Allowed

Mrs. Vanita Charandas Dumane and Anr. v. Mrs. Satyabhama Bhaskar Dumane and 5 Ors.

Bombay HC3 May 2024SA/257/2009

Case brief

AI extract

What is this about?

Second appeal by female heirs seeking share in joint family dwelling house and properties. Court held that after deletion of Section 23 of the Hindu Succession Act, female heirs are coparceners entitled to partition shares, and the first appellate court could not disturb trial court findings after defendants' cross-objection failed.

What the court decided

AI extract

Mrs. Vanita Charandas Dumane and Anr. Vs Mrs. Satyabhama Bhaskar… — Partition | Bombay HC (2024)

¶1

2024:BHC-NAG:5261

¶2

60-SA-257-2009.odt 1

¶3

IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH

¶4

	`SECOND APPEAL NO. 257 OF 2009`
`1]`	`Mrs. Vanita Charandas Dumane,` `aged about 43 years.`
`2]`	`Ms Gayatri Charandas Dumane,` `(now Ms Gayatri Ravindra Gedam),` `aged about 26 years.`
	`Both are R/o Hanuman Ward, Desaiganj,` `Taluka Desaiganj, District – Gadchiroli.` `...APPELLANTS` `Versus`
`1]`	`Mrs. Satyabhama Bhaskar Dumane,` `aged about 53 years.`
`2]`	`Praveen Bhaskar Dumane,` `aged about 35 years, Occ. Agriculturist.`
`3]`	`Arvind Bhaskar Dumane,` `aged about 26 years, Occ. Agriculturist.`
	`All are R/o Ward No.2, Patil Square,` `Armori, Taluka Armori, District – Gadchiroli.`
`4]`	`Mrs. Sheela Bandu Waghmare,` `R/o Gurudev Ward, Opposite Main Primary School,` `Azad Square, Bhiwapur,` `District – Nagpur.` `Amendment carried out as per` `Court’s order dated 3/7/2013 and 8/8/2013.`
`5]`	`Mrs. Vandana Vinayak Meshram,` `aged about 38 years and` `R/o C/o Vinayak Bakshi Meshram,` `Vairagad, Taluka Armori, District – Gadchiroli.`

¶5

60-SA-257-2009.odt 2

¶6

Respondent nos. 1 to 5 are legal heirs of
Bhaskar Murlidhar Dumane (original defendant no.1).

¶7

6] Ramdas Murlidhar Dumane, aged about 51 years, Occ. Agriculturist and Resident of Taluka Armori, District – Gadchiroli. (Original defendant no.2).

¶8

...RESPONDENTS

¶9

Shri V.N. Morande, Counsel for the appellants.
None for the respondents.

¶10

CORAM : ANIL L. PANSARE, J.
 ARGUMENTS WERE HEARD ON : APRIL 30, 2024
JUDGMENT IS PRONOUNCED ON : MAY 3, 2024

¶11

JUDGMENT:

¶12

The appeal has been admitted on the following

¶13

substantial question of law :

¶14

“Whether the first appellate court could have rejected
the claim which was already granted by the trial court
and particularly when the appeal preferred by the
defendant was dismissed ?”

¶15

2]The appellants – plaintiffs filed a suit for partition

¶16

and possession. Appellant no.1 is mother of appellant no.2.

¶17

Respondent nos. 1 to 5 are the legal representatives of Bhaskar

¶18

60-SA-257-2009.odt 3

¶19

Murlidhar Dumane, who was defendant no.1 before the trial
Court. Bhaskar and respondent no.6 herein were brothers of
deceased Charandas, who was the husband of appellant no.1
and father of appellant no.2.

¶20

3]The suit was based on theory of joint hindu family
property. The family owned an agricultural land bearing Khasra
No. 841/3 admeasuring 0.84 H.R. According to the appellants,
three brothers, i.e., the husband of appellant no.1 and original
defendant nos. 1 and 2, started business of printing press at
village – Armori and sold the aforesaid agricultural land. The
sale proceeds were invested for purchasing machine of printing
and accordingly the joint family funds were utilized in starting
business of printing press.

¶21

4]It was further the case of the appellants that out of
the income of the printing press, the three brothers/partners, in
the year 1982, purchased agricultural land bearing Survey No.
1400 admeasuring 0.46 H.R. In the year 1985, they purchased
land bearing Survey No. 108/97 admeasuring 0.94 H.R. Both

¶22

60-SA-257-2009.odt 4

¶23

the lands were purchased in the name of defendant no.1, who
then constructed house in the land bearing Survey No. 1400.
The said house was in use and enjoyment of all. The name of
plaintiff no.1’s husband was added as owner, after he initiated
revenue proceedings against his brothers. The order passed by
Tahsildar attained finality.

¶24

5]The appellants then urged for partition, which was
refused and, therefore, the suit came to be filed. The trial Court
has framed various issues and answered the same as under :

¶25

`Sr. No.`	`Issues`
`1)`	`Do plaintiffs proved that defendant no 1` `purchased the “Printing press” to run` `joint family by selling joint family field` `bearing Khasra No 843/1, Gat No 1404` `area 0.84 H.R.`	`Yes`
`2)`	`Do plaintiffs prove that on the date of` `death of Charandas on 12.01.1986 he` `was the member of undivided join` `family ?`	`Yes`
`3)`	`Do plaintiffs prove that defendant no 1` `constructed new house worth Rs. 1 lakh` `in 1991-92 in the field Survey No 1400` `area 0.46 HR of Armori from the` `income of joint family property.`	`Yes`
`4)`	`Do plaintiffs prove that defendant no 1`	`Yes`

¶26

60-SA-257-2009.odt 5

¶27

	`has purchased field survey No 1400 are` `0.46 HR of Armori and field S. No` `108/97 area 0.94 HR of Rampuri chowk` `from the joint family income of printing` `press in 1982 and 1985 respectively?`
`5)`	`Does the defendant no 1 prove that he` `has purchased the printing press, the` `field Khasra No 1400, area 0.46 HR of` `Armori, and field Eh. No 108/97, area` `0.94 HR from self acquired earned`	`No`
`6)`	`Do plaintiffs prove that they are entitled` `for partition and possession of 1/3rd` `share in the ancestral undivided joint` `family property shown in the paragraph` `A B C D of plaint as prayed ?`	`Yes to the extent of` `A.B.C.`
`7)`	`Do plaintiffs prove that they are entitled` `for the amount of Rs.25,000.00 towards` `1/3rd income of the suit field and` `income of printing press as prayed ?`	`No`
`8)`	`Whether plaintiffs are entitled for mean` `profit as prayed ?`	`Yes`
`9)`	`What order, decree order and relief?`	`Suit is partly decreed.`

¶28

Having answered the issues in the aforesaid

¶29

manner, the trial Court proceeded to decree the suit in the

¶30

following terms :

¶31

“1. It is hereby declared that each of the plaintiff no 1
and 2 have 2/6th share each in the suit properties
described in paragraph A.B.C. of the plaint.

¶32

2. The partition of the agricultural lands be effected
equitably as per section 54 of the Code of Civil

¶33

60-SA-257-2009.odt 6

¶34

Procedure by Collector, Gadchiroli and possession of
respective share of each of the plaintiff be delivered to
them.

¶35

3. It is declared that the plaintiffs have right of resident
in house properties described in paragraph D and E of
the plaint.

¶36

4. Business of printing press be partitioned equitably as
per above shares by appointing the court commissioner.
5. An inquiry be held for mesne profits for the
properties to be delivered to the plaintiffs from the date
of this suit till actual delivery of possession as per order
XX Rule 12 of the Code of Civil Procedure.

¶37

6. The claim of plaintiff for compensation of
Rs.25,000.00 is rejected.

¶38

7. Both defendants shall bear their own costs but
defendant no 1 shall pay costs of this suit to the
plaintiffs.”

¶39

6]The appellants were aggrieved by operative clause

¶40

no. 3 of the decree. According to the appellants, the trial Court

¶41

committed error in not granting share in properties mentioned

¶42

in paragraphs D and E. The learned Counsel for the appellants

¶43

submits that the trial Court relied upon Section 23 of the Hindu
Succession Act, 1956 (for short “Act of 1956”) by which a

¶44

special provision was made in favour of female heir to reside in
dwelling house with a bar to claim partition. This provision,

¶45

however, has been deleted by the Hindu Succession
(Amendment) Act, 2005. The trial Court passed decree on

¶46

60-SA-257-2009.odt 7

¶47

6/1/2007. Accordingly, the learned Counsel for the appellants
contends that the trial Court committed error in not granting
share to the appellants, who are the female heirs of the
deceased Charandas. The First Appellate Court failed to
consider the effect of omission of Section 23, particularly the
theory of the appellants that the suit property was the joint
hindu family property.

¶48

7]As such, the only prayer made in the present appeal
is to quash and set aside the judgment passed by the Principal
District Judge, Gadchiroli in Regular Civil Appeal No. 12/2007.
The appellants have not sought any declaration as regards their
share in the suit properties mentioned in paragraphs D and E.
Nonetheless, considering the apparent error committed by the
Courts below and taking aid of Order 41 Rule 33 of the Code of
Civil Procedure, 1908, once it is found that the appellants were
entitled to share in the said properties, there appears no
reason to deny the relief. If denied, the unavoidable second

¶49

60-SA-257-2009.odt 8

¶50

round of litigation will commence. The appellants request is,
thus, being considered.

¶51

8]The learned Counsel for the appellants then
submits that the respondents had, by way of filing cross
objection before the First Appellate Court, challenged first part
of the operative order passed by the trial Court. The First
Appellate Court dismissed the appeal. Thereafter, the First
Appellate Court proceeded to render a finding that the
appellants have no right in property mentioned in paragraph C.

¶52

9]The learned Counsel for the appellants submits that
once the cross objection filed by the respondents was
dismissed, the First Appellate Court could not have rendered a
finding against the appellants in appeal filed by them
challenging operative clause no. 3 and not operative clause no.
1 of the decree.

¶53

10]I find substance in the submissions made by the
learned Counsel for the appellants. The appellants have not

¶54

60-SA-257-2009.odt 9

¶55

challenged clause no. 1 of the decree but had restricted their
challenge to clause no. 3. The respondents’ challenge to
operative clause no. 1 failed and, therefore, the First Appellate
Court could not have disturbed the finding given by the trial
Court as regards shares of the appellants and defendants in the
manner as described in the said clause.

¶56

11]The First Appellate Court as also the trial Court
have committed yet another error of law. They have ignored
the effect of deletion of Section 23 of the Act of 1956. The
female heirs have been recognized as coparceners. The trial
Court has found that they are entitled to reside in the dwelling
house. This finding has been based on the evidence that the
suit properties were joint family properties. The First Appellate
Court has, without going into the aspect of the joint family
property status, has rejected the prayer made by the appellants
seeking their share in the dwelling house only on the ground
that the respondents have incurred expenses in constructing

¶57

60-SA-257-2009.odt 10

¶58

the dwelling house. This inference, being contrary to the
provisions of the Act of 1956, is liable to be set aside.

¶59

12]The First Appellate Court, therefore, could not have
rejected the claim of appellants, which was already granted by
the trial Court, particularly when the cross objection preferred
by the respondents was dismissed. The first substantial
question of law is accordingly answered in the negative. The
appellants, therefore, have made out a case. Hence the
following order :

¶60

ORDER

¶61

i]The appeal is allowed.

¶62

ii]The judgment and decree dated 20/12/2008

¶63

passed by the Principal District Judge, Gadchiroli in Regular
Civil Appeal No. 12/2007 is quashed and set aside.

¶64

iii]The judgment and decree dated 6/1/2006 passed
by the Civil Judge Junior Division, Armori in Regular Civil Suit
No. 10/2003 is restored with a modification that the plaintiffs

¶65

60-SA-257-2009.odt 11

¶66

(appellants herein) are entitled for the declared share in
properties described in paragraphs A to E.

¶67

13]The appeal is disposed of in above terms with no

¶68

order as to costs.

¶69

JUDGE

¶70

Sumit

Mrs. Vanita Charandas Dumane and Anr. v. Mrs. Satyabhama Bhaskar Dumane and 5 Ors.

Case brief

What is this about?

What the court decided

Mrs. Vanita Charandas Dumane and Anr. v. Mrs. Satyabhama Bhaskar Dumane and 5 Ors.

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Shri Subhash S/O Uttamrao Brahmapurikar Vs Jaihind Co-Op. Housing Society, Thr. Pres. Shri Mahesh S/O Shrawan Charde and Others

The State of Maharashtra through Collector, Nagpur and 2 Others Vs Anant S/O Manikrao Dhavad

The State of Maha., through Collector, Nagpur and Others Vs Smt. Indirabai W/O. Bhagvatrao Gayakwad

Shakuntala Kisan Meshram Vs Ramcharan Aziuddin Rajput

Pralhad Daulatrao Kalekar Vs Smt.Sayankabai Wd/O Dfhannu Wahar and Others

Ramgiri Apartment Owners Association (Proposed) Thr. Chief Promoter, Mukund K. Paturkar and Others vs M/S Orange City Builders Pvt. Ltd, Nagpur through Director, Smt. Charumati v. Sonwane and Others