Bombay High Court
Natthu S/O Sonba Tulankar And Another vs Uttam S/O Dama Kashti And Another on 18 November, 2025
2025:BHC-NAG:12660
SA 328.2021 Judgment.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.328 OF 2021
APPELLANTS :- 1) Natthu S/o. Sonba Tulankar,
(Ori. Defendants)
Aged about 70 years, Occ. Agriculturist,
R/o. Behind Gopal Krushi Kendra,
Samudrapur, Tah. Samudrapur, Dist.
Wardha.
2) Datthu S/o. Sonba Tulankar,
Aged about 65 years, Occ. Agriculturist,
R/o. Barfa, Post Nimbha, Tah. Samudrapur,
Disot. Wardha.
..VERSUS..
RESPONDENTS :- 1) Uttam S/o. Dama Kashti,
(Ori. Plaintiff)
(On R.A) Aged 45 years, Occu. Agriculturist,
R/o. Umari (Naik), Tah. Warora, Dist.
Chandrapur.
2) Watchayala Ankush Khangar,
Aged about 57 years, Occu. Household,
R/o. Masala, Tah. Warora, Dist.
Chandrapur.
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Mr. P.S. Tidke, Advocate for Appellants.
Mr. M.P. Kariya, Advocate for Respondents.
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CORAM : ROHIT W. JOSHI, J.
DATE : 18/11/2025
ORAL JUDGMENT :
SA 328.2021 Judgment.odt
1. The present second appeal arises out of the judgment and
decree dated 15.09.2021, passed by the learned District Judge-2,
Hinganghat, Wardha, in Regular Civil Appeal No.162 of 2017 by
which the learned First Appellate Court has affirmed the judgment
and decree dated 29.03.2016, passed by the learned Jt. Civil Judge
Junior Division, Samudrapur, in Regular Civil Suit No.03 of 2011.
The present appellants are the original defendants and the
respondents are the original plaintiffs. Parties will be referred as
'plaintiffs' and 'defendants' hereinafter in the present judgment.
2. The plaintiffs have filed a suit for partition and separate
possession with respect to two agricultural lands situated at village
Barfa, Tah. Samudrapur, Dist. Wardha, hereinafter referred to as
'suit properties'.
3. It is the case of the plaintiffs that one Sonba Tulankar was
survived by two sons i.e. defendant Nos.1 and 2 and a daughter
Gayabai, who is the mother of the plaintiffs. It is contended that the
suit properties were ancestral properties in the hands of the deceased
Sonaba and after his demise, the suit properties were vested with the
defendant Nos.1 and 2 and their mother Gayabai, each having 1/3 rd
share. The plaintiffs further contended that they made a demand for
partition of the suit properties by issuing legal notices dated
SA 328.2021 Judgment.odt
15.06.2010 and 01.10.2010, however, the defendants did not
partition the suit properties, as a consequence of which the aforesaid
suit was required to be filed. The defendants appeared in the matter
and filed their written statement inter alia contending that deceased
Sonba had expired in the year 1954, prior to commencement of the
Hindu Succession Act, 1956 and as such, his daughter cannot claim
any share in the suit property and resultantly, the plaintiffs who are
sons of daughter of Sonba also cannot claim any right, title or
interest in the suit properties. The defendants also stated that
Gayabai, the mother of the plaintiffs was begotten by Sonba from
his first wife, who had expired in the year, 1935 -1936 and that the
defendants are the sons of second wife of Sonba, whose marriage
was solemnized after demise of the first wife.
4. The learned trial Court framed issues in the matter, on
the basis of which both parties led their evidence.
5. The defendants have filed on record death certificate of
deceased Sonba, according to which his date of demise is
14.04.1951. However, the learned trial Court disbelieved this
document on the ground that it was issued in a format used for birth
certificates and did not bear the signature of the Head Copyist. The
defendants also placed reliance on mutation entries at Exhs.33 and
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34, wherein it was stated that deceased Sonba had died in the year
1951. The learned trial Court recorded that the document of
mutation was insufficient to arrive at inference that deceased Sonba
died in the year 1951. However, the learned trial Court thereafter
referred to the evidence of the plaintiffs, wherein the plaintiffs
expressed ignorance regarding the death of deceased Sonba in the
year 1954 or otherwise. The learned trial Curt has accordingly
assumed that the deceased had expired prior to the year 1956 and
has proceeded to decide the suit accordingly. The learned trial Court
placed reliance on the Hindu Women's Rights to Property Act,
1937, to hold that on Sonba's death, his wife Bahina, daughter
Gayabai (mother of the plaintiffs) and defendant Nos.1 and 2 each
inherited ¼th share in the suit properties. Accordingly, the plaintiffs
inherited ¼th share in the suit property as legal representatives of
their mother. It was held that defendant No.2 had 3/8th share.
6. The learned First Appellate Court has affirmed the
finding by the learned trial Court that Sonba had died prior to
commencement of the Hindu Succession Act, 1956 (hereinafter
referred to as "HSA, 1956"). However, the learned First Appellate
Court held that even before commencement of HSA, 1956, a
daughter of a Hindu male was entitled to inherit his property upon
SA 328.2021 Judgment.odt
his demise. The learned First Appellate Court has placed reliance on
judgment of this Court in the matter of Laxman Tukaram ..vs..
Bendrabai Tukaram Karwate, reported in 2005(3) Mh.LJ 506 (SB),
in order to arrive at the said conclusion. The appeal accordingly,
came to be dismissed. It is against these concurrent decrees for
partition and separate possession that the present appeal is filed by
the original defendants. Notice in the present appeal was issued on
the following substantial question of law vide order dated
12.10.2023 :-
"Whether the Courts below have misinterpreted the
provision of Clause 72 in Chapter (VI) of Mulla's Hindu
Law?"
By order dated 07.02.2025, appeal was ordered to be
listed for final hearing and is accordingly taken up for final hearing
today.
7. Heard Mr. R.S. Tidke, learned Advocate for the
appellants and Mr. M.P. Kariya, learned Advocate for the
respondents.
8. Perused the judgments, pleadings, depositions and
relevant exhibited documents with the able assistance of the learned
advocates.
SA 328.2021 Judgment.odt
9. At the outset, it must be stated that the findings of fact
recorded by both the learned Courts, that Sonba expired prior to
commencement of HSA, 1956, is a finding of fact which does not
warrant any interference. The learned Advocate for the respondents
also did not make any serious attempt to dislodge the finding.
Although the death certificate, which was produced after the
evidence of both sides was over and was accordingly discarded by
both the learned Courts, it needs to be mentioned that mutation
entries with respect to the suit properties in favour of the widow and
sons of Sonba, recorded prior to 1956, are sufficient to hold that
Sonba expired before 1956, i.e., prior to the commencement of the
Hindu Succession Act, 1956.
10. Both the learned Courts have granted share to the
plaintiffs on the ground that their mother Gayabai was entitled to
1/4th share in the suit properties being daughter of deceased Sonba.
It is therefore, necessary to consider whether prior to
commencement of HSA, 1956, a daughter was entitled to inherit
property of her father on his demise as his legal representatives.
11. The learned First Appellate Court has held that a
daughter was entitled to inherit properties of her father even prior
to commencement of HSA, 1956, by placing reliance on Single
SA 328.2021 Judgment.odt
Bench decision of this Court in the matter of Laxman Tukaram
(Supra). However, the correctness of law laid down in the matter of
Laxman Tukaram (Supra) was doubted by another Single Judge of
this Court, and accordingly, reference was made to the Division
Bench to decide the said issue. The Division Bench has answered
the reference in matter of Radhabai Balasaheb Shirke and Ors. ..vs..
Keshav Ramchandra Jadhav and Anr., reported in 2025(1)
Bom.C.R. 41, holding that a daughter is not entitled to inherit
property of her father in case where the father died prior to
commencement of HSA, 1956. It is held that Laxman Tukaram
(Supra) is not good law to the extent it holds that a daughter will be
entitled to inherit her father's property even in cases where the
father expired prior to the commencement of the Hindu Succession
Act, 1956. A similar view was taken in another Single Bench
judgment in the matter of Bhagirathibai Chandrabhan Nimbarte &
Anr. ..vs..Tanabai Ramchandra Zanzad (Dead) & Ors. , reported in
2013(3) Bom.C.R. 598.
12. In view of the aforesaid, the finding recorded by both the
learned Courts that on demise of Sonba, Gayabai, his daughter
inherited ¼th share along with the defendant Nos.1 and 2(sons) and
Bahinabai widow is clearly unsustainable.
SA 328.2021 Judgment.odt
13. As regards Article 72(vi) of Mulla's Hindu Law, the
plaintiffs cannot claim any right over the suit property under the
said provisions. Reliance in this regard can be placed on judgment of
this Court in the mater of Gurudayalsing ..vs.. Basant Singh,
reported in 2014(6) Mh.L.J. 186, wherein it is held that an heir in a
prior category excludes an heir in a subsequent category. Therefore,
the plaintiffs who fall under Article 72(vi) stand excluded by the
defendants who fall under Article 72(i).
14. Mr. Kariya, learned Advocate further contends that
daughter's son is entitled to inherit property of his maternal
grandfather in his own right. He has placed reliance on Article
43(6)(i) of Commentary, 'Mulla's Hindu Law', in support of his
contention. I am afraid the said contention cannot be accepted.
Article 43 of Mulla's Hindu Law deals with order of succession
amongst sapindas.
15. At the outset, it must be stated that the plaintiffs have
mentioned their age as 45 years and 52 years respectively as on
12.01.2011 i.e. the date of filing of the suit which implies that the
plaintiff No.1 was born somewhere around in the year 1964-65 and
the plaintiff No.2 was born somewhere around in the year 1959-
1960. Thus, both the plaintiffs were born after demise of Sonaba. It
SA 328.2021 Judgment.odt
is obvious that the succession of Sonba opened on the date of his
demise, when both the plaintiffs were not born. Therefore, they
cannot claim inheritance of the property of Sonaba.
16. It must also be stated that the plaintiff No.2 is daughter
and not son of Gayabai (daughter of Sonba) and therefore, is not
covered under Article 43(6). She can claim only Article 46(13)(B).
It must also be stated that, except for son, grandson and great
grandson, whose father has expired and great grandson whose father
and grandfather both have expired, no other legal representative is
covered.
17. It will be pertinent to mention here that heirs in
preceding entries in Article 43 exclude those in succeeding entries,
except legal representative entries 1, 2, and 3, which comprise a son,
a son of a predeceased son, and a son of a predeceased son of a
predeceased son who inherit simultaneously. Likewise, after the
commencement of the Hindu Women's Rights to Property Act,
1937, the widow also inherits the property along with heirs specified
in entries 1 to 3.
18. In the case at hand, Sonba died after commencement of
the Hindu Women's Rights to Property Act, 1937, and therefore,
his property was inherited by defendant Nos.1 and 2 who are his
SA 328.2021 Judgment.odt
sons and his widow Bahinabai. It will also be pertinent to state that
Bahinabai is the step mother of Gayabai (mother of plaintiffs) and
therefore, Gayabai, being her step daughter could not inherit the
share of Bahinabai. Gayabai's mother died during lifetime of her
husband (Sonba) and did not inherit his property.
19. In view of the aforesaid, it needs to be held that the
plaintiffs do not have any share in the suit properties. Both the
learned Courts have erred in granting decree for partition and
separate possession in favour of the plaintiffs. The impugned
decrees are unsustainable and liable to be quashed. Suit for partition
and separate possession filed by the plaintiffs is liable to be
dismissed. In view of the above, Second Appeal is allowed in the
following terms:-
i) Second Appeal is allowed.
ii) The order dated 15.09.2021, passed by the District Judge-2,
Hinganghat, Dist. Wardha, in Regular Civil Appeal No.162 of
2017, and order dated 29.03.2016, passed by the Jt. Civil Judge
Junior Division, Samudrapur, in Regular Civil Suit No.3 of
2011, is hereby quashed and set aside.
iii) Parties to bear their own costs.
C.L. Dhakate (ROHIT W. JOSHI, J.)
