Bombay High Court
Bhujangrao Pundlikrao Hambarde And Anr vs Nilavatibai Govindrao Ghogare And Ors on 4 June, 2018
Author: V.K. Jadhav
Bench: V.K. Jadhav
1 SA 92.1990.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 92 OF 1990
WITH
CA/3189/1990 IN SA/92/1990
1. Narayan s/o Govindrao, age major.
2. Shivaji s/o Govindrao, aged major.
3. Bhagwan s/o Govindrao, aged 10 years.
4. Namdeo s/o Govindrao, aged 8 years.
Nos. 3 and 4 under guardianship of the mother
Jijabai w/o Govindrao Ghogre, appellant no.5.
5. Jijabai w/o Govindrao Ghogre, aged 42 years
All R/o. Waghala, Tal. And Dist. Nanded
6. Balaji s/o Gangaram Bhange, aged 32 years.
7. Vishwanath s/o Gangaram Bhange, aged 26 years.
8. Tukaram s/o Gangaram Bhange, aged 22 years.
Appellants No. 6 to 8 Occu. Agri. And all R/o.
Gudegao, Tal. And Dist. Nanded.
9. Bhujangrao s/o Pundlikrao Hambarde,
aged 30 years, Occu. Agri. And Business,
R/o. Nanded.
10. Damodhar Shrikishan Darak.
11. Datta Govindrao,
Minor under guardianship of the mother
Jijabai w/o Govindrao, aged 45 years,
Occu. House-hold, R/o. Waghala,
Tal. And Dist. Nanded. (orig deft 1 to 12)
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2 SA 92.1990.odt
VERSUS
1. Nilavatibai w/o Govindrao Ghogre,
(died) through L.Rs. R/1-A to 1-E
1-A. Prayagabai Govindrao Ghogare,
(Prayagbai w/o Sambhaji)
Age. Major, Occu. House-hold,
R/o. Babhulgaon, Tal. and Dist. Nanded.
1-B. Yamunabai Govindrao Ghogare,
(Yamunabai w/o Govindrao)
Age. Major, Occu. House-hold,
R/o. Babhulgaon, Tq. and Dist. Nanded.
1-C. Kashibai Govindrao Ghogare,
Age. Major, Occu. House-hold,
R/o. Babhulgaon, Tq. and Dist. Nanded.
1-D. Renukabai d/o Govindrao Ghogare,
(Renukakbai w/o Gyanoba),
Age. Major, Occu. House-hold,
R/o. Kokale Pimpalgaon, Tq. and Dist. Nanded.
1-E. Sayabai d/o Govindrao Ghogare,
(Sayabai w/o Dadarao)
Age. Major, Occu. House-hold,
R/o. Gundegaon, Tal. and Dist. Nanded.
7. Gayabai w/o Anandrao Maske,
aged. 25 years, Occu. House-hold,
R/o. Gundegaon, Tal. And Dist. Nanded.
8. Narayan Govindrao Ghogare,
Age. Major, Occu. House-hold,
R/o. Babhulgaon, Tq. and Dist. Nanded.
9. Shivaji Govindrao Ghogare (died) through L.Rs.
9-A. Nagubai Shivaji Ghogare (died) through L.Rs.
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3 SA 92.1990.odt
9-B. Yogesh Shivaji Ghogare,
Age. Minor, through Resp. No. 9-A
9-A to 9-B R/o. Waghala, Tq. and Dist. Nanded.
10. Bhagwan Govindrao Ghogare,
Age. Major, Occu. Agri.
11. Namdeo Govindrao Ghogare,
Age. Major, Occu. Agri.
12. Jijabai w/o Govindrao Ghogare,
(died) through L.Rs. 8,10,11 and 16.
13. Balaji Gangaram Bhange,
Age. Major, Occu. Agri.
R/o. Gundegaon, Tq. and Dist. Nanded.
14. Vishwanath Gangaram Bhange,
Age. Major, Occu. Agri.
R/o. Gundegaon, Tq. and Dist. Nanded.
15. Tukaram Gangaram Bhange,
Age. Major, Occu. Agri.
R/o. Gundegaon, Tq. and Dist. Nanded.
16. Datta Govindrao Ghogare,
Age. Major, Occu. Agri.
Resp. Nos. 8 to 12 and 16
All R/o. Waghala, Tq. and Dist. Nanded.
17. Dathram Maruti Kure,
Age. Major, Occu. Agri.
R/o. Gundegaon, Tq. and Dist. Nanded.
.....
WITH
SA/265/2018
WITH
CA/4581/2018 IN SA/265/2018
WITH
CA/9886/2012 IN SA/265/2018
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4 SA 92.1990.odt
1. Bhujangrao Pundlikrao Hambarde,
Age. 56 years, Occu. Business and Agri.,
R/o. Anand Nagar, Nanded.
2. Damodhar Shrikishan Darak,
Age. 61 years, Occu. Business and Agri.,
R/o. Bhagatsingh Road, Nanded,
Tq. and Dist. Nanded.
VERSUS
1. Nilavatibai Govindrao Ghogare,
(died) through L.Rs. Resp. No. 2 to 7
2. Prayagabai Govindrao Ghogare,
Age. Major, Occu. House-hold,
3. Yamunabai D/o Govindrao Ghogare,
Age. Major, Occu. House-hold,
4. Kashibai D/o Govindrao Ghogare,
Age. Major, Occu. House-hold,
5. Renukabai W/o Gyanoba,
Age. Major, Occu. House-hold,
6. Sayabai W/o Dadarao,
Age. Major, Occu. House-hold,
7. Gayabai Anandrao Maske,
Age. Major, Occu. House-hold,
R.Nos. 1 to 7 R/o. Bhabulgaon,
Tq. And Dist. Nanded.
8. Narayan Govindrao Ghogare,
Age. Major, Occu. Agri.
9. Shivaji Govindrao Ghogare (died) through L.Rs.
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5 SA 92.1990.odt
9-A. Nagubai Shivaji Ghogare (died) through L.Rs.
9-B. Yogesh Shivaji Ghogare,
Age. Minor, through Resp. No. 9-A
9-A to 9-B R/o. Waghala, Tq. and Dist. Nanded.
10. Bhagwan Govindrao Ghogare,
Age. Major, Occu. Agri.
11. Namdeo Govindrao Ghogare,
Age. Major, Occu. Agri.
12. Jijabai w/o Govindrao Ghogare,
(died) through L.Rs. 8,10,11 and 16.
13. Balaji Gangaram Bhange,
Age. Major, Occu. Agri.
R/o. Gundegaon, Tq. and Dist. Nanded.
14. Vishwanath Gangaram Bhange,
Age. Major, Occu. Agri.
R/o. Gundegaon, Tq. and Dist. Nanded.
15. Tukaram Gangaram Bhange,
Age. Major, Occu. Agri.
R/o. Gundegaon, Tq. and Dist. Nanded.
16. Datta Govindrao Ghogare,
Age. Major, Occu. Agri.
Resp. Nos. 8 to 12 and 16
All R/o. Waghala, Tq. and Dist. Nanded.
17. Dathram Maruti Kure,
Age. Major, Occu. Agri.
R/o. Gundegaon, Tq. and Dist. Nanded.
...Respondents...
...
Advocate for Appellant : Mr V S Kadam
Advocate for Respondents 2-7 : Mr M.P Kale h/f
G.V.Sukale
...
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6 SA 92.1990.odt
CORAM : V.K. JADHAV, J.
...
Reserved on : April 05, 2018
Pronounced on : June 04, 2018
...
COMMON JUDGMENT :-
1. Being aggrieved and dissatisfied with the judgment
and order dated 23.10.1989 passed by the Additional
District Judge, Nanded in RCA No.208 of 1984, the
original defendant nos. 1 to 12 have preferred Second
Appeal No.92 of 1990. During the pendency of the
appeal, appellants no.1 to 8 and 11 remained absent
even though court notices were served against them. By
order dated 26.4.2010, this court ( Coram : P.R.Borkar,
J. ) has directed that if appellant nos. 1 to 8 and 11 are
not ready to join as appellants anymore, the appellant
nos. 9 and 10 may take steps for transposing the
appellant nos. 1 to 8 and appellant no.11 as
respondents. Accordingly, appellant nos. 9 and 10 filed
a Civil Application no.10786 of 2015 (CA 10786 of 2015
though filed in the year 2010 registered in the year 2015
for aforesaid purposes) and accordingly by order of this
Court, Second Appeal stamp no.5941/2010 and
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7 SA 92.1990.odt
registered onwards as SA No 265/2018 wherein the
original appellant no.1 to 8 and 11 transposed as
respondent nos. 8 to 17. Thus, both the appeals are
decided by this common judgment. In fact Second
Appeal No.265/2018 is the outcome of Second Appeal
No 92 of 1990, wherein the other appellants have lost
their interest in pursuing the appeal, impleaded as
respondents.
2. Brief facts, giving rise to the aforesaid appeals, are
as under :-
a] Deceased Nilawatibai had instituted a Regular
Civil Suit No.314 of 1981 before the Civil Judge S.D.
Nanded for partition and possession of the suit property
consisting of various agricultural lands and house
property situated at village Waghala Tq. & District
Nanded as described in the plaint. It is the case of the
deceased Nilawatibai/original plaintiffs alongwith her
three children as original plaintiff nos. 2 to 4 that,
original defendant no.1/deceased Govind was a
husband and the father of plaintiff nos. 2 to 4. Original
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8 SA 92.1990.odt
defendant no.6-Jijabai is the second wife of deceased
defendant no.1/Govindrao and original defendant nos. 2
to 5 are the sons of defendant no.6 Jijabai from
deceased defendant no.1/Govindrao. Deceased
Nilawatibai / plaintiff no.1 was residing separate from
her husband/defendant no.1 deceased Govindrao from
10 years prior to the institution of the suit as he had
performed second marriage with defendant no.6-Jijabai.
Defendant no.1/deceased Govindrao with an intention
to make severance of the joint Hindu family effected
partition of the suit property between himself and the
defendant nos. 2 to 6. According to deceased
Nilawatibai/plaintiff no.1, plaintiffs were neither given
any share in the joint Hindu family property nor any
arrangement was made for their maintenance by the
original defendant no.1/deceased Govindrao. In
pursuance of the partition, mutation was effected under
mutation entry no. 720 dated 3.4.1980. The defendant
no.1/deceased Govindrao since was intending to deprive
the plaintiffs from the suit property, executed the sale
deeds of the suit lands in the name of original defendant
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9 SA 92.1990.odt
nos. 7 to 9 at the instigation of his second
wife/defendant no.6-Jijabai. Original defendant no.7 to
9 are the real brothers of defendant no.6-jijabai.
According to deceased Nilawatibai / original plaintiff
no.1, sale deeds executed by defendant no.1/Deceased
Govindrao on 25.2.1981 in favour of original defendant
nos. 7 to 9 are nominal and not binding on the share of
the plaintiffs. Accordingly, plaintiffs have demanded
their share in the suit property and, accordingly,
instituted the suit claiming partition and separate
possession in respect of the suit property to the extent
of ½ share alongwith the declaration that sale deeds
dated 25.5.1981 are not binding on their shares and also
for future mesne profits. During the pendency of the
suit, defendant no.1 deceased Govindrao died on
6.3.1982. Plaintiffs and defendant nos. 2 to 6 are the
only legal heirs of deceased/defendant no.1.
3. Though, defendant no.6-Jijabai, who happened to
be the natural mother of minor defendant nos. 2 to 5
failed to appear in pursuance of the notice served
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10 SA 92.1990.odt
against her, the clerk of the Court came to be appointed
as guardian-ad-litum for minor defendant nos. 2 to 5.
On behalf of the minor defendant nos. 2 to 5 claim of
the plaintiffs came to be resisted by filing the written
statement exh.13. The original defendant nos. 2 to 5
have admitted the relationship as stated in the plaint
paragraph no.1. They have specifically denied that
deceased defendant no.1 Govindrao neglected the
plaintiffs and plaintiffs were not residing with the
deceased defendant no.1 since last ten years. It has also
been contended that partition never effected between
the defendant nos. 1 to 5. They have also denied that
sale deed came to be executed at the instance of original
defendant no.6-Jijabai in favour of defendant nos. 7 to
9. As there is no partition of the suit property between
the defendant nos. 1 to 5, plaintiffs have no right to file
the suit against the defendants.
4. Original defendant nos. 7 to 9 (purchasers)
resisted the claim of the plaintiffs by filing their written
statement at exh.32. They have admitted the relations
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11 SA 92.1990.odt
between the parties. According to them, suit property
was never partitioned amongst the defendant nos. 1 to 5
as there was no partition, plaintiffs are not entitled to
claim any share in the suit property. According to them,
defendant no.1/Govind had executed the sale deed
dated 25.2.1981 in respect of the suit property in their
favour after receiving full consideration at market rate
for family necessity. On these grounds, original
defendant nos. 7 to 9 have prayed for dismissal of the
suit.
5. The learned 4th Jt. Civil Judge J.D., Nanded
though recorded findings in the affirmative to issue no.1
and held that, plaintiffs prove that partition of the
family property was effected between defendant nos. 2 to
5 by deceased defendant no.1/Govindrao, neither any
arrangement was made for them, nor any share was
given to them, dismissed the suit mainly on the ground
that plaintiffs have failed to add other necessary parties
and the plaintiffs have no right to claim partition during
the life time of deceased Govindrao.
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12 SA 92.1990.odt
6. Being aggrieved by the same, the plaintiffs have
preferred Regular Civil Appeal No.208/1994 before the
District Court, Nanded and the learned Additional
District Judge, Nanded by the impugned judgment and
order dated 23.10.1989 partly allowed the appeal with
costs and held that the plaintiff no.1 Nilawatibai has
1/14th share in the agricultural lands described in claim
paragraph of the plaint and right of residence to the
extent of 1/14th share in the residential house as
described in claim para.
7. Being aggrieved by the same, the original
defendants have preferred Second Appeal No.92/1990
and since the appellant nos. 1 to 8 and 11 in Second
Appeal No.92/1990 failed to pursue the appeal, despite
the notice issued by this court and served on them, by
order of this Court in Civil Application No.10786/2015,
Second Appeal No.265/2018 came to be registered,
wherein the original respondent nos. 9 to 10 who
impleaded as party respondents in the pending appeal
No.208/1984 before the District Court, prosecuted the
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13 SA 92.1990.odt
appeal as appellants and original appellants in Second
Appeal No.92/1990 came to be impleaded as party
respondents in Second Appeal No.265/2018.
8. Learned counsel for the appellants in Second
Appeal No.265/2018 submits that, during the pendency
of appeal bearing Regular Civil Appeal No.208/1984, the
original defendant nos. 7 to 9 (Balaji Bhange,
Vishwanath Bhange and Tukaram Bhange) more
specifically the original defendant no.8 Vishwanath
Bhange with the consent of defendant no.6-Jijabai had
executed the sale deed no.6178 in favour of the present
appellants Damodhar Darak out of the suit land gat
no.77 to the extent of southern 2 acres (80R) and
likewise with consent of defendant no.6 had executed
another sale deed no.6177 dated 1.12.1986 in favour of
the appellant Bhujangrao out of the suit land gat no.77
to the extent of 2 Acres (80R) in his south corner.
Original plaintiff no.2 Prayagbai had filed an application
Exh.20 for impleading the present appellants as party
respondent in Regular Civil Appeal no.208/1984 and
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14 SA 92.1990.odt
accordingly they were impleaded as party respondents
for the first time in the pending appeal no.208/1984
before the first appellate Court. Learned counsel for the
appellants submits that, first appellate court has partly
allowed the appeal without giving an opportunity to the
present appellants to file written statement and to lead
necessary evidence. Learned counsel submits that, the
appellants are the bonafide purchasers for valuable
consideration without notice, however, first appellate
court has passed the impugned judgment and decree
without giving an opportunity to them to file the written
statement and contest the suit on merits. Learned
counsel submits that, impugned judgment and decree
passed by the lower appellate court is contrary and
against the principles of Hindu Law. Learned counsel
submits that, there is ample evidence to show that, on
25.2.1981 defendant no.1/deceased Govindrao, who
happened to be the Karta of the family had sold the suit
land to original defendant nos. 7 to 9 and as such,
plaintiffs being female members of the family have no
right to challenge the alienation. Learned counsel
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submits that, appellate court has not considered the
position as on the date of institution of the suit and
erroneously considered the change owing to the death of
the deceased Govind during the pendency of the suit.
Learned counsel submits that, trial court has rightly
dismissed the suit, however, the first appellate court has
not considered the legal aspect of the case and
erroneously partly allowed the appeal. Learned counsel
in the alternate submits that, in paragraph no.17 of the
impugned judgment and order, the first appellate court
has observed that, during the lifetime deceased Govind
had executed a sale deed in favour of defendant nos. 7,8
and 9 and so those sale deeds will bind on 1/7 th share
of deceased Govind and as such, if during the pendency
of the appeal, if original defendant nos. 7 to 9 have sold
some portion of the suit land in favour of present
appellants, same relief may also be granted to the
present appellants.
9. Learned counsel for respondent nos. 1A to 1E
(legal heirs of plaintiff no.1/deceased Nilawatibai) and
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16 SA 92.1990.odt
respondent nos. 2 to 7 submits that, present appellants
had purchased the suit property during the pendency of
appeal from original defendant nos. 7 to 9 and as such,
they are bound by the impugned judgment and order
passed by the first appellate court. Learned counsel
submits that, first appellate court in paragraph no.17 of
the impugned judgment has rightly observed that the
sale deeds executed in favour of the present appellants
in the year 1986 (during the pendency of R.C.A.
No.208/1984) will not bind the shares of the plaintiffs
and other defendants having interest in that property.
Learned counsel submits that, the first appellate court
has rightly considered the provisions of the Hindu
Succession Act and Hindu Women's Right to Property
Act in its proper perspective and, accordingly, partly
allowed the appeal granting thereby the share to
deceased plaintiff Nilawatibai to the extent of 1/14 th
share in the suit agricultural land and also right of
residence to the extent of 1/14th share in the residential
house. Learned counsel submits that, there is no
substantial question of law involved in this appeal and
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17 SA 92.1990.odt
thus both the appeals are liable to be dismissed with
costs.
10. In view of the above submissions, following
substantial question of law arises in this appeal :-
I] "Whether the suit filed by the plaintiffs was
maintainable when defendant no.1/deceased
Govindrao was alive and succession has not
been open on the date of filing of the suit,
whether first appellate court is justified in
considering the change that has been
occurred during the pendency of appeal
owing to the death of deceased Govindrao ?
II] Whether first appellate court was justified in
partly allowing the appeal without granting
an opportunity to the present appellants to
file their written statement and lead
necessary evidence to show that they are the
bonafide purchasers for valuable
consideration without notice ?
11. On careful perusal of the impugned judgment and
order passed by the first appellate court, it appears
that, on appreciation of the evidence, first appellate
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court has rightly concluded that, on the basis of the
7/12 extract filed on record and mutation entry, the
mere ascertainment of the share of the minor defendant
nos. 2 to 5 is not a sufficient factor to hold that there
was partition between deceased defendant Govind and
his son in the year 1980. The First appellate Court has
rightly observed that partition is not a mere
ascertainment of the share and it is a severance of a
joint status and it requires definite and unequivocal
indication of a member of joint family to separate
himself from the family and enjoy the shares severally.
In the instant case, all the coparcener defendant nos. 3
to 5 had no capacity to demand the partition and they
did not have a capacity to indicate their intention to live
separate. Minor defendant nos. 2 to 5 never carried out
the cultivation as per the shares allotted to them. On
the basis of mere entry in the revenue record is not
helpful to draw inference that there was a partition in
the year 1980 between defendant no.1 and defendant
nos. 2 to 5. Admittedly, plaintiff no.1 - Nilawatibai was
not given any share in the suit property. The First
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19 SA 92.1990.odt
Appellate Court has rightly interpreted Section 3 of
Hindu Women's Right to Property Act, 1937 and partly
allowed the appeal. I do not find any fault in the
impugned judgment and order wherein the first
appellate court has given the effect to the change owing
to the death of defendant no.1 deceased Govindrao
during the pendency of the suit. Deceased Nilalwatibai
had instituted the suit in the year 1981 and during the
pendency of the suit her husband deceased Govindrao
died on 23.6.1982. The First Appellate Court has
decided the appeal on 23.10.1989. In terms of the
provisions of Section 3 of the Hindu Women's Right of
Property Act, deceased Nilawatibai gets the right of
partition and first appellate Court has rightly observed
that for doing a substantial justice, instead of directing
the deceased Nilawatibai to institute a fresh suit, it
would be appropriate to consider the subsequent
change owing to the death of deceased Govindrao and
consider her interest in the suit property.
12. Present appellants came to be impleaded as party
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respondents during the pendency of appeal
no.208/1984 before the First Appellate Court. The First
Appellate Court has not extended any opportunity to the
present appellants to file their written statement and
contest the suit on merits with regard to their
contention to the effect that they are the bonafide
purchasers for valuable consideration without notice.
However, at the same time, there is no point in
remanding the matter to the trial court after such a long
span. In paragraph no.17 of the impugned judgment
and order, the first appellate Court has observed that
during the lifetime deceased Govind executed sale deed
in favour of defendants nos.7,8 and 9 and those sale
deeds bind to the 1/7th share of deceased Govind. There
is no dispute that original defendant no.8 had executed
the sale deed to the extent of some portion of the suit
property in favour of the present appellants. If such
protection is extended to original defendant nos. 7 to 9,
present appellants are also entitled for the same
protection to the extent of the sale deed executed in
their favour with regard to 1/7th (1/6th) share of
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21 SA 92.1990.odt
deceased Govind. I am inclined to grant the same
protection to the present appellants for the reason that
they had no opportunity to contest the suit on merits so
far as their plea of bonafidely purchasing the suit
property for valuable consideration without notice is
concerned. However, the first appellate court has
erroneously observed that, deceased Govind has five
sons from his second wife defendant no.6 Jijabai. In
fact, the original defendant nos. 2 to 5 who are four in
numbers are the sons of deceased Govind. In view of
the same, each of them including two widows and
deceased Govind are entitled to the extent of 1/6 th share
each in the suit property and plaintiff no.1 deceased
Nilawatibai is entitled for the share to the extent of
1/12th share in the suit property as well as in the house
property, also. Thus, to the extent of the same, the
impugned judgment and order passed by the first
appellate court requires to be modified alongwith the
protection as discussed aforesaid. With these
observations, I proceed to pass the following order.
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O R D E R
I. Both the Second Appeals i.e. Second Appeal No. 92 of 1990 (Narayan Govindrao Ghogare and others Vs. Nilawatibai w/o Govindrao Ghogare and others) and Second Appeal No. 265 of 2018 (Bhujangrao Pundlikrao Hambarde and another Vs. Nilawatibai Govindrao Ghogare (deceased) through L.Rs. And others) are hereby partly allowed.
II. The judgment and order dated 23.10.1989 passed by the Additional District Judge, Nanded in Regular Civil Appeal No.208 of 1984 is modified as follows :-
a] The plaintiff no.1 Nilawatibai wd/o Govindrao Ghogre has 1/12th share in the agricultural land described in claim para of the plaint and right of residence to the extent of 1/12th share in the residential house described in the claim para.
b] The sale deeds executed in favour of the present appellants in appeal no.265/2018 (i.e. Bhujangrao Pundlikrao Hambarde) by the aaa/-::: Uploaded on - 04/06/2018 ::: Downloaded on - 06/06/2018 01:27:11 :::
23 SA 92.1990.odt original defendant nos. 7 to 9 (7-
Gayabai Govindrao Ghogre, 8- Narayan Govindrao Ghogare and 9- Shivaji Govind Ghogare died through Lrs. 9A- Nagubai Shivaji Ghogare and 9B- Yogesh Shivaji Ghogare) will bind 1/6th share of deceased Govind to the extent of suit land purchased under those sale deeds.
III] Rest of the judgment and order passed by the Additional District Judge, Nanded in Regular Civil Appeal No.208/1984 stands confirmed.
IV] Decree be drawn up as per the above modification.
V] In the circumstances, there shall be no order as to costs.
VI] Pending Civil Applications also stand disposed of.
( V.K. JADHAV, J. ) ...
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