Partly allowed

Nanubai Keshav Shingore. v. Kisan Dagdu Naik and Others.

Bombay HC20 Jun 2012SA/326/1990

Case brief

AI extract

What is this about?

In a second appeal, the Court addressed the maintainability of a partition suit filed by a co-parcener regarding alienated property without including remaining joint family assets. Relying on precedents, the Court upheld the lower court's decree dismissing the suit but suspended the decree's operation for six weeks.

What did the court decide?

Second appeal dismissed. Decree of District Court suspended for six weeks thereafter.

Nanubai Keshav Shingore. Vs Kisan Dagdu Naik and Others. — Partition | Bombay HC (2012)

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1 sa 326.90

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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SECOND APPEAL NO. 326 OF 1990

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Nanubai w/o Keshev Shingore, Deceased through her legal Heirs and representatives

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Smt. Narmadai W/o Raghunath Shingote Age : 50 Years, Occu. : Household,

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Pankaj S/o Raghunath Shingote, Age : 27 Years, Occu. : Education,

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Kishor S/o Raghunath Shingote, Age : 24 Years, Occu. : Education,

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Digambar S/o Raghunath Shingote, Age : 22 Years, Occu. : Education, All R/o 58, Mangalwar Peth, Pune – 11. .. Appellants Versus

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Kisan Dagdu Naik, Age : 35 Years, R/o Parner, Dist. Ahmednagar.

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Mahadu Dagdu Naik, Age : 32 Years, R/o Parner, Dist. Ahmednagar.

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	2 sa 326.90
3.	Rambhau Dagdu Naik, Age : 27 Years, R/o Parner, Dist. Ahmednagar.
4.	Balu Dagdu Naik, Age : 23 Years, R/o Parner, Dist. Ahmednagar.
5.	Babu Kanhu Nagare, Deceased by his heirs:
5A.	Umabai W/o Babu Nagare, Age : 56 Years,
5B.	Gangubai W/o Hariba Salve, Age : 40 Years,
5C.	Sindhubai W/o Pandurang Kamble, Age : 30 Years,
5D	Yashodhara W/o Shantaram Pandit, Age : 22 Years,
5E.	Rahul S/o Baburao Nagare, Age : 16 Years,
5F.	Rekha Baburao Nagare, Age : 13 Years,
	The Respondent Nos. 5E and 5F are Minor by their guardian respondent No. 5A Umabai W/o Babu Nagare.

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3 sa 326.90

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Saba Kisan Auti, Age : 60 Years, R/o Parner, Tq. Parner, Dist. Ahmednagar.

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Gitabai Dagadu Naik – Deceased through her heirs respondent Nos. 8 & 9.

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Hausabai W/o Gulab Shinde, Age : Major, R/o Gharegaon, Tq. Shrigonda, Dist. Ahmednagar.

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Ananda Dagdu Naik, Age : 52 Years, R/o Parner, Tq. Parner, Dist. Ahmednagar. .. Respondents

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Shri C. K. Shinde, Advocate for Appellants.

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Shri C. V. Korhalkar, Advocate for Respondent Nos. 1, 3, 4, 8 & 9. The appeal dismissed as against the Respondent Nos. 5A to 5F. The appeal abated as against Respondent Nos. 2 and 6.

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CORAM : S. V. GANGAPURWALA, J. DATE : 20TH JUNE, 2012.

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ORAL JUDGMENT :

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. The present appellant is the original defendant No. 2. The present respondents had filed suit for partition and separate possession in respect of suit property and for declaration that the

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sale deed executed by deceased Dagadu in favour of the respondent No. 1 Babu is not binding upon the appellant. The

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4 sa 326.90

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Trial Court dismissed the suit. The plaintiffs filed an appeal before the District Court. The District Court allowed the appeal. Aggrieved thereby the present second appeal.

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The present second appeal is admitted on 22nd August, 1991 on the following substantial question of law :

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“Whether the suit in its present form without adding all the joint family property to enable adjustment of equities of stranger purchaser is competent ?”

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Shri C. K. Shinde, the learned counsel for the appellant strenuously contends that the suit as filed in the present form is not maintainable. A suit for partial partition of only one property is not maintainable. According to the learned counsel even if the sale deed is set aside in equity, the purchaser can claim the share of the deceased to be adjusted and the property sold be given to the share of the vendor. In view of that premise the present suit was not maintainable. Even the District Court has considered that technically the suit is not maintainable still has decreed the suit.

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5 sa 326.90

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According to the learned counsel, the case of the plaintiff was the sale deed executed by deceased Dagadu is got executed by fraud. It was not their case that the sale was not for legal necessity. The Trial Court has rightly held that the sale is for legal necessity and when the sale is for legal necessity, the same would bind all the members of the family as the sale is by the Karta of the joint family. The learned counsel further contends that there are other sale transactions executed by Dagadu prior to and after the sale in favour of the defendant No. 1. The Trial Court has considered all these aspects and has rightly arrived at the conclusion that the sale is for legal necessity. The Appellate Court has failed to consider this aspect. Shri Shinde, the learned counsel further contends that the suit is not within limitation.

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Shri Korhalkar, the learned counsel for the respondents supports the judgment and says that the District Court has rightly passed the decree. The substantial justice has been done by the Appellate Court. The sale is not for legal necessity. Even the defendants in the written statement had not contended about the legal necessity. The said aspect has been rightly considered. According to the learned counsel the appellant has no case and the suit for partition in respect of alienated property without

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6 sa 326.90

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joining the other properties in the suit is tenable. The learned counsel relies on the judgment of the Division Bench of this Court in a case of PatilBua Pandu Landge Vs. Sadashiv Vithoba Kamble and others reported in 1976 Mh. L. J. 158 .

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With the assistance of the learned counsel I have gone through the judgment. The substantial question as is framed by this Court need not be dilated. The same stands answered in view of the judgment of the Division Bench of this Court in a case of Patilbua Pandu Landge referred supra, wherein it is held that a suit for partition in respect of alienated property by non alienee co-parcener without joining the other joint family properties is maintainable, whereas such a suit by a stranger purchaser is not maintainable.

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The other contentions raised by the learned counsel for the appellant regarding limitation does not appear to be relevant, as in view of Article 109 of the Limitation Act, the suit is well within limitation, nor the same is framed as substantial question of law. Even the finding of fact recorded by the District Court that the sale by the deceased Dagadu in favour of defendant is not for legal necessity is evidenced in pleading itself. No legal

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7 sa 326.90

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necessity is spelt out from the pleading.

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In view of the above, the second appeal stands dismissed, however, with no order as to costs.

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At this stage, Shri Shinde, the learned counsel for the appellants submits that, as the Division Bench of this Court in a case of Patil Buva had stayed the execution of the decree so as to enable the defendant/purchaser to file a suit for general partition.

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Though the said request is opposed by Shri Korahlkar, the learned counsel for respondents, I feel it appropriate to suspend the decree passed in the present suit for a period of six (6) weeks. Needless to state after lapse of period of six weeks the judgment would become operative.

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Sd/-

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[ S. V. GANGAPURWALA, J. ]

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bsb/June 12

Nanubai Keshav Shingore. v. Kisan Dagdu Naik and Others.

Case brief

What is this about?

What did the court decide?

Nanubai Keshav Shingore. v. Kisan Dagdu Naik and Others.

Case brief

What is this about?

What did the court decide?

What the court decided

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