Dismissed

Sobin Keobin Fernandes (Deceased Thr. Lr) and Anr. v. Shirishkumar Chintaman Luktuke (Deceased Thr. LRs) and Ors.

Bombay HC1 Apr 2024CAS/1524/2017

Case brief

AI extract

What is this about?

Second appeal by purchasers of an undivided share in co-parcenery property against the appellate court's allotment of Defendant Nos. 9 and 10's share from Defendant No. 1's carved-out share in survey no. 371. The court held a purchaser of undivided interest is entitled only to what falls to the alienating coparcenor on partition, found no perversity, and dismissed the appeal.

What the court decided

AI extract

Sobin Keobin Fernandes (Deceased Thr. Lr) and Anr. Vs Shirishkumar… — Partition | Bombay HC (2024)

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2024:BHC-AS:15917

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21-SA-772-2017.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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SECOND APPEAL NO.772 OF 2017 WITH

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CIVIL APPLICATION NO.1524 OF 2017

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Sobin Keobin Fernandes (Deceased Thr. Lr) Edwin Manvel Fernandes And Anr.

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Versus Shirishkumar Chintaman Luktuke (Deceased Thr. Lrs) Shubha Shirishkumar Kuktuke And Ors.

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...Appellants Applicants.

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...Respondents.

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Adv. Prabha U. Badadare for the Appellants/Applicants. Adv. Makarand M. Kale for Respondent No. 7(B). Adv. Yogesh S. Sankpal for Respondent Nos. 1/1, 1/3, 1/2, 4 to 6, 10, 12, 13 & 8(B).

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——————

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Coram : Sharmila U. Deshmukh, J. Date : April 1, 2024.

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P. C. :

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1. Heard.

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2. Being dissatisfied by the judgment dated 29^th February, 2016

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passed in Regular Civil Appeal No. 9 of 1996 by which the Appellate Court directed the share of Defendant Nos. 9 and 10 to be allotted from the carved out share of Defendant No. 1 in suit property RS No. 371 admeasuring 0.6 Are land, the original Defendant Nos. 9 and 10

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1 of 5

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Harish

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21-SA-772-2017.doc

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are before this Court.

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3. Briefly stated the facts of the case are that the Plaintiffs filed a suit for partition and separate possession and for declaration that the sale deed executed by Defendant No. 1 in favour of Defendant No. 9 and 10 is not binding upon the Plaintiffs. The Trial Court vide judgment dated 3^rd December, 1986 decreed the suit declaring that the Plaintiffs, Defendant Nos. 1 and 2 and 3 to 8 have ¼^th share in the suit property. As against this, the Defendant Nos. 9 and 10 filed an Appeal which came to be allowed which was challenged by the original Plaintiff by way of Second Appeal No. 73/2013. During the pendency of the said proceedings the heirs of the Plaintiff filed an Application contending that they were not served with the notice in the First Appeal filed by the Defendant Nos. 9 and 10. The Second Appeal was withdrawn. The First Appellate Court re-heard the matter in light of the application of the legal heirs of the Plaintiff and by the impugned judgment dated 29^th February, 2016, partly allowed the Appeal allotting share to Defendant Nos. 9 and 10 from the carved out share of Defendant No. 1 in the suit property R. S. No. 371.

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4. Heard Ms. Badadare, learned counsel for the Appellants and Mr. Sankpal, learned counsel for the Respondents.

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2 of 5

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Harish

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21-SA-772-2017.doc

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5. Learned counsel for the Appellants would submit that in the earlier round of litigation before the First Appellate Court, the First Appellate Court had held that Defendant Nos. 9 and 10 were bonfide purchasers and as such, the land bearing survey no. 371 be allotted to the share of the Defendant No. 1 and the sale deed in favour of Defendant Nos. 9 and 10 be confirmed. She would further submit that during the pendency of the proceedings, the properties were alienated by the co-parceners which fact has been noted by the Appellate Court in the judgment dated 29^th February, 2016 and only property bearing survey No. 371 remained. The Appellate Court has directed survey No. 371 to be partitioned and only the share of Defendant No. 1 in the said survey No. 371 is to be allotted to Defendant Nos. 9 and 10. She would further submit that as in the earlier proceedings Defendant Nos. 9 and 10 were held to be entitled to survey No. 371 in accordance with the sale deed in the subsequent round of litigation, the Appellate Court could not have been directed the survey no. 371 to be partitioned and only the share of Defendant No. 1 be allotted to Defendant Nos. 9 and 10. She submits that the sale deed was for the purchase of 6 Are land whereas after partition the share of the Defendant No. 1 will be considerably reduced causing prejudice to the Defendant Nos. 9 and 10.

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3 of 5

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Harish

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21-SA-772-2017.doc

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6. Considered the submissions and perused the record.

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7. The Trial Court by judgment of 3^rd December, 1986 had determined the share of the Defendant Nos. 1 and 2 to be ¼^th each. Admittedly, the Defendant Nos. 9 and 10 have purchased an undivided share of the co-parcenery property. It is settled position in law that in case of a co-parcenery property the share of the individual coparcenor is not defined and what is alienated is an undefined share. The purchaser of an undivided interest in a co-parcenery property is entitled to that share in the property which will be allotted to the alienating co-parcenor upon partition being effected.

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8. Considering the settled position in law, the Appellate Court in the earlier round of litigation clearly committed an error in law in directing survey No. 371 to be allotted to the share of Defendant No. 1. That apart, the matter was re-heard by the Appellate Court and the Appellate Court upon re-appreciating the evidence has held that the sale deed to the extent of share of Defendant No. 1 is legal and has directed the share to be allotted to Defendant No. 9 and 10 to be carved out of the share of Defendant No. 1. There is no perversity which is demonstrated from the judgment of the Appellate Court. The Defendant No. 1 is held entitled to ¼^th share and upon the execution of the sale deed, the property which comes to the share of the

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4 of 5

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Harish

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21-SA-772-2017.doc

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Defendant No. 1 will be allotted to the share of Defendant Nos. 9 and 10 to the extent of the sale deed. In event the share of Defendant No.

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1 is reduced, the Defendant No. 9 and 10 will be entitled to the reduced share. It cannot be disputed that the Defendant No. 1 being the co-parcener is entitled to alienate only his undivided share and cannot execute a sale deed in respect of the property in excess of his share in the co-parcenery property.

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9. In light of the above, the decision of the Appellate Court dated 29^th February, 2016 does not suffers from any perversity. No substantial question of law arises in the Second Appeal. Second Appeal stands dismissed.

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[Sharmila U. Deshmukh, J.]

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5 of 5

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Harish

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Signed by: Harish V. Chaudhari Designation: PA To Honourable Judge Date: 04/04/2024 11:21:40

Sobin Keobin Fernandes (Deceased Thr. Lr) and Anr. v. Shirishkumar Chintaman Luktuke (Deceased Thr. LRs) and Ors.

Case brief

What is this about?

What the court decided

Sobin Keobin Fernandes (Deceased Thr. Lr) and Anr. v. Shirishkumar Chintaman Luktuke (Deceased Thr. LRs) and Ors.

Case brief

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What the court decided

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