In a second appeal concerning a partition suit, the High Court of Bombay Bench held that the suit property was self-acquired by the deceased father, Mahadu. The court upheld the legitimacy of the plaintiffs, noting their long-standing recognition as legal heirs without objection, dismissing the appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 1357 OF 2004
Shankar Mahadu Palde & ors. ..Appellants
versus
Sou. Chandrabhaga Arjun
Mondhe, and Ors. ..Respondents
Mr. P. N. Joshi for the Appellants.
Mr. R. V. More for the Respondents.
CORAM : D. G. DESHPANDE,J.
DATE : 24TH AUGUST,2005
ORAL ORDER :
1. Heard learned counsel for the appellants and
the respondents.
2. Appellants are the original defendants.
Plaintiffs Chandrabhaga and Janabai filed a suit for
partition of the property claiming one half share.
That suit was contested by the present appellants
mostly on the ground that the property was not
purchased by their father from ancestral income or
ancestral property, that the plaintiffs were not
legitimate children because they were born to
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Gangubai from the deceased Mahadu from illicit
relations. The trial court decreed the suit partly
and granted 1/5th share to each of the parties
including the plaintiffs. The defendants preferred
an appeal to the District Judge, Nashik, but the
appellate court dismissed and upheld the judgment of
the trial court, hence this Second Appeal.
3. Counsel for the appellants tried to contend
that there were three substantial questions of law
involved. First contention of the counsel for the
appellants that even according to the plaintiff and
as per the plaint the suit property was joint family
property and this fact is reiterated by the
defendants in their written statement. the
appellate court erred in coming to the conclusion
that it was a self acquired property of Mahadu. He
also contended that it was the case of the
appellants in the written statement that Mahadu
purchased this property from out of the nucleus of
the joint family and therefore it was not a personal
property of Mahadu. My attention in this regard was
drawn by the counsel for the appellant to the
pleadings of the parties and the evidence.
4. Unfortunately for the appellant this
submission is not factually borne out. In order to
ascertain the case of the plaintiff the entire
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plaint has to be considered and not only paragraph 2
of the plaint to which my attention was drawn. In
paragraph 2 of the plaint, it is stated that the
property described in paragraph 1 is the property of
the joint family of the plaintiff and defendant and
it is the ancestral. The actual wording in Marathi
is "Vadil Malkicha Milkati". If this was the only
plea of the plaintiff then the contention of the
defendants advocate was liable to be accepted. But
that is the not the case. (Paragraph 3 of the
plaint or paragraph 2). If the aforesaid
allegations are material in the same paragraph the
plaintiff has written a genealogical tree of the
plaintiff and defendant, then the genealogy tree
starting from the plaintiff and the defendant’s
common father Mahadu is given. The names of his two
wives are given and thereafter the names of all the
plaintiffs and defendants given and then it is
stated that this is a genealogical tree of the
plaintiff and the defendant and then in paragraph 3
it is stated that this is an ancestral property.
5. There is no reference anywhere in the plaint
to any other ancestral of Mahadu. Therefore, the
clear case of the plaintiff is that it is from
Mahadu that this property came into picture and when
the word "Vadilopad" or ancestral is used it does
not refer to the ancestral of Mahadu but the
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ancestor of the plaintiff and defendant i.e.
Mahadu. Therefore, it cannot be said that
plaintiffs have come with a case that the property
was ancestral in the hand of Mahadu. The clear case
of the plaintiff is that it is a property of Mahadu
and after the death of Mahadu it is ancestral for
them.
6. In this background if the written statement
is perused, the appellants - defendants have alleged
that property was purchased in the name of Mahadu
from out of the sale proceeds and the property which
was ancestral for Mahadu. Now this is never
allegation in the written statement that no proof
whatsoever in the form of documents showing
existence of some ancestral property of the ancester
of Mahadu, therefore, this is a case where though
the defendants have raised a particular plea of the
property being ancestral even for Mahadu there is no
evidence at all worthy of consideration. Therefore,
this contention is required to be rejected.
7. Secondly, according to the appellants if the
property was ancestral then there would be notional
partition at the time of death of Mahadu and the
respondents - plaintiffs would be entitled to 1/15th
share but when an earlier contentions required to be
rejected, and is rejected, this contention is not
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required to be considered at all. If the property
was a self acquired property of Mahadu then after
his death all his heirs will get equal share.
8. Thirdly it was tried to be contended that
the original plaintiffs - respondents were the
illegitimate children of Mahadu and the trial court
has given clear finding in that regard. The
appellate court wrongly came to the conclusion that
the plaintiffs were not illegitimate children. The
trial court gave a finding of the plaintiffs being
illegitimate children because according to the trial
court the plaintiffs could not prove their mother
was legally wedded wife of Mahadu. This approach of
the trial court is totally wrong because Mahadu
died. After the death of Mahadu since 1981 the
names of the plaintiffs came to be recorded in 7/12
extract as legal heirs of Mahadu. Suit was filed by
the plaintiffs in 1996 and there is nothing on
record to show that from 1981 to 1996 the appellants
ever took any objection about the validity of the
plaintiffs in the 7/12 extract as legal heirs of
Mahadu. They never challenged the status of the
plaintiffs as legitimate children and therefore now
the defence raised in the written statement is an
after thought to deprive the plaintiffs of their
legitimate right. The appellants have merely
alleged that plaintiffs mother was mistress of
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Mahadu in 1948 but when the mother was living with
Mahadu and when the appellate court has found that
the plaintiffs were either born in 1938 and not in
any case after 1943 and their name is recorded in
the 7/12 extract for such a long time then the
appellate court was fully justified in coming to the
conclusion that the plaintiffs are legitimate
children of Mahadu.
9. The entire case of the parties rest on two
issues, viz. the property was a self acquired
property of Mahadu or ancestral and when the finding
on these aspects is to be recorded in favour of the
original plaintiffs from the aforesaid pleadings,
and I have done so, and when secondly the appellate
court was fully justified in holding that plaintiffs
were the legitimate children then the judgment and
decree of the appellate court cannot be interfered
with and even for that matter 1/5th share granted to
the plaintiff by the trial court . The observation
and the finding of the court is not required to be
interfered with, there is no merit in this appeal,
the same is dismissed.
24.8.2005 (D.G. DESHPANDE, J.)
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3 issues framed by the court
Whether the suit property was self-acquired by Mahadu or joint family/ancestral property.
Whether the plaintiffs are legitimate children of the deceased Mahadu entitled to inherit.
Whether the judgment of the appellate court should be interfered with on these findings.
Shankar Mahadu Palde & ors.
Sou. Chandrabhaga Arjun Mondhe, and Ors.
D. G. Deshpande
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court