanrao Kale
(Ori. Plaintiff) Aged 63 years, Occupation Agriculture
resident of Narayan Nagar, Daryapur,
Tahsil Daryapur, District Amravati.
...VERSUS...
RESPONDENTS : 1. Sau. Meena w/o Kishor Maliye
(Ori. Defendant Aged 67 Years, Occupation Agriculture.
Nos.1 to 5)
2. Ku. Sneha d/o Kishor Maliye
Aged 44 years, Occupation Household.
3. Ku. Priyanka d/o Kishor Maliye
Aged 42 Years, Occupation Household.
4. Ku. Aarti d/o Kishor Maliye
Aged 40 Years, Occupation Household.
5. Varun s/o Kishor Maliye
aged 32 Years, Occupation Household.
All resident of Rajputpura, Daryapur,
Tahsil Daryapur, District Amravati.
Ori. Plaintiff 6. Kishor s/o Kisanlalji Maliye
No.2 aged 61 years, occupation agriculture,
resident of Rajputpura, Daryapur, Tahsil
Daryapur, District Amravati.
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Mr. Jaideep J. Chandurkar, Advocate for appellant
Mrs. Dr. Renuka S. Sirpurkar, Advocate for respondents
--------------------------------------------------------------------------------------------------------------
WITH
SA 455 of 2023 - Judgment.odt
2
SECOND APPEAL NO.148/2024
APPELLANTS : 1. Smt. Meena Kishor Maliye
(Orig. Def Aged about 66 Years, Occu - Agriculturist
no.2-6 & LR's of
Orig. Def no.1) 2. Sneha d/o Kishor Maliye
On RA Aged about 45 Years, Occ - Household.
3. Priyanka d/o Kishor Maliye
Aged about 43 Years, Occu- Household.
4. Arati d/o Kishor Maliye
Aged about 41 Years, Occu- Household.
5. Karan s/o Kishor Maliye
Aged about 32 Years, Occu - Cultivator
All R/o Sula, Post - Kalambeshwar,
Tah - Mehkar, Dist. Buldana.
...VERSUS...
RESPONDENT : Arun s/o Narayan Kale
(original plaintiff) Aged about 73 yrs. Occ- Agriculturist
On RA R/o Narayannagar, Daryapur,
Tah- Daryapur, Dist. Amravati.
-------------------------------------------------------------------------------------------------------------
Mrs. Dr. Renuka S. Sirpurkar, Advocate for appellants
Mr. Jaideep J. Chandurkar, Advocate for respondent
--------------------------------------------------------------------------------------------------------------
WITH
SECOND APPEAL NO.457/2023
APPELLANT : Arun s/o Narayanrao Kale
(Ori. Plaintiff) Aged 63 years, Occupation Agriculture
resident of Narayan Nagar, Daryapur,
Tahsil Daryapur, District Amravati.
...VERSUS...
SA 455 of 2023 - Judgment.odt
3
RESPONDENTS : 1. Sau. Meena w/o Kishor Maliye
(Ori. Defendant Aged 67 Years, Occupation Agriculture.
Nos.2 to 6)
2. Ku. Sneha d/o Kishor Maliye
Aged 44 years, Occupation Household.
3. Ku. Pranjali d/o Kishor Maliye
Aged 42 Years, Occupation Household.
4. Ku. Arati d/o Kishor Maliye
Aged 40 Years, Occupation Household.
5. Varun s/o Kishor Maliye
aged 32 Years, Occupation Household.
All resident of Rajputpura, Daryapur,
Tahsil Daryapur, District Amravati.
-------------------------------------------------------------------------------------------------------------
Mr. Jaideep J. Chandurkar, Advocate for appellant
Mrs. Dr. Renuka S. Sirpurkar, Advocate for respondents
--------------------------------------------------------------------------------------------------------------
WITH
SECOND APPEAL NO.156/2024
APPELLANTS : 1. Smt. Meena Kishor Maliye
(Orig. Plaintiffs Aged about 66 Years, Occu - Agriculturist
& legal
representatives 2. Sneha d/o Kishor Maliye
of ori. Def. no.1) Aged about 45 Years, Occu - Household.
On RA 3. Priyanka d/o Kishor Maliye
Aged about 43 Years, Occu- Household.
4. Arati d/o Kishor Maliye
Aged about 41 Years, Occu- Household.
5. Karan s/o Kishor Maliye
Aged about 32 Years, Occu - Cultivator
All R/o Sula, Post - Kalambeshwar,
Tah - Mehkar, Dist. Buldana.
SA 455 of 2023 - Judgment.odt
4
...VERSUS...
RESPONDENT : Arun s/o Narayan Kale
(Ori. Deft. No.2) Aged about 73 yrs. Occ- Agriculturist
On RA R/o Narayannagar, Daryapur,
Tah- Daryapur, Dist. Amravati.
-------------------------------------------------------------------------------------------------------------
Mrs. Dr. Renuka S. Sirpurkar, Advocate for appellants
Mr. Jaideep J. Chandurkar, Advocate for respondent
--------------------------------------------------------------------------------------------------------------
CORAM : ROHIT W. JOSHI, J.
Date of reserving the Judgment : 28/11/2025
Date of pronouncing the Judgment : 16/12/2025
JUDGMENT:
1. These four second appeals are pertaining to the same
property and same parties. They involve common dispute and are
therefore being decided by common judgment. Second Appeals arise out
of two different suits being Regular Civil Suit No.15/2012 (Old Special
Civil Suit No.11/2008) and Regular Civil Suit No.39/2007.
2. The appellants in Second Appeal Nos.148/2024 and
156/2024 had filed Regular Civil Suit No.39/2007 inter alia seeking
decree of perpetual injunction restraining the defendant No.1 from
selling the suit property to the defendant No.2 in the said suit. The
plaintiffs in the said suit are wife and children of defendant No.1. It is
their case that the suit property which is an agricultural land bearing
Gat No.138 of village Shivar, Tahsil Daryapur, District Amravati
admeasuring 1.70 HR is Joint Family property of plaintiffs and
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defendant No.1 in the said suit and that the defendant No.1 had
intention to sell the suit property to the defendant No.2 in order to
satisfy his vices. It is stated that the defendant No.1 was addicted to
liquor and was intending to sell the suit property to the defendant No.2
in order to meet expenses for the same.
3. The defendant No.1 (Vendor) filed a Pursis admitting the
entire claim of the plaintiffs. However, his application seeking
permission to file written statement is rejected by the learned trial
Court. The defendant No.2 filed written statement in the suit and
denied all adverse allegations in the plaint. Defendant No.2 contended
that the defendant No.1 had entered into an agreement of sale with
respect to suit property with him for a valuable consideration of
Rs.1,29,500/-. The defendant No.2 stated that defendant No.1 had also
executed sale-deed in his favour and had delivered possession of the
suit property to him. It was further stated that on the same day i.e. on
11/07/2007, the defendant No.1 had repaid loan of Rs.12,200/- to
Daryapur Seva Sahakari Society. The defendant No.2 contended that the
sale-deed could not be registered since the plaintiff No.1 visited the
office of Sub Registrar while the said sale-deed was about to be
registered and created ruckus. The defendant No.1 denied that suit
property was Joint Hindu Family property and claimed that defendant
No.1 was sole and absolute owner of the same.
SA 455 of 2023 - Judgment.odt
4. The plaintiffs in Regular Civil Suit No.39/2007 will be
referred as "objectors", the defendant No.1 will be referred as "vendor
(Karta)" and the defendant No.2 will be referred as "purchaser" in the
body of the judgment hereinafter.
5. The learned trial Court dismissed the said suit vide
judgment and decree dated 12/07/2012. The objectors/plaintiffs have
preferred Regular Civil Appeal No.100/2012, challenging the said
decree. The said appeal came to be allowed vide judgment and decree
dated 05/10/2023. The judgment and decree passed by the learned trial
Court came to be quashed and set aside and a decree for perpetual
injunction was passed in favour of the plaintiffs/objectors thereby
restraining the defendant No1-vendor from selling the suit property to
the defendant No.2 - purchaser. However, the learned first Appellate
Court had recorded a finding that the defendant No.1 - vendor had
entered into agreement of sale with the defendant No.2 - purchaser and
that the defendant No.2 - purchaser had paid a sum of Rs.1,29,500/- to
the defendant No.1 - vendor. The plaintiffs (objectors) have filed Second
Appeal No.156/2024, challenging the said finding, recorded by the
learned first Appellate Court.
6. Likewise, the purchaser/defendant No.2 has preferred
Second Appeal No.156/2024, challenging the said judgment and decree
dated 05/10/2023, passed by the learned first Appellate Court in
SA 455 of 2023 - Judgment.odt
Regular Civil Suit No.100/2012, since the suit filed by the objectors
came to be decreed.
7. The purchaser, who is defendant No.2 in Regular Civil Suit
No.39/2007 filed a separate suit being Regular Civil Suit No.15/2012
(Old Special Civil Suit No.11/2008) inter alia seeking declaration that
he had become owner of the suit property by virtue of sale-deed dated
11/07/2007, executed in his favour by the vendor (defendant No.1)
and for a mandatory injunction, directing the defendant No.1 to register
the said sale-deed dated 11/07/2007 and further perpetual injunction
against the defendant No.1 - vendor and defendant Nos.2 to 6 -
objectors, restraining them from disturbing his possession over the suit
property. Alternate prayer for refund of sale consideration of
Rs.1,29,500/- is also made in the said plaint.
8. Perusal of the plaint averments will indicate that according
to the purchaser, the suit property is self-acquired property of his vendor
(defendant No.1). The averments in the plaint in Regular Civil Suit
No.15/2012 are similar to the averments in written statement filed in
Regular Civil Suit No.39/2007. In the said suit, the defendant No.1-
vendor had raised a defence that the transaction between the parties
was a loan transaction of Rs.20,000/- obtained by vendor- defendant
No.1 and that the sale-deed was got executed by the plaintiff, drawing
an unfair advantage of the fact that the defendant No.1 - vendor was
SA 455 of 2023 - Judgment.odt
under intoxication at the relevant time. The defendant Nos.2 to 6 in
Regular Civil Suit No.39/2007 (objectors), raised a contention that the
suit property was ancestral property and that defendant No.1 (vendor)
did not have any right to alienate the same. The contention that the
defendant No.1 intended to satisfy his vices, which was raised in
Regular Civil Suit No.39/2007, is reiterated in the written statement.
9. The learned trial Court decided the suit vide judgment and
decree dated 12/07/2012 by granting a declaration that the purchaser
(plaintiff) had become owner of the suit property by virtue of sale-deed
dated 11/07/2007 and directed the defendant No.1 (vendor) to execute
sale-deed with respect to the suit property in favour of plaintiff
(purchaser). Perpetual injunction restraining the defendants i.e. vendor
and objectors from disturbing possession of the purchaser over the suit
property was also granted.
10. The objectors (original defendant Nos.2 to 6) preferred
Regular Civil Appeal No.99/2012, challenging the said judgment and
decree passed by the learned trial Court. The learned first Appellate
Court held that the suit property was an ancestral property and
therefore, the defendant No.1 - vendor did not have any right to sell the
same to the purchaser. However, the learned first Appellate Court has
held that the purchaser had proved that the vendor had executed sale-
deed dated 11/07/2007 in his favour and had received sale
SA 455 of 2023 - Judgment.odt
consideration of Rs.1,29,500/-. In view of above, the learned first
Appellate Court granted decree for refund of amount of Rs.1,29,500/-
with interest @ 6% per annum in favour of the plaintiffs instead of
decree for execution and registration of sale-deed. It will be pertinent to
mention here that the learned first Appellate Court also recorded
finding that the purchaser had failed to prove his possession over the
suit property and that the same was in possession of the defendant No.1
- vendor.
11. Aggrieved by the said judgment and decree, dated
05/10/2023, passed by the learned first Appellate Court, the purchaser
has filed Second Appeal No.455/2023. Likewise, the objectors
(defendant Nos.2 to 6) have also filed Second appeal No.148/2024,
challenging the decree for refund of amount.
12. Following substantial questions of law have been framed in
the present appeals.
"(A) Second Appeal No.455/2023 :
(i) Whether the Judgment and decree passed would
be inconsistent decree inasmuch as the respondent original
plaintiffs had failed to bring the legal representatives of
defendant No.1 on record in appeal and the same would be
regularized to inconsistent decree ?
(ii) Whether the finding by the Lower Appellate Court
to the effect that the suit property is an ancestral property is
not borne out from the evidence on record; and in any case the
SA 455 of 2023 - Judgment.odt
plaintiff would be entitled to the share of the defendant No.1 if
the same is held to be an ancestral property ?
(iii) Whether in view of the findings that the suit
property was an ancestral property the appellant/plaintiff can
be divested of the same in the absence of a suit for partition by
the other defendants ?
(B) Second Appeal No.148/2024 :
"Whether the First Appellate Court was right in holding
that the sale-deed executed by deceased Kishor Maliye is not a
nominal one arising out of money lending transaction ?
(C) Second Appeal No.457/2023 :
"(i) Whether the Judgment and decree passed by the
learned Lower Court is liable to be set aside inasmuch as the
plaintiffs had failed to lead any substantial evidence to prove
that the suit property was their ancestral property ?
(ii) Whether the Judgment and decree passed would
be inconsistent decree inasmuch as the respondent original
plaintiffs had failed to bring the legal representatives of
defendant No.1 on record in appeal and the same would be
regularized to inconsistent decree ?
(D) Second Appeal No.156/2024 :
"(1) Whether the sale deed executed by defendant
No.1 can be treated as valid document being it is
unregistered ?
(2) Whether the First Appellate Court was right in
holding that defendant No.1 has entered into an agreement to
sell the property with defendant No.2 ?
SA 455 of 2023 - Judgment.odt
13. At the outset, it must be stated that apart from the
aforesaid questions, the learned Advocate for the respondents in Second
Appeal No.455/2023 and 457/2023 i.e. objectors raised a contention
with respect to maintainability of the suit filed by the purchaser i.e.
Regular Civil Suit No.15/2012, placing reliance on Section 77 of the
Registration Act, 1908. The learned Advocate contended that the suit
filed by the purchaser was not maintainable, in view of Section 77 of
the Registration Act. She contended that the prayer in the suit was only
for directions to the defendant No.1 vendor to register the sale-deed,
which was already executed by him, according to the
purchaser/plaintiff, and as such the suit was barred in view of
Section 77 of the Registration Act.
14. The learned Advocate for the purchaser (plaintiff) in
Regular Civil Suit No.15/2012 opposed the contention by drawing
attention to the prayer clauses in the suit. It is contended that apart
from direction to execute the sale-deed, the purchaser has also sought
decree for perpetual injunction, restraining the defendants from
disturbing his possession over the suit property and has also made
alternate prayer for refund of sale consideration. The learned Advocate
has placed reliance on the judgment of the Hon'ble Supreme Court in
the matter of Kalavakurti Venkata Subbaiah Vs. Bala Gurappagari
SA 455 of 2023 - Judgment.odt
Guruvi Reddy, reported in (1999) 7 SCC 114 in support of his
contention.
15. The Hon'ble Supreme Court has held that Section 77 of the
Registration Act will not be an adequate remedy, where in addition to
direction for registration of sale-deed, the plaintiff seeks other reliefs
such as recovery of possession and mesne profits or damages and civil
suit filed in such a situation will be maintainable. In the case at hand,
apart from the directions to register the sale-deed, the purchaser
(plaintiff) has also prayed for decree for perpetual injunction against
forcible dispossession and an alternate prayer is also made seeking
refund of the same. In view of the aforesaid, the additional substantial
question of law sought to be canvassed by the learned Advocate for the
objectors, does no arise for consideration.
Substantial Question of law in Second Appeal No.148/2024 and
substantial question of law No.1 in Second Appeal No.156/2024 :-
16. These two questions are pertaining to the execution of sale-
deed dated 11/07/2007, stated to be executed by vendor in favour of
the purchaser. The learned trial Courts in both the suits have recorded a
finding that the purchaser has duly proved the agreement and payment
of sale consideration of Rs.1,29,500/-. The purchaser has deposed in
support of his contention regarding execution of sale-deed and payment
of consideration. His evidence is supported by attesting witness to the
SA 455 of 2023 - Judgment.odt
sale-deed. As against this, the vendor and objectors were unable to lead
any cogent evidence to belie the contents of sale-deed, wherein it is
recorded that sale consideration was paid by the purchaser and received
by the vendor. The findings of fact recorded by the learned trial Court in
both the suits on this aspect are based on appreciation of evidence on
record. The learned first Appellate Courts in appeals arising out of both
these suits have confirmed the findings on this aspect on reappreciation
of evidence. It is seen that the vendor or objectors could not
substantiate their contention that the sale-deed in question was a
nominal document arising out of money lending transaction. It will be
pertinent to mention that the attesting witness is the brother of the
vendor, who has supported the case of purchaser regarding execution of
document and payment of consideration. Perusal of his cross-
examination does not indicate that there is any reason for him to depose
against his brother i.e. vendor. It must also be stated that there is no
evidence on record to suggest that the plaintiff is a moneylender.
Therefore, these findings of fact recorded by the learned Courts do not
warrant any interference. The learned Advocate for the objectors could
not point out any perversity in the findings recorded by the learned
Courts.
SA 455 of 2023 - Judgment.odt
Question of law No.2 in Second Appeal No.156/2024 :-
17. Admittedly, the sale-deed in question could not be
registered. Perusal of Section 54 of the Transfer of Property Act will
indicate that a sale transaction is complete only upon registration of the
sale-deed. Although execution of the sale-deed dated 11/07/2007 is
proved, the transaction of sale is incomplete since the document is not
registered. The sale-deed, dated 11/07/2007 cannot therefore be said to
be a valid document of title in view of Section 54 of Transfer of Property
Act. Substantial question of law No.2 accordingly deserves to be
answered in favour of the objectors, who are appellants in Second
Appeal No.156/2024.
Substantial question of law No.(i) in Second Appeal
No.455/2023 and substantial question of law No.(ii) in Second appeal
No.457/2023 :-
18. The vendor, who is defendant in the suit filed by the
purchaser, died during the pendency of first appeal. However,
application for bringing his legal representatives was not filed. The
learned Advocate for the purchaser, therefore, contends that the appeal
filed by the objectors stood abated. The contention of the learned
Advocate is that although all legal representatives of the vendor were on
record as appellants, their names were also required to be brought on
SA 455 of 2023 - Judgment.odt
record as legal representatives of deceased - vendor, who was
respondent No.2 in the appeals, filed by the objectors.
19. The contention of the learned Advocate for the purchaser
cannot be accepted. Order XXII of the Code of Civil Procedure
contemplates substitution of legal representative of a deceased already
on record. It does speak about bringing names of legal heirs. Having
regard to the facts of the present case, either the objectors, who are legal
heirs or purchaser will represent the estate of the deceased vendor qua
the suit property. The legal heirs i.e. objectors and purchaser both were
parties in the first appeal. The contention that the appeal abates since
legal heirs of vendor (objectors) were not brought on record as legal
heirs, although, they were parties to the appeal as appellants, cannot be
accepted. Even otherwise, the objection raised is technical in nature,
since legal heirs and prospective purchaser were already on record. The
same is, therefore, liable to be rejected having regard to mandate of
Section 99 of the Code of Civil Procedure.
Substantial Question of law No.(iii) in Second Appeal
No.455/2023 :-
20. The objectors have filed suit, seeking decree for perpetual
injunction against the vendor, who is husband of objector No.1 and
father of other objectors from selling the suit property on the ground
that the suit property is ancestral property and it was being sold by the
SA 455 of 2023 - Judgment.odt
vendor only in order to satisfy his vices. The contention of the learned
Advocate for the appellant/purchaser is that in such a situation, it was
necessary for the objectors to file a substantive suit for partition and
separate possession and that they could not seek injunction restraining
the vendor from selling the suit property without making a substantive
prayer for partition. The said contention is liable to be rejected.
21. It is well settled law that if coparceners of joint Hindu
Family have any objection to sale transaction by any other coparcener of
even Karta they can challenge the act of the coparcener or Karta in
selling the property without filing a suit for partition. It will be
appropriate to refer to judgment in the matter of Parvati w/o
Vishwanath Zangare and others Vs. Rasul s/o Sk. Abdul Musalman,
reported in 2014 (2) Mh.L.J. 457.
Substantial question of law Nos.(i) and (ii) in Second appeal
No.455/2023 and Second Appeal No.457/2023 :-
22. The contention of the objectors is that the suit property is
an ancestral property, which has come to the share of the vendor by
virtue of earlier partition between them. As against this, the contention
of the purchaser is that the vendor was absolute owner of the suit
property and that the suit property was not joint family property. The
objectors have duly proved partition-deed dated 22/04/1969 by virtue
of which, partition of joint family properties had taken place between
SA 455 of 2023 - Judgment.odt
the vendor, his brother and their father. Apart from this partition, dated
22/04/1969, whereby the suit property had fallen to the share of father
of the vendor. The objectors have also proved partition-deed dated
11/08/1982 between the vendor, his father and brother. Both these
documents of partition are registered documents. The documents are
duly proved during the course of evidence of objector No.1 (widow of
vendor). Apart from evidence of objector No.1, the objectors have also
examined Talathi of the village, who has proved the relevant mutation
entries, which show that mutation entries were recorded in favour of
respective individual as per partition-deed dated 11/08/1982. Perusal of
the partition-deed dated 11/08/1982 will demonstrate that 6.82 HR
land in Survey No.81 i.e. the suit property was allotted to the share of
father of the vendor and that it was further agreed that after his demise
the said property was to be divided equally amongst his sons.
23. It is in this backdrop the question pertaining to the nature
of property i.e. whether the suit property is separate property of the
vendor or Joint Hindu Family property of the vendor and the objectors
is required to be decided.
24. It cannot be disputed that the suit property, which is a part
of Survey No.81 was ancestral property of the vendor, his brother and
father as can be seen from the registered partition-deed, dated
22/04/1969 executed between them. A part of Survey No.81, including
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suit property, had fallen to the share of father of the vendor in the said
partition. In the subsequent partition dated 11/08/1982 between the
father of the vendor, the vendor and his brother the said portion of
Survey No.81, including the suit property, was allotted to the share of
the father of vendor. Partition-deed provides that after demise of the
father of vendor, land bearing Survey No.81 shall devolve upon his sons
including the vendor. Accordingly, vendor became owner of the suit
property after the death of his father. The suit property is thus inherited
by the vendor from his father. It is not received by him in partition.
25. Dr. Sirpurkar, learned Advocate for the objectors has placed
reliance on the judgments in the matter of C. Krishna Prasad Vs. CIT,
Bangalore, reported in (1975) 1 SCC 160; Rohit Chauhan Vs. Surinder
Singh and others, reported in (2013) 9 SCC 419; Shyam Narayan
Prasad Vs. Krishna Prasad and others, reported in (2018) 7 SCC 646;
and Dattatraya Jaysingh Walke and others Vs. Jaysingh Dhondiba and
another, reported in (2022) SCC OnLine Bom. 6506 to contend that a
property which is received by a male Hindu in a partition becomes
separate property qua his collaterals, however, with respect to his lineal
descendants a property received in partition continues to be Joint Hindu
Family property. Dr. Sirpurkar, therefore, contends that the suit property
which was received by father of the vendor was Joint Hindu Family
property of father of the vendor, the vendor and the objectors, who
SA 455 of 2023 - Judgment.odt
immediately got right in the suit property by birth. It must be stated that
the suit property is not received by the vendor under the partition-deed
dated 11/08/1982. The suit property was received by father of the
vendor in the said partition. The suit property became separate property
of the vendor's father in view of the said partition. The vendor has
inherited the suit property after demise of his father. Father of the
vendor had admittedly died after commencement of Hindu Succession
Act, 1956. The question is as to whether on a partition of Joint Hindu
Family property between the father and his son(s), the property which is
received by the father in the partition is his separate property or self-
acquired property and after demise of the father whether the son(s)
inherit/s the property under Section 8 of the Hindu Succession Act or
receive the same by survivorship. If the property is received by
survivorship, it will continue to retain character of ancestral property.
However, if the property is received by succession or inheritance, as per
Section 8 of the Hindu Succession Act the same will have the character
of separate property of the son in view of Sections 8 or 19 of the Hindu
Succession Act.
26. The judgments, on which reliance is placed by Dr.
Sirpurkar, do not deal with a situation where there is a partition of Joint
Hindu Family property between father and his son (s) and the property
is inherited by the son(s) after commencement of Hindu Succession Act.
SA 455 of 2023 - Judgment.odt
27. The question, which falls for consideration in the appeal, is
directly answered by the Hon'ble Supreme Court in the case of
Commissioner of Wealth-tax, Kankpur etc. etc. Vs. Chander Sen etc. etc.
reported in AIR 1986 SC 1753. In the said case a father and his only son
were carrying out business as a joint family business concern. During
life time of the father, there was a partition of the business and the
father and the son continued with the business by constituting a
partnership firm. The son formed a separate joint family comprising of
himself and his sons. After the death of father, the amount standing to
his credit in the partnership firm devolved on his son. The Wealth Tax
Authorities took into consideration this amount as property of Joint
Hindu Family of the son. This was challenged by the son. The question
before the Hon'ble Supreme Court was whether amount which was
devolved on the son after demise of his father after commencement of
Hindu Succession Act was separate property of the son or property of
Joint Hindu Family of the son. The Hon'ble Supreme Court has observed
that under Shastric Hindu Law, a property received by male Hindu from
his male ancestor was received by survivorship and that every male
member in the family had a right in such property from his birth. It is,
however, observed that this position was drastically altered by the
Hindu Succession Act, 1956. It is held that after commencement of
Hindu Succession Act, a property of male Hindu, after his demise
SA 455 of 2023 - Judgment.odt
devolves upon his Class-I legal heirs by succession/inheritance and does
not go by survivorship. The Hon'ble Supreme Court has held that the
property is received by the son under Section 8 of the Hindu Succession
Act as a separate property and not as ancestral property. Perusal of
judgment, particularly paragraphs 10, 11, 14, 19 and 20 leave no
manner of doubt that a property inherited by Hindu male from his
father is a separate property and not property of Joint Hindu family
comprising of himself and lineal descendants.
28. It will also be pertinent to state that the suit property
became separate property of the father by virtue of partition between
himself and his sons on 11/08/1982. It will also be pertinent to mention
that on the date of subsequent partition dated 11/08/1982, the
objectors were not born. The property bearing Gat No.138 (Old Survey
No.81) fell to the share of their grandfather. The property became
separate property of the grandfather in view of the said partition. The
objectors, therefore, cannot claim any right in land bearing Gat No.138
(Old Survey No.81) including the suit property by birth as coparceners.
29. For the reasons recorded above, the suit property must be
held to be separate property of the vendor, since it is inherited by him
from his father.
30. Therefore, the vendor had absolute right to sell the suit
property. The objectors have no right to challenge the sale transaction
SA 455 of 2023 - Judgment.odt
by the vendor in favour of the purchaser. The suit filed by the objectors
therefore deserves to be dismissed and the suit filed by the purchaser
needs to be allowed.
31. For the reasons recorded above, following order is passed :-
(i) Second Appeal Nos.455/2023 and 457/2023 are
allowed.
(ii) Second Appeal Nos.148/2024 and 156/2024 are
dismissed.
(iii) Judgments and decrees dated 05/10/2023, passed
by the Ad hoc District Judge-2, Achalpur in Regular Civil Appeal
No.99/2012 and Regular Civil Appeal No.100/2012 are quashed and set
aside
(iv) Judgments and decrees, dated 12/07/2012, passed by
the Civil Judge, Senior Division, Daryapur, District Amravati in Regular
Civil Suit No.15/2012 (Old Special Civil Suit No.11/2008) and Regular
Civil Suit No.39/2007 respectively are restored.
(v) Parties to bear their own costs.
(ROHIT W. JOSHI, J.)
Wadkar
Signed by: S.S. Wadkar (SSW)
Designation: PS To Honourable Judge
Date: 16/12/2025 18:54:25
