Gujarat High Court
Decd Gobarbhai Ukabhai Through Heirs vs Decd Gomtiben Ukabhai Through Heirs on 12 August, 2025
NEUTRAL CITATION
C/SA/278/2025 ORDER DATED: 12/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 278 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In
R/SECOND APPEAL NO. 278 of 2025
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DECD GOBARBHAI UKABHAI THROUGH HEIRS & ORS.
Versus
DECD GOMTIBEN UKABHAI THROUGH HEIRS & ORS.
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Appearance:
MR HARNISH V DARJI(3705) for the Appellant(s) No.
1,1.1,1.2,1.3,1.4,1.5,1.6,1.7
MR MAULIK H SAYANI(13659) for the Appellant(s) No.
1,1.1,1.2,1.3,1.4,1.5,1.6,1.7
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 12/08/2025
ORAL ORDER
1. The present Second Appeal under Section 100 of Code of
Civil Procedure has been filed challenging the judgment and
decree passed in Regular Civil Appeal No.3 of 2023 passed by
2nd Additional District Judge, Gir Somnath at Una, dated
22.04.2025, whereby, the Court partly allowed the appeal filed
by the plaintiff and declared that in view of Section 8 of Hindu
Succession Act, the plaintiff has ½ share in the suit property and
restraining the defendant from entering and/or disturbing the
plaintiff's right in ½ share of the suit property.
2. For the sake of convenience, the parties are referred to as
per their original status as that in the suit.
3. The brief facts arisng in the present Second Appeal are
that the plaintiff claiming to be the legal heir of Ukabhai
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Naranbhai Gujjar filed suit against the legal heir of Gobarbhai
Ukabhai Gujjar on the ground that the plaintiff i.e. Gomtiben
Ukabhai Gujjar and deceased Gobarbhai Ukabhai Gujjar were
real brother and sister and the suit property belonged to their
father Ukabhai Naranbhai Gujjar, who expired on 15.08.2005
and in view of the fact that Gomtiben Ukabhai Gujjar and
Gobarbhai Ukabhai Gujjar are Class-I legal heirs as per the
provision of Hindu Succession Act, the plaintiff will have ½
share in the suit property. The brother of the plaintiff, Gobarbhai
Ukabhai Gujjar expired, and therefore, the suit was filed against
the defendant No.1.1 to 1.7 in view of the fact that defendant
No.1.1 is the wife of the deceased - Gobarbhai Ukabhai Gujjar
and defendant No.1.2 to 1.7 are the children of deceased
Gobarbhai Ukabhai Gujjar.
4. The defendant appeared in the said suit and filed written
statement, vide Exhibit-11 and admitted the fact that the
Ukabhai Naranbhai Gujjar, expired on 15.08.2005 and that
Gomtiben Ukabhai Gujjar i.e. the plaintiff and deceased -
Gobarbhai Ukabhai Gujjar are the only children and Class-I
legal heir of deceased Ukabhai Naranbhai Gujjar. The plaintiff
examined himself, vide Exhibit-18 and the witnesses of the
plaintiff examined, vide Exhibit-30. The defendant examined
himself, vide Exhibit-36. The trial Court framed issues vide
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Exhibit-13 which reads as under:-
(i) Whether plaintiff proves that suit property is joint
inherited property of plaintiff and defendants?
(ii) Whether defendants proves that plaintiff have no right,
interest and title in the suit property?
(iii) Whether plaintiff is entitled for relief & prayers claimed in
the suit?
(iv) What order and decree?
5. The trial Court held that the plaintiff has proved that the
suit property is joint inherited property of the plaintiff and
defendant and the defendant could not prove that the plaintiff
has no right, interest and title in the suit property and in view of
the fact that the defendant Gobarbhai Ukabhai Gujjar had
expired leaving behind him seven legal heirs as per Class-I legal
heirs in view of Hindu Succession Act, the trial Court allowed
the said suit and declared that the plaintiff has 1/8 share in the
suit property in view of the fact that there are seven legal heirs
including the plaintiff there are eight legal heirs of Ukabhai
Naranbhai Gujjar, therefore, the trial Court allowed the said suit
and granted 1/8 share of the plaintiff in the suit property.
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6. Aggrieved by the said decree, granting 1/8 share, the
plaintiff challenged the said judgment and decree of the trial
Court by filing Regular Civil Appeal No.3 of 2023 and after
reappreciating the evidence and the fact that under Section 8 of
the Hindu Succession Act as the legal heir of Gobarbhai
Ukabhai Gujjar, can only claim right qua the share of Gobarbhai
Ukabhai Gujjar which can be ½ share, that belonged to Ukabhai
Naranbhai Gujjar and that the share of Gomtiben Ukabhai
Gujjar i.e. the plaintiff will have ½ share the said appeal was
allowed and the judgment and decree of the trial Court granting
1/8 share to the plaintiff was quashed and set aside and the first
appellate Court held that in view of Section 8 of Hindu
Succession Act, the plaintiff will have ½ share in the suit
property and aggrieved by the said judgment and decree the
defendant has filed the present Second Appeal.
7. Learned advocate for the defendant has mainly argued that
the appellate Court has not framed the point of determination
and the judgment and decree passed by the Appellate Court is
not as per the provision of Order 41 Rule 31, and therefore, also
the Second Appeal is required to be allowed on the substantial
questions of law that have been framed, which are as under:-
(A) Whether the learned first appellate Court has erred in
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passing the impugned judgment order and decree contrary to
the provisions of section 96 of the Code of Civil Procedure,
1908?
(B) Whether the learned appellate court has erred in passing
the impugned judgment order and decree, without framing point
of determination in accordance with the same principles on
which issues are framed in suit, and thereby the impugned
judgment Order and Decree is contrary to Rule 414 of the Civil
Manual?
(C) Whether Learned Appellate court has erred in not framing
the point of determination with regard to, whether suit property
being joint inherited property, contrary to the provisions of
Order 41 Rule 31, and Rule 414 of Civil Manual?
(D) Whether the learned appellate court has erred in passing
the impugned judgment order and decree contrary and without
taking in consideration the Rule 415 of the Civil Manual?
(E) Whether the learned First Appellate Court has erred in
passing impugned judgment Order and Decree contrary to the
provisions of Order 41 Rule 31 of the Code of Civil Procedure?
(F) Whether the learned first appellate court has erred in not
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discussing oral as well as documentary evidence on record and
further erred in passing the impugned judgment Order
and Decree contrary to Section 96 of Code of Civil Procedure,
1908?
(G) Whether the learned First Appellate Court has erred in
allowing the Regular Civil Appeal No.3 of 2023, contrary to
provisions of Order 41 Rule 31 of the Code of Civil Procedure,
1908?
8. Learned advocate for the defendant has also argued that in
view of Rule 414 & 415 of the Civil Manual, the first appellate
Court has not framed point of determination while deciding the
said appeal, and therefore, appeal is required to be admitted on
the aforesaid substantial questions of law.
9. Moreover, it has been argued that the first appellate Court
has not considered the evidence and not reappreciated the
evidence and has not given any independent findings and in
view of the said fact, the present Second Appeal is required to
be admitted.
10. Having heard learned advocate for the defendant, the fact
remains that when a question was asked to the learned advocate
for the defendant that, what basis the defendant was claiming
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that the plaintiff will only have 1/8 share in the suit property,
learned advocate for the defendant has categorically stated that
in the written statement the defendant has taken a contention
that at the time of death of Ukabhai Naranbhai Gujjar, original
plaintiff Gomtiben Ukabhai Gujjar and Gobarbhai Ukabhai
Gujjar were the only legal heir under Section 8 of Hindu
Succession Act to inherite the property of deceased Ukabhai
Naranbhai Gujjar. The fact remains that the trial Court while
allowing the said suit has taken into consideration that in view
of the fact that Gobarbhai Ukabhai Gujjar has expired leaving
behind eight legal heirs as per Section 7 of the Hindu
Succession Act. The suit property will be divided equally
between the plaintiff and legal heirs of Gobarbhai Ukabhai
Gujjar i.e. the plaintiff will get 1/8 share in the suit property,
but, the fact remains that as per Section 8 of Hindu Succession
Act, the legal heirs of Gobarbhai Ukabhai Gujjar can only get
share which came in inheritance to Gobarbhai Ukabhai Gujjar
and the first appellate Court has rightly held that after the death
of Gobarbhai Ukabhai Gujjar i.e. the father of Gomtiben
Ukabhai Gujjar and Gobarbhai Ukabhai Gujjar, the suit property
will be equally devided between the plaintiff and defendant i.e.
½ share and it is only ½ share which can be divided into his
legal heirs after the death of Gobarbhai Ukabhai Gujjar and the
share of Gomtiben Ukabhai Gujjar cannot be divided after the
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death of Gobarbhai Ukabhai Gujjar, in view of the fact that
Gomtiben Ukabhai Gujjar becomes the owner qua her share of
the suit property and the said property belongs to Gomtiben
Ukabhai Gujjar exclusively.
11. With respect to the issue that the appellate Court has not
properly considered under the provision of Order 41 Rule 31. As
regards the argument of Order XLI Rule 31 of the CPC, this
Court finds that the appellate Court has sufficiently dealt with
all the issues as raised by the parties. Hence, there is substantial
compliance with the provisions of the said rules. That being the
case, there is no mandatory law that non-compliance with the
provisions, by itself, will vitiate the judgment and make it
wholly void.
12. This view has been laid down by several decisions of the
Hon'ble Apex Court, the latest being in Nafees Ahmad and
Anr. v. Soinuddin and Ors., 2025 SCC Online SC 826. The
Hon'ble Court has held as under:
"5. It appears that the High Court relying upon
few decisions took the view that Order 41 Rule 31
CPC is mandatory and the failure on the part of
the Appellate Court to frame the points for
determination as per the provisions of Order 41
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Rule 31 CPC would vitiate the entire judgment and
make it wholly void.
6. Having heard the learned counsel appearing for
the parties and having gone through the materials
on record, we are in complete disagreement with
the view taken by the High Court.
7. We propose to follow the dictum as laid by this
Court in the case of "G. Amalorpavam v. R.C.
Diocese of Madurai", (2006) 3 SCC 224, wherein
this Court observed that whether in a particular
cae, there has been substantial compliance, with
the provisions of Order 41 Rule 31 CPC should be
determined on the nature of the judgment delivered
in each case. Non-compliance with the provisions,
by itself, may not vitiate the judgment and make it
wholly void and may be ignored if there has been a
substantial compliance with it. (emphasis
supplied).
13. In view of the fact that the judgment and decree passed by
the appellate Court is legal and proper and does not require any
interference.
14. Under the circumstances, this Second Appeal is devoid of
any substantial question of law. The first appellate Court has
rightly decided the issue between the parties in the right
perspective and as stated above no substantial question of law
arises in the present appeal. The appellant has failed to prove his
case before the learned appellate Court. This Court does not find
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any substance in the present Second Appeal as the same is
devoid of any merit both on facts and law and the same is
dismissed at admission stage. Accordingly, connected Civil
Application would not survive and it is disposed off.
(SANJEEV J.THAKER,J)
Manoj Kumar Rai
