Dismissed

Rakhmabai Sonu Narwade.(L.Rs.) Sambhaji. v. Hausabai @ Tolabai Mahadu Kurhade and Others.

Bombay HC21 Jun 2012SA/301/1990

Case brief

AI extract

What is this about?

In a second appeal concerning a suit for partition, the High Court held that a prior decree determining partition among brothers is binding even if the current appellant was not a party. Since the appellant's sons represented the estate and contested the earlier suit adequately, and partition had already occurred, the appeal failed.

What did the court decide?

No costs.

Rakhmabai Sonu Narwade.(L.Rs.) Sambhaji. Vs Hausabai @ Tolabai… — Partition | Bombay HC (2012)

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1 S.A.No.301/90

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UNREPORTED

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IN THE HIGH COURT OF JUDICATURE AT

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BOMBAY

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BENCH AT AURANGABAD.

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SECOND APPEAL NO.301 OF 1990.

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Rakhamabai W/o Narwade
deceased through her legal
representative :

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Sambhaji Vithal Narwade

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... Appellant.

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Versus

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1. Housabai @ Tolabai Mahadu Kurhade
died through L.Rs.

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1A) Deubai Ganpat Aute,
Age 50 years, Occ.Household,
R/o Ale, Tq. Junnar, Dist.
Pune.

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2B) Sow. Yeshodabai Baban Hande,
Age 47 years, Occ.Household,
R/o Hivre Bk. Tq.Junnar, Dist.
Pune.

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2C) Sou.Yamunabai Dattatraya
Waman, Age 44 years, Occ.Household,
R/o Kalewadi, Post Pimpalwandi,
Tq. Junnar, Dist.Pune.

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1D) Ramdas Mahadu Kurhade,
Age 42 years, Occ.Agri.,
R/o Aale, Tq.Junnar, Dist.Pune.

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1E) Sou. Indubai Namdeo Khillari,
Age 37 years, Occ.Household,
R/o Shuiroli (Bori), Tq.Junnar.

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2 S.A.No.301/90

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1F) Sou. Dhondabai Khandu Jadhav,
Age major, Occ.Household,
R/o Shuiroli (Bori), Tq.Junnar.

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2. Shantabai W/o Baburao Jathar;

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3. Mahadu Narhar Narwade died through L.Rs.

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3A) Smt.Bhimabai Mahadu Narwade, Age 47 years,Occ. Household, R/o Ambi Dumala, Tq.Sangamner,

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3B) Sou. Kausabai Sudam Aher,
Age 29 years, Occ.Agri.,

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3C) Sou. Ekadashibai Suresh Kanase,
Age 26 years, Occ.Household,
R/o Ambi Dumala, Tq. Sangamner,

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3D) Sou. Makushabai Dharma Kurkute,
Age 23 years,Occ.Household,
R/o Sangamner, Dist.Ahmednagar.

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3E) Ku. Rangubai Mahadu Narwade,
Minor U/G real mother Smt.Bhimabai
Mahadu Narwade, R/o Ambi Dumala,
Tq. Sangamner, Dist.Ahmednagar.

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4. Vithal Sonu Narwade;

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5. Prabhu Sonu Narwade;

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6.Thakubai W/o Dada Bodke;

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7. Babubai W/o Vithal Darange ... Respondents.

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Appeal dismissed against Respondent Nos.1D, 1F,
3C, 3D vide Court's order dt.28.1.2011.

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Mr.V.R.Dhorde, advocate holding for
Mr.R.N.Dhorde, advocate for the appellant.
Mr.Hemant U.Dhage, advocate for Respondent Nos.1A
to 1C, 3E and 2.

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3 S.A.No.301/90

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Mr.V.D.Hon, advocate for Respondent Nos.4 to 7.

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CORAM : S.V.GANGAPURWALA,J.

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 Date : 21.06.2012.

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ORAL JUDGMENT :

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1.Heard.

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2.The present appellant is the original
plaintiff has filed a suit for declaration,
partition and separate possession. The trial
Court dismissed the plaintiff's suit. Aggrieved
thereby, the plaintiff filed appeal before the
District Court. The District Court partly allowed
the appeal granting the plaintiff 1/3rd share
along with her son. So also directed that the
share of plaintiff as is granted in RCS No.
132/1962 shall also be considered. The plaintiff
has assailed the said judgment in the present
Second Appeal.

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3.Mr.Dhorde, learned counsel for the
appellant submits that Mahadu was survived by
three sons namely Gangaram, Krushna and Sonu.

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4 S.A.No.301/90

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Krushna died prior to the year 1937. Even the son
of Krushna - Maruti died prior to 1937. In view
of the said fact the branch of Krushna would not
get any share and the share of Krushna would
revert to Gangaram and Sonu. In view of the said
fact, the plaintiff along with her son would be
entitled to half share. The District Court
considered this aspect. The learned counsel

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further submits that the decree passed in RCS No.
132/62 can not bind the present plaintiff as the
plaintiff was not the party to the said suit.
Once it is held that the decree in the earlier
suit would not be binding on the plaintiff then
the plaintiff can independently establish her
right in the present suit dehors the finding in
the earlier suit. In view of that, the learned
counsel submits that the Courts below committed
an error in accepting the decree passed in
earlier suit. The learned counsel submits that
the appellant be given half share along with her
son.

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4.The learned counsel for the Respondents
supports the judgment.

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5 S.A.No.301/90

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5.This court admitted the Second Appeal
on 4.9.1990 and framed the following question :

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"What is the effect of decree in

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RCSNo.132/1962inwhich

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Rakhamabai was not a party on the
present suit."

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6.Earlier suit bearing RCS No.132/1962
was filed by the daughter of Krushna. In the
said suit, the sons of present plaintiff
Rakhamabai i.e. Vithal and Prabhu were parties.
The said suit was contested upto this Court. IN

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the said suit the finding was given that the
partition has taken place between Gangaram,
Krushna and Sonu.

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7.In view of the fact that partition had
taken place between these three brothers, the
share of each brother became a separate property
for them and there was severance of status of
joint family and joint family property. As the
same became separate property of Krushna then
even if Krushna or his son Maruti died prior to

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6 S.A.No.301/90

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the year 1937 i.e. prior to introduction of the
Hindu Women's Right to property Act, the same
would not make any difference.

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8.Though the present plaintiff was not
party in the earlier suit i.e. RCS No.132/1962,
the same would not affect the findings recorded
in the said suit. In view of the fact that the
estate of Sonu through whom Rakhamabai i.e. the
present plaintiff is claiming was properly
represented by her sons. There is no allegation
that the said decree is collusive decree or that
the sons of Rakhamabai did not contest the said
suit. It was contested upto this Court.

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9.In view of the above, the substantial
question of law framed is answered accordingly.

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10.In light of the above, the Second
Appeal fails and stands dismissed. No costs.

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 (S.V.GANGAPURWALA,J.)

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asp/office/Sa301.90

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7 S.A.No.301/90

Rakhmabai Sonu Narwade.(L.Rs.) Sambhaji. v. Hausabai @ Tolabai Mahadu Kurhade and Others.

Case brief

What is this about?

What did the court decide?

Rakhmabai Sonu Narwade.(L.Rs.) Sambhaji. v. Hausabai @ Tolabai Mahadu Kurhade and Others.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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