Bombay High Court
Sudam Shankar Revage And Others vs Pramila @ Bebi Sudam Revage Lrs Shrikant ... on 7 January, 2019
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
1 SA 206-2018
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 206 OF 2018
Sudam Shankar Revage & Ors. ...Appellants
Versus
Pramila @ Bebi Sudam Revage (died ...Respondents
through LR's & Ors.
.......
Mr. N. C. Garud, Advocate for Appellants.
Mr. Mr. Sanket Kulkarni, Advocate H/F Mr. D. B. Rode &
Mr. A. N. Suryawanshi, Advocates for Respondents No. 1 to
3.
.......
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 07-01-2019.
ORAL ORDER :
01. Present appeal has been filed by the original defendants No. 1, 2, 6 and 8. Present respondents No. 1 to 3 had filed R. C. S. No. 33 of 2003 before Joint Civil Judge, Junior Division, Shrigonda for partition and separate possession. It came to be decreed on 7.3.2012. Appeal was preferred by original defendants bearing R. C. A. No. 339 of 2012. It came to be partly allowed by learned District Judge-13, Ahmednagar on 15.7.2017. Challenging the said Judgment and decree the original defendants No. 1, 2, 6 and 8 have preferred this appeal. ::: Uploaded on - 11/01/2019 ::: Downloaded on - 12/01/2019 04:38:28 :::
2 SA 206-2018
02. Heard both the sides. There were two suit properties bearing gut No. 29 and 262. The defendant No. 1 is the father of original plaintiff and husband of plaintiff No. 2. It was contended that the defendant No. 1 has performed second marriage illegally and he has defendant No. 2-son begotten from the second wife. It was specifically contended in the plaint itself that the suit lands had come to the share of defendant No. 1 in partition. The issue that was framed was whether the suit is ancestral property. Though the learned Appellate Court did not frame a specific point to that effect, only point that was framed was whether the plaintiffs are entitled for partition. However, the discussion has been made. The learned Trial Court held that the suit properties are ancestral. Whereas the learned Appellate Court though fact is taken into consideration that the lands have come to the share of defendant No. 1, it is stated that the property was available for partition. Point No. 1 was framed that whether the suit property is ancestral ? The answer is given in the affirmative. Therefore, definitely, the substantial question of law is as to whether after partition what would be the nature of the property - whether still ancestral or become separate property ?
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3 SA 206-2018
03. The further facts are also required to be considered. Taking into consideration the fact that the defendant No. 1 has performed the second marriage whether illegitimate child can have a share in the properties. Definitely, the answer would depend on the first abovesaid raised substantial question of law.
04. The third point that is canvassed is that the defendant No. 1 has daughter by name Urmila from the second wife. She is not made a party to the suit. A specific issue was framed by the Trial Court and it has been answered in the negative. So also the learned first Appellate Court has also framed point to that effect and then gave answer in the negative. The question is that when the defendant No. 2 who is the son begotten from the second wife is made a party, then why the daughter could not have been made a party and whether the reasons given by both the Courts negativing the objection for non- joinder of necessary party would be applicable to the defendant No. 2 also. Therefore, point of non-joinder of necessary party is also a substantial question of law in this case, though there is a concurrent findings by both the Courts below.
05. The another point as regards maintainability of ::: Uploaded on - 11/01/2019 ::: Downloaded on - 12/01/2019 04:38:28 ::: 4 SA 206-2018 the suit has been raised on the ground that whether the suit for partition can be filed during the life time of defendant No. 1 ? This question of law has its own bearing to the first question of law. The findings to the nature of the property would also decide as to whether the suit can be filed for partition or not, when the defendant No. 1 is alive. Therefore, the substantial question of law has been raised :
"II] Whether the suit filed by the original plaintiffs is maintainable in view of the provision of Hindu Succession Act, considering the fact that, during the life time of husband daughter and wife has no right to file the suit for partition ?
III] Whether the suit is bad for non joinder of necessary party considering the facts that, the daughter of defendant No. 1 from second wife is also necessary party. Hence, suit itself is not mentionable as the children from second wife are also entitled to get share in ancestral property as per amendment in Section 16 of Hindu Marriage Act ?
IV] It ought to have been held that, as per Section 16(3) of Hindu Marriage Act illegitimate children are also entitled to get share in the property of their parents which is acquired by the parents either by inheritance or self acquired. Not only this but also children from void or voidable marriage for entitled to get ::: Uploaded on - 11/01/2019 ::: Downloaded on - 12/01/2019 04:38:28 :::
5 SA 206-2018 equal share in the property of parents like legitimate child. Hence, non giving share to the children from second wife by the appellate court itself is a substantial question of law, involved in this second appeal."
06. Hence, the second appeal is admitted.
07. Interim relief to continue till further orders.
08. Call record and proceedings.
[SMT. VIBHA KANKANWADI] JUDGE Dahibhate/-
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