[Cites 12, Cited by 0]
Bombay High Court
Purushottam S/O Govindrao Dahakar vs Jagdish Nagorao Movade (Described ... on 22 May, 2026
2026:BHC-NAG:7364
SA 234.15 & 143.15 - final.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.234 OF 2015
APPELLANTS 1. Purushottam s/o Govindrao Dahake,
(Ori. Plaintiff on R.A.)
(Since deceased through LRs)
a. Sumitrabai wd/o Purushottam Dahake,
Aged about 73 years,
b. Dnyaneshwar s/o Purushottam
Dahake, Aged about 49 years,
c. Prabhakar s/o Purushottam Dahake,
Aged about 45 years,
d. Ratnakar Purushottam Dahake, Aged
about 42 years,
e. Gopal s/o Purushottam Dahake, Aged
about 35 years,
Nos. 1 to 5 R/o Waki, Taluka - Saoner,
District Nagpur.
f. Smt. Chandrakanta @ Rukhma
Gajanan Nikhade, Aged about 69
years, R/o Dhalgaon Kahiri, Tahsil
Saoner, District Nagpur. J (Dead)
Amendment carried out as
per Hon'ble Reg(J) order LR's of Appellant No.1(f)
dt.16.08.2024 f(i) Mrs. Pratibha Ashok Jivtode, Age.
57 years, Occ: Headmistress, R/o
Saibaba Ward, behind Janta College,
Civil Lines, Chandrapur, Tahsil and
District Chandrapur.
..VERSUS..
SA 234.15 & 143.15 - final.odt
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RESPONDENTS : 1. Jagdish Nagorao Movade (describing
Ori. Deft. No.1, on R.A.
- himself as adopted son of Ghanshyam
Jivtode, Age 45 years, R/o Nanda
Gomukh, Tahsil Saoner, District
Nagpur.
2. Nagorao Namdeo Movade, (Since
deceased) through legal heirs namely:
a. Smt.Shalini wd/o Nagorao Movade,
Aged about 64 years,
b. Nandlal s/o Nagorao Movade, Aged
about 39 years,
c. Rupesh s/o Nagorao Movade, Aged
about 36 years,
d. Ku. Pradnya d/o Nagorao Movade,
Aged about 33 years,
e. Satish s/o Nagorao Movade, Aged
about 31 years, Respondent No.2 (a)
to (e) R/o Nanda Gomukh, Tahsil
Saoner, District Nagpur.
3 Bhaurao Baburao Khonde, (Since
deceased) through legal heirs namely:-
a. Smt. Bhumika wd/o Baburao Khonde
Aged Major,
b. Bhushan Baburao Khonde Aged Major,
c. Roshan Baburao Khonde Aged Major,
4. Vijay Baburao Khonde Aged Major,
No.3 (a to c) and 4 R/o Hiwra-Hiwari,
Tah. Umrer, District Nagpur.
5. Smt. Shakuntala w/o Bapurao Tajane
(Since deceased) through legal heirs
SA 234.15 & 143.15 - final.odt
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namely :-
a. Rahul s/o Bapurao Tajane, Aged:
Major, R/o.Mahakali Nagar No.1,
Manewada Road, Nagpur.
b. Mrs. Kavita Kishor Panchbhai, Aged:
Major, R/o D.V. Panchbhai, Ward No.8,
Ramnagar, Behind Tahsil Office,
Gadchiroli.
6. Smt. Chandrakala @ Meena w/o
Bapurao Mahulkar, Aged: 49 years,
R/o Near Balaji Provisions, Santosh
Nagar, Akola.
7. Smt. Vimal w/o Prakash Wasade,
Aged: Mjaor, R/o Bhidoni, Post
Savarni, Tahsil Saunsar, District
Chhindwara.
8. Smt. Asha w/o Eknathrao Ekre, Aged
48 years, R/o Manish Nagar, Nagpur.
Dead thru LR'S
Amendment carried out
as per Hon'ble Court
8.i. Shri. Mukund S/o Madhukar Ekre, Age
order dated 18.07.2025, 40 years, Occ: Not known, R/o. F3,
Vide CAS No.769/2023
Oriental Apartment, Plot No.7 and 8,
Prashant Nagar, Ajni Square, Nagpur-
440015.
WITH
SECOND APPEAL NO.143 OF 2015
APPELLANT Jagdish S/o Ghanshyam Jivtode, Aged
(Ori. Defendant about:45 years, Occu: Cultivator, R/o:
No.1) Nanda Gomukh, Tah: Saoner, Dist.:
Nagpur.
SA 234.15 & 143.15 - final.odt
4
..VERSUS..
RESPONDENT 1. Purushottam S/o Govindrao Dahake
NO.1 Since deceased through L.R.s
Ori. Plaintiff No.1
a. Sumitrabai Wd/o Purushottam
Dahake, aged about: 72 years,
b. Dyaneshwar S/o Purushottam Dahake,
aged about: 49 years, Occu: Cultivator
c. Prabhakar S/o Purushottam Dahake,
aged about: 45 years, Occu: Cultivator
d. Rantnakar S/o Purushottam Dahake,
aged about: 42 years, occu: Cultivator
e. Gopal S/o Purshottam Dahake, aged
about: 35 years, Occu: Business All
R/o. Waki, Tah: Saoner, Distt. Nagpur.
Ori. Plaintiff No.2
2. Chandrakanta W/o Gajanan Nikhade
aged about: 65 years, Occu:
Household, R/o.Dhalgaon, Khairi, Tah:
Saoner, Distt. Nagpur.
Ori. Defendant No.2
3. Nagorao Namdeo Moavde, (Since
deceased through legal heirs)
a. Shalini wd/o Nagorao Movade, aged
about: 64 years.
b. Nandlal S/o Nagorao Movade, aged
about: 39 years.
c. Rupesh S/o Nagorao Movade, aged
about: 36 years
d. Pradnya d/o Nagorao Movade, aged
about: 34
e. Satish S/o Nagorao Movade,
aged about: 31, Respondent No.3 (a)
to 3 (e) R/o. Nanda Komukh, Tah:
Saoner, Distt: Nagpur.
Ori. Defendant No.3
4. Bhaurao Baburao Khonde, Since
deceased through legal heirs).
SA 234.15 & 143.15 - final.odt
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a. Bhumika Wd/ Bhaurao Khonde, aged
about: major.
b. Bhushan Baburao Khonde aged about:
major.
c. Roshan Baburao Khonde, aged about:
major.
Ori. Defendant No.4
5. Vijay Baburao Khonde, aged about:
major. No.4(a) to 4 (c) and 5 All r/o:
Hiwra-Hiwari Tah: Umred, Distt:
Nagpur
6. Shakuntala W/o Bapurao Tajne, Aged
about: 52 years, Occu: Household, R/o
Mahakali Nagar, Manewada Road,
Nagpur (Since deceased through legal
heirs)
a. Rahul Bapurao Tajne, aged about: 35
years R/o: Plot No.40, Mahakali Nagar,
Manewada Road, Nagpur
b. Mrs.Kavita w/o Kishor Panchbhai, R/o:
C/o D.V.Panchbhai, Ward No.8,
Ramnagar Behind Tahsil Office,
Gadchiroli.
Ori. Defendant No.6
7. Chandrakal @ Meena w/o Bapurao
Mahulkar aged about: 45 years, R/o:
Near Balaji Provisions, Santosh Nagar,
Akola.
Ori. Defendant No.7
8. Smt. Vimal W/o Prakash Wasade, aged
about 46, R/o: Bhidoni, Post: Savarni,
Tah:Saunsar, Distt.: Chhindwara,
Madhya Pradesh.
Ori. Defendant No.8
9. Asha W/o Eknathrao Ekre, aged about
42 yr, R/o Pragati Nagar, behind
Jagannath Baba Mandir, Near Chapne
House, Wani, Tah. Wani, Dist.
Yavatmal.
SA 234.15 & 143.15 - final.odt
6
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SECOND APPEAL NO.234 OF 2015
Mr. R. D. Bhuibhar, Advocate for Appellant Nos.1 to 6.
Mr. Abhay Sambre, Advocate for respondent No.1.
Mr. Raju Kadu, Advocate h/f. Mr. S. D. Chande, Advocate for respondent
Nos.3(A,B), 4 and 8.
Mr. C. R. Najbile, Advocate for Respondent Nos.2(a to c)
SECOND APPEAL NO.143 OF 2015
Mr. S. A. Choudhari, Advocate for appellant.
Mr. Raju Kadu, Advocate h/f. Mr. S. D. Chande, Advocate for respondent
Nos.4(a,b), 5, 6 (a,b), 7 to 9.
Mr. R. D. Bhuibhar, Advocate for respondent No.1 (a to e) and 2
------------------------------------------------------------------------------------------------------------
CORAM : ROHIT W. JOSHI, J.
RESERVED ON : 05.05.2026
PRONOUNCED ON : 22.05.2026
JUDGMENT:
1) Heard finally with consent of learned advocates
for the respective parties.
2) The present appeals are filed under section 100 of
the Code of Civil Procedure in order to challenge Judgment
and Decree dated 14.11.2014 passed by the Learned District
Judge-9, Nagpur in Regular Civil Appeal No.279 of 2010. The
Said Appeal was filed by original Plaintiffs in Regular Civil
Suit No.50 of 2006, which came to be dismissed by the
Learned Joint Civil Judge, Junior Division, Narkhed vide
Judgment and Decree dated 10.02.2010. Regular Civil Suit
SA 234.15 & 143.15 - final.odt
No. 50 of 2006 was initially filed in the year 1984 and was
registered as Special Civil Suit No. 256 of 1984. The suit was
thereafter renumbered as Regular Civil Suit No.16 of 2001,
Regular Civil Suit No.106 of 2001, Regular Civil Suit No.139
of 2002 and finally as Regular Civil Suit No.50 of 2006.
3) The dispute in the civil suit pertains to properties
of late Bhagawan, who died somewhere around the year
1935. This deceased Bhagawan had a wife named Kasubai,
who has expired in the year 1962. Bhagawan and Kasubai
were blessed with a son Ghanshyam and daughter
Annapurnabai. Ghanshyam has expired on 01.07.1935.
Ghanshyam had two wives, namely Lakshmi and
Chandrabhaga. Lakshmi predeceased Chandrabhaga.
Chandrabhaga, widow of Ghanshyam, has expired on
21.11.1977. Ghanshyam did not have any issue either from
Lakshmibai or Chandrabhaga. Chandrabhaga has adopted
defendant No.1 as son on 09.07.1971. A deed of adoption
dated 09.07.1971 is executed which is registered on
12.07.1971. Defendant No.1, the adopted son of
Chandrabhaga, is biological son of Defendant No.2.
SA 234.15 & 143.15 - final.odt
Defendant No. 2 is real brother of Chandrabhaga.
4) As regards Annapurnabai, (daughter of late
Bhagawan and Kasubai) she has expired on 18.03.1979.
Plaintiff Nos.1 and 2 are son and daughter respectively of
deceased Annapurnabai. Annapurnabai had another daughter
named Nanibai, who has expired somewhere around the year
of 1964. The Defendant Nos.3 to 8 are husband and children
of late Nanibai.
5) The plaintiffs, who are son and daughter of
deceased Annapurnabai, filed the aforesaid suit seeking
declaration that adoption of Defendant No.1 by
Chandrabhaga, widow of Ghanshyam, is void and for
declaration that they are absolute owners of suit properties
which initially belonged to their maternal grandfather
Bhagwan and for possession of the suit properties. The
defendant Nos.1 and 2 filed written statement opposing the
suit. Defendant Nos.3 to 8, who are descendants of Nanibai,
supported the plaintiffs. The plaintiffs have challenged the
adoption of defendant No.1 by Chandrabhaga. Amongst other
grounds, the adoption is also challenged on the ground that
SA 234.15 & 143.15 - final.odt
she was not authorized by her husband Ghanshyam to take
any child in adoption and as such, the adoption is void. It is
the case of plaintiffs that the parties are governed by Banaras
School of Hindu Law by which a widow cannot adopt a child
without express consent of her husband. It is their contention
that since the adoption by Chandrabhaga is not for herself
but for deceased husband, Section 8 of the Hindu Adoption
and Maintenance Act, 1956, (for short, "the HAMA") will not
be applicable and the adoption will be void.
6) Per contra, the case of contesting defendants i.e.
defendant Nos.1 and 2 is that the adoption is valid and all the
rituals required to be followed were duly observed. It is
further their contention that the adoption is also established
by virtue of adoption deed dated 09.07.1971. As regards
legality of adoption vis-a-vis permission from the husband, it
is their contention that the adoption is after commencement
of HAMA, and, therefore, the general principles of Hindu Law
prior to enactment of the said Act will not be applicable.
7) Based on the rival pleadings issues were framed
by the learned Trial Court. Parties led their respective
SA 234.15 & 143.15 - final.odt
evidence on the issues. After recording the evidence, final
arguments were heard and the suit came to be decided vide
judgment and decree dated 10.02.2010. The Learned Trial
Court has held that the adoption of Defendant No.1 by
Chandrabhaga was legal and valid adoption. In view of such
finding, the suit for possession filed by the plaintiffs came to
be dismissed.
8) Aggrieved by the aforesaid decree dismissing suit
for possession, the plaintiffs preferred appeal being Regular
Civil Appeal No.279 of 2010.The appeal is partly allowed by
the learned First Appellate Court. The learned First Appellate
Court has confirmed the finding by the learned Trial Court
with respect to adoption of defendant No.1. It has also held
that the adoption is legal and valid. However, the Learned
First Appellate Court was of the opinion that rather than
dismissing the suit, the Learned Trial Court ought to have
granted a decree for partition and separate possession since
the plaintiffs were entitled to half share in the suit property
even if the adoption is held to be proper.
SA 234.15 & 143.15 - final.odt
9) In view of the aforesaid, the learned First
Appellate Court vide judgment and decree dated 14.11.2014,
partly allowed the appeal granting a decree for partition and
separate possession.
10) This decree for partition and separate possession
is subject matter of challenge in the present second appeals.
Second Appeal No.234 of 2015 is preferred by the original
plaintiffs. Second Appeal No.143 of 2015 is filed by the
original defendant No.1. Vide order dated 04.03.2015 passed
in Second Appeal No.143 of 2015, notice was issued on the
following substantial questions of law:-
Whether reversal of decree by the first
appellate Court is after considering the
entire material on record especially when
a finding has been recorded by the first
appellate Court that the adoption of
defendant No.1 was legal and valid?
Whether decree for partition could have
been passed in absence of any prayer in
that regard in the plaint ?
SA 234.15 & 143.15 - final.odt
11) Thereafter, both the appeals came to be admitted
on the aforesaid substantial questions of law vide order dated
10.01.2017.
12) Subsequently, vide order dated 24.04.2026,
substantial questions of law relating to alleged adoption of
defendant No.1 came to be framed in Second Appeal No.234
of 2015 filed by the original plaintiffs. If the substantial
questions of law pertaining to adoption, are answered in
favour of the plaintiffs, the suit will have to be decreed in
their favour. It will, therefore, be appropriate to deal with the
following substantial questions of law relating to adoption
before dealing with the substantial questions of law framed
while admitting the appeal -
Having regard to the words, "I have
decided to take a child in adoption since I
desire that the name and family of my
husband should continue," in the
registered deed of adoption at Exh. 180,
whether the adoption by the adoptive
mother of defendant No.1 is for herself or
SA 234.15 & 143.15 - final.odt
for her deceased husband?
Whether an adoption by a Hindu widow
governed by the Banaras School of Hindu
Law is valid, in the absence of express
authorisation by her husband, if the
adoption is made for the benefit of the
husband?
What will be the effect of Sections 4 and
8 of the Hindu Adoptions and
Maintenance Act, 1956 on such adoption?
13) It is not in dispute that the parties are governed
by Banaras School of Hindu law. Under the Banaras School of
Hindu law, a widow could adopt a child after the demise of
her husband only if she was expressly authorized for doing so
by the husband. However, in the case at hand, the adoption
of Defendant No.1 is after enactment of HAMA.
14) Section 8 of the HAMA specifically enables a
Hindu widow to adopt a child, either male or female. Section
4 of the Act specifically provides overriding effect to the
SA 234.15 & 143.15 - final.odt
provisions of the Act over any text, rule or interpretation of
Hindu law or any custom or usage prevailing prior to
commencement of the Act. Likewise, Section 5 of the Act
expressly provides that all adoptions to be made after the
commencement of the Act shall be governed by the
provisions of the Act.
15) In this regard, when Section 8 of the Act is
perused, it is seen that an unmarried woman or a widowed
woman is competent to take a child in adoption. The Section
does not speak about any authorization from husband of
widow to take a child in adoption.
16) Mr. Bhuibhar, the learned advocate for the
plaintiffs, however, places strong reliance on judgment of the
Hon'ble Supreme Court in the case of Rajendra Kumar Vs.
Kalyan (dead) by LR's, reported in AIR 2000 SC 3335 to
contend that Section 8 of the Hama is applicable only when a
Hindu widow adopts a child for herself. He contends that
Section 8 of the Hama does not speak about adoption of a
child by a widow for her husband. The learned Advocate
draws attention to the contents of the adoption deed to
SA 234.15 & 143.15 - final.odt
canvass that the adoption in the present case was for the
husband and not for the widow herself. He therefore
contends that Section 8 of the HAMA will have no application
and the validity of adoption will have to be examined in the
light of uncodified provisions of Banaras School of Hindu
Law dealing with adoption. The learned advocate contends
that the adoption is therefore invalid and the suit for
possession ought to have been decreed since the defendant
No.1 cannot claim to be a family member of Bhagwan or
adoptive son of Ghanshyam, husband of the alleged adoptive
mother, Chandrabhaga.
17) Per contra, Mr. Sambre, learned advocate for
original defendant No.1 strongly argues that the words in the
adoption deed that the widow had taken a decision to take
defendant No.1 in adoption since she desired that name and
family of her husband should continue, do not indicate that
the adoption is for husband. He contends that the said words
only reflect the reasons for adoption of defendant No.1 by the
widow - Chandrabhaga. The learned advocate further
contends that Section 8 does not stipulate any authorization
SA 234.15 & 143.15 - final.odt
by deceased husband in order to enable a widow to take child
in adoption. He contends that, in view of Section 4 of the Act,
the provisions of uncodified Hindu Law relating to adoption
are not relevant.
18) Heard the respective submissions as aforesaid. I
have also gone through the relevant provisions of the Act
with the able assistance of the learned advocates. It cannot be
disputed that, in view of Section 4 of the Act, uncodified
principles of Hindu Law relating to adoption, so far as they
are contrary to the express provisions of the Act, will not be
relevant. It is apparent from reading of Section 8 of the Act
that, it does not contemplate any permission from the
deceased husband in order to enable a widow to take a child
in adoption.
19) It will also be appropriate to refer to Section 12 of
the Act, which states that a child taken in adoption will be
deemed to be child of his or her adoptive father or mother for
all purposes with effect from the date of adoption and from
such date, all the ties of the child in his family of birth shall
be severed. The provisions of Section 12 of the Act have been
SA 234.15 & 143.15 - final.odt
considered by the Hon'ble Supreme Court in the case of
Dharma Shamrao Aglawe Vs. Pandurang Miragu Aglawe and
others reported in (1988) 2 SCC 126. The Hon'ble Supreme
Court has taken into consideration earlier decisions in the
case of Sawan Ram vs. Kala Wanti reported in AIR 1967 SC
1761 and judgment in the case of Sitabai Vs. Ramchandra,
reported in AIR 1970 SC 343. The Hon'ble Supreme Court
has expressly held that when a child is taken in adoption by a
widow, the child also becomes adopted son of the deceased
husband of the widow. It is stated that the adopted child is
transplanted from his biological family to the adopted family.
It is held that, in view of Section 12, the effect of adoption
will be from the date on which adoption takes place and not
from the date of demise of the husband. It is further held
that an adopted child also gets right in ancestral properties of
the adoptive family and can file a suit for partition and
separate possession with respect to such properties.
20) In view of the aforesaid statutory provisions, as
interpreted by the Hon'ble Supreme Court, it cannot be said
that adoption by a widow is an adoption only for herself or
SA 234.15 & 143.15 - final.odt
only for her husband. The consequence of adoption is that
the adopted child becomes child of the adopted mother, i.e.
the widow, as well as her deceased husband, who statutorily
becomes the adoptive father of the adopted child from the
date of adoption. The adoption cannot be for the widow
herself or only for the husband of the widow.
21) As regards the judgment in the case of Rajendra
Kumar, the issue of adoption was already decided between
the parties in a previously instituted suit. The principal
contention before the Hon'ble Supreme Court was with
respect to res judicata.
22) Mr. Bhuibhar, the learned advocate, has placed
reliance on paragraph 12 of the judgment to contend that
according to the said decision, the principles of Shastric
Hindu law, so far as they relate to adoption by a widow for
her husband, continue to hold good.
23) However, in Rajendra Kumar, the Hon'ble
Supreme Court has predominantly decided the issue of
adoption on the basis of earlier decision relying upon Section
11 of the CPC. The said decision also does not deal with the
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earlier decisions on the point, namely, Sawan Ram vs. Kala
Wanti, Sitabai Vs. Ramachandra and Dharma Shamrao
Aglawe.
24) Perusal of the deed of adoption will demonstrate
that the widow has not expressly stated as to whether she has
adopted the child for herself or for her husband. The words
in the adoption deed that she was taking the defendant No.1
in adoption to continue the name and family of her husband
will not give rise to an inference that the adoption was for
the husband. The said words will only indicate the reason for
taking defendant No.1 in adoption. Apart from the aforesaid
words, the other contents of the adoption deed do not
indicate that the widow took defendant No.1 in adoption
either for herself or for her husband. The contention that the
adoption is for the husband is therefore liable to be rejected.
The learned First Appellate court has correctly interpreted the
terms of adoption deed and has rightly rejected the
contention that the adoption was for the husband.
25) In view of the aforesaid, the substantial questions
of law framed vide order dated 24.04.2026 relating to
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adoption of defendant No.1 will have to be answered in
favour of defendant No.1 and against the plaintiffs.
Whether decree for partition could have
been passed in absence of any prayer in
that regard in the plaint ?
26) Perusal of the plaint will demonstrate that the
suit is filed in order to challenge the adoption of defendant
No.1 and to seek declaration of ownership and for
possession. There is no prayer for partition in the suit. The
learned Trial Court, having recorded a finding with respect to
legality of adoption has dismissed the suit. However, the
learned First Appellate Court has decreed the suit partially by
granting decree for partition and separate possession,
although there is no express prayer in that regard. In view
thereof, substantial questions of law with respect to the said
relief came to be framed vide order dated 04.03.2015 and the
appeal filed by defendant No.1 came to be admitted on the
aforesaid questions on 10.01.2017.
27) Mr. Sambre, the learned advocate for defendant
No.1 vehemently argues that in the absence of any prayer for
SA 234.15 & 143.15 - final.odt
partition and separate possession, the said decree ought not
to have been passed. He contends that there are several
factors such as demand for partition, cause of action,
limitation, etc. which have not been considered by the
learned First Appellate Court while passing a decree for
partition and separate possession.
28) Per contra, Mr. Bhuibhar, learned advocate for the
plaintiffs places reliance on a judgment of this Court in the
case of Sattarsha Dilbarsha and Others v. Ajizabi Dilbarsha
and Others, reported in 2017 (4) MhLJ 889 and contends
that in a suit for possession, if exclusive right to claim the
property cannot be established by the plaintiff, the Court may
in its discretion grant relief of partition and separate
possession instead.
29) Perusal of the judgment delivered by the learned
First Appellate Court does not indicate that the learned First
Appellate Court had put the parties to notice that it intended
to adopt the aforesaid course of taking up issue of
entitlement of plaintiffs to claim partition and separate
possession. The judgment on which learned advocate for the
SA 234.15 & 143.15 - final.odt
plaintiff has placed reliance certainly holds that, even in the
absence of a prayer in the plaint, in an appropriate case,
relief of partition and separate possession may be granted.
However, the judgment specifically states that the learned
First Appellate Court must put the parties to notice of its
intention to adopt such a course so as to enable the parties to
advanced submissions on this aspect.
30) Perusal of the judgment passed by the learned
First Appellate Court does not indicate that such a course was
adopted. Even during the course of hearing of the appeals,
none of the advocates stated that the learned First Appellate
court had put the parties to notice of its intention to consider
claim of partition and separate possession.
31) Perusal of points for determination framed by the
learned First Appellate Court will demonstrate that point
with respect to the ownership of plaintiffs was framed by the
learned First Appellate Court and another point with respect
to entitlement of decree for possession is also framed. While
answering these points, the learned First Appellate Court has
held that the plaintiffs had half share in the suit property and
SA 234.15 & 143.15 - final.odt
were entitled to possession with respect to the said half share
and accordingly decree for partition and separate possession
is passed.
32) However, it must be stated that points for
determination under Order 41 Rule 33 of the CPC are framed
simultaneously while delivering the judgment. Points for
determination are not framed like issues in a civil suit. The
parties to appeal do not have prior intimation with respect to
points for determination framed by the learned First
Appellate Court. It is clear that the decree for partition and
separate possession is passed without prior notice to the
appellant/defendant No.1 in whose favour the learned Trial
Court had decided the civil suit.
33) Although it appears from paragraph 14 of the
judgment passed by the learned First Appellate Court that the
appellants/original plaintiffs had advanced certain
submissions with respect to inheritance, there is no material
to indicate that the respondent had joined the issue.
34) In view of the aforesaid, the substantial question
of law 2, which relates to grant of decree for partition in the
SA 234.15 & 143.15 - final.odt
absence of prayer in that regard, framed vide order dated
04.03.2015 will have to be answered in favour of the
defendant No.1, who is appellant in Second Appeal No.143 of
2015.
Whether reversal of decree by the first
appellate Court is after considering the
entire material on record especially when
a finding has been recorded by the first
appellate Court that the adoption of
defendant No.1 was legal and valid?
35) Apart from this, the shares are carved out
considering Bhagwan to be sole surviving co-parcener in the
family, which is incorrect. Ghanshyam, son of Bhagwan has
expired on 01.07.1935 after the demise of Bhagwan. Thus,
there was one more coparcener in the family when Bhagwan
died.
36) In view of the aforesaid, the decree for partition
passed by the learned First Appellate Court is unsustainable
and is liable to be quashed and set aside.
SA 234.15 & 143.15 - final.odt
37) However, having regard to inter se relation
between the parties, in the considered opinion of this Court,
it will not be appropriate to relegate the parties to a fresh
round of litigation. The parties are litigating since the year
1984. It will therefore be appropriate to remand the matter
to the learned First Appellate Court to give opportunity to
both sides to advance submissions on the point of partition
and entitlement of plaintiffs to seek relief of partition and
separate possession.
38) In the light of reasons recorded above, Second
Appeal No.234 of 2015 stands dismissed and Second Appeal
No.143 of 2015 is partly allowed in the following terms:-
I. Judgment and decree dated
14.11.2014 passed by the learned District
Judge-9, Nagpur in Regular Civil Appeal
No.279 of 2010 is quashed and set aside.
II. The appeal is remanded to the learned
First Appellate Court to decide the claim of
partition and separate possession afresh by
giving opportunity to the parties to advance
SA 234.15 & 143.15 - final.odt
submissions in that regard.
III. The findings confirming validity of
adoption is maintained.
IV. Parties to bear own costs.
V. Parties to appear before the learned
First Appellate Court on 22.06.2026.
VI. Parties to note that separate notice for
appearance will not be issued.
39) Having regard to the fact that the litigation is
pending since year 1984, learned First Appellate Court is
requested to decide the appeal expeditiously.
40) Since the order is pronounced during vacation
and learned advocates for the respective parties are not
present, office is directed to send a separate communication
to the respective learned advocates on their registered email
address and cell phone numbers.
(ROHIT W. JOSHI, J.)
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