Dismissed

Iranna Mallikarjun Chunchore v. Heerabai Sidram Chinchore and Ors.

Bombay HC25 Nov 2021CA/6673/2018

Case brief

AI extract

What is this about?

The High Court of Bombay Bench at Aurangabad dismissed two second appeals filed by defendants challenging a partition decree. The court held that no substantial question of law arose, the hotchpot doctrine did not mandate bringing sold or gifted properties in, and the courts below appreciated evidence correctly.

What did the court decide?

Both second appeals stand dismissed and Civil Applications disposed of.

Iranna Mallikarjun Chunchore Vs Heerabai Sidram Chinchore and Ors. — Partition | Bombay HC (2021)

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sa-367-2018 and sa-368-2018.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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SECOND APPEAL NO.367 OF 2018 WITH CA/6672/2018 IN SA/367/2018

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LAXMAN S/O BUDAPPA PAWAR VERSUS HEERABAI SIDRAM CHINCHORE AND OTHERS

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… WITH SECOND APPEAL NO.368 OF 2018 WITH CA/6673/2018 IN SA/268/2018

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IRANNA S/O MALLIKARJUN CHINCHORE VERSUS HEERABAI SIDRAM CHINCHORE AND OTHERS

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Mr. P. P. Mandlik, Advocate for appellant in both the second appeals.

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CORAM : SMT. VIBHA KANKANWADI, J. DATE : 25.11.2021

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ORDER :-

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. The appeals have been filed by original defendant No.2 and 1/2 respectively to challenge the concurrent judgment and decree passed against them. Hence, they are taken up for consideration together.

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Present respondent No.1 to 4 are the original plaintiffs, who had filed Regular Civil Suit No.161 of 1989 for partition and separate possession before the learned 2^nd Joint Civil Judge Junior Division, Omerga, Dist. Osmanabad. The said suit came to be decreed on

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(1)

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sa-367-2018 and sa-368-2018.odt

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14.03.2012. The present appellants challenged the said judgment and decree by two separate appeals. Original defendant No.2 filed Regular Civil Appeal No.10 of 2012 and original defendant No.1/2 filed Regular Civil Appeal No.9 of 2012. By a common judgment and decree, learned District Judge-1, Omerga, Dist. Osmanabad dismissed the appeals, however, clarified the operative order/decree from the decision of the Trial Court in respect of shares. The Trial Court had held that plaintiff Nos.1 to 4 are in all entitled to get 3/5th shares in the suit properties and inquiry in respect of mesne profit was ordered. The learned first Appellate Court modified it by saying that plaintiff No.1 and deceased defendant No.1 would get 2/5th share each and plaintiff Nos.2 to 4 would get 1/15th share each in the suit lands. It was also directed that the area from the land Gut No.759 admeasuring 2 H 43 R sold by defendant No.1 to defendant No.2 shall be given to the share of defendant No.1 and the remaining portion of his share be given in physical possession after partition to the legal representatives of defendant No.1. The other consequential prayers have been granted. Now, this decree is under challenge in these two appeals. It is now required to be seen as to whether the appellants have made out case for framing substantial questions of law as contemplated under Section 100 of the Code of Civil Procedure. For this purpose, it is not even necessary

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(2)

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sa-367-2018 and sa-368-2018.odt

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that the notice should be issued to the respondents in view of the decision in Ashok Rangnath Magar Vs. Shrikant Govindrao Sangvikar, [2015 Mh.L.J. Online (S.C.) 140 :: (2015) 16 SCC 763].

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Heard learned Advocate Mr. P. P. Mandlik for the appellant in both the appeals.

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It has been vehemently submitted on behalf of appellants that both the Courts below have not considered vital evidence and proper opportunity was not given to contest the suit. The defendants had come with the case that during the lifetime of Sidram, he had sold certain property, however, that has not been included in the common hotchpot. Sidram has sold one of the property to Basanna Budappa Pawar. Said Basanna has not been made party to the suit. Further, even during the lifetime of original defendant No.1 (who expired during the pendency of the suit), he had sold land to defendant No.2 and it was for the legal necessity of the joint family. That was sold long back and the said sell was never challenged by the plaintiffs. Therefore, both the sale transactions are binding on plaintiffs. Those properties are not available for partition. It was then stated that deceased Sidram had given 4 Acres of land by way of gift to plaintiff No.1. Neither that property is included in the suit, nor the other property, therefore, is available for partition to

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(3)

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sa-367-2018 and sa-368-2018.odt

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the plaintiffs and defendants. In fact, the wordings used in the gift deed would show that the said property was given to plaintiff No.1 in lieu of her share with an intention that there should not be dispute between her and the stepson since defendant No.1 was the son from first wife of deceased Sidram. The gift deed was not at all considered by the Courts below. The suit was suffering from non-joinder of properties as well as non-joinder of parties. It ought to have been held that Basanna was a necessary party. The presumption that has been invoked that Basanna was bona fide purchaser and would have received the property in view of the legal necessity of the family of Sidram from Sidram was wrong. Reliance was placed on the decision in Govindrao s/o Gangaramji Ajmire Vs. Dadarao @ Shrawan s/o Gangaramji Ajmire (dead) LRs. Indrani wd/o Shrawan Ajmire and others, [2004 BCI 82] , wherein it was held that “the Appellate Court had rightly held that the suit was not maintainable without bringing entire joint family house property into common hotchpot. It was the observation that under Section 333 of the Hindu Law, sub-clause (3) it is laid down that in the suit for partition the general rule that where a suit for partition is brought by a coparcener against the other coparceners, it should embrace the whole family property.” Similar view was taken in Kenchegowda (since deceased) By Legal Representatives Vs. Siddegowda Alias Motegowda, [1994 DGLS

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(4)

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sa-367-2018 and sa-368-2018.odt

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(SC) 510] . It has been, therefore, prayed that the substantial questions of law, as framed in the memo, deserves to be framed by admitting the second appeal.

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At the outset, when the appellants contend that no proper opportunity was given to them to contest the matter, it can be seen from the judgment of both the Courts that ample opportunity was given by this Court itself when the present appellants had come in writ petition. In fact, the order was passed by imposing cost and directing the trial Court to dispose of the property by making it time bound in view of the fact that the suit was very old. However, it appears that the cost amount was not paid within time. Then, the defendants again approached this Court for grant of permission to deposit the cost, which was then allowed. But, thereafter also the defendants and their Advocates continuously remained absent and failed to take cross-examination of the plaintiff and, therefore, again the Trial Court was required to pass the order of proceeding the matter without cross-examination. Thereafter, after evidence of defendant No.1(3)(2) was recorded, it is stated that the defendants and their Advocates remained absent, which prompted the learned Trial Court to close the evidence of the defendants and after hearing the submissions, the judgment was passed. In spite of granting so many adjournments and the orders in favour of defendants,

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(5)

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sa-367-2018 and sa-368-2018.odt

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if they are still contending that sufficient opportunity was not given, then their such standing cannot be accepted and, therefore, now there is no question of remanding the matter once again to the Trial Court for giving an opportunity to the defendants to lead the evidence.

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Though defendant No.1’s legal heirs had contended that the suit properties are not the joint family properties, yet a specific admission given in paragraph No.3 of the written statement that the suit properties are the ancestral and joint family properties. There is no contrary evidence proved by the defendants to show that the suit properties are either the self acquired properties of Sidram or that has been given by a valid and lawful mode of transfer to Mallikarjun by Sidram. Though the defendants tried to contend that plaintiff No.1 is not the legally wedded wife of Sidram and plaintiff Nos.2 to 4 are the illegitimate children of Sidram and plaintiff No.1, however, it is to be noted that the testimony of P.W.1 on the point that she is the legally wedded wife and the other plaintiffs are legitimate children has not been countered or negativated. It was the case of the plaintiffs that plaintiff No.1 got married to Sidram after death of his first wife. When this statement was not denied by the defendants in specific terms and no evidence has been led that on the date of alleged marriage between plaintiff No.1 and Sidram, Sidram’s first wife i.e. mother of Mallikarjun was alive and her marriage with

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(6)

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sa-367-2018 and sa-368-2018.odt

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Sidram was still in existence, we cannot presume that the marriage between plaintiff No.1 and Sidram was illegal or void in any manner.

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Much reliance has been placed on the gift deed, which was stated to be a registered gift deed dated 28.07.1988. A typed copy of the same has been made available and following sentences are harped by the learned Advocate for the appellants :-

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“ ----rqeP;k dMwu dks.kR;kgh izdkjpk ekscnyk u ?ksrk] rqEgkl c{khl fnyh vkgs etyk rqeP;k vxksnjP;k iRuhpk ,d eqyxk vkgs o rqeP;kiklwu >kysY;k rhu eqyh vkgsr- iwOkhZP;k irhiklwu >kysY;k eqykP;k ukaos ofMyksikftZr osxGh tehu oxSjs vkgs- Rkh R;kauk R;kaP;k miftohdslkBh fnyh vkgs- rqEgh ek>k nqlj~;k yXukP;k /keZ iRuh vkgkr rqEkP;koj ek>k fo’ks”k yGk yksHk vkgs ek>k tks iqohZP;k iRuhpk eqyxk vkgs] rks rqepk lko= eqyxk vlwu ek>;k g;krhuarj lnj bLVsVhcnny ¼tehuhcn~ny½ rqeP;ke/;s o R;k rqeP;k lko= eqyk e/;s HkkaM.k raVk gksÅ u;s Eg.kwu eh ek>h lnjph Lolaiknhr laiw.kZ tfeu rqEgkl fouk ekscnyk c{khl fnyh vkgs----”

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It is to be noted from the abovesaid paragraph that if the defendants are relying upon this paragraph, then it shows that Sidram had accepted plaintiff No.1 as his legally wedded wife. Another fact is that whatever has been gifted by him, that is land Survey No.18/3 and Gut No.59 admeasuring 1 H 69 R situated at village Kesar, Jawalga, Tq. Omerga, Dist. Osmanabad, was the self acquired property of Sidram. He had every authority to gift it away. However, when there is no evidence led by the defendants to show that the suit property was the self

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(7)

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sa-367-2018 and sa-368-2018.odt

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acquired property of Sidram and it has been presumed as aforesaid that it was the ancestral/joint Hindu family property, then it cannot be said that Sidram had authority to dispose of that property only in favour of Mallikarjun. Further, the term that has been used is that separate ancestral property has been given to Mallikarjun for livelihood. That does not mean that he had transferred it. Transfer of the property ought to have been under the legal and valid terms of Transfer of Property Act. Therefore, the said gift deed cannot be considered as a document excluding the plaintiffs from inheritance to the suit property, which was the ancestral property.

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Now, as regards the non inclusion of another property, which was already sold by Sidram to Basanna is concerned, it is to be noted that admittedly Sidram was the Karta of the family and the transaction had taken place in the year 1980. It would be for the plaintiffs to accept that transaction which would have been for the legal necessity. The fact that plaintiffs have not challenged that transaction does not affect their right to get the suit property partitioned. It cannot be said that, that property was required to be brought into the hotchpot. The ratio laid down in the decisions relied by the learned Advocate for the appellants will not be applicable here. Another fact is that even Sidram had right to sell his undivided property. Even the defendant No.1 had not challenged that

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(8)

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sa-367-2018 and sa-368-2018.odt

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transaction at any point of time, if he want to say that it was the property in which he had also the right. Therefore, Basanna was not a necessary party to the suit.

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Both the Courts below have appreciated the evidence properly and the suit as well as appeal has been rightly decided. Rights of the purchaser i.e. defendant No.2, who had purchased the land from Mallikarjun have been rightly protected by the first Appellate Court and, therefore, in fact, he ought not to have filed any appeal. No substantial questions of law as contemplated under Section 100 of the Code of Civil Procedure are arising in these cases requiring admission of the second appeals. Accordingly, both the second appeals stand dismissed.

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In view of dismissal of second appeals, Civil Application Nos.6673 of 2018 and 6672 of 2018 stand disposed of.

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[SMT. VIBHA KANKANWADI, J.]

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scm

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(9)

Iranna Mallikarjun Chunchore v. Heerabai Sidram Chinchore and Ors.

Case brief

What is this about?

What did the court decide?

Iranna Mallikarjun Chunchore v. Heerabai Sidram Chinchore and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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