Bombay High Court
Rangnath Dagdu Mane And Ors vs Dagdu Ranga Mane And Ors on 19 November, 2025
2025:BHC-AUG:31715
1 sa 578.07 with sa No. 732.08
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 578 OF 2007
1. Dagadu S/o Ranga Mane,
Age : 63 Years, Occu. : Agriculture,
2. Satyabhamabai W/o Dagadu Mane,
Age : 43 Years, Occu. : Household,
3. Kum. Chhaya D/o Dagadu Mane,
Age : 25 Years, Occu. : Household,
4. Balaji S/o Dagadu Mane,
Age : 22 Years, Occu. :
5. Ku. Deepmala D/o Dagadu Mane,
Age : 20 Years, Occu. : Education,
All R/o Kasarkheda, Tq. & Dist. Latur.
6. Trivenabai W/o Dattu Hale,
Since deceased through her L.Rs.
6-A Dattu S/o Pandurang Hale,
Age : 70 Years, Occu. : Agril.,
6-B Ashok S/o Dattu Hale,
Age : 36 Years, Occu. : Agril.,
6-C Prakash S/o Dattu Hale,
Age : 28 Years, Occu. : Agril.,
6-D Balaji S/o Dattu Hale,
Age : 22 Years, Occu. : Agril.,
All R/o Mamdapur, Tq. & Dist. Latur.
2 sa 578.07 with sa No. 732.08
6-E Sanjivani W/o Suresh Kore,
Age : 22 Years, Occu. : Agril.,
R/o Matola, Tq. & Dist. Latur.
7. Ashok S/o Dattu Hale,
Age : 33 Years, Occu. : Agril.,
R/o Kasarkheda, Tq. & Dist. Latur. .. Appellants
Versus
1. Rangnath S/o Dagadu Mane,
Age : 33 Years, Occu. : Labourer,
2. Gopal @ Gunda S/o Dagadu Mane,
Age : 30 Years, Occu. : Labourer,
3. Subhadrabai W/o Dagadu Mane,
Age : 53 Years, Occu. : Household,
All R/o Kasarkheda, Tq. & Dist. Latur. .. Respondents
Shri N. D. Kendre, Advocate for the Appellants.
Shri Gaurav L. Deshpande, Advocate for the Respondents.
WITH
SECOND APPEAL NO. 732 OF 2008
1. Rangnath S/o Dagadu Mane,
Age : 33 Years, Occu. : Labourer,
2. Gopal @ Gunda S/o Dagadu Mane,
Age : 30 Years, Occu. : Labourer,
3. Subhadrabai W/o Dagadu Mane,
Age : 53 Years, Occu. : Household,
All R/o Kasarkheda, Tq. & Dist. Latur. .. Appellants
Versus
3 sa 578.07 with sa No. 732.08
1. Dagadu S/o Ranga Mane,
Age : 63 Years, Occu. : Agriculture,
2. Satyabhamabai W/o Dagadu Mane,
Age : 43 Years, Occu. : Household,
3. Kum. Chhaya D/o Dagadu Mane,
Age : 25 Years, Occu. : Household,
4. Balaji S/o Dagadu Mane,
Age : 22 Years, Occu. :
5. Ku. Deepmala D/o Dagadu Mane,
Age : 20 Years, Occu. : Education,
All R/o Kasarkheda, Tq. & Dist. Latur.
6. Trivenabai W/o Dattu Hale,
Since deceased through her L.Rs.
6-A Dattu S/o Pandurang Hale,
Age : 70 Years, Occu. : Agril.,
6-B Ashok S/o Dattu Hale,
Age : 36 Years, Occu. : Agril.,
6-C Prakash S/o Dattu Hale,
Age : 27 Years, Occu. : Agril.,
6-D Balaji S/o Dattu Hale,
Age : 22 Years, Occu. : Agril.,
All R/o Mamdapur, Tq. & Dist. Latur.
6-E Sanjivani W/o Suresh Kore,
Age : 22 Years, Occu. : Agril.,
R/o Matola, Tq. & Dist. Latur.
4 sa 578.07 with sa No. 732.08
7. Ashok S/o Dattu Hale,
Age : 33 Years, Occu. : Agril.,
R/o Kasarkheda, Tq. & Dist. Latur. .. Appellants
Shri Gaurav L. Deshpande, Advocate for the Appellants.
Shri N. D. Kendre, Advocate for the Respondents.
CORAM : SHAILESH P. BRAHME, J.
CLOSED FOR JUDGMENT ON : 12.11.2025
JUDGMENT PRONOUNCED ON : 19.11.2025
JUDGMENT :
-
. Heard both sides finally.
2. Both second appeals are arising out of judgment and decree
dated 05.09.2005 passed in R.C.S. No. 296 of 1999 in favour of
the plaintiffs and judgment and decree dated 24.04.2007 of
R.C.A. No. 195 of 2005 substantially confirming the decree with
marginal modifications. Second Appeal No. 578 of 2007 is
preferred by the defendants. Second Appeal No. 732 of 2008 is
preferred by the plaintiffs. For the sake of convenience paper
book of Second Appeal No. 578 of 2007 and parties by their
original status are referred.
3. A paper book has been placed on record. Record and
proceeding is also available before the Court, which is considered
with the assistance of both the learned counsel. The substantial
questions of law were framed vide order dated 16.02.2008 as
follows :
5 sa 578.07 with sa No. 732.08
(A) Whether the suit of the plaintiff is bad in law for non
joinder of necessary parties viz. Gangubai Kashiba, who
had purchased 5 acres land from defendant no. 1 and
thereafter sold it to the defendant No. 2.
(B) Whether the suit of the plaintiff is not maintainable for
want of order of appointment of guardian for defendant No.
3 to 5 who were the minors on the date of filing of the suit.
(C) When there is no compliance of Order 32 Rule 3 of C. P. C.
whether the decree is nullity.
(E) Whether the suit is maintainable without the challenge to
the alienation by the defendant No. 1 in favour of
Gangubai Kashiba dated 12.01.1989.
(G) Whether the suit of the plaintiff is barred by the law of
limitation by applying the provisions of Article 110 of the
Limitation Act.
(I) Whether the property purchased by the defendant no. 2
from Gangubai Kashiba Mane in the year 1996 under the
registered sale deed can be made the subject of partition of
joint family properties.
(K) Whether by ignoring the decree passed by the court in
R.C.S. No. 29/1993, the land in question in the said decree
can be made available for partition.
4. Further substantial questions of law are framed vide order
dated 18.02.2025, which are as under :
[A] Whether the decree passed by the court below is
unsustainable, in view of the law laid down by their
lordships of Apex Court in the matter of
Revansiddhappa and another Vs. Mallikarjun and
others, wherein it is held that Section 16(3) (as amended)
of Hindu Marriage Act does not impose any restriction on
the property right of illegitimate children and they have
got right of whatever becomes property of their parents,
whether self-acquired or ancestral ?
6 sa 578.07 with sa No. 732.08
[B] Whether the defendant Nos. 3 to 5 are also entitled to
share equal to that of plaintiff Nos. 1 and 2 ?
5. Respondents - plaintiffs had filed R.C.S. No. 296 of 1999
initially for partition and possession. Lateron pleading and the
prayers of declaration of the sale deeds were incorporated. The
subject matter is land gut No. 54 admeasuring 3 H 24R situated
at Kasarkheda, land gut No. 06 adm. 2H 64R and house property
bearing Gram Panchayat House No. 238. The undisputed
genealogy is as follows :
Dagdu Ranga Mane
(Deft. No. 1 - father)
Subhadrabai Dagdu Mane Satyabhamabai Dagdu Mane
(First Wife Pltff. No. 3) (Second wife - Deft. No. 2)
Rangnath D. Mane Gopal D. Mane
(Plaintiff No. 1) (Plaintiff No. 2)
Chhaya D. Mane Balaji D. Mane Deepmala D. Mane
(Deft. No. 3) (Deft. No. 4) (Deft No. 5)
6. Following facts are undisputed :
A. Plaintiff No. 1 is legally wedded wife of defendant No. 1
and plaintiff Nos. 2 and 3 born through their wedlock.
B. Defendant No. 2 is second wife of defendant No. 1 and
defendant Nos. 3 to 5 born through their wedlock.
C. Defendant No. 6 Trivenibai is real sister of defendant No.
7 sa 578.07 with sa No. 732.08
1, while defendant No. 7 is her son.
D. Gangubai Kashiba Mane (D.W. No. 2) is aunt of defendant
No. 1 - Dagadu.
E. Registered sale deed executed on 12.01.1989 at Exhibit 80
by defendant No. 1 to Gangubai.
F. Registered sale deed dated 22.07.1996 at Exhibit 70
executed by Gangubai to defendant No. 2.
G. Registered sale deed dated 23.12.1998 at Exhibit 82
executed by defendant No. 1 to defendant No. 7.
H. R.C.S. No. 29 of 1993 filed by defendant No. 6, which was
compromised on 19.07.1993.
7. It's case of plaintiffs that the defendant No. 1, husband of
the plaintiff No. 3 and father of plaintiff Nos. 1 and 2 had
neglected them and denied them their share in the ancestral
properties referred above. When first marriage was subsisting,
he had contracted second marriage with the defendant No. 2
Satyabhamabai, which was void. In order to dodge the
legitimate claim of the plaintiffs, he effected alienations referred
above evidenced by Exhibit 80, 70, 82 and 81. Those were
ostensible and bogus and articulated to frustrate the claims of
the plaintiffs. Hence those are not binding on plaintiffs.
8. The defendants contested the suit by filing two different
written statements, one by defendant Nos. 1 to 5 and another by
defendant No. 6 and 7. The status of the plaintiffs and their
claim was denied. It is contended that alienations were required
8 sa 578.07 with sa No. 732.08
to be made by the defendant No. 1 for legal necessities. It is
stated that R.C.S. No. 29 of 1993 was filed by the defendant No.
6 - Trivenibai for partition and a compromise decree was passed
allotting her share from gut No. 06. Talathi did not recognize the
decree and sale deed at Exhibit 82 was required to be executed.
It is stated that defendant No. 1 was having only 03 acres of land
after the alienations. The defendant Nos. 6 and 7 contended that
they are bonafide purchasers for value.
9. In a nutshell the submissions of learned counsel for the
appellants-defendants are that the suit is hopelessly barred by
limitation, but the Trial Court did not frame the issue. Gangubai
Kashiba, the purchaser vide sale deed at Exhibit 80 was a
necessary party. The suit land alienated to her cannot be
subjected to the partition. In the wake of compromise decree in
R.C.S. No. 29 of 1993, suit land alienated by the defendant No. 1
to the defendant No. 6 vide sale deed dated 23.12.1998 is binding
on the plaintiffs and cannot be subjected to litigation. It is
further submitted that alienations made by the defendants are
legal and valid. Those are binding on the plaintiffs and no relief
can be granted to the plaintiffs.
10. It is submitted that suit is not maintainable, as it is filed
against minor defendant Nos. 3 to 5 without there being any
compliance of Order XXXIII Rule 3 of the Code of Civil Procedure
(for the sake of brevity and convenience hereafter referred as to
the "C.P.C."). The plaintiffs are not entitled to partition and
9 sa 578.07 with sa No. 732.08
share. Both courts below committed perversity in allotting them
share, when very meager land is left with the defendant No. 1.
11. Mr. Gaurav Deshpande, learned counsel appearing for the
plaintiffs canvassed that both the Courts below rightly decreed
the suit for partition and declaration. Plaintiffs are entitled to
have share in the ancestral properties. The allotment of 1/8th
share to the defendant No. 2 - Satyabhamabai is illegal. It is
submitted that sale deeds which are in question are ostensible
and made to frustrate plaintiffs claim for partition and share.
Even R.C.S. No. 29 of 1993 and compromise decree passed
therein is collusive and after thought. It is submitted that suit is
maintainable on all counts. Though the defendant Nos. 3 to 5
were minors, their natural guardian was on record and it was
obligation of the Trial Court to decide the application which was
submitted by the plaintiffs for appointment of guardian. In view
of the decision rendered by Hon'ble Apex Court in the matter of
Revansinddhappa and another Vs. Mallikarjun and others reported in (2023)
10 SCC 01 only legitimate children and legally wedded wife are
entitled to have share in the ancestral property. It is further
submitted that plaintiffs are leading life of vagrancy, despite
having decree of both the Courts in their favour.
12. I have considered rival submissions of the parties and I
have gone through record. The suit properties are stated to be
undivided ancestral properties of the family. It is not the case of
the defendants that there was ever partition and allotment of
10 sa 578.07 with sa No. 732.08
shares. The defendant No. 1 tried to contend that properties are
self acquired, but no material is placed on record to show
independent source of income and acquisition of the property in
his name. Besides oral evidence of the plaintiffs, depositions of
D.W. No. 2 - Gangubai Kashiba, who is aunt of the defendant
No. 1 shows that those are ancestral properties. In this backdrop
I proceed to record my reasons in a comprehensive manner
considering the substantial questions of law referred above.
I Maintainability of the suit :
13. The defendants have raised objection for maintainability of
the suit on the ground that it is bad for non joinder of necessary
party and non compliance of Order XXXII Rule 3 of the C. P. C.
The defendant No. 1 sold 05 Acres from gut No. 54 to Gangubai
Kashiba vide sale deed dated 12.01.1989 at Exhibit 80. She is
contended to be necessary party and without making any prayer
in respect of her sale deed suit is contended to be defective. No
issue was framed in the Trial Court in this regard. No specific
plea was taken by the defendants regarding non joinder of
necessary party and non joinder of causes of action. These
objections were dealt with by the lower Appellate Court vide
point No. 5. Gangubai executed sale deed on 22.07.1996 in
favour of the defendant No. 2 - Satyabhamabai, which is at
Exhibit 70. Plaintiffs could have claimed no relief because of the
subsequent alienations to the defendant No. 2. No case is made
out by the defendants that presence of Gangubai is necessary for
passing of effective decree. Ultimately the part of the suit land
11 sa 578.07 with sa No. 732.08
sold to her is again redirected to the family that is the reason
why it is not necessary for the plaintiffs to specifically challenge
sale deed at Exhibit 80. The possession was never given to
Gangubai.
14. I have considered the judgments of the Supreme Court
cited by Mr. Kendre, learned counsel for the
defendants/appellants in the matters of Mumbai International Airport
Pvt. Ltd. Vs. Regency Convention Centre and Hotels Pvt. Ltd and others
reported in (2010) 7 SCC 417, Deputy Commissioner, Hardoi, in charge Court
of Wards, Bharawan Estate Vs. Rama Krishna Narain and others reported in
AIR 1953 SC 521 and Moreshar Yadaorao Mahajan Vs. Vyankatesh Sitaram
Bhedi (D) through L.Rs. and others reported in 2022 SCC OnLine SC 1307.
which are elucidating the concept of necessary parties. Under
given facts and circumstances, it cannot be said that Gangubai is
necessary party. The substantial question of law at Sr. No. E is
answered in favour of the plaintiffs.
15. Substantial question of law was formulated at 'C' referring
to Order XXXII Rule 3 of the C. P. C. The defendant Nos. 3 to 5
are the children born out of the second marriage and they were
minor when the suit was filed. Their biological parents were
parties as defendant Nos. 1 and 2 in the suit. Plaintiffs
submitted application for appointment of guardian, but it was
not decided by the Trial Court. In the Trial Court no specific
objection was raised in the pleadings by the defendants and,
therefore, no issue was cast to that effect. In the lower Appellate
12 sa 578.07 with sa No. 732.08
Court no ground was taken by the defendants in the appeal
memo in that regard. For the first time in the High Court the
submissions are being made. The plea which was available was
not taken in the Courts below, cannot be pressed into service for
the first time in the second appeal. There is no discussion in
respect of objection.
16. As the substantial question of law is framed and
arguments are advanced, I find it proper to deal with the
submissions. As per Section 6 of the Hindu Minority and
Guardianship Act, father is the natural guardian. Biological
parents of the minors were before the Courts. It is nobody's case
that interest of the minors has not been safeguarded either by
the parents or by any of the relatives. It was nobody's case that
despite there being parents, the minors are deprived of
legitimate benefits. In given facts, plaintiffs cannot be blamed
for not soliciting the orders on their application. Considering the
provisions of Order XXXII Rule 3 of the C. P. C., a duty is cast on
the Court on being satisfied of the fact of minority to appoint a
guardian. The defendants could have insisted for deciding the
application presented by the plaintiffs for appointment of
guardian. They cannot be non suited by implication of Rule 3(a)
of Order XXXII of the C. R. P., because no prejudice is caused to
the minors specifically.
17. My attention is adverted to the judgments of the Supreme
Court in Coordinate Bench of this Court cited by the learned
13 sa 578.07 with sa No. 732.08
advocate Mr. Kendre in the matters of Ram Chandra Arya Vs. Man
Singh and another reported in AIR 1968 SC 954 and Ganeshshankar R.
Upadhyay and another Vs. Brahmaprakash S. Upadhyay and another reported
in 2011(5) Mh.L.J. 747. The facts are distinguishable and the
principles laid down will not enure to the benefit of the
defendants. The substantial question of law at 'C' is answered
against the defendants.
II Limitation :
18. Multiple objections are taken by the defendants to contest
the suit on the plea of limitation. In the Trial Court issue of
limitation was not formulated, but Appellate Court dealt with it
at point No. 7. The marriage is of 1969. The averments of the
plaint shows that plaintiff No. 3 is allegedly driven away by the
defendant No. 1, when plaintiff No. 2 was in woomb. It might
have occurred in the year 1979. It is contended to be ouster.
Article 110 of the Limitation Act provides limitation of twelve
years from ouster/exclusion becomes known to the plaintiffs. It
cannot be countenanced that physical ouster would immediately
culminate into starting point of limitation. The cause of action is
bundle of facts. Plaintiffs stayed at parents place of plaintiff No.
3. Plaintiff No. 3 was required to approach criminal court for
securing maintenance. She was not party to R.C.S. No. 29 of
1993. There is no any other incident quoted which can be treated
to be the knowledge. For the first time they were being denied
right in the ancestral property in a meeting dated 18 th March,
1999, when partition was demanded. Merely because plaintiffs
14 sa 578.07 with sa No. 732.08
are staying away from the defendants would not give cause of
action to file suit for partition. The submissions of the learned
counsel for the appellants relying on Article 110 of the Limitation
Act has no merit.
19. It is submitted by the learned counsel for the appellants
that after attaining majority, suit was not filed within a period of
three years for challenging the sale deed executed on 12.09.1989.
Articles 58 and 60 of the Limitation Act prescribes limitation of
three years and the time reckons when the ward attains
majority. In the present case plaintiff Nos. 1 and 2 have attained
majority in the year 1992 and 1993. Suit is filed on 29.04.1999.
The sale deeds at Exhibit 81 and 82 were executed on 23.12.1998
in favour of the defendant Nos. 6 and 7. Any declaration in
respect of these sale deeds cannot be said to be barred by time.
Prayer clause of the suit shows that no declaration is sought in
respect of sale deed executed by the defendant No. 1 in favour of
third person Gangubai Kashiba executed on 12.08.1989 at
Exhibit 80. I have already recorded observations that suit is
maintainable in the absence of any relief for Exhibit 80 and for
non joining of Gangubai. Both the Courts below have recorded
concurrent findings that execution of sale deed to Gangubai who
is real aunt of the defendant No. 1 is sham and bogus because no
possession was transferred. On 22.07.1996, Gangubai executed
sale deed to defendant No. 2. The suit is filed within three years
from the sale deed. In that view of the matter it is not possible to
accept the submission of the appellants that suit is barred by
15 sa 578.07 with sa No. 732.08
limitation. The substantial question of law framed at 'G' is
answered in favour of the plaintiffs.
III Validity of the alienations made by the defendants :
20. The defendants alienated part of the gut No. 54 to
Gangubai, who inter alia alienated it to the defendant No. 2. The
defendant No. 1 further alienated 04 Acres of gut No. 6 to
defendant No. 6 vide sale deed at Exhibit 82. On the same day
he alienated 02 Acres from gut No. 6 to the defendant No. 7. It is
pleaded by the defendants that for the legal necessity alienations
were required to be made. My attention is adverted by learned
advocate Mr. Deshpande to the cross examination of the D.W.
No. 2 to show that she never received possession. The defendant
No. 2 - Subhadrabai was not having any independent source of
income. Therefore, there is no reason to believe that she could
have purchased the property from Gangubai on 22.07.1996. Both
the Courts below have recorded findings in respect of above
alienations against the defendants which are concurrent in
nature. The defendants are unable to make out a case that for
legal necessity suit lands were required to be transferred and
possession was every parted with. Alienation in favour of the
defendant No. 7 has also been castigated considering his
admissions in the cross examination.
21. Surprisingly despite having compromise decree 19.07.1993
passed in R.C.S. No. 29 of 1993, defendant No. 1 endeavoured to
execute sale deed in favour of his sister defendant No. 6 on
16 sa 578.07 with sa No. 732.08
23.12.1998, is suspicious. It cannot be countenanced that talathi
refused to record name of the defendant No. 6, after the
compromise decree and sale deed was required to be executed.
The overall conduct of the defendant No. 1 is objectionable. In all
probabilities he endeavoured to dodge the legitimate claims of
the plaintiffs. I find substance in the submissions of the learned
advocate Mr. Gaurav Deshpande in this regard. Lower Appellate
Court also elaborately dealt with the submissions in respect of
sale deeds and independently assigned reasons to come to the
conclusion that the alienations were not for legal necessity. I do
not find any perversity or patent illegality in the findings
recorded by the Courts below.
IV Effect of compromise decree in R.C.S. No. 29 of 1993 :
2. R.C.S. No. 29 of 1993 was filed by the defendant No. 6 -
Trivenibai against the defendant No. 1 - Dagdu. It was in
respect of land gut No. 6 for partition. Other joint family
properties were not brought in common hotch potch. Plaintiff
Nos. 1 and 2 who are the coparcners were necessary parties in a
suit for partition. That was compromised by the defendant No. 1
with the defendant No. 6 conceding to allot 4 acres from gut No.
6. It was disposed of on the same day. If the defendant No. 6 -
Trivenibai was to get 4 acres of land gut No. No. 6, then it is
incomprehensible as to why again defendant No. 1 executed sale
deed in her favour on 23.12.1998. These facts create doubt about
the bonafides of the defendant No. 1 and the defendant No. 6.
The findings recorded by the Courts below in this regard cannot
17 sa 578.07 with sa No. 732.08
be faulted. There is every reason to infer that it was a collusive
suit. The decree passed in R.C.S. No. 29 of 1993 is
inconsequential and accordingly substantial question of law at
'K' is answered in favour of the plaintiffs.
V Entitlement of the shares as per the judgment of the
Apex Court in the matter of Revansinddhappa and another Vs.
Mallikarjun and others (supra) :
23. In view of authoritative pronouncement of the Supreme
Court in the matter of Revansinddhappa and another Vs. Mallikarjun and
others (supra) this court endeavoured to frame substantial
questions of law. Admittedly, in the present case, defendant No.
2 is the second wive of a void marriage. The suit properties are
ancestral properties. The defendant Nos. 2 to 4 are not entitled
to get any share in the ancestral properties. They are entitled to
have share which is to be allotted to the defendant No.1 - Dagdu.
Plaintiffs are entitled to get equal share along with the
defendant No. 1 - Dagdu. Thus, the plaintiffs are entitled to
3/4th share and Dagdu is entitled to 1/4th share. The defendant
No. 2 - Satyabhanamabai is not entitled to any share along with
plaintiff No. 3, which is a mistake committed by the lower
Appellate Court. Her marriage with Dagdu is void. Under the
Hindu Succession Act, 1956 she cannot claim equal status of a
widow with Subhadrabai. Therefore Second Appeal No. 732 of
2008 is bound to succeed. The substantial question of law
framed in pursuance of decision in the matter of Revansinddhappa
and another Vs. Mallikarjun and others (supra) needs to be answered in
favour of the plaintiffs. The defendant Nos. 2 to 5 are not
18 sa 578.07 with sa No. 732.08
entitled to any share.
25. The above analysis leads met to pass following order :
ORDER
(i) Second Appeal No. 578 of 2007 is dismissed.
(ii) Second Appeal No. 732 of 2008 is partly allowed.
(iii) The judgment and decree passed by both the Courts below
shall stand confirmed with a marginal modification that
plaintiffs are entitled to 3/4th share and defendant No. 1 is
entitled to 1/4th share.
(iv) The defendant No. 2 shall not be entitled to any share.
(v) Decree be drawn up accordingly.
[ SHAILESH P. BRAHME J. ]
bsb/Nov. 25
