Bharat Raghunath Lanjewar And 4 Others vs Raghunath S/O. Kisan Lanjewar And ...
2026 Latest Caselaw 5428 Bom

Bombay High Court

Bharat Raghunath Lanjewar And 4 Others vs Raghunath S/O. Kisan Lanjewar And ... on 22 May, 2026

      1                                 19 SA 308.12 (J).odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
         NAGPUR BENCH AT NAGPUR

          SECOND APPEAL NO.308 OF 2012


    1]    Bharat Raghunath Lanjewar,
          Aged 28 years, Occupation,
          R/o. Nimba, Tahsil-Kamptee,
          District-Nagpur.

    2]    Smt. Rukhmabai w/o Raghunath
          Lanjewar, Aged 58 years,
          Occupation-Agriculture Labour,
          R/o. Nimba, Tahsil-Kamptee,
          District-Nagpur.

    3]    Sau. Vandana w/o Prakash Bhanare,
          Aged 32 years, Occupation-Household,
          R/o. Telipura Khewta, Itwari, Nagpur.

    4]    Sau. Sunita w/o Prakash Dorle,
          Aged 30 years, Occupation-Household.
          R/o. Binaki Mangalwari, Nagpur.

    5]    Lalita w/o Sanjay Dhawde,
          Aged 28 years, Occupation-Household,
          Tahsil-Khewta Colony, Telephone Exchange
          Chowk, Nagpur.                    ..
Appellants

                   .. Versus ..

    1]    Raghunath s/o Kisan Lanjewar,
          R/o. Plot No.1 and 2, Swagat Nagar,
          Near Believers Church, Bhandewadi,
          Pardi, Nagpur.

    2]  Smt. Jayawantibai w/o Hansraj Gajbhiye,
        Aged Major, R/o. Nimba, Tahsil-Kamptee,
        District-Nagpur.                  ..
Respondents
 2                                19 SA 308.12 (J).odt


     Shri P.C. Marpakwar, Advocate for Appellants.
     Shri A.A. Sambaray, Advocate for Respondents


               CORAM : ROHIT W. JOSHI, J.

DATE : 22.05.2026.

1. The present Second Appeal arises out of

judgment and decree dated 24.4.2009 passed by

the learned 5th Joint Civil Judge, Senior Division,

Nagpur in Special Civil Suit No.351/2006 and

judgment and decree dated 2.8.2011 passed by the

learned District Judge-4, Nagpur in Regular Civil

Appeal No.339/2009.

2. The appellants are the original plaintiffs.

The respondents are original defendants. The

parties will be referred as plaintiffs and defendants

hereinafter.

3. The plaintiff no.1 is son, plaintiff no.2 is

wife and plaintiff nos.3 to 5 are daughters of the

defendant no.1. The defendant no.1 had agreed to

sell part of the suit property bearing Survey No.124

admeasuring 0.81 H.R., and survey No.125/2 ad-

measuring 0.30 H.R., to the defendant no.2 vide

agreement of sale dated 29.6.1989. The defendant 3 19 SA 308.12 (J).odt

no.2 has filed a suit for specific performance of

contract against the defendant no.1 which was

registered as Special Civil Suit No.428/1989. This

suit for specific performance of contract was

decreed by the learned 4th Joint Civil Judge, Senior

Division, Nagpur, vide judgment and decree dated

14.3.1991. Appeal preferred by the defendant

no.1, being Regular Civil Appeal No.293/1991 was

partly allowed by setting aside the decree for

specific performance of contract and granting a

decree for refund of consideration. The defendant

no.2 preferred Second Appeal No.105/1996 before

this Court which came to be allowed on 1.12.2005.

This court has confirmed the decree for specific

performance of contract passed by the learned Trial

Court.

4. In this backdrop the plaintiffs who are son,

wife and daughters of the defendant no.1/vendor

filed a suit for partition and separate possession in

which the sale transaction interse between the

defendant nos.1 and 2 is also challenged on the

ground of the sale being without legal necessity. 4 19 SA 308.12 (J).odt

The case of the plaintiff is that the suit property is

ancestral property and that in the absence of any

legal necessity, the defendant no.1 acting as Karta

could not have alienated the same in favour of the

defendant no.2. The defendant no.1 filed written

statement admitting that the suit property was an

ancestral property. The defendant no.2/purchaser

filed his written statement opposing the suit. The

defendant No.2 denied the claim of the plaintiffs.

She made reference to findings recorded in the suit

for specific performance of contract filed by her

against the defendant No.1 wherein it was held that

the transaction was entered into by the defendant

No.1 acting as Karta of the family in order to satisfy

legal necessity.

5. Based on rival pleadings, the learned Trial

Court framed the issues and recorded evidence of

the parties. The defendant nos.1 and 2 did not

enter the witness box. The learned Trial Court held

that the suit properties were ancestral properties

and further held that the plaintiff had established

his right over the suit properties bearing Gat No.59 5 19 SA 308.12 (J).odt

which was included in Schedule B of the plaint.

Decree for partition and separate possession

accordingly came to be passed only with respect to

suit property bearing Gat No.59. The suit was

dismissed with respect to land bearing Gat No.124,

ad-measuring 0.81 HR and Gat No.125/2

admeasuring 0.30 HR.

6. The learned Trial Court has held that the

issue as to whether the sale deed was executed by

defendant no.1 for legal necessity or not had

assumed finality between the parties in the earlier

suit for specific performance of contract and the

same operated as res judicata. The learned Trial

Court accordingly dismissed the suit with respect to

land bearing Gat No.124/1 and 125/2 which were

subject matter of agreement of sale between

defendant nos.1 and 2 and passed a decree for

partition and separate possession with respect to

land bearing Survey No.59. The prayer for

declaration that the judgment and decree in suit for

specific performance of contract was not binding on

the plaintiff is rejected. Likewise, the prayer for 6 19 SA 308.12 (J).odt

preemption with respect to land bearing Gat

No.124/1 and 125/2 is also rejected.

7. Aggrieved by aforesaid decree, the plaintiff

preferred appeal being Regular Civil Appeal

No.339/2009. The learned First Appellate Court has

dismissed the appeal by maintaining the judgment

and decree passed by the learned Trial Court. The

learned first Appellate Court has observed that the

challenge to the decree passed in a suit for specific

performance was premature since the agreement

had not fructified into a completed sale transaction

since sale deed was not registered.

8. In this backdrop, the original plaintiffs have

preferred the present Second Appeal challenging

the aforesaid decree passed by the learned Trial

Court. The subject matter of the Second Appeal is

restricted to the suit properties bearing Gat No.124

and 125/2 which are subject matter of the

agreement of sale and suit for specific

performance.

7 19 SA 308.12 (J).odt

9. The Second Appeal came to be admitted

vide order dated 22.4.2016 on the following

substantial questions of law :

(1) Whether the Judgment and decree passed in earlier proceeding between the Respondent No.1 and 2 bearing RCS No.408/1989 for specific performance of contract an execution thereof is pending for execution of sale deed through Court amounts to alienation.?

(2) Whether the Appellate Court has considered the scope and effect of Section 6 of the Hindu Succession Act, as amended by Hindu Succession (Maharashtra Amendment) Act, 1994 and Section 6 of the Hindu Succession (Amendment) Act, 2005, which confers the status of coparcener on a daughter from the date of her birth.?

Substantial question of law No.1 :

(1) Whether the Judgment and decree passed in earlier proceeding between the Respondent No.1 and 2 bearing RCS No.408/1989 for specific performance of contract an execution thereof is pending for execution of sale deed through Court amounts to alienation.?

10. This question arises for consideration

in the peculiar backdrop of facts were the

defendant no.1, as vendor, had entered into an

agreement of sale with respect to the suit property 8 19 SA 308.12 (J).odt

with the defendant No.2 as purchaser, and the

property is found to be an ancestral property and

suit for specific performance filed by defendant

No.2 came to be decreed against the defendant

No.1. The plaintiffs filed a general suit for partition

in which the transaction between defendant Nos.1

and 2 is also challenged. The learned First

Appellate Court has held that since sale deed is not

executed and registered pursuant to decree for

specific performance is not maintainable since the

sale is not completed. It is held that right of co-

paceners to challenge alienation accrues only once

the property is alienated.

11. Having regard to the aforesaid the

first substantial question of law is rephrased as

under:-

"Whether a coparcener has a right to challenge a decree for specific performance of contract passed against Karta of the family with respect to a joint hindu family property although sale deed is not executed in terms of decree for specific performance?"

12. The defendant no.1 is the eldest male

member and Karta of the family. The defendant

no.2 filed suit for specific performance against the 9 19 SA 308.12 (J).odt

defendant no.1 which has been decreed. The

plaintiffs want to avoid the transaction between the

defendant nos.1 and 2 and had accordingly

impugned the transaction in a general suit for

partition which includes properties other than the

properties forming subject matter of agreement of

sale between defendant Nos.1 and 2 with respect

to which decree for specific performance is passed.

13. It is well settled that a Karta of does

not have absolute right to alienate properties of

Joint Hindu Family. However, he has a qualified

right to transfer ancestral properties in case of

legal necessity, discharge of debt etc. It is also well

settled that alienation of ancestral properties by

Karta is not void ab initio even in the absence of legal

necessity. A coparcener is required to challenge an

alienation of property by Karta and have it set

aside if the alienation is not for reason sufficient to

authorise a Karta to alienate ancestral property.

The alienation can be challenged in a general suit

for partition or by filing a suit limited for

challenging the alienation.

10 19 SA 308.12 (J).odt

14. In a suit for specific performance of

contract, the Court adjudicates upon right of the

plaintiff to purchase property forming subject

matter of the agreement. Once the suit is decreed,

the plaintiff is entitled to sale deed with respect to

suit property. In the event the defendant does not

execute sale deed in compliance of decree, the

same can be executed and registered through

process of Court. The title is transferred upon

execution and registration of sale deed.

15. It is well settled that alienation of

ancestral property by a Karta can be questioned in

a general suit for partition. When a coparcener

does not agree with act of a Karta of entering into

agreement of sale with respect to an ancestral

property he will be well within his right to institute

a suit for partition. In order to file such a general

suit for partition, the coparcener need not wait till

the sale transaction being completed. Sale of an

ancestral property is not a conditition precedent for

finling suit for partition. A coparcener can file a suit

for partition as and when he deems it appropriate 11 19 SA 308.12 (J).odt

to have his share separated. In a suit for partition

all the properties of the family will have to be

included, which implies that properties forming

subject matter of agreement of sale by Karta will

also have to be included. In cases where a Karta

enters into agreement of sale with respect to

ancestral property, right to institute suit for

partition cannot be deferred till completion of the

transaction of sale. In the considered opinion of this

Court, the learned First Appellate Court has erred in

holding that the suit was premature and without

cause of action with respect to suit properties

forming subject matter of agreement of sale

between defendant No.1 as Karta/vendor and

defendant No.2 as purchaser.

16. The fact that a Karta enters into

agreement of sale, in the opinion of a coparcener

without legal necessity, that by itself will offer the

coparcener a right to institute suit for partition. In

such suit for partition, a challenge that the

alienation of property sold by Karta was not for

legal necessity can be raised. In case of agreement 12 19 SA 308.12 (J).odt

of sale without legal necessity, which is not

fructified into a sale deed, the coparcener may well

institute a suit for partition based on his

apprehension that the coparcenery properties are

not safe and may be alienated without legal

necessity by the Karta. Such act of Karta entering

into agreement of sale can offer a coparcener right

to file a general suit for partition.

17. The suit filed by the plaintiff is,

therefore, maintainable as the agreement of sale

and subsequent decree for specific performance

did offer a cause of action to institute the suit for

partition. In this suit for partition it was necessary

to decide the question of legal necessity or such

other cause authorizing the Karta to sell the suit

property or as in the present case enter into

agreement of sale with respect to suit property.

The first substantial question of law is answered

accordingly.

Substantial question of law No.2

Whether the Appellate Court has considered the scope and effect of Section 6 of the Hindu Succession Act, as amended by Hindu Succession 13 19 SA 308.12 (J).odt

(Maharashtra Amendment) Act, 1994 and Section 6 of the Hindu Succession (Amendment) Act, 2005, which confers the status of coparcener on a daughter from the date of her birth?

18. The second substantial question of law

pertains to Section 29-A of the Hindu Succession

Act, 1956. The Hindu Succession Act, 1956 was

amended with respect to its applicability to the

State of Maharashtra vide Hindu Succession

(Maharashtra Amendment) Act by introducing

Section 29-A which provided that a daughter in a

Joint Hindu Family was entitled to right in ancestral

properties as a coparcener if her marriage is

solemnized after commencement of the said Act

which came into force on 22.6.1994. It will also

pertinent to state that since then Section 6 of the

Hindu Succession Act, 1956 is also amended by

virtue of Hindu Succession (Amendment) Act, 2005

which has come into force with effect from

9.9.2005. The amended provision confers status of

a coparcener on a daughter from the date of her

birth. The second substantial question of law is

therefore modified as under :

14 19 SA 308.12 (J).odt

(2) Whether the Appellate Court has considered the scope and effect of Section 6 of the Hindu Succession Act, as amended by Hindu Succession (Maharashtra Amendment) Act, 1994 and Section 6 as amended by Hindu Succession (Amendment) Act, 2005, which confers the status of coparcener on a daughter from the date of her birth.?

19. As stated above, the dispute in the

Second Appeal is restricted the properties which

form subject matter agreement of sale dated

14.12.198 and decree for specific performance

passed in favour of defendant No.2 on 14.3.1991.

The decree is since then confirmed by this court

vide judgment dated 01.12.2005. As per proviso to

Section 6 of HSA, alienations made prior to

20.12.2004 are not subject to the amended

provisions of Section 6. Likewise, as per Section

29-A of HSA as introduced by the Maharashtra

amendment, daughter is entitled to share in

ancestral property if her marriage is solemnized

after 22.06.1994. In view of these provisions it is

required to be considered as to from which date the

decree for specific performance of contract will

become effective since the said issue will have

bearing on the share of parties with respect to the 15 19 SA 308.12 (J).odt

properties forming subject matter of agreement of

sale.

20. This Court has in the case of Prataprai

Trambaklal Mehta Vs. Jayant Nemchand Shah, reported

in 1996 (2) Mh.L.J 885 held that when a suit for

specific performance of contract is decreed in

favour of the plaintiff, the title of plaintiff relates

back to the date of agreement. Similar view is

taken by the Punjab High Court in the case of

Gurdial Singh and ors Vs. Sewa Singh and ors., reported in

AIR 1973 P&H 254.

21. The agreement in question is dated

14.03.1988 and decree for specific performance is

passed on 14.03.1991. Both these dates are prior

to introduction of Section 29-A as also amended

Section 6 of the Hindu Succession Act. Although the

title will finally pass in favour of defendant No.2

only upon registration of sale deed pursuant to

decree for specific performance passed in her

favour, the decree will relate back to the date of

agreement or at best from the date on which 16 19 SA 308.12 (J).odt

decree for specific performance is passed by the

learned Trial Court.

22. In case of alienation of property by a

Karta with respect to ancestral property it is found

that the same was without legal necessity still the

the alienation will be valid to the extent of share of

the Karta as on the date of alienation and not the

share that he may be entitled to on the date of

decree for partition. Legal position in this regard is

settled by Full Bench judgment of this Court in the

case of Sakarchand Satidas Vs. Narayan Salva Vani and

ors, reported in AIR 1951 BOM 10.

23. It is, therefore, necessary to

determine the share of the defendant

no.1-Karta/Vendor as on the date of agreement or

the date on which the decree for specific

performance was passed. As on the said date,

there were two coparceners in the family namely

plaintiff and defendant no.1 and wife of the

Karta/defendant no.2. It is well settled that in a

partition of joint hindu family property, the wife of

Karta is also entitled to one share equal to share of 17 19 SA 308.12 (J).odt

coparceners. In view of the aforesaid, as on the

date of agreement and even as on the date of

decree for specific performance by the learned Trial

Court, the plaintiff nos.1 and 2 and defendant no.1

will have 1/3rd share each in the suit property. It is

well settled that alienation of suit property by Karta

is valid to the extent of his share, even if it is

without legal necessity. The 1/3rd share of the

defendant no.1 Vendor must go to the defendant

no.2 who is the purchaser. It is also well settled

that in case of alienation of undivided property by a

coparcener, in a suit for partition, if possible, the

property alienated by the coparcener should be

allotted to his share and the same should then be

allotted to the purchaser.

24. Since Section 29-A and amended

Section 6 of HSA have come into force after the

date of agreement of sale and decree for specific

performance passed by the learned Trial Court, the

share of defendant No.2 in the properties forming

subject matter of agreement with respect to which

decree for specific performance is passed will have 18 19 SA 308.12 (J).odt

to be determined ignoring the said provisions.

Substantial question of law No.2 is decided

accordingly.

25. The learned Trial Court has held that

the findings recorded in the earlier suit for specific

performance will amount to res judicata and has

accordingly upheld the sale transaction between

the defendant nos.1 and 2. The learned First

Appellate Court has recorded that the decree for

specific performance did not amount to alienation

since sale deed was not executed pursuant to

decree for specific performance. Thus, the issue of

legal necessity is not dealt with by the learned

Courts.

26. The plaintiff No.1, who is a coparcener

is entitled to share in the coparcenary property

since birth in his individual right. He does not claim

the property through his father, the defendant

No.1. Plaintiff No.1 was not party to earlier suit for

specific performance. In view of the above,

following additional substantial questions of law are

required to be framed in the appeal:-

19 19 SA 308.12 (J).odt

I. Whether plaintiff No.1 claims right in the suit property which according to him is an ancestral property through his father, defendant No.1 or in his individual right as a coparcener?

II. Whether finding with respect to legal necessity recorded in suit for specific performance of contract filed by defendant No.2 against defendant No.1 i.e. Special Civil Suit No.428 of 1989 operate as res judicata in subsequent suit for partition filed by the plaintiffs although they are not parties to the earlier suit for specific performance?

27. List the appeal for further consideration on

09.06.2026.

28. Since the order is pronounced during

vacation and learned advocates for the respective

parties are not present, Office is directed to sent a

separate communication to the respective learned

advocates who are not present on their registered

email address and cell phone numbers.

(ROHIT W. JOSHI, J.)

Gulande/TANMAY