Dismissed

Smt. Parbati Shivram Shinde (Decd. Thro. L.H.) Hanmant Parabati Shinde and Ors. v. Shri Sadashiv Shamrao Shinde

Bombay HC17 Oct 2007SA/108/2007

Case brief

AI extract

What is this about?

The High Court dismissed the appeal against concurrent findings in a suit for partition. The Court held that no other joint family properties existed as per evidence and distinguished a Supreme Court precedent regarding the executability of decrees against tenanted properties where the appeal case decree had already been executed.

What did the court decide?

The appeal was dismissed as such and the civil applications disposed of.

Smt. Parbati Shivram Shinde (Decd. Thro. L.H.) Hanmant Parabati… — Partition | Bombay HC (2007)

¶1

:1:

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

¶3

 SECOND APPEAL NO.108 OF 2007
 WITH

¶4

 CIVIL APPLICATION NOS.1337/2007 & 287/2007

¶5

 Parbati Shivram Shinde
 (since deceased) through LRs
 1.Hanmant Parbati Shinde & Ors. .. Appellants.
 Vs.

¶6

 Sadashiv Shambhu Shinde & Ors. .. Respondents.

¶7

 Mr.S.S.Pakale for the appellants.
 Mr.P.J.Shinde for the respondents.

¶8

CORAM : D.B.BHOSALE, J.
DATED : 17TH OCTOBER, 2007.
P.C.:

¶9

 . Heard learned counsel for the parties.

¶10

 2. Mr.Pakale, learned counsel for the appellants

¶11

 assailed concurrent findings of the courts below in a

¶12

 suit for partition on two grounds. Firstly, he
 submitted that all properties of the joint family
 were not included in the suit and on that ground
 alone the courts below ought to have dismissed the
 suit for partition. Secondly, he submitted that the
 suit for partition of the properties, in respect of
 which 32-M certificate under the provisions of Bombay
 Tenancy and Agricultural Lands Act has been issued,
 is without jurisdiction.

¶13

 3. Mr.Pakale submitted that apart from the suit
 properties described in paragraph 1, the joint family

¶14

:2:

¶15

 has some other properties also. He submitted that

¶16

 Gat No.442 and 445 also belong to joint family and
 they do not find place in paragraph 1 of the plaint.
 The courts below have considered this argument and
 have rightly held that there are no other properties
 than the properties mentioned in the plaint paragraph

¶17

 1. Even before this court when I asked learned
 counsel for the appellants to produce on record
 documentary evidence which would support the
 contention that the joint family, consisting of the
 plaintiffs and defendants’, did or does have any
 other properties than the properties mentioned in
 paragraph 1 of the plaint, he expressed his inability
 to produce any material on record in support of this

¶18

 contention. In the circumstances the first
 submission of Mr.Pakale deserves to be rejected and
 in my opinion, both the courts below have rightly
 held that the suit properties as mentioned in the
 plaint are the only properties belong to the joint
 family.

¶19

 4. Insofar as the second submission is concerned
 Mr.Pakale placed heavy reliance upon the judgment of
 the Apex Court in Sau.Saraswati Trimbak Gaikwad Vs.

¶20

Damodhar D.Motiwale and Others 2002(4) SCC 481
 wherein the Supreme Court was considering the
 question as to whether decree passed by the civil

¶21

:3:

¶22

 court can be executed if 32M certificate of the
 ownership has been granted under the provisions of
 B.T.& A.L. Act. The suit in that case was for
 possession and not for partition as in the present
 case. The Supreme Court, in that case, held that a
 decree of the civil court cannot be executed so long
 as the certificate under section 32-M of the B.T.&

¶23

 A.L. Act stands. In other words so long as the

¶24

 certificate stands a decree, even it is passed by the
 civil court, cannot be executed and the only remedy
 is to approach the competent authority under B.T.&
 A.L.Act for setting aside the certificate. This
 judgment is of no avail to the appellants. There
 cannot be any dispute that one can institute a suit
 for partition of the tenanted properties, in respect
 of which a certificate of ownership has been granted
 in favour of a particular member of the joint family.
 In the circumstances this submission also fails. In
 the present case, it may be noticed that the decree
 of partition has already been executed and parties
 are put in possession of their respective shares.
 Considering the concurrent findings recorded by the
 courts below and as I find sufficient material on
 record to sustain those findings this appeal fails
 and is dismissed as such. Consequently, the civil
 applications also stands disposed of.

¶25

:4:

¶26

 (D.B.BHOSALE, J.)

Smt. Parbati Shivram Shinde (Decd. Thro. L.H.) Hanmant Parabati Shinde and Ors. v. Shri Sadashiv Shamrao Shinde

Case brief

What is this about?

What did the court decide?

Smt. Parbati Shivram Shinde (Decd. Thro. L.H.) Hanmant Parabati Shinde and Ors. v. Shri Sadashiv Shamrao Shinde

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Fiat India Pvt. Ltd. Vs D.B. Galgali and Anr.

The Baroda Rayon Corporation Ltd. Vs Mr. Pratap B. Bhatt

The Baroda Rayon Corporation Ltd. Vs Mrs Raji Venkateshwaran and Anr.

Maharashtra Tourism Development Corporation Ltd. Vs the Divisional Joint Registrar Co-Operative Societies and Ors.

Smt. Parbati Shivram Shinde (Decd. Thro. L.H.) Hanmant Parabati Shinde and Ors. Vs Shri Sadashiv Shamrao Shinde

Bashir Yusuf Chabukswar Vs Sayarabi Mehrali Mujawar and Ors.