Full Judgement
Bombay High Court
Shri.Gangadhar Alias Gangaram Shankar ... vs Yamunabai Punja Sahane on 2 February, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:5284
27-SA--640-2018.doc
Harish
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.640 OF 2018
WITH
CIVIL APPLICATION NO.1460 OF 2018
IN
SECOND APPEAL NO.640 OF 2018
Gangadhar Alias Gangaram Shankar Shinde & Ors ...Appellants/
Applicants
Versus
Yamunabai Punja Sahane& Anr. ...Respondents
--------------------
Mr. Sachin Gite for the Appellants/Applicants.
Mr. Nikhil M. Pujari for Respondent Nos. 1 & 2.
---------------------
CORAM : SHARMILA U. DESHMUKH, J.
DATE : FEBRUARY 2, 2024
P. C. :
1. Being dissatisfied by the Judgment dated 7th March, 2017 passed by
of Appellate Court in Civil Appeal No. 107 of 2014 allowing the Appeal
and setting aside the judgment and Decree passed by the Trial Court in
Special Civil Suit No. 443 of 2011, the original Defendants are before this
Court. By the impugned Judgment dated 11 th March, 2017 the Appellate
Court has declared that the Appellants therein are entitled to ¼ th share in
the suit properties and for partition and separate possession.
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27-SA--640-2018.doc
For the sake of convenience, the parties are referred by their status before
the Trial Court. Special Civil Suit No. 443 of 2011 was preferred by the
Plaintiff who are the daughters of Defendant No. 1 against Defendant
No. 1 father, Defendant No. 2 second wife of the Defendant No. 1,
Defendant Nos. 3 and 4-subsequent purchasers of the suit property,
Defendant Nos. 5 daughter of Defendant No. 2 and Defendant No. 6
brother of Defendant No. 1. The properties are described in paragraph
No. 1a and 1b of the plaint as ancestral properties of the Defendant Nos.
1 and 6. The case of the Plaintiffs was that the property though being
ancestral properties have been alienated by the Defendant No. 1 in favour
of the Defendant Nos. 3 and 4 without any legal necessity. It was
contended that they had demanded partition and the separate possession
which was denied and by registered sale deed dated 3rd February, 2011 the
Defendant No. 1 has sold the suit property. It was also contended that the
Defendant No. 1 has performed the second marriage with the Defendant
No. 2 during the subsistence of his first marriage and as such, the
marriage itself is void.
2. The suit came to be resisted by the Defendants. It was denied that
the suit properties are ancestral and joint family properties. It was further
pleaded that there was legal necessity for the sale as the Defendant No. 1
has constructed a house and had also undergone surgery for which funds
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were required and as such, the suit property came to be sold to the
Defendant Nos. 3 and 4.
3. The parties went to trial. The Trial Court held that the suit
properties are the ancestral properties of the Plaintiffs and Defendant No.
1. The Trial Court negated the issue that the alienation was for the legal
necessity. The Trial Court however dismissed the suit by placing reliance
on the decision in the case of Vaishali Ganorkar & Anr vs. Satish
Keshaorao Ganorkar, [AIR 2012 bombay 101] and held that the interest
in the co-parcenery property cannot devolve upon the daughter except
upon the death of Defendant No.1. The Trial Court dismissed the suit as
against which the Plaintiffs preferred Civil Appeal. The Appellate Court
in view of the enunciation of law by the Apex Court in the case of
Prakash Vs. Phulvati, [2016(1) Mh.L.J.] held that Appellant being the
daughters are the co-parceners in their own right having equal rights as
that of the son and as such, allowed the Appeal and declared that the
Appellant is entitled to ¼th share in the suit property.
4. Heard Mr. Gite, learned counsel appearing for the Appellant.
5. Learned counsel for the Appellant submits that the suit properties
came to be sold for legal necessity which is permissible. He points out that
there is an admission of the Plaintiffs in the cross-examination as regards
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the surgery which was undergone by the Defendant No. 1 and 2 and the
suggestions regards the construction of the house which has been denied.
He submits that considering the legal necessity and in the absence of any
evidence to show that the Defendant No. 1 had another source of income,
the sale must be held to be for legal necessity. As such, according to him
the substantial question of law which arises is the perversity of the finding
of the Trial Court as well as the Appellate Court on the aspect of legal
necessity.
6. Considered the submissions and perused the Judgment of the Trial
Court and the Appellate Court as well as the private paper book which has
been tendered by learned counsel for the Appellant.
7. The issue as regards the property being ancestral property has been
established and proved by the Plaintiffs and the same is not disputed by
the learned counsel for the Appellant. The submission of learned counsel
for the Appellant is that there was a legal necessity and as such, the
ancestral property has been sold. It is settled that it is not permissible for
co-parcener to sell the co-parcenary property without the consent of other
co-parcenars except for legal necessity. The burden of proof is upon the
alienating co-parcener to plead and establish the legal necessity. In the
present case, the contention is that the Defendant No. 1 had constructed
a house and also that he had undergone surgery. The Trial Court
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considered that apart from the oral evidence there is no documentary
evidence which has been produced by the Defendants to either show
construction of the house property or the cost which was incurred in
construction of the house property or as regards the loan which he had
raised from the relatives. Pertinently, apart from the Defendant No. 1,
there were no other witnesses examined in support of his contention as
regards the repayment of the hand loan to the relatives. The Trial Court
also considered that there are no medical records which are produced on
record to show that the surgery was undergone and the funds were
expended in the surgery.
8. The only reason why the Trial Court has dismissed the suit was the
position of the law as regards the amendment in Section 6 of the Hindu
Succession Act, and the judicial pronouncement at that stage. The
Appellate Court on the basis of the enunciation of law by the Apex Court
has rightly held that the Plaintiffs are the co-parceners and as such they
are entitled to seek partition and separate possession of the property. The
evidence on record does not demonstrate legal necessity for alienating the
co-parcenary property. The submission of learned counsel for the
Appellant would require this Court to re-appreciate the evidence which is
come on record which has impermissible under Section 100 of CPC.
9. Having regard to the discussion above, there is no substantial
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question of law in the Second Appeal. Second Appeal stands dismissed.
10. In view of dismissal of Second Appeal, nothing survives for
consideration in the pending Applications, if any, therein and the same
are disposed of as such.
(SHARMILA U. DESHMUKH, J. )
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