Bombay High Court
Pramilabai Supdu Pardhi And Others vs Vitthal Changdo Pardhi And Others on 3 November, 2025
2025:BHC-AUG:30078
1 SA.543-13 & anr.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.543 OF 2013
1. Vitthal Chango Pardhi,
Age: 52 years, Occu: Labour,
2. Pandurang Chango Pardhi,
Age: 49 years, Occu: Labour,
3. Pundlik Chango Pardhi,
Age: 47 years, Occu: Labour,
4. Vijay Chango Pardhi,
Age: 45 Years, Occu: Labour,
All R/o. Jalndri, Tq. Jamer,
Dist. Jalgaon. ... Appellants
(Orig. Plaintiffs)
VERSUS
1. Smt. Pramilabai W/o Supdu Pardhi,
Age: 67 years, Occu: Agril.,
2. Sau. Vatsalabai Prakash Pardhi,
Age: 42 years, Occu: Household,
3. Sau. Bebabai W/o. Ashok Pardhi,
Age: 27 years, Occu: Household,
All R/o. Jalandri, Tq. Jamner,
Dist. Jalgaon. ... Respondents
(Orig. Defendants)
WITH
X-OBJECTION NO.81 OF 2025
IN SA/543/2013
...
Advocate for Appellants in SA & Respondents in X-Obj. : Mr.
Wani Girish V.
Advocate for Respondents in SA & Petitioner in X-Obj. : Mr.
Bhokarikar M. M.
...
2 SA.543-13 & anr.odt
CORAM : SHAILESH P. BRAHME, J.
RESERVED ON : 14.10.2025
PRONOUNCED ON : 03.11.2025
JUDGMENT :
1. Heard both sides.
2. Second appeal is arising out of alternate findings of
facts. Appellants are original plaintiffs in Regular Civil Suit
No.30 of 1995 which was decreed by the Trial Court on
23.01.2006. The decree is reversed by Lower Appellate Court
in Regular Civil Appeal No.74 of 2006 on 28.11.2012. Appeal
is admitted on following substantial questions of law by order
dated 06.02.2023.
(i) Whether the suit for partition and separate
possession could have been dismissed when there is a
concurrent finding recorded that the suit properties are
ancestral and joint family properties of the plaintiffs and
defendants ?
(ii) Whether the decree passed by the first appellate
court, thereby, dismissing the suit for partition and
3 SA.543-13 & anr.odt
separate possession is contrary to the provisions of
Section 6 of the Hindu Succession Act ?
3. Cross objection has been filed by the respondents mainly
for challenging the findings that the suit lands are ancestral
properties and plaintiffs are related to deceased Supdu through
his first wife deceased Bhagabai. Following substantial
questions of law are formulated :
(i) Whether both Courts below are justified in
considering the relationship of the plaintiffs through
their mother Tejabai with deceased Supdu when the
same is disputed by the defendants ?
(ii) Whether the suit lands can be treated to be
ancestral properties when pleadings and the evidence on
record indicate that those were allotted to deceased
Supdu in partition with his brother Garbad and
thereafter those were regranted by the competent
authority exclusively in the name of deceased Supdu and
what would be the effect ?
(iii) Whether the suit filed by the plaintiffs is
maintainable if the suit lands are treated to be self-
4 SA.543-13 & anr.odt
acquired properties of deceased Supdu and not the
ancestral properties ?
4. Both learned counsels have addressed on the substantial
questions of law framed in the second appeal as well as cross
objections. The substantial questions of law in the cross
objections are contemplated by the appellants' counsel and he
expressly showed willingness to address those questions
without seeking any time. Accordingly, I heard both sides on
the substantial questions of law.
5. The appellants had filed suit for partition and
possession. The relationship between the parties is admitted.
Following genealogy is relevant.
Supdu Keshav Pardhi
(Dead)
_______________________________
Bhagabai (I wife) Pramilabai (II wife)
(Dead) Defendant
_______________________________
Tejabai (Dead)
(Daughter) Vatsalabai Padmabai Bebabai Mangala
d2 (Dead) d3 (Dead)
______________________________
Vitthal Pandurang Pundlik Vijay
P1 P2 P3 P4
5 SA.543-13 & anr.odt
6. It is contended that land Gut Nos.75 and 76 are the
undivided joint family properties. Appellant's mother Tejabai
predeceased Supdu. She was daughter born from first marriage
of Supdu with Bhagabai. The defendants are the children born
from the wedlock of second marriage of Supdu with
Pramilabai. It is further pleaded that appellants had looked
after Supdu in his old and ailing days. He intended to allot
Gut No.75 by oral partition to the appellants. So was his last
Will. The respondents however forcibly and illegally entered
their name in the record of right and remained in possession.
Supdu died on 31.10.1992 intestate. Appellants were denied
their legitimate share in the property.
7. Respondents contested the suit on a plea that Supdu was
staying with them in his last days. The relationship of plaintiffs
with them was denied. It is further pleaded that suit lands are
not ancestral properties but self acquired estate. He had
allotted suit lands to the respondents and mutation entry
No.194 was effected. Respondents are in possession of the suit
lands as owner. The suit is barred by time and it is stated to be
a false claim by the appellants.
6 SA.543-13 & anr.odt
8. Appellants/plaintiffs adduced oral evidence of four
witnesses P.W.1 Vitthal, P.W.2 Chango, P.W.3 Ramdas and P.W.4
Subhabai. They placed on record village form No.14 at Exh.51,
judgment in RTS Appeal No.32 of 1990 at Exh.52, heirship
certificate dated 12.02.2004 at Exh.54, amongst other
documents. Respondents/defendants adduced oral evidence of
D.W.1 Pramilabai and produced on record 7/12 extracts,
mutation entry No.106 Exh.62, mutation entry No. 121 Exh.63
and RTS Appeal No.65 of 2005 at Exh.66 besides other
documents.
9. By judgment dated 23.01.2006 Trial Court held that
plaintiff's grandmother Bhagabai was the first wife of Supdu
and respondent No.1 Pramilabai is the second wife. It is
further held that suit lands are ancestral and divided properties
of deceased Supdu. The plaintiffs are held to be entitled to
have share in the property. The suit was decreed granting
them half share.
10. Being aggrieved, respondents preferred Regular Civil
Appeal No.74 of 2006 which was allowed reversing the decree
7 SA.543-13 & anr.odt
of the Trial Court vide judgment dated 28.11.2012. The
Appellate Court held that the plaintiffs are related to Supdu.
However, plaintiffs being the children of predeceased daughter
of Supdu are held to be not entitled to any share. The reliance
is placed on the judgment of Sadashiv Sakharam Patil and
others Vs. Chandrakant Gopal Desale and others [2012 (1)
Mh.L.J. 197].
11. Learned counsel Mr. Wani appearing for the appellants
submits that Lower Appellate Court committed patent illegality
in relying upon judgment of Sadashiv Sakharam Patil (supra)
when amended Section 6 of Hindu Succession Act (hereinafter
referred to as "Act") qualifies daughter as a coparcener giving
her birth right, the plaintiffs are entitled to share. It is further
submitted that in view of law laid down by Supreme Court in
the matter of Vineeta Sharma Vs. Rakesh Sharma plaintiffs are
entitled to get share notwithstanding that their mother
predeceased supdu. It is submitted that relationship of the
plaintiffs with Supdu has been established from the oral and
the documentary evidence. It is further submitted that Supdu
had no authority to transfer the suit land to defendant No.1
8 SA.543-13 & anr.odt
Pramilabai by mutation entry and that was fraudulently
obtained by the respondents which is evident from the fact that
Supdu has preferred RTS appeal.
12. Per contra, learned counsel Mr. Bhokarikar submits that
both Courts below failed to take into account mutation entry at
Exh.62 to show that there was re-grant of suit lands to
deceased Supdu and those are his self-acquired properties. It is
submitted that both the Courts below erred in holding that
plaintiffs are related to deceased Supdu. It is vehemently
contended that Supdu being the exclusive owner of the suit
lands entitled to transfer them to respondent No.1. It is further
submitted that heirship certificate dated 12.02.2004 which is
at Exh.54 is not reliable and issued without hearing
respondents.
13. I have considered rival submissions of the parties. With
the assistance of both sides, I have gone through record and
proceedings. In all, five substantial questions of law are framed
in the present appeal and the cross objections. Considering oral
and the documentary evidence from record, I propose to
compartmentalize my reasoning in the following paragraphs.
9 SA.543-13 & anr.odt
14. Relationship :-
In order to prove plaintiffs' relationship who are children
of predeceased daughter Tejabai of deceased Supdu, four
witnesses were examined. P.W.3 Ramdas has candidly stated
that defendant No.1 Pramilabai was earlier married with
Hiraman who happened to be his uncle. Her marriage with
deceased Supdu was by Gandharva form. A witness is husband
of cousin of the plaintiffs. Nothing detrimental to the
relationship has been elucidated from his cross-examination.
P.W.2 as well as P.W.4 are close relatives of the parties. The
witnesses have consistently stated that Bhagabai was the first
wife and Pramilabai was the second wife. Extract of village
form No.14 at Exh.51 shows that Supdu was the father of
plaintiffs mother Tejabai. The heirship certificate at Exh.54
issued after death of deceased Supdu, records names of both
the parties as heirs. Except oral evidence of defendant No.1
Pramilabai, no material is placed on record to challenge the
relationship of the plaintiffs with Supdu. I find that Trial Court
has rightly recorded that the plaintiffs are children of
predeceased daughter Tejabai of deceased Supdu.
10 SA.543-13 & anr.odt
15. Nature of the suit lands :-
Trial Court recorded that suit lands are joint family
properties of the parties. Both Courts below did not assign any
reasons as to whether the suit lands are ancestral properties or
self-acquired properties of Supdu. Learned counsel Mr.
Bhokarikar is right in contending that both Courts below did
not look into the fact that there was partition in between
Supdu and his brother Garbad and Supdu was given suit lands
by re-grants.
16. I have gone through cross examination of P.W.2 Chango
as well as examination-in-chief of defendant No.1 Pramilabai.
I have also considered the revenue record produced by the
parties. The mutation entry No.106, at Exh.62 shows that
Survey No.75/1, 75/2, 75/3 (Gut No.74, 75 and 76
respectively) were re-granted to Supdu by the competent
authorities by paying the amount. Mutation entry No.121 at
Exh.48 which is again reproduced at Exh.63 shows that on or
about 09.02.1983 there was partition between Supdu and his
brother Garbad. Gut No.75 was equally divided between them
Gut No.74 was allotted to Garbad and Gut No.76 was allotted
11 SA.543-13 & anr.odt
to Supdu. There is substance in the submission of Mr.
Bhokarikar that Gut Nos.75 and 76 are not the ancestral
properties. Those were re-granted to Supdu exclusively.
17. Admittedly, Supdu died on 31.10.1992 intestate. He is
survived by plaintiffs being children of predeceased daughter
and the defendants. The defendants did not produce any
partition deed or memorandum of partition to show that
Supdu partitioned the suit lands to defendant No.1 Pramilabai.
The mutation entry No.194 at Exh.64 is not the outcome of any
partition but transfer of suit lands to defendant No.1. In my
considered view, suit land are undivided joint family properties
of both the parties after demise of supdu.
18. Entitlement of the plaintiffs to claim partition :-
I have carefully gone through pleadings of the
defendants, evidence of Pramilabai and the mutation entry
No.194 at Exh.64. Exh.64 shows that suit lands were
transferred to defendant Pramilabai by Supdu. It does not spell
out allotment of lands by way of partition. Its a trite law that
mutation entry does not confer title. No testamentary
disposition has been placed on record transferring the interest
12 SA.543-13 & anr.odt
of deceased Supdu to Pramilabai. Trial Court in this regard has
rightly held that no ownership was transferred to Pramilabai.
Supdu did not allot anything to plaintiffs. Its a theory of
defendants that suit lands were allotted to defendants. This is
unequitable distribution of assets. The theory is improbable. If
the suit lands are held to be joint family properties, then the
plaintiffs are entitled to claim partition. Once it is held that
Supdu died intestate then both the parties are entitled to
partition and separate possession.
19. The respondents claimed their ownership on the basis of
mutation entry 194 at Exh.64. It's a case of plaintiffs that the
said mutation was effected fraudulently. During life time of
Supdu, RTS Appeal No.32 of 1990 was filed by him against
defendant No.1 Pramilabai challenging mutation entry No.194.
Lateron, it was dismissed on 19.04.1991 by Assistant Collector
vide Exh.52. There is a substance in the contention of learned
counsel Mr. Wani that Supdu did not transfer the suit lands.
Otherwise, he would not have challenged the mutation entry.
No benefits of the mutation entry can be given to the
defendants.
13 SA.543-13 & anr.odt
20. The Appellate Court relied on the judgment of Sadashiv
Sakharam Patil (supra) and held that plaintiffs being children
of predeceased daughter are not entitled to claim partition. It
was a decision of learned Single Judge of Bombay High Court
rendered on 06.09.2011. After that decision, two judgments
were rendered by the Supreme Court to govern right of the
daughter namely Prakash Vs. Phulawati and others [(2016) 2
SCC 36] and Danamma @ Suman Surpur Vs. Amar [(2018) 3
SCC 343). After those decisions authoritative pronouncement
of three Judges Bench of the Supreme Court in Vineeta Sharma
Vs. Rakesh Sharma [(2020) 9 SCC 1] is rendered which
governs the field and clarifies in no uncertain term the right of
the daughter in joint family. This Court cannot be oblivious of
the decision of the larger strength.
21. I have gone through judgment of learned Single Judge in
Sadashiv Patil (supra) and especially paragraph Nos.13 and 14.
With respect, it is not possible to conquer with the view taken
by learned Judge. The observations in paragraph No.13 of the
judgment runs counter to the law laid down by Supreme Court
in the matter of Vineeta Sharma.
14 SA.543-13 & anr.odt
22. Learned counsel Mr. Wani has meticulously taken me
through the following relevant paragraphs which
unequivocally support plaintiffs claim for partition. The
following are the relevant extracts :
"68. Considering the principle of coparcenary that a
person is conferred the rights in the Mitakshara coparcenary
by birth, similarly, the daughter has been recognised and
treated as a coparcener, with equal rights and liabilities as of
that of a son. The expression used in Section 6 is that she
becomes coparcener in the same manner as a son. By
adoption also, the status of coparcener can be conferred.
The concept of uncodified Hindu law of unobstructed
heritage has been given a concrete shape under the
provisions of Section 6(1)(a) and 6(1)(b). Coparcener right
is by birth. Thus, it is not at all necessary that the father of
the daughter should be living as on the date of the
amendment, as she has not been conferred the rights of a
coparcener by obstructed heritage. According to the
Mitakshara coparcenary Hindu law, as administered which is
recognised in Section 6(1), it is not necessary that there
should be a living, coparcener or father as on the date of the
amendment to whom the daughter would succeed. The
daughter would step into the coparcenary as that of a son by
taking birth before or after the Act. However, daughter born
before can claim these rights only with effect from the date
of the amendment, i.e., 9.9.2005 with saving of past
transactions as provided in the proviso to Section 6(1) read
with Section 6(5)."
15 SA.543-13 & anr.odt
"69. The effect of the amendment is that a daughter is
made coparcener, with effect from the date of amendment
and she can claim partition also, which is a necessary
concomitant of the coparcenary. Section 6(1) recognises a
joint Hindu family governed by Mitakshara law. The
coparcenary must exist on 9.9.2005 to enable the daughter
of a coparcener to enjoy rights conferred on her. As the right
is by birth and not by dint of inheritance, it is irrelevant that
a coparcener whose daughter is conferred with the rights is
alive or not. Conferral is not based on the death of a father
or other coparcener. In case living coparcener dies after
9.9.2005, inheritance is not by survivorship but by intestate
or testamentary succession as provided in substituted
Section 6(3)."
In re: Effect of enlargement of daughter's rights
"70. Under the proviso to Section 6 before the
amendment made in the year 2005 in case a coparcener
died leaving behind female relative of Class I heir or a male
descendant claiming through such Class I female heir, the
daughter was one of them. Section 6, as substituted,
presupposes the existence of coparcenary. It is only the case
of the enlargement of the rights of the daughters. The rights
of other relatives remain unaffected as prevailed in the
proviso to Section 6 as it stood before amendment."
"71. As per the Mitakshara law, no coparcener has any
fixed share. It keeps on fluctuating by birth or by death. It is
the said principle of administration of Mitakshara
coparcenary carried forward in statutory provisions of
Section 6. Even if a coparcener had left behind female heir
of Class I or a male claiming through such female Class I
16 SA.543-13 & anr.odt
heir, there is no disruption of coparcenary by statutory
fiction of partition. Fiction is only for ascertaining the share
of a deceased coparcener, which would be allotted to him as
and when actual partition takes place. The deemed fiction of
partition is for that limited purpose. The classic Shastric
Hindu law excluded the daughter from being coparcener,
which injustice has now been done away with by amending
the provisions in consonance with the spirit of the
Constitution."
"80. A finding has been recorded in Prakash v. Phulavati
that the rights under the substituted Section 6 accrue to
living daughters of68 living coparceners as on 9.9.2005
irrespective of when such daughters are born. We find that
the attention of this Court was not drawn to the aspect as to
how a coparcenary is created. It is not necessary to form a
coparcenary or to become a coparcener that a predecessor
coparcener should be alive; relevant is birth within degrees
of coparcenary to which it extends. Survivorship is the mode
of succession, not that of the formation of a coparcenary.
Hence, we respectfully find ourselves unable to agree with
the concept of "living coparcener", as laid down in Prakash v.
Phulavati. In our opinion, the daughters should be living on
9.9.2005. In substituted Section 6, the expression "daughter
of a living coparcener" has not been used. Right is given
Under Section 6(1)(a) to the daughter by birth. Declaration
of right based on the past event was made on 9.9.2005 and
as provided in Section 6(1)(b), daughters by their birth,
have the same rights in the coparcenary, and they are
subject to the same liabilities as provided in Section 6(1)(c).
Any reference to the coparcener shall include a reference to
the daughter of a coparcener. The provisions of Section 6(1)
17 SA.543-13 & anr.odt
leave no room to entertain the proposition that coparcener
should be living on 9.9.2005 through whom the daughter is
claiming. We are unable to be in unison with the effect of
deemed partition for the reasons mentioned in the latter
part."
23. Plaintiffs are sons of predeceased daughter of Supdu. As
per amended Section 6 of the Act, daughter is brought at par
with son and she is to be treated as coparcener. A birth right is
conferred upon her. There is no reason to divest the birth right
to the predeceased daughter. If the submission of learned
counsel Mr. Bhokarikar for the respondents is accepted then
that would be offending purport of Section 6 as well as law
laid down by Supreme Court in the matter of Vineeta Sharma.
24. Relying on the judgment of Vineeta Sharma, I have no
iota of doubt that notwithstanding the death of plaintiffs'
mother Tejabai, they are entitled to claim partition and share.
It is also made clear by Supreme Court that Section 6 is
retroactive. It would be discriminatory to deprive the plaintiffs
from the benefit of Section 6 of the Act. The Appellate Courts
judgment is wholly unsustainable.
18 SA.543-13 & anr.odt
25. There was no necessity for the respondents to prefer
cross appeal because Appellate Court did not pass any decree
against them. Appellate Court dismissed the suit in its entirety.
No appeal can lie against any findings. Respondents could
have challenged the so called erroneous findings in the present
second appeal also. In that sense, I propose to dismiss the cross
appeal. However, the findings challenged by the respondents
have been dealt with in fore going paragraphs.
26. Instead of answering the substantial questions of law
formulated in the present appeal, I preferred to summarize my
analysis as follows :
(i) Plaintiffs are children of predeceased daughter of
deceased Supdu.
(ii) The suit lands are not ancestral properties but
undivided joint family properties.
(iii) The plaintiffs are entitled to have partition and
separate possession as per Section 6 of the Act.
27. In view of above, I pass following order :
(a) Second appeal is allowed.
19 SA.543-13 & anr.odt
(b) The judgment and decree dated 28.11.2012
passed in Regular Civil Appeal No.74 of 2006 is
quashed and set aside and judgment and decree
dated 23.01.2006 passed in Regular Civil Suit
No.30 of 1995 shall stand restored and upheld.
(c) Cross objection is dismissed.
(d) There shall be no order as to costs.
(SHAILESH P. BRAHME, J.)
...
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