Allowed

Sou.Valubai @ Sunita Maruti Mhasvekar v. Shri.Keraba Ganapati Sorate and Others

Bombay HC7 Dec 2023SA/145/2021

Case brief

AI extract

What is this about?

In second appeal regarding ancestral property partition, the court distinguished Prakash & Ors. in light of Vineeta Sharma, holding that daughters are entitled to equal shares regardless of marriage status. The appellate judgment reducing the daughter's share was quashed, and the lower court decree restored.

What did the court decide?

The judgment of the Appellate Court was quashed; the judgment and decree of the Trial Court were restored.

Sou.Valubai @ Sunita Maruti Mhasvekar Vs… — Succession and Inheritance | Bombay HC (2023)

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32-sa145-2021.doc

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AGK

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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SECOND APPEAL NO.145 OF 2021

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WITH

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CIVIL APPLICATION NO.1594 OF 2018

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AND

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INTERIM APPLICATION NO.1095 OF 2019

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Digitally signed by ATUL ATUL GANESH GANESH KULKARNI KULKARNI Date: 2023.12.07 17:19:43 +0530

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Valubai Alias Sunita Maruti Mhasvekar… Appellant
V/s.
Keraba Ganapati Sorate & Ors.… Respondents

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Mr. Sandeep S. Kkoregave for the appellant/applicant.
Mr. Rakesh S. Patil for respondent Nos.1 to 6.

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CORAM :AMIT BORKAR, J.

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DATED:DECEMBER 7, 2023

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P.C.:

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1.Following substantial question of law arises in this second
appeal.

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“Whether the Appellate Court was justified in modifying the
decree reducing share of appellant No.1 from half to 1/70 relying
on the judgment in the case of Prakash & Ors. v. Phulavati &
Ors. reported in 2016 (1) Mh.L.J.1 (SC).”

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2.After framing substantial question of law, parties are heard
on the point of said question of law. On hearing both the parties, I
am satisfied that the Second Appeal can be disposed of at the stage
of admission as the issue involved is no longer res integra in view
of the judgment in the case of Vineeta Shama v. Rakesh

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32-sa145-2021.doc

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Sharma & Ors. reported in (2020) 9 SCC 1.

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3.Facts giving rise to the filing of the second appeal are: that
properties described in paragraphs 1A and 1B of Regular Civil Suit
No.65 of 2006 are the suit properties. According to the plaintiff,
plaintiff and defendant Nos.1 to 5 and 7 to 9 are sons and
daughters of Ganapati Gopala Sorate. Said properties are ancestral
properties of the parties to the suit. The plaintiff, therefore, sought
partition and separate possession of the suit properties.

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4.Defendant Nos.1 to 6 contested the suit by contending that
they have developed properties to their detriment and the
partition was effected in the year 1990. According to the
defendants on 2 November 2004 plaintiff and defendant Nos.7 to
9 relinquished their shares and right in the suit properties in
favour of defendant Nos.1 to 5. Defendant Nos.1 to 5 are
cultivating the suit properties.

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5.The Trial Court framed necessary issues including the issue
on nature of the suit properties being ancestral properties by
placing burden on the plaintiff and relation to plea of
relinquishment and previous partition burden is placed on the
defendants. The Trial Court based on the material on record held
that the defendants failed to prove that plaintiff and defendant
Nos.7 to 9 relinquished their shares in favour of defendant Nos.1
to 5. The Trial Court recorded a finding that the defendants failed
to prove previous partition of the suit properties. The Trial Court
recorded a finding that the suit properties are ancestral properties.
The Trial Court, therefore, decreed the suit holding that the

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32-sa145-2021.doc

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plaintiff along with defendant Nos.1 to 9 are entitled to 1/10th
share each.

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6.The Appellate Court relying on the judgment in Prakash &
Ors (supra) held that the plaintiff and defendant Nos.7 to 9 are
entitled to get share to the extent of 1/70th each and defendant
Nos.1 to 6 will get 11/70th share each.

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7.After delivery of judgment of the Appellate Court, the Apex
Court in Vineeta Sharma (supra) held that the daughters are
entitled to claim equal share along with son irrespective of the fact
that the daughter was married before or after the amendment to
the Hindu Succession (Amendment) Act, 2005. In view of the
judgment of Three-Judge Bench of in Vineeta Sharma (supra)
the decree passed by the Appellate Court cannot be sustained.
Hence, following order:

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a)The judgment dated 1 July 2017 passed by District Judge-5,
Kolhapur in Regular Civil Appeal No.185 of 2010 is quashed and
set aside;

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b)The judgment and decree passed by the 8th Joint Civil Judge
Junior Division, Gargoli in Regular Civil Suit No.65 of 2006 is
restored to file.

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8.The second appeal stands disposed of in above terms. No
costs.

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9.In view of disposal of the second appeal, all pending interim
applications stand disposed of as infructuous.

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(AMIT BORKAR, J.)

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Sou.Valubai @ Sunita Maruti Mhasvekar v. Shri.Keraba Ganapati Sorate and Others

Case brief

What is this about?

What did the court decide?

Sou.Valubai @ Sunita Maruti Mhasvekar v. Shri.Keraba Ganapati Sorate and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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