Partly allowed

Shobha Vijay Mulik and Ors. v. Mrs. Anusuyabai Keshavrao Mulik and Ors.

Bombay HC29 Apr 2024SA/398/2019

Case brief

AI extract

What is this about?

In two second appeals challenging decrees in partition suits, the court held that a suit property purchased in the name of a defendant who was not a co-parcener must be excluded from the decrees, modifying the lower courts' decisions accordingly.

What did the court decide?

The suit property described at para No.1A(1) in the plaint (City Survey No.63/2A/2A/2) shall stand excluded from the decrees. Decrees modified to operate only in respect of suit properties described a

Shobha Vijay Mulik and Ors. Vs Mrs. Anusuyabai Keshavrao Mulik and… — Partition | Bombay HC (2024)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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SECOND APPEAL NO.398 OF 2019
WITH

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CIVIL APPLICATION NO.1594 OF 2019

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IN

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SECOND APPEAL NO.398 OF 2019

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Shobha Vijay Mulik & Ors. ....Appellants/Applicants
V/S

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Anusuyabai Keshavrao Mulik & Ors. ....Respondents

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WITH

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SECOND APPEAL NO.76 OF 2019
WITH

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CIVIL APPLICATION NO.13 OF 2022
IN

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SECOND APPEAL NO.76 OF 2022

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Vasant Bhimral Igave & Anr. ....Appellants/Applicants
V/S
Anusuyabai Keshavrao Mulik & Ors. ....Respondents

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Mr. Surel S. Shahfor the Appellants/Applicants in SA 398 of 2019 and CAS.
Mr. Anand S. Kulkarni for the Appellants/Applicants in SA 76 of 2019 and
CAS.

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Mr. Ashok B. Tajane a/w Mr. Yogesh Thorat for Respondents in both SAs and
CAs.

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CORAM: SANDEEP V. MARNE, J.
DATE : 29 APRIL 2024.

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P.C.:

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1 These Second Appeals are filed challenging decree dated 14 February 2019 passed by District Judge-6, Solapur in Regular Civil Appeal Nos.350 of katkam Page No. 1 of 4

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2012 and 71 of 2016. The Appeals arose out of decree passed by Joint Civil
Judge Senior Division, Solapur in Special Civil Suit No.92 of 2007 by which
the Trial Court proceeded to allow the suit filed by Plaintiff for partition and
declared Plaintiff has 1/5th share in the suit properties. Appeals were filed
before the First Appellate Court by original vendors as well as by the
purchasers and both the Appeals have been dismissed. Accordingly, original
vendors as well as purchasers have filed these two Appeals.

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2I have heard Mr. Shah, the learned counsel appearing for Appellants in
Second Appeal No.398 of 2019 and Mr. Kulkarni, the learned counsel
appearing for the Appellants in Second Appeal No.76 of 2022. The learned
counsel for the Appellants has essentially raised two grounds in support of
challenge to the decrees passed by the Trial and the First Appellate Court. It
is contended that the land described in para 1-A(1) in the plaint was purchased
in the name of Defendant No.3-Shobha Vijay Mulik and that therefore there
was no question of partitioning the same. So far as the rest of the properties
are concerned, it is the contention of the learned counsel that the said
properties, even if they are held to be joint family properties, were sold after
obtaining permission of the District Court in favour of Defendant Nos.1 and
2. That the legal necessity for sale of the property on behalf of minors is
recognized by the District Court while granting permission for sale. It is
submitted that this vital aspect is not taken into consideration, particularly by
the First Appellate Court.

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Page No. 2 of 4

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katkam

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3In my view the first contention raised by Mr. Shah and Mr. Kulkarni has
considerable force in that the land described in para No.1A(1) in the plaint
bearing City Survey No.63/2A/2A/2 admeasuring 0 H 50 R is admittedly
purchased in the name of Defendant No.3-Shobha, who was not a co-parcener
at the time of purchase of the said property. It is therefore questionable as to
whether property purchased in the name of person who is not a co-parcener
can be brought into the common hotchpotch by applying a principle absence
of income for Shobha to purchase the said property.

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4So far as the second aspect is concerned, in my view mere procurement
of permission from the District Court for sale of rest of the suit property on
behalf of minors does not mean that the District Court has determined the
issue about entitlement of the Plaintiff for share in the property which was
proposed to be sold. In fact the application made by Defendant No.3-Shobha
seeking permission of the District Court for sale of the property premised on
an assertion that the property was self acquired property of her husband Vijay
Mulik. The District Court therefore had no occasion to examine the issue as
to whether the said properties were self acquired property or joint family
property. I therefore not inclined to accept the second contention raised by
Mr. Shah and Mr. Kulkarni.

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5 On the contrary, Mr. Tajane, the learned counsel appearing for the original Plaintiff, after taking instructions from client fairly submits that Plaintiff is willing to give up share in respect of property at para No.1A(1) in katkam Page No. 3 of 4

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the plaint. Therefore instead of admitting the present Appeal on the first
issue, in my view the decree can be modified by excluding the same in respect
of property at para No.1A(1) in the plaint.

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6The Second Appeals are accordingly disposed of by rejecting all the
contentions raised by the Appellants except in respect of the suit property
described at para No.1A(1) in the plaint. The suit property described at serial
No.1A(1) in the plaint i.e. City Survey No.63/2A/2A/2 admeasuring 0 H 50
R at village Bale within the limits of Solapur Muncipal Corporation shall stand
excluded from the decrees of the Trial and the First Appellate Court. The
decrees of the Trial and First Appellate Court shall accordingly stand
modified to this limited extent and shall operate only in respect of suit
properties described at para Nos.1A(2) to (6) and 1B. With the above
directions, the Second Appeals are disposed of.

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7In view of rejection of these Second Appeals, nothing survives in the
Interim Applications. The same are also disposed of.

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Digitally signed by SUDARSHANRAJALINGAM SUDARSHANRAJALINGAMKATKAM KATKAM Date: 2024.05.02 14:44:58 +0530

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(SANDEEP V. MARNE, J.)

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Page No. 4 of 4

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katkam

Shobha Vijay Mulik and Ors. v. Mrs. Anusuyabai Keshavrao Mulik and Ors.

Case brief

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What did the court decide?

Shobha Vijay Mulik and Ors. v. Mrs. Anusuyabai Keshavrao Mulik and Ors.

Case brief

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What did the court decide?

What the court decided

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