Gujarat High Court
Ansuyaben D/O Muljibhai Devjibhai ... vs Maheshbhai Chimanbhai Rohit on 13 August, 2025
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C/SA/207/2022 ORDER DATED: 13/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 207 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In
R/SECOND APPEAL NO. 207 of 2022
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ANSUYABEN D/O MULJIBHAI DEVJIBHAI ROHIT AND W/O MAHESHBHAI
CHIMANBHAI ROHIT & ANR.
Versus
MAHESHBHAI CHIMANBHAI ROHIT
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Appearance:
MS. AMAN A SHAIKH(8366) for the Appellant(s) No. 1
SERVED BY AFFIX(N) for the Appellant(s) No. 2
VASIMRAJA A KURESHI(8609) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 13/08/2025
ORAL ORDER
1. The present Second Appeal under Section 100 of the Code of
Civil Procedure has been filed challenging the judgment and decree
dated 25.01.2019, passed by 7th Additional District Judge, Vadodara
having partly allowed the Regular Civil Appeal No.271 of 2018,
whereby the first appellate Court has allowed the appeal qua
appellant No.2 and has given appellant No.2 right in the ancestral
proporty and has rejected the appeal qua appellant No.1 who has no
ancestral right in the property in view of section-8 of Hindu
Succession Act, 1956.
2. For the sake of convenience, the parties are referred to as per
their original status as that in the suit.
3. Brief facts arising in the present Second Appeal are that the
defendant and plaintiff No.1 are husband and wife. Plaintiff No.2 is
the minor son of plaintiff No.1 and defendant. The said suit has been
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filed by the plaintiffs to claim right in the property mentioned at
paragraph No.5 of the plaint, on the ground that the said property is
an ancestral property, and therefore, the plaintiffs have right in the
suit property and said suit was also filed for injunction. After taking
into consideration the oral evidence, documentary evidence and
giving findings on all the issues, the trial Court dismissed the said
suit. The first appellate Court partly allowed the said suit qua the
right of plaintiff No.2 and dismissed the suit qua right of plaintiff
No.1. Hence, the present Second Appeal.
4. Learned advocate for the plaintiff No.1 - wife has stated that
in view of section-8 of Hindu Succession Act as the suit property is
of an ancestral property belonging to her father-in-law, the plaintiffs
shall have right in the property in view of the fact that the plaintiff
No.1 is the wife of defendant, therefore it has been argued that the
trial Court and the first appellate Court could not have dismissed the
said suit qua plaintiff No.1.
5. Learned advocate for the defendant has mainly argued that the
plaintiff wife does not fall as legal heir under class-I of the Hindu
Succession Act and in view of the fact that the suit property being an
ancestral property till the time the defendant was alive, the plaintiff
No.1 - wife cannot claim any share in the suit poperty.
6. Having heard learned advocate for the parties and having
considered the judgment and decree passed by the trial Court and
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affirmed by the first appellate Court, the fact remains that the entire
case of the plaintiff No.1 - wife is based on the ground that the
plaintiff No.1 - wife being the wife of defendant has a right in the
property that belongs to an ancestral property of the defendant.
7. In this background section-8 and class-I of the Hindu
Succession Act required to be considered, which are as under:-
"8. General rules of succession in the case of males.- The
property of a male Hindu dying intestate shall develove
accoding to the provisions of this Chapter-
(a) firstly, upon the heirs, being the relatives specified
in class I of the Schedule;
(b) secondly, if there is no heir of class I, then Upon
the heirs, being the relatives specified in class II of the
Schedule;
(c) thirdly, if there is no heir of any of the two classes,
then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates
of the deceased."
HEIRS IN CLASS - I
Son; daughter; widow; mother; son of a pre-
deceased son; daughter of a pre-deceased son; son a
pe-deceased daughter; daughter of a pre-deceased
daughter; widow of a pre-deceased son; son of a pre-
deceased son of a pre-deceased son; dauther of a pre-
deceased son of a pre-deceased son; widow of a pre-
deceased son foa pre-deceased son; [son of a pre-
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deceased daughter; daughter of a pre-deceased
daughter of a pre-deceased daughter; daughter of a
pre-deceased son of a pre-deceased daughter;
daughter of a pre-deceased daughter of a pre-deceased
son].
8. The fact remains that the plaintiff No.1 is the wife of
defendant and under the provisions of section-8 of Hindu Succession
Act, wife will not fall as Class-I legal heir as Class-I legal heir.
Moreover, the fact also remains that till the time defendant husband
is alive the plaintiff No.1 wife cannot claim any right in the property
that belongs to her father-in-law, and therefore, the plaintiff No.1
have claimed right on the ground that the suit property is of ancestral
property and that plaintiff No.1 being a wife of defendant has a right
is against the provision of law, and therefore, the trial Court and
appellate Court have rightly dismissed the suit qua the right of
plaintiff No.1. Moreover, as the defendant has not challenged the
order of the appellate Court with respect to the right of plaintiff No.2
who is son of plaintiff No.1 and defendant. The said issue is not
discussed herein. In view of the said fact, there is no infirmity in the
order passed by the trial Court and the appellate Court dismissing the
suit qua the right of plaintiff No.1.
9. In view of the aforesaid provision, the wife will not have any
right in the property till the time the husband is alive. In view of the
said fact, the judgment and decree passed by the trial Court and
affirmed by the first appellate Court is proper and as per law are not
reqired to be interfered.
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10. In the case of Jaichand (Dead) through Lrs and Other v.
Sahnulal and Another reported in 2024 SCC OnLine SC 3864, the
Hon'ble Apex Court has observed as under:-
"28. It is thus clear that under Section 100 CPC, the
High Court cannot interfere with the findings of fact
arrived at by the first Appellate Court which is the final
Court of facts except in such cases where such findings
were erroneous being contrary to the mandatory
provisions of law, or its settled position on the basis of
the pronouncement made by the Apex Court or based
upon inadmissible evidence or without evidence."
11. Considering the submissions made and after examining the
findings of both the Courts below on the issue raised in the suit and
upon examining the judgment and orders of both the Courts below,
this Court is of the considered opinion that the learned advocate for
the plaintiffs is unable to point out any infirmity, perversity or
impropriety in the concurrent findings qua the claim of plaintiff No.1
recorded by both the Courts below, not only that, the learned
advocate for the plaintiffs is unable to show that the findings
recorded by the learned Courts are without any evidence or there is
any illegality in the findings.
12. Under the circumstances, this Second Appeal is devoid of any
substantial questions of law. Both the learned Trial Court and first
appellate Court have rightly decided the issue between the parties in
the right perspective and as stated above no substantial questions of
law arises in the present appeal. The appellant has failed to prove his
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case before the learned trial Court as well as before the first
appellate Court. This Court does not find 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.
13. In view of the order passed in main matter, Civil Application
does not survive and stands disposed of accordingly.
(SANJEEV J.THAKER,J)
Manoj Kumar Rai
