Bombay High Court
Digambar Namdeo Munjal And Ors vs Kashibai Digambar Munjal And Ors on 13 February, 2020
(1) sa197.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 197 OF 2016
WITH
CIVIL APPLICATION NO.14362 OF 2019
Digambar s/o. Namdeo Munjal and others .. Appellants
[original
defendants]
Versus
Kashibai w/o. Digambar Munjal (died) .. Respondents
and others [original
plaintiffs]
Mr.S.S. Choudhari, Advocate for the appellants.
Mr.R.P. Adgaonkar, Advocate for respondent Nos. 2 and 3.
CORAM : S.M.GAVHANE,J.
RESERVED ON : 16.01.2020
PRONOUNCED ON : 13.02.2020
O R D E R :-
. The appellants (hereinafter referred to as "defendant Nos.1 to 3) have filed this appeal against dismissal of their Regular Civil Appeal No.283 of 2012 by the judgment and order dated 11.01.2016 passed by the District Judge-2, Latur confirming the judgment and decree dated 04.05.2012, passed by the Civil Judge, ::: Uploaded on - 13/02/2020 ::: Downloaded on - 09/06/2020 11:44:34 ::: (2) sa197.16 Junior Division, Ausa in Regular Civil Suit No.292 of 2000 filed by the respondents (hereinafter referred to as plaintiff Nos.1 to 3). During the pendency of this appeal, plaintiff No.1-Kashibai and defendant No.2- Lochanabai are dead and plaintiff Nos. 2 and 3 and defendant Nos. 1 and 3 are respectively their legal representatives.
2. The facts leading to the institution of present appeal in short are that plaintiff Nos.2 and 3 are respectively son and married daughter of plaintiff No.1. Plaintiffs filed suit for partition and separate possession of their share in the land Survey No. 115/A admeasuring 2 Acres 2 Gunthas situated at village Utka, Tal. Ausa, Survey No.116 admeasuring 7 Acres 14 Gunthas and Survey No.66 admeasuring 7 Acres 5 Gunthas, both situated at village Tattapur, Tal. Renapur, Dist. Latur (hereinafter referred to as "suit lands"), contending that plaintiff No.1 married with defendant No.1 about 30 to 32 years back and she is legally wedded wife of ::: Uploaded on - 13/02/2020 ::: Downloaded on - 09/06/2020 11:44:34 ::: (3) sa197.16 defendant No.1. Plaintiff Nos.2 and 3 are her children from defendant No.1. Defendant No.2 is keep of defendant No.1. Defendant No.3 is born from the illicit relation between them. According to the plaintiffs defendant Nos. 2 and 3 have no right in the suit lands. However, defendant No.1 illegally transferred suit lands Survey Nos. 116 and 66 in the names of defendant Nos.2 and 3. The plaintiffs contended that the suit lands are ancestral joint family properties. The land survey No.115/A situated at Utka is ancestral property and it was partitioned between defendant No.1 and his brothers and in the said partition defendant No.1 has got suit land Survey No.115/A as well as agricultural equipment, gold and cash of Rs.25000/-. Defendant No.1 being Karta of family of the plaintiffs, purchased suit lands Survey Nos.116 and 66 from the income of ancestral property and cash and sale proceeds of property received in the partition. Plaintiff No.1 and defendant No.1 were in joint possession of suit lands Survey Nos.116 and 66 from 1971 till 1995. As defendant No.1 illegally transferred ::: Uploaded on - 13/02/2020 ::: Downloaded on - 09/06/2020 11:44:34 ::: (4) sa197.16 these two suit lands in the name of defendant Nos.2 and 3 to deprive the plaintiffs' share in the said lands, plaintiffs demanded partition of the suit land by metes and bounds from defendant No.1, but he refused and therefore suit was filed on 28.09.2000.
3. Defendant No.1 resisted the suit by filing written statement. He admits that suit land Survey No. 115/A is his ancestral property. He contends that the suit land Survey No.116 and 66 at Tattapur are his self acquired properties. According to him he married with defendant No.2 about 40 years back and thereafter he married with plaintiff No.1. After marriage there was no issue to defendant Nos.1 and 2 for a long time and hence he performed second marriage with plaintiff No.1. After birth of plaintiff Nos.2 and 3, defendant No.2 gave birth to defendant No.3. He denied that defendant No.2 is his keep and defendant No.3 is born from his illicit relation with defendant No.2. It is contended that plaintiffs have no right to claim partition during his lifetime. Like ::: Uploaded on - 13/02/2020 ::: Downloaded on - 09/06/2020 11:44:34 ::: (5) sa197.16 plaintiff No.1, defendants have equal right in suit land Survey No.115/A, which is ancestral property. Further, he contends that Anusayabai Khatal, parental aunt of defendant No.2 is issue-less and she purchased suit land Survey Nos.116 and 66 in his name i.e. defendant No.1. These two lands are already given to defendant Nos.2 and 3 in the partition. According to him, the suit is bad for non-inclusion of house No.123 at Utka and house at Latur purchased in the name of plaintiff No.1. He, thus, prayed to dismiss the suit.
4. Defendant Nos.2 and 3 filed written statement. They have denied that the suit lands are ancestral properties as contended by the plaintiffs. They contend that in the partition between defendant No.1 and his brother, only 2 Acres 2 Gunthas land i.e. Suit land Survey No.115/A was allotted to his share. They have denied that in the said partition defendant No.1 received amount of Rs.25000/-, gold and agricultural equipments and defendant No.1 purchased the suit land Survey Nos. 66 ::: Uploaded on - 13/02/2020 ::: Downloaded on - 09/06/2020 11:44:34 ::: (6) sa197.16 and 116 from the sale proceeds of the property received in partition and cash as per case of the plaintiffs. They have denied that from illicit relation between defendant Nos.1 and 2, defendant No.3 was born. They contend that defendant No.1 behind back of defendant No.2 on the say of his close relatives, performed second marriage with plaintiff No.1 and after marriage 2 Acres ancestral land and ancestral house at Tattapur are given to plaintiff No.1 for her livelihood and so also plot admeasuring 20 ft x 40 fx at Kanheri Laman Tanda at Latur has been given by defendant No.1. According to them plaintiff Nos.2 and 3 are son and daughter of Sojarbai - sister-in-law of defendant No.1. According to them, suit is bad for non-inclusion of all the joint family properties and non-joinder of necessary parties. According to these defendants, each of them have been given 2 Acres 18 Gunthas land from Gat No.116 and 2 Acres 15 Gunthas land from Survey No.66 and accordingly mutation entry was certified in the year 1989. Said mutation was not challenged by the plaintiffs. Thus, suit ::: Uploaded on - 13/02/2020 ::: Downloaded on - 09/06/2020 11:44:34 ::: (7) sa197.16 of the plaintiff is time barred. They have thus prayed to dismiss the suit with costs.
5. The Trial Court framed as many as six issues at Exh.31. Both the parties adduced oral as well as documentary evidence. Considering the evidence adduced by the parties and the arguments advanced on their behalf, the Trial Court decreed the suit with costs on 04.05.2012 and declared that the plaintiff Nos.1 to 3 and defendant No.1 are entitled to 1/4th share each in the suit lands.
6. Aggrieved by the said decree, defendant Nos.1 to 3 preferred appeal bearing Regular Civil Appeal No.283 of 2012 in the District Court, Latur, which was dismissed on 11.01.2016. Therefore, this Second Appeal by them.
7. Mr.Choudhari, learned counsel appearing for appellants/defendant Nos.1 and 3 submitted that the Trial Court held that the plaintiffs have proved that the plaintiff No.1 is legally wedded wife of defendant No.1 ::: Uploaded on - 13/02/2020 ::: Downloaded on - 09/06/2020 11:44:34 ::: (8) sa197.16 and that defendant No.2 is not legally wedded wife of defendant No.1 and further the Trial Court held that the plaintiffs have proved that the suit lands are ancestral joint family properties of the plaintiffs and defendant No.1. It is further submitted that the Trial Court held that the suit is not bad for non-joinder of necessary parties and for non-inclusion of other joint family properties as per case of the defendants and thus declared that the plaintiffs are entitled to partition and separate possession of their share in the suit-lands and declared that the plaintiffs and defendant No.1 are having 1/4th share each in the suit-lands and thus decreed the suit.
8. Mr. Choudhari, learned counsel further submitted that the Appellate Court confirmed the findings recorded by the Trial Court on the aforementioned issues and dismissed the appeal. But, while dismissing the appeal, the Appellate Court did not follow mandatory provisions in Order 41 Rule 31 of the Code of Civil Procedure [for ::: Uploaded on - 13/02/2020 ::: Downloaded on - 09/06/2020 11:44:34 ::: (9) sa197.16 short "CPC"] as the Appellate Court did not frame proper points for determination and therefore according to learned counsel as there is non-compliance with the requirement of Order 41 Rule 31 of the CPC, the judgment of the Appellate Court dismissing the appeal is bad in law and the same is not sustainable. Therefore, according to learned counsel the first substantial question of law as per ground No. III i.e. "Whether, the District Judge- 2 at Latur is right and justified in not framing the points for determination taking into consideration the pleadings of the parties and points raised by the parties in their arguments at the time of hearing contrary to the provisions contained in Order-41 Rules 31 and 32 of the Code of Civil Procedure, 1908 and the judgments reported in AIR 1985 Bom.98; 2003(4) Mh.L.J.853; 2006(6) Mh.L.J.759; and AIR 2006 Bom.61 etc.?" is arising in this appeal for consideration of this Court. To support the said submission, learned counsel has relied upon following decisions :-
. Janardan Nago Patil Vs. Ramanand Ramdas Mishra ::: Uploaded on - 13/02/2020 ::: Downloaded on - 09/06/2020 11:44:34 ::: ( 10 ) sa197.16 2003(4) Mh.L.J.853. In paragraph Nos.4 and 5, it was observed thus :-
"4. This Court held that the framing of the points in the manner mentioned above was not in conformity with Order 41 Rule 3(A) of the Code of Civil Procedure. The first appellate court in the present case did not frame proper points for determination but, only framed a single point as to whether the trial court had rightly dismissed the suit. Perusal of the judgment makes it clear that the first appellate court had not applied its mind to the points urged before it and has not recorded its decision on facts urged before it. The first appellate court is a final court of facts. it was therefore, necessary for it to frame proper points for determination and record its findings thereon. In the circumstances, remand is inevitable. Accordingly, the impugned judgment and order is set aside and the matter is remanded to the first appellate court. The first appellate court is directed to frame proper points for determination and record its findings on each of the points urged before it. Rule is made absolute to this extent.
5. In view of the fact that the appeal is the year 1988, the first appellate court is directed to dispose of the appeal as expeditiously as possible and in any event within six months hereof."
. Vatsalabai wd/o Vishwanath Nakhate and Others Vs. Madhaorao Laxmanrao Thakare & Anr., 2005(1) Mh.L.J.980. In paragraph No.19, it was observed thus :-
"19. It is, therefore, liable to be held that in the present case, the appellate Court's judgment is not liable to be regard as illegal or otherwise contrary to the principles of justice and suffering from non-application of mind on account of its failure to comply with Order XLI, Rule 31 of Civil Procedure Code. It is also considered necessary to record that in view of section 99 of Civil Procedure Code, the judgment impugned is not liable to be reversed on account of the said failure as the appellant has failed to demonstrate that the judgment and decree under appeal are wrong on merits and resulting in injustice. No substantial question of law is involved in this case on which the impugned judgment can be reversed. In the result, the appeal fails. Same is dismissed with costs throughout."::: Uploaded on - 13/02/2020 ::: Downloaded on - 09/06/2020 11:44:34 :::
( 11 ) sa197.16 . Khatunbi wd/o. Mohammad Sayeed and others Vs.
Aminabai w/o. Mohammad Sabir (2006)(6) Mh.L.J.759. It was observed in paragraph Nos.15, 17 and 19 as under :-
"15. The ruling by the Apex Court obviously discloses that writing judgment is not a mere formality. The judgment ultimately decides about the rights of the parties and the issue sought to be raised by the adversaries in the litigation. In order to make it known to the litigating parties that the Judge delivering the judgment after considering the rival contentions, the materials placed on record and on application of mind to the same, has decided the matter, the judgment should apparently disclose the points which are considered by the Judge as relevant for consideration while dealing with the matter. This can be revealed from the judgment only when the points for determination are properly formulated by the Court before delivering its decision on the rival contention of the parties. Being so, it cannot be said to be a mere formality in the course of delivering the judgment upon the adjudication of the rights of the parties in the matter. It is rather a very important stage in the delivery of the judgment by the Court. Being so, it is to be construed as a mandatory requirement to be complied with by the appellate Court while delivering the judgment.
17. In the case in hand, bare perusal of the impugned judgment discloses that the learned Single Judge, merely because nobody had appeared on behalf of the respondent in the said appeal, proceeded to dispose of the appeal without complying with the provisions of Order 41, Rule 31. Bare reading of the judgment nowhere discloses that the learned Single Judge having considered the necessity of formulating the questions which are required to be dealt with in the appeal. It is pertinent to note that when the appellate Court has reversed the judgment of the trial Court, in such circumstances, it was absolutely necessary for the first appellate Court to consider what were the points involved in the matter and accordingly formulate the points for determination and then deal with those points with regard to the materials on record. Failure on the part of the learned Single Judge in this regard clearly warrants setting aside of the judgment and remanding the matter to the first appellate Court to consider the appeal afresh in accordance with the provisions of law.
19. For the reasons stated above, the appeal succeeds. The ::: Uploaded on - 13/02/2020 ::: Downloaded on - 09/06/2020 11:44:34 ::: ( 12 ) sa197.16 impugned judgment is quashed and set aside and the matter is remanded to the first appellate Court to deal with F.A. No. 4 of 1978 in accordance with the provision of law. Needless to say that in view of the fact that the appeal relates to the year 1978, same shall be dealt with as expeditiously as possible and we, therefore, request the learned Single Judge to dispose of the same, as expeditiously as possible and preferably within a period of four months. No order as to costs."
9. Mr.Choudhari, learned counsel for the appellants further submitted that as per observation of Trial Court defendant No.3 has right in the property only by succession in the share of defendant No.1 and therefore neither defendant No.2 nor defendant No.3 are entitled to any share in the partition. It is submitted that thus according to Trial Court, defendant No.3 illegitimate child-daughter born to defendant No.2 from defendant No.1 has no right to claim share during lifetime of her father defendant No.1, as per section 16 of the Hindu Marriage Act and therefore it appears that the Trial Court has not granted any share to defendant No.3 in the suit lands. It is submitted that the Appellate Court also confirmed above said findings of facts observing that the defendant No.3 has no share in the suit lands because in view of section 16 of the Hindu Marriage Act, illegitimate child ::: Uploaded on - 13/02/2020 ::: Downloaded on - 09/06/2020 11:44:34 ::: ( 13 ) sa197.16 will get share in the self acquired property of his/her parents and not in the ancestral property. It is submitted that thus both the Courts below have not properly considered the provisions under section 16 of the Hindu Marriage Act, regarding entitlement of illegitimate child which provision runs as under :-
"16 Legitimacy of children of void and voidable marriages. (1) Notwithstanding that marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976, and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.
(2) Where a decree of nullity is granted in respect of a voidable marriage under section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.
(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents."
10. Mr. Choudhari, learned counsel further submitted that it is true that as per section 16 of the Hindu Marriage Act, illegitimate child has right to claim ::: Uploaded on - 13/02/2020 ::: Downloaded on - 09/06/2020 11:44:34 ::: ( 14 ) sa197.16 inheritance in the property of his/her parents. But, as the issue - "Whether in terms of section 16 of the Hindu Marriage Act, 1955, right of illegitimate child to succeed to the property of his father will include right to succeed to ancestral property in the hands of the father?" is referred to the Larger Bench, as per order dated 31.02.2011 in Revansiddappa & Anr. Vs.Mallikarjun & Ors, reported in (2011) 11 SCC 1 and the decision on the said issue is pending, in the present case the substantial question of law - "Whether defendant No.3 - illegitimate child-daughter of defendant No.1 is entitled to share in the suit-lands i.e. ancestral joint family properties?" is arising in this appeal for consideration of this court and therefore for the said substantial question of law, the appeal needs to be admitted. To support the said submission, learned counsel for the appellants has relied on order dated 21.10.2019 in Petition for Special Leave to Appeal (C) No.
(s).18858/2019 of the Apex Court in Jitender Kumar & Anr. Vs. Jasbir Singh & Ors., which reads thus :- ::: Uploaded on - 13/02/2020 ::: Downloaded on - 09/06/2020 11:44:34 :::
( 15 ) sa197.16 "Following issues arise in the present matter:
(A) whether in terms of Section 16 of the Hindu Marriage Act, 1955, right of an illegitimate child to succeed to the property of his father will include right to succeed to the ancestral property in the hands of the father. (B) Whether the father could have willed away his interest in the ancestral property and whether such disposal could be challenged by an illegitimate child.
According to the learned counsel appearing for the parties, the first issue stands referred to a Bench of three Judges in pursuance of order dated 31.3.2011 [Revanasiddappa and Anr. vs. Mallikarjun And Ors. Reported in (2011) 11 SCC 1] In the circumstances, we grant special leave to appeal in the matter and direct that this appeal be listed for hearing after disposal of C.A. No.2844 of 2011, in which the order of Reference as referred to above was passed. The parties shall maintain status quo in the meantime."
11. Learned counsel for the appellants-defendant Nos. 1 and 3 also relied upon following decisions :-
1) Sudam Shankar Revage & Ors. Vs. Pramila @ Bebi Sudam Revage (died through LR's & Ors.) dated 07.01.2019 in Second Appeal No.206 of 2018 (Coram : Smt. Vibha Kankanwadi,J.). (Bombay High Court)
2) Union of India & Anr. Vs. V.R. Tripathi, Civil Appeal No.12015 of 2018 decided on 11.12.2018 (Apex Court).
3) The Bihar State Electricity Board Vs. Chandra Shekhar Paswan in LPA No.1305 of 2013 (Patna High Court).
4) Indubai Jaydeo Pawar & Anr. Vs. Draupada @ Draupadi Jeydeo Pawar & Ors. dated 07.06.2017 in Review Petition No.19 of 2016 in F.A. No.577 of 2015. (Bombay High Court). In the said case, it was observed in paragraph No.25 as under :- ::: Uploaded on - 13/02/2020 ::: Downloaded on - 09/06/2020 11:44:34 :::
( 16 ) sa197.16 "25. In the present case, there is evidence to show that the petitioner deceased Indubai has stayed with the deceased Jaydev Pawar for a long time and has got married on 22.6.1981. The daughter Shubhangi was born within this relationship. The registration of the birth discloses that the name of the deceased is Jaydev Pawar as her father at the time of her birth. Under such circumstances, it can very well be said that in the present case, there is evidence to show that marriage was solemnized between Jaydeo and Indubai and the child was born. Further, I rely on the judgement of the trial Judge who passed the order of maintainance under section 125 of the Code of Criminal Procedure and the said rpf.19.2016.doc order of maintainance to Indubai was confirmed by the High Court. I also rely on the contentions raised by the respondent in her matrimonial proceedings wherein the status of Indubai is challenged on the ground of "void marriage" and not that there was no marriage at all. Thus, it can be considered as an admission on the part of the respondent of the void marriage between Jaydeo and Indubai. Once it is found that there is overall evidence of long stay of Indubai and Jaydeo and void marriage between Indubai and late Jaydev, then, Indubai was married earlier twice or not and whether petitioner/Shubhangi was born before Indubai's earlier marriage was legally dissolved, are immaterial issues. I also sift through the evidence which shows that there was some performance of marriage between late Jaydev Pawar and the petitioner. Thus, though the second wife is not entitled to any pensionary benefit as the marriage was not valid between them, a girl child, Shubhangi, who was begotten within such relationship, benefit of legitimacy is available to her under section 16. Hence, she will have a similar right like other legitimate children of Jaydeo in the property of Jaydeo. To that extent, the review petition is allowed."
12. Mr.Adgaonkar, learned counsel appearing for respondents/plaintiff Nos.2 and 3 submitted that both the Courts below have recorded concurrent findings of fact that the suit lands are ancestral joint family properties of the plaintiffs and defendant No.1, that plaintiff No.1 ::: Uploaded on - 13/02/2020 ::: Downloaded on - 09/06/2020 11:44:34 ::: ( 17 ) sa197.16 is legally wedded wife of defendant No.1, that defendant No.2 is second wife of defendant No.1 and that defendant No.3 is illegitimate child-daughter of defendant No.1 and thus granted 1/4th share each in the suit lands only to plaintiff Nos.1 to 3 and defendant No.1. So also, it is submitted that both the Courts below have held that defendant No.3 illegitimate daughter of defendant No.1 has share in the property of her parents as per section 16(3) of the Hindu Marriage Act and she has no right to claim said share in the lifetime of her father - defendant No.1. Therefore, both the courts below have denied share in the suit lands to defendant No.3.
13. Mr. Adgaonkar, learned counsel further submitted that the Appellate Court did not frame points in the light of Order 41 Rule 31 of the CPC, but the Appellate Court considered all the relevant issues referred to above considered by the Trial Court and the Appellate Court has considered evidence adduced by the parties on all the relevant issues and discussed the evidence in ::: Uploaded on - 13/02/2020 ::: Downloaded on - 09/06/2020 11:44:34 ::: ( 18 ) sa197.16 detail and therefore mere omission to frame points by the Appellate Court as per Order 41 rule 31 of the CPC does not vitiate the judgment of the Appellate Court, as the Appellate Court has recorded reasons based on evidence adduced by both the sides. This submission was made relying upon decision of the Apex Court in the case of Laliteshwar Prasad Singh and Ors. Vs. S.P. Srivastava (D) thr. Lrs. 2017(5)Bom.C.R. 333..
14. Learned counsel Mr. Adgaonkar further relying upon decision of this Court in the case of Shahaji Kisan Asme & Ors. Vs. Sitaram Kondi Asme & Ors., 2010 (5) Bom.C.R.323, submitted that children of null and void marriage could claim succession or inheritance to the property of parents only and parents means father alone. Relying upon decision in the case of Neelamma and Others Vs. Sarojamma & Others, (2006) 9 SCC 612, it is submitted that illegitimate child cannot acquire/claim as of right any share in joint Hindu family property, but such child is entitled to share in self-acquired property of ::: Uploaded on - 13/02/2020 ::: Downloaded on - 09/06/2020 11:44:34 ::: ( 19 ) sa197.16 parents. Relying upon decision in the case of Bharatha Matha & Another Vs. R.Vijaya Renganathan & Others (2010) 11 SCC 483, it was submitted that child born out of void and voidable marriage cannot claim inheritance in ancestral coparcenary properties. For the similar proposition, reliance is placed on the decision of the Apex Court in the case of Jinia Keotin and Others Vs. Kumar Sitaram Manjhi and Others (2003) 1 SCC 730 and in the said case it was held that Court cannot relegislate on the subject under the guise of interpretation against the will expressed in the enactment itself.
15. Mr. Adgaonkar, learned counsel relying upon decision in the case of Vasant Ramchandra and Ors. Vs. Gurudas Vasantrao Yelvande & Ors., 2018(3) ABR 730 submitted that right to sue for partition in case of illegitimate child will accrue only after death of father and particularly referred para 39 of the said decision, which runs thus :-
"39. Thus, in this case, once it is held that the right of the children born out of the second marriage, even in respect of ::: Uploaded on - 13/02/2020 ::: Downloaded on - 09/06/2020 11:44:34 ::: ( 20 ) sa197.16 the property of their parents, far remain the joint family property of their father, accepting that they are having right in the ancestral joint family properties also, CRA-861-14.doc such right will accrue only on the death of their father and in the present case, as Applicant No.1-Vasant is very much alive, during his lifetime, Respondent Nos.2 and 3 cannot have any right to seek partition. Therefore, there is no cause of action, in the real sense, accrued to them for filing the present Suit. Hence, this is a Suit, which is not only barred by law, but also on the count that the meaningful reading of the plaint does not disclose the real cause of action, as that cause of action will accrue only on the death of Applicant No.1-Vasant and not during his lifetime. Therefore, this is a case where the plaint needs to be rejected under Order 7 Rule 11(a) and (d) of CPC. "
16. Mr. Adgaonkar, learned counsel further submitted that mere pendency of reference before the Larger Bench of the Apex court in respect of issue - Whether in terms of section 16 of the Hindu Marriage Act, right of illegitimate child succeeds to property of his father will include right to succeed to the ancestral property in the hands of the father?" is not sufficient to postpone adjudication of the issue involved in the present matter and the present matter has to be decided on the basis of law governing the field today. This submission was made referring to paragraph Nos.8 to 15 of the decision dated 23.09.2015 of this Court [Coram : T.V. Nalawade,J.] in Second Appeal No.155 of 2015. ::: Uploaded on - 13/02/2020 ::: Downloaded on - 09/06/2020 11:44:34 :::
( 21 ) sa197.16
17. So also, in support of his submission that the right of defendant No.3 is restricted only to the property of her parents and not to the joint family properties, learned counsel has relied upon decision of this Court in the case of Balkrishna Pandurang Halde & Ors. Vs. Yeshodabai Balkrishna Halde & Ors., 2018(6) MhLJ 947 and in the said decision it was observed in paragraph Nos. 35,36,37,38 and 39 as under :-
"35. Thus, the Hon'ble Supreme Court has found that, the express mandate laid down by Legislature in Section 16(3) of the Act cannot be ignored, by resorting to any presumptive or inferential process of reasoning to confer any further rights on such children in the joint family property. Thus, the legal position, which stands as on today is that, though by virtue of Section 16(1) of the Hindu Marriage Act, the illegitimate child has been conferred the status of a legitimate child, it did not confer the status of a coparcener. Consequently, such a child does not acquire any right by birth in any property, much less coparcenery or joint family property. As illegitimate child is not a coparcener, he can exercise his right in father's property only on his father dying intestate. He has no right by birth and hence, he cannot be given any share even in the property of his parents till they are alive.
36. The latest, though not the last, pronouncement of the Hon'ble Apex Court on this subject is of Revanasiddappa Vs. Mallikarjun, (2011) 11 SCC 1, wherein the Apex Court has again considered the interpretation of Section 16(3) of the Hindu Marriage Act, 1955, and after taking the review of its earlier decisions held that, the view taken in Jinia Keotin (Supra) was a narrow view of Section 16(3) and, therefore, has placed the matter before the Larger Bench for re- consideration of that view, in the light of the Constitutional provisions of Article 300-A and Article 39-F, which deal with the 'Concept of Property Rights'. The said 'Reference' is yet to be decided. As a result, the legal position, which stands as on ::: Uploaded on - 13/02/2020 ::: Downloaded on - 09/06/2020 11:44:34 ::: ( 22 ) sa197.16 today, is that, the children born to the second wife, who are rightfully called as 'legitimate', their right to get share in the property is, however, restricted only to the property of their parents and not to the joint family properties.
37. Here in the case, admittedly, all the suit properties are the ancestral joint family properties of Appellant No.1. As stated above, in the application given to the Tahasildar vide 'Exhibit-92', Appellant No.1 has categorically stated that, these are the ancestral joint family properties and, therefore, Appellant Nos.3 and 4, who are born out of the void marriage, cannot get any share therein at par with the share of Respondent Nos.2 and 3, who are the daughters born from the first marriage and, therefore, in the strict sense, legitimate children. Appellant Nos.3 and 4 can get share only in the properties, which Appellant No.1 would get to his share.
38. The first Appellate Court has, therefore, rightly held that, Respondent Nos.1 to 3 will get 1/4th share each in the suit lands bearing Gat Nos.185, 186, 89/1 and house property bearing G.P. No.110-B. Appellant No.1 will, accordingly, get 1/4th share.
39. As regards the share of Appellant Nos.3 and 4, they will get only by way of succession, in the 1/4th share of Appellant No.1 on his dying intestate. So far as the present Suit is concerned, they cannot be entitled to any share in the suit properties."
. Mr.Adgaonkar, learned counsel thus submitted that as no substantial question of law is involved in the appeal, it deserves to be dismissed.
18. I have carefully considered the submissions made by the learned counsel for defendant Nos.1 and 3 and plaintiff Nos.2 and 3. So also, I have gone through the decisions relied upon by both the sides referred earlier and perused the judgments of both the Courts below. ::: Uploaded on - 13/02/2020 ::: Downloaded on - 09/06/2020 11:44:34 :::
( 23 ) sa197.16
19. On perusal of the judgment of the Trial Court in Regular Civil suit No.292 of 2000, it is clear that the Trial Court held that the plaintiff No.1 has proved that she is legally wedded wife of defendant No.1 and defendant No.2 is not legally wedded wife of defendant No.1, as per affirmative finding on issue No.1. So also, the Trial Court held that land Survey No.115/A situated at village Utka is ancestral property of defendant No.1 and suit lands Survey Nos.116 and 66 situated at Tattapur were purchased by defendant No.1 from the income of Hindu undivided family as per finding on issue No.2 and thus further the Trial Court held that the suit lands are ancestral properties of the plaintiffs and defendant No.1 and held that the plaintiffs are entitled to partition of the suit lands and plaintiffs and defendant No.1 are having 1/4th share each as per finding on issue No.5A. The Trial Court held that suit is not bad for non-joinder of necessary parties and for non-inclusion of the joint family properties as per negative findings on issue Nos. ::: Uploaded on - 13/02/2020 ::: Downloaded on - 09/06/2020 11:44:34 :::
( 24 ) sa197.16 4 and 4A. So also, after holding that defendant No.3 is illegitimate daughter of defendant No.1, she is not
entitled to any share in the suit lands, the Trial Court decreed the suit and granted 1/4th share each in the suit lands only to the plaintiff Nos. 1 to 3 and defendant No.1.
20. On perusal of the judgment of the Appellate Court, it appears that the Appellate Court did not frame points for determination in the light of above issues decided by the Trial Court and framed only one point i.e. "Do the appellants prove that the judgment and decree in the suit is erroneous, illegal and needs interference by the Appellate Court?" and said point was answered in the negative. In-fact, the Appellate Court was required to frame points for determination in the light of Order 41 Rule 31 of the CPC. Now, the question arises - "Whether the Appellate Court was justified in deciding the appeal without framing points for consideration, as per Order 41 Rule 31 of the CPC?" In this respect, as referred ::: Uploaded on - 13/02/2020 ::: Downloaded on - 09/06/2020 11:44:34 ::: ( 25 ) sa197.16 earlier, learned counsel appearing for the appellants/ defendant Nos.1 and 3 referred to decision in the cases of Janardan Nago Patil (Supra), Vatsalabai Nakhate (Supra) and Khatrunbi (Supra) to support the proposition that requirement of framing points for determination by the Appellate Court while deciding the appeal is mandatory in the light of Order 41 Rule 31 of the CPC. As against this, as referred earlier, learned counsel appearing for respondents/plaintiff Nos.2 and 3 has relied upon decision of the Apex Court in the case of Laliteshwar (Supra) in support of his submission that mere omission to frame points, does not vitiate the judgment of the Appellate Court, if the Appellate Court has recorded reasons based on evidence adduced by both the parties. On the same point, I would like to refer to another decision of the Apex Court in the case of G. Amalorpavam and others Vs. R.C. Diocese of Madurai & Ors., (2006) 3 SCC 224, wherein it was held that if it is possible to make out from the judgment of the Appellate Court that there is substantial compliance with the ::: Uploaded on - 13/02/2020 ::: Downloaded on - 09/06/2020 11:44:34 ::: ( 26 ) sa197.16 requirement of Order 41 Rule 31 of Civil Procedure Code and that justice has not thereby suffered, that would be sufficient. Where entire evidence has been considered and discussed in detail and conclusion and findings are supported by the reasons even though no point has been framed, there is substantial compliance with the provisions of Order 41 Rule 31 of the CPC.
21. In the present case, it is true that the Appellate Court had framed only one point as referred earlier and the Appellate Court did not frame points, which are arising from the pleadings of the parties for consideration. On perusal of the judgment of the Appellate Court in paragraph Nos. 12 to 16 the Appellate Court has referred oral evidence of three witnesses examined on behalf of plaintiffs and referred oral evidence of five witnesses examined on behalf of defendants in paragraph Nos.17 to 22 of the judgment and discussing said evidence of both sides, concluded as per observations in paragraph No.23 of its judgment that the ::: Uploaded on - 13/02/2020 ::: Downloaded on - 09/06/2020 11:44:34 ::: ( 27 ) sa197.16 plaintiff No.1-Kashibai is first and legally wedded wife of defendant No.1 and defendant No.2-Lochanabai is second wife of defendant No.1 and that defendant No.3 is illegitimate child of defendant No.1 from defendant No.2- Lochanabai. So also, the Appellate Court in paragraph Nos. 13, 15 and 16 referred oral evidence adduced on behalf of plaintiff and further referred the evidence of defendants in paragraph Nos. 19 and 20 of the judgment on acquisition of suit land Survey No.116 and 66 from village Tattapur from joint family income from ancestral suit land Survey No.115/A and sale proceeds of gold ornament of plaintiff No.1 Kashibai. So also, the Appellate Court has discussed income of the joint family of the plaintiffs and defendant No.1 from land Survey No.115/A in paragraph No.24 of the judgment and ultimately concluded that suit lands are joint Hindu family properties of the plaintiffs and defendant No.1. Thus, it is clear that the Appellate Court has considered the entire evidence adduced by the plaintiffs and defendants and after discussing the said evidence for ::: Uploaded on - 13/02/2020 ::: Downloaded on - 09/06/2020 11:44:34 ::: ( 28 ) sa197.16 proper reasons concluded that the suit lands are ancestral joint family properties of the plaintiffs and defendant No.1 and defendants have failed to prove that the suit lands Survey Nos.116 and 66 of village Tattapur are self acquired properties of defendant No.1. Therefore, when the Appellate Court has recorded reasons after considering entire evidence adduced by both the parties, there is substantial compliance of the provisions of Order 41 Rule 31 of the CPC in the light of decision of the Apex Court in the case of G. Amalorpavam (Supra). Therefore, applying the ratio laid down by the Apex Court in the case of Laliteshwar (Supra), merely because the Appellate Court did not frame points for determination in the light of provisions under Order 41 Rule 31 of the CPC, as the Appellate Court has recorded reasons based on evidence adduced by the parties, the judgment of the Appellate Court does not vitiate. The Appellate Court also observed that the plaintiffs have waived their rights in the house property situated at Utka and therefore suit is not bad for non-inclusion of ::: Uploaded on - 13/02/2020 ::: Downloaded on - 09/06/2020 11:44:34 ::: ( 29 ) sa197.16 the said property in the suit. It appears that the contention of the defendants that the suit is bad for non-joinder of necessary parties is vague.
22. For the above reasons, I hold that no substantial question of law in respect of non-compliance of provisions in Order 41 Rule 31 of the CPC by the Appellate Court is arising in this appeal for consideration of this Court. Therefore, the arguments advanced by the learned counsel appearing for defendant Nos. 1 and 3/appellants in this respect is not accepted.
23. Though there is no specific ground raised in the appeal - "That in terms of section 16 of the Hindu Marriage Act, whether defendant No.3 illegitimate child/ daughter of defendant No.1 has right to claim share in the suit lands i.e. ancestral joint family properties during lifetime of her father - defendant No.1?" , as referred earlier, learned counsel appearing for the ::: Uploaded on - 13/02/2020 ::: Downloaded on - 09/06/2020 11:44:34 ::: ( 30 ) sa197.16 appellants submitted that defendant No.3 has right to claim share in the suit-lands though both the Courts below have held that the suit-lands are ancestral joint family properties of the plaintiffs and defendant No.1, as according to learned counsel for appellants/defendant Nos.1 and 3, issue as referred earlier in paragraph 10 (Supra) has been referred to the Larger Bench of the Apex Court as per order dated 31.03.2011 in the case of Revansiddappa (Supra) and the same is pending. As referred earlier, both the Courts have recorded concurrent findings of fact that defendant No.2 is second wife of defendant No.1 and plaintiff No.1 is illegally wedded wife of defendant No.1. Thus, it is obvious that defendant No.3 is illegitimate child-daughter of defendant No.2 from defendant No.1. Naturally, therefore, she has right to claim share in the property of her parents as per section 16(3) of the Hindu Marriage Act. Said provision is referred earlier in detail. As per judgment of the Trial Court, after holding that suit lands are ancestral joint family properties, ::: Uploaded on - 13/02/2020 ::: Downloaded on - 09/06/2020 11:44:34 ::: ( 31 ) sa197.16 the Trial Court declared that the plaintiff's wife, son and daughter of defendant No.1 and defendant No.1 are entitled to 1/4th share each and defendant No.3 - daughter of defendant No.1 from second wife as well as defendant No.2 are not entitled to any share in the suit lands.
24. The second limb of submission of learned counsel appearing for the appellants is that there is reference to the Larger Bench of Apex Court as to - "Whether in terms of section 16 of the Hindu Marriage Act, 1955, right of illegitimate child to succeed to the property of his father will include right to succeed to ancestral property in the hands of the father?" as per order dated 31.03.2011 in the case of Revansiddappa (Supra) and it is pending, therefore substantial question of law in this respect is arising in this appeal and hence after framing said substantial question of law adjudication of this appeal may be deferred till the decision of the Larger Bench of the Apex Court on the aforesaid issue, by ::: Uploaded on - 13/02/2020 ::: Downloaded on - 09/06/2020 11:44:34 ::: ( 32 ) sa197.16 admitting the appeal.
25. There is no dispute that the issue as above has been referred to Larger Bench of the Apex Court and the same is pending. Therefore, now the question arises whether the adjudication of present appeal is to be adjourned till the reference is decided, as submitted by learned counsel for the appellants or it is to be decided on the basis of legal position as it stands today. As referred earlier, learned counsel for respondents/plaintiff Nos. 1 and 3 has relied upon decision of this Court dated 23.09.2015 in Second Appeal No. 155 of 2015 (Mankarnabai Santosh Bharti & Ors. Vs. Niranjan s/o. Santosh Bharati & Ors.) and in paragraph Nos.10,11 and 12 of said order, it was observed as under :-
"10. On the aforesaid point, learned counsel for the respondents placed reliance on the case reported as AIR 2013 SC 1064 [Manager, National Insurance Company Ltd. Vs. Saju P. Paul and Anr.]. The Apex Court has made observations at para No 25 as to the course which needs to be followed when the matter is referred to larger Bench for consideration. Para No. 25 reads thus, ::: Uploaded on - 13/02/2020 ::: Downloaded on - 09/06/2020 11:44:34 ::: ( 33 ) sa197.16 " The pendency of consideration of the above questions by a larger Bench does not mean that the course that was followed in Baljit Kaur and Challa Bharathamma should not be followed, more so in a peculiar fact situation of this case. In the present case, the accident occurred in 1993. At that time, claimant was 28 years old. He is now about 48 years. The claimant was a driver on heavy vehicle and due to the accident he has been rendered permanently disabled. He has not been able to get compensation so far due to stay order passed by this Court. He can not be compelled to struggle further for recovery of the amount. The insurance company has already deposited the entire awarded amount pursuant to the order of this Court passed on 01/08/2011 and the said amount has been invested in a fixed deposit account. Having regard to these peculiar facts of the case in hand, we are satisfied that the claimant (Respondent No. 1) may be allowed to withdraw the amount deposited by the insurance company before this Court along with accrued interest. The insurance company (appellant) thereafter may recover the amount so paid from the owner (Respondent No. 2 herein). The recovery of the amount by the insurance company from the owner shall be made by following the procedure as laid down by this Court in the case of Challa Bharathamma ".
11. At para No. 4 in the case reported as AIR 1988 SC 1791 [State of Orissa Vs. Dandasi Sahu], following observations are made :
" In that view of the matter, we think that the pendency of this point before the larger Bench should not postpone the adjudication and disposal of this appeal in the facts of this case. The law as it stands today is that award without reasons are not bad per se. Indeed, an award can be set aside only on the ground of misconduct or on an error of law apparent on the face of the award. This is the state of law as it is today and in that context the contention that the award being an unreasoned one is per se bad, has no place on this aspect as the law is now. This contention is rejected ".
12. In the case reported as AIR 2012 SC 1563 [Ashok Sadarangani and Anr. Vs. Union of India (UOI) and Ors.], the observations are made at para No. 19 as under : ::: Uploaded on - 13/02/2020 ::: Downloaded on - 09/06/2020 11:44:34 :::
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" As was indicated in Harbhajan Singh's case
(supra), the pendency of a reference to a larger Bench, does not mean that all other proceedings involving the same issue would remain stayed till a decision was rendered in the reference. The reference made in Gian Singh's case (supra) need not, therefore, detain us. Till such time as the decisions cited at the Bar are not modified or altered in any way, they continue to hold the field ".
26. Applying the ratio laid down in the case of Manager, National Insurance Co (Supra), State of Orissa (Supra), Ashok Sadarangani (Supra) and observations in paragraph Nos.35, 36, 37, 38 and 39 in the case of Balkrishna Pandurang Halde (Supra), I hold that in the present case when both the Courts below have recorded concurrent findings that the suit-lands are ancestral joint family properties, defendant No.3 - daughter of defendant No.1, who is illegitimate child has no right to claim share in the suit lands and she has right to claim share in 1/4th share allotted to her father - defendant No.1 and cause of action to her to claim that share will arise only after death of her father - defendant No.1 as per section 16 (3) of the Hindu Marriage Act, it would not be proper to defer the hearing of present matter, ::: Uploaded on - 13/02/2020 ::: Downloaded on - 09/06/2020 11:44:34 ::: ( 35 ) sa197.16 because reference as said earlier regarding right of illegitimate child in ancestral property in the hands of father is pending before the Larger Bench of the Apex Court and it has to be decided on the basis of law governing the field today. As per section 16(3) of the Hindu Marriage Act, illegitimate child i.e. defendant No.3 - daughter of defendant No.1 has right only in the property of her parents, when the defendants/appellants have not raised ground in the appeal that defendant No.3 has right to claim share in the ancestral property of defendant No.1 and when defendant No.3 has no right to claim share in the property of her father during his life time, I am of the view that no substantial question of law in respect of defendant No.3's entitlement to claim share in the suit lands i.e. ancestral joint family properties of plaintiffs and defendant No.1 is arising in the present appeal, as submitted by learned counsel for the appellants - defendant Nos.1 and 3 and in the facts and circumstances of this case the decisions referred earlier relied upon by the learned counsel appearing for ::: Uploaded on - 13/02/2020 ::: Downloaded on - 09/06/2020 11:44:34 ::: ( 36 ) sa197.16 the appellants are of no help to the appellants' case to accept the above argument.
27. No other point was argued by learned counsel appearing for the appellants/defendant Nos.1 and 3. Therefore, as no substantial question of law is arising in the present appeal, the appeal deserves to be dismissed.
28. In the result, Second Appeal is dismissed.
29. In view of dismissal of Second Appeal, Civil Application No.14362 of 2019 does not survive and accordingly the same is disposed of.
[S.M.GAVHANE,J.] . After the order is pronounced, the learned Counsel appearing for the applicants submitted that execution and operation of the order passed by this Court ::: Uploaded on - 13/02/2020 ::: Downloaded on - 09/06/2020 11:44:34 ::: ( 37 ) sa197.16 may be stayed for 8 (eight) weeks as the applicants desire to challenge the said Order.
. Learned Counsel appearing for the respondent Nos. 2 and 3 opposed to grant the prayer.
. However, considering the submissions made by the learned Counsel appearing for the applicants and particularly the submission that the possession warrant is issued by the Executing Court, the execution and operation of the order passed by this Court is stayed for a period of 6 (six) weeks from today.
[S.M.GAVHANE,J.] snk/2020/FEB20/sa197.16 ::: Uploaded on - 13/02/2020 ::: Downloaded on - 09/06/2020 11:44:34 :::