Bombay High Court
Sahadeo Shankarrao Thool Amravati & ... vs Shiodas Pralhad Dhanke & 5 Others on 15 March, 2018
Author: Manish Pitale
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO. 445 OF 2003
1. Sahadeo Shankarrao Thool
Aged about 40 years, Cultivator,
R/o Baghapur,Tq.Chandur Rly.
District:- Amravati.
2. Vithal Dinaji Bhagat,
Aged about 45 years, Labourer
R/o at & post Nimboli,
Tq. Chandur Rly,
Dist.Amravati. .. APPELLANTS
...VERSUS...
1) Shiodas Pralhad Dhanke
Aged about 26 years,
Occupation:Cultivator
2) Devidas Pralhad Dhanke
Aged about 26 years, Occup. Cultivator,
3) Smt.Anjanabai Pralhad Dhanke,
Aged abut 45 years, Occ: Cultivator,
All resident at Nimboli, Tq. Chandur Rly,
Dist.Amravati.
4) Kusum Krishnarao Bhagwat
Aged about 37 years,Occup. Household
R/o Watkhed,Tq.Babhulgaon, Dist.Yawatmal.
5) Kunda Shankarrao Waghmare,
Aged about 31 years, Household work
Residing at Chandegaon,
Tq.Deoli, Dist.Wardha .. RESPONDENTS
Kavita
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Mr. Badal Lonare Counsel for the appellants
Mr. P.R.Agrawal a/w Shyam Jaiswal, Counsel for the
respondents.
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CORAM : MANISH PITALE, J.
DATE:- 15th March 2018
ORAL JUDGMENT :
1. The unsuccessful defendant Nos.2 and 3 in this case are appellants, challenging the concurrent findings rendered against them by the two Courts below. This appeal arises out of partition suit filed by respondent Nos.1 to 3 against their grandmother being defendant no.1, the purchasers of the suit property i.e. defendant nos.2 and 3 (appellants herein) and defendant nos.4 to 6, who were sisters of the plaintiffs. The husband of defendant no.1 Champat died somewhere around 1943, the date not being clear from the record, but the year was admittedly 1943. After his death, his widow Sonibai (defendant no.1) adopted Pralhad on 13.4.1949, by a registered adoption deed. The plaintiffs herein are the wife and two sons of said Pralhad (adopted son). It is discernible from the record that on 2.5.1973, the said defendant cancelled the adoption deed by executing a registered document (Exh.200), claiming that her adopted son i.e. Pralhad was not taking care of her and Kavita ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 01:42:38 ::: 205-sa-445-03 judg..odt 3/19 therefore, she was constrained to cancel the adoption. Thereafter, on 18.7.1973, the defendant no.1 sold part of the suit property to defendant no.2. Subsequently, on 7.11.1984, said Pralhad (adopted son) died. On 29.4.1986 said defendant no.2, in turn, sold the said part of the suit property to defendant no.3.
2. The plaintiffs i.e. respondent nos.1 to 3 herein, on 5.12.1996, filed suit for partition and separation possession in respect of the suit property specified in schedules A and B of the plaint. Schedule A contained details of agricultural lands, including survey no.141/2 situated in village Nimboli, Tq.Chandur Rly, District Amravati, which was subject matter of sale deeds executed as aforesaid. Schedule B pertained to two house properties. The plaintiffs claimed partition of the said suit properties and further claimed that the defendant no.1 was not entitled to execute sale deed in respect of part of the suit property in favour of defendant no.2, who had in turn sold it to the defendant no.3. The defendant nos.1 to 3 being the contesting parties, opposed the prayers made on behalf of the plaintiffs in the suit. It was the stand of defendant no.1 that, having cancelled the adoption deed on 2.5.1973, she was the sole owner of the suit property and that she was entitled to execute the sale deed in respect thereof. The defendant Nos.2 and Kavita ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 01:42:38 ::: 205-sa-445-03 judg..odt 4/19 3 also contested the claims of the plaintiffs on similar grounds. On the basis of the evidence and material on record, the Trial Court framed 14 issues. These included issue pertaining to effect of cancellation of the adoption deed on 2.5.1973 and as to whether the defendant no.1 had become absolute owner of the suit property by virtue of section 14(1) of the Hindu Succession Act, 1956. These issues went to the very root of the matter, because findings on them would decide the fate of not only the suit, but the extent to which the purchasers were entitled to lay their claim on the suit property.
3. By its judgment and order dated 25.3.1994, the Trial Court found that defendant no.1 could not be said to have become absolute owner of the suit property under Section 14(1) of the Hindu Succession Act, 1956, because after the death of her husband Champat in 1943, the intervening event of adoption of Pralhad by her on 13.4.1949 had a direct impact on her claim of being an absolute owner of the suit property. It was further held by the Trial Court that the adoption of Pralhad was under Hindu Law and such an adoption could not have been cancelled. On this basis, the Trial Court accepted contention of the plaintiffs and decreed the suit, thereby specifying the share to which the parties were entitled. It was held that the sale deed executed by defendant no.1 in favour Kavita ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 01:42:38 ::: 205-sa-445-03 judg..odt 5/19 of defendant no.2 and the subsequent sale deed executed in favour of defendant no.3 were not binding on the shares as claimed by the parties.
4. Aggrieved by the same, the defendant nos.2 and 3 filed appeal before the Court of District Judge, Amravati. By the impugned judgment and order dated 21.4.2001, the Appellate Court dismissed the appeal, thereby confirming the decree passed by the Trial Court. In the impugned judgment and order also there was exhaustive discussion on various points that were framed for determination on the basis of the arguments advanced on behalf of the contesting parties.
5. Aggrieved by the impugned judgment and order, the defendant Nos.2 and 3 have filed this appeal. On 11.7.2008, this appeal was admitted on a substantial question of law. Thereafter, on 23.2.2018, an additional substantial question of law was framed by this Court by exercising powers under Section 100(5) of the Civil Procedure Code. Accordingly, the following two substantial questions of law fall for consideration in this appeal;
i) Whether Sonibai, the widow of Champat, became the absolute owner of the suit property in view of provisions Kavita ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 01:42:38 ::: 205-sa-445-03 judg..odt 6/19 of Section 14(1) of the Hindu Succession Act, 1946?
ii) Whether the adoption of Pralhad vide Deed dated 13 th April 1949 can be said to be canceled by Sonibai on 2 nd May, 1973? The adoption being undertaken prior to the Hindu Adoption & Maintenance Act, 1956 coming into force, whether provisions of Section 15 of the Act can be relied upon?
6. I have heard the counsel for the parties on the above mentioned substantial questions of law. Mr. Badal Lonare, learned counsel appearing on behalf of the appellants, has submitted that upon enactment of the Hindu Succession Act 1956, under Section 14(1) thereof, the defendant no.1 Sonibai had become the absolute owner of the suit properties and that therefore, the sale deed executed by her on 18.7.1973, in favour of defendant no.2 (appellant no.1 herein) was valid and that the plaintiffs (respondent nos.1 to 3.) had no right to challenge the same, as they had no right, title or interest in the suit properties. It was contended that the defendant no.1 was having interest in the suit properties when the Hindu Succession Act, 1956 was brought into force and being in possession of the properties as a female Hindu, she became absolute owner thereof. It was contended that adoption of Pralhad by her after the death of her husband Champat did not have any adverse effect on the absolute right that she enjoyed by virtue of Kavita ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 01:42:38 ::: 205-sa-445-03 judg..odt 7/19 section 14(1) of the Hindu Succession Act, 1956. It was further submitted that, even otherwise, by a registered document dated 2.5.1973, defendant no.1 had cancelled the adoption deed and that therefore, the adopted son Pralhad and through him, the plaintiffs could not claim any right in the suit property. In support of his contentions, the learned counsel relied upon the judgment of this Court in the case of Kesharbi Jagannath Gujar Vs. The State of Maharashtra and others reported in AIR 1981 Bombay 115 and Tanaji Rau Kurlekar Vs. Sonubai reported in I (1995) DMC 661.
7. Per contra, Mr.P.R. Agrawal, Advocate along with Mr.Shyam Jaiswal, learned counsel appearing on behalf of the respondents, submitted that the concurrent findings of the Courts below were based on proper appreciation of the facts and law and that the substantial questions of law framed by this Court deserved to be answered in favour of the respondents and that this appeal deserved to be dismissed. It was contended that the fact that Pralhad was adopted by the defendant no.1 Sonibai on 13.4.1949, by a registered adoption deed, prior to coming into effect of the Hindu Succession Act, 1956, was the decisive factor in the present case. It was pointed out that once, Pralhad stood adopted, it was akin to a civil birth of a natural son on 13.4.1949 and he acquired Kavita ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 01:42:38 ::: 205-sa-445-03 judg..odt 8/19 right in the suit property which had to be taken into account while analysing rights that defendant no.1 Sonibai in the suit property. It was pointed out that in the judgments relied upon by the counsel appearing for the appellants, the factum of adoption had occurred post 1956 when the Hindu Succession Act, 1956 had already come into force. Thus, on the basis of this defence, it was pointed out that reliance placed on the aforesaid judgments was misplaced. It was further pointed out that adoption having been undertaken by defendant no.1 Sonibai upon execution of registered adoption deed dated 13.4.1949, it could not have been cancelled by the registered document dated 2.5.1973. It was pointed out that though section 15 of the Hindu Adoptions and Maintenance Act, 1956, provides that no adoption which has been validly made can be cancelled, even under the law of prevailing prior to 1956, the position of law was the same under Hindu Law and that such purported cancellation of adoption deed could not be taken into account by the Court at all. On this basis, it was submitted that the findings rendered by the Courts below were fully justified and that the instant appeal deserved to be dismissed. The learned counsel placed reliance upon the judgment of the Hon'ble Supreme Court in the Case of Daniraiji Vrajlalji, Junagadh Vs. Maharaj Shri. Chandraprabha reported in AIR 1975 SC 784 as also judgment of Kavita ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 01:42:38 ::: 205-sa-445-03 judg..odt 9/19 Orissa High Court in the case of Bruti Pradhan and Anr.vs. Rampriya Pradhan (died) Prasanna Pradhan and ors reported in (2011) 112 CLT 84.
8. In the instant case, admitted facts are that Champat, husband of defendant no.1 Sonibai, expired in the year 1943. Thereafter, the defendant no.1 adopted Pralhad by registered adoption deed dated 13.4.1949. The plaintiffs (respondent nos.1 to
3) are the wife and sons of the said Pralhad. The question as to whether the defendant no.1 Sonibai had exclusive ownership of the suit properties or whether the aforesaid plaintiffs were justified in claiming partition and separate possession has to be decided on the effect of enactment of the Hindu Succession Act, 1956 and Hindu Adoptions and Maintenance Act, 1956 on the facts of the present case.
9. The facts of the present case show that the said Pralhad was adopted on 13.4.1949, which was prior to 1956 when the Hindu Succession Act 1956 came into force. Section 14(1) of the said Act would give defendant no.l Sonibai absolute ownership of the suit property, if it is found that she was either a full owner or a restricted owner and in possession of the suit properties. The said Kavita ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 01:42:38 ::: 205-sa-445-03 judg..odt 10/19 provision was a progressive piece of legislation to ensure that Hindu Woman, who was hitherto denied rights of absolute ownership in properties, was granted such rights by Legislation. But, in order to successfully take benefit of the said provision, by defendant no.1, Sonibai, it would have to be analysed as to what would be the effect of adoption of Pralhad on 13.4.1949 by defendant no.1. In the judgments relied upon on behalf of the appellants i.e. Kesharbi Jagannath Gujar Vs. The State of Maharashtra and others (supra) and Tanaji Rau Kurlekar Vs. Sonubai (supra), it was held that if there was an adoption by a Hindu woman post 1956 when the Hindu Succession Act, 1956 came into force, it would not adversely affect the right acquired by her under Section 14(1) of the said Act. In the aforesaid judgment of this Court in the Case of Kesharbi Jagannath Gujar Vs. The State of Maharashtra and others (supra) reliance is placed on the judgment of the Hon'ble Supreme Court in the case of Punithavalli Ammal Vs. Minor Ramalingam and anr. reported in AIR 1970 SC 1730. In the said judgment also, adoption by a Hindu Woman had been undertaken after the Hindu Succession Act, 1956 came into force. Therefore, all these judgments would not advance the case of the appellants because the distinguishing feature in the present case is the fact that Pralhad was adopted by defendant no.1 Sonibai on 13.4.1949, prior Kavita ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 01:42:38 ::: 205-sa-445-03 judg..odt 11/19 to the coming into force of the Hindu Succession Act, 1956. The moment Pralhad was adopted, the defendant no.1 did not remain the sole owner or in possession of the suit properties. Hence, the Courts below were justified in holding that defendant no.1 Sonibai could not be said to have become absolute owner of the suit properties under Section 14(1) of the Hindu Succession Act, 1956.
10. The other issue that arises for consideration and which is the subject matter of the substantial questions of law framed by this Court, is the impact of the registered document dated 2.5.1973 whereby defendant no.1 purportedly cancelled the earlier adoption deed dated 13.4.1949. The question pertains to whether reliance can be placed on section 15 of the Hindu Adoptions and Maintenance Act, 1956, to claim that no such cancellation could have been undertaken. Section 15 of the said Act specifically provides that no adoption which has been validly made can be cancelled by the adoptive father or mother or any other person, nor can the adopted child renounce his or her status as such and return to the family of his or her birth. As to whether the aforesaid provision can be relied upon to claim that the adoption in the present case could not be cancelled by the registered document dated 2.5.1973, requires reference to Sections 4 and 30 of the Kavita ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 01:42:38 ::: 205-sa-445-03 judg..odt 12/19 Hindu Adoption and Maintenance Act, 1956. Section 4 pertains to the overriding effect of the Act and section 30 provides that nothing contained in the Act shall affect any adoption made before the commencement of the said Act. Such a question arose for consideration before the Hon'ble Supreme Court in the case of Daniraiji Vrajlalji, Juna gadh, Vs. Maharaj Shri. Chandraprabha supra. Upon consideration of the relevant provisions of the Hindu Adoptions and Maintenance Act, 1956, particularly sections 4, 15 and 30 thereof, the Hon'ble Supreme Court held as follows;
"Even if Section 15 of the Act which prohibits cancellation of adoption once validly made were to apply to an adoption made prior to coming into force of the Act, it would not affect that adoption, its validity or effect. Instead of affecting the adoption it would not permit it to be affected. In my judgment, therefore, the main ratio of the decision of the High Court in this regard based upon section 30 of the Act is not correct.
17. Section 4 of the Act reads as follows:
Save as otherwise expressly provided in this Act,
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act."
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18. We are concerned with clause (a). In the Act, provision has been made in Chapter II, Sections 5 to 17 in regard to various matters in relation to adoption. Section 5(1)says "No adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter, and any adoption made in contravention of the said provisions shall be void." Section 6 prescribes requisites of a valid adoption. Section 7 and 8 provide for capacity of a male or female Hindu to take in adoption. Sections 9 and 10 deal with persons capable of giving in adoption and persons who may be adopted. The other conditions for a valid adoption are enumerated in section 11. Section 12 provides for the effects of adoption. Section 15 reads as follows :
"No adoption which has been validly made can be cancelled by the adoptive father or mother or any other person, nor can the adopted child renounce his, or her status as such and return to the family of his or her birth."
19. Any custom or usage as part of the Hindu Law in force prior to the commencement of the Act has ceased to have effect in regard to any matter for which provision has been made in Chapter II, except what has been expressly provided in the Act, such as, clauses (iii) and (iv) of Section 10. The custom of Goda Datta no longer exists. No adoption could be made in the, Goda Datta form after coming into force of the Act and hence there would be no question of its revocation. Section 4 is clearly prospective and not retrospective. If section 15 prohibits cancellation of adoption validly made even prior to the ,commencement of the Act, then it is manifest that section 4 finishes the custom of cancellation after the commencement of the Act, by a prospective operation and not by any retroactive action. If the cancellation would have been made before coming into force of the Act, neither Section 4 nor Section 15 had any retrospective operation to annul such cancellation. The act of cancellation in this case coming into existence after the commencement of the Act, the whole and sole question which falls for determination is whether the cancellation of the adoption of the appellant by the respondent by Ext. 292 Kavita ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 01:42:38 ::: 205-sa-445-03 judg..odt 14/19 was in contravention of Section 15 of the Act. If it was so, the cancellation was invalid and could not be saved by section 30. If not, the cancellation was good and operative on its own force and not as being saved by section 30.
20. The difficulty in interpreting the language of Section 15 arises because of the fact that it merely says "No adoption which has been validly made can be cancelled...........'' The Legislature, if I may say so, has omitted to use some more words in the section to express its intention clearly. It says neither "adoption which has been validly made after the commencement of the Act" nor "adoption which has been validly made either before or after the commencement of the Act." In such a situation it becomes the duty of the Court to supply the gap and read the intention of the Legislature in the context of the other provisions contained in the Act. It would bear repetition to say that the law contained in the fifteenth section of the Act was by and large the law prevalent before its commencement. Exceptions were very rare as in the case of Goda Datta. Did the Legislature intend to finish a part of that custom by providing in the fifteenth section against cancellation of the adoption? Or, did it intend to say that only the adoption which has been validly made in accordance with the provisions of the Act could not be cancelled ?
21. In my considered judgment Section 15 applies to an adoption which has been validly made in accordance with the provisions contained in Chapter II of the Act and after its commencement. It does not do away with the incident and characteristic of revocability of the custom of Goda Datta. Whole of Chapter II deals with the regulation of adoption made after the commencement of the Act. The effects of adoption provided in the twelfth section are undoubtedly the effects of adoption made in accordance with the Act. Section 13 says that "... an adoption does not deprive the adoptive father or mother of the power to dispose of his or her property by transfer inter vivos or by will." It does induce some change in the Hindu Law as it existed before the commencement,of the Act, but obviously in respect of an adoption made thereafter. The presumption Kavita ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 01:42:38 ::: 205-sa-445-03 judg..odt 15/19 as to registered documents relating to adoption provided for in Section 16 does relate to a registered document recording an adoption made after the commencement of the Act. In the context and the set-up of the fifteenth section of the Act it is difficult to enlarge its scope and permit it to embrace any adoption which has been validly made before the commencement of the Act. In my view the Legislature did not intend to change the incident or characteristic of a Goda Datta adoption, which made the position of the adopted person in the words of Kania, J "nothing higher than that of a dignified employee, or licensee engaged to perform the rites and enjoy the privileges for the time he continued to be such a son." It may be that the Legislature inadvertently left the custom of revocability of Goda Datta adoption untouched by the fifteenth section of the Act. In either view of the matter I am constrained to hold that the cancellation of adoption of the appellant made by the respondent by the registered document dated July 17, 1958 Ext. 292 in accordance with the custom of Goda Datta under which the adoption had been made was not rendered illegal or invalid for the alleged infraction of section 15 of the Act. There was no violation of the law contained in that section''.
11. The ratio of the aforesaid judgment of the Hon'ble Supreme Court makes it clear that reliance cannot be placed only on section 15 of the Hindu Adoptions and Maintenance Act, 1956 to claim that an adoption that had been undertaken prior to 1956, cannot be cancelled or revoked by placing reliance on the provisions of the said Act. In the said case, the Hon'ble Supreme Court was concerned with custom of adoption and its method of cancellation pertaining to Godda Datta adoption. It was held that if there was evidence and material placed on record that there was a provision for cancellation of an adoption in a particular custom, such Kavita ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 01:42:38 ::: 205-sa-445-03 judg..odt 16/19 adoption having been undertaken prior to 1956, it could be demonstrated that section 15 of the Act would not have any impact and that cancellation of such adoption was sustainable. It was further held that under Hindu Law even before coming into force of the aforesaid Act in 1956, the position of law was that a valid adoption once made could not be cancelled and that departure from this general law would have to be specifically pleaded and proved. The relevant portion of the said judgment of the Hon'ble Supreme Court in the case of Daniraiji Vrajlalji, Junagadh Vs. Maharaj Shri. Chandraprabha (supra), in this context reads as follows:-
''14. Section 30 is a saving clause in the Act and says "Nothing contained in this Act shall affect any adoption made before the commencement of this Act, and the validity and effect of any such adoption shall be determined as if this Act had not been passed. The second part of the section merely clarifies what is embodied in the first Part. The provisions of the Act are not to affect any adoption made before its commencement. That is to say the validity of the adoption made before the commencement of the Act as also its effect will have to be examined and determined with reference to the law or the custom as it stood prior to the coming into force of the Act and not in accordance with it. The expression "affect any adoption" necessarily means affect an adoption as to its "validity and effect." Neither of the expressions takes within its sweep any of the other incidents or characteristics of the law or the custom of adoption under which it was made. It is to be noticed that almost the entire field in relation to any adoption was covered in its validity and effect. Yet something remained outside it. The custom of revocability of Kavita ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 01:42:38 ::: 205-sa-445-03 judg..odt 17/19 adoption at the instance of either party in the Goda Datta form was one such matter. Under the Hindu Law even as it stood before coming into force of the Act A valid adoption once made cannot be cancelled by the adoptive father or the other parties thereto, nor can the adopted son renounce his status as such and return to his family of birth" [vide section 493 at page 556 of Mulla's Hindu Law (Fourteenth Edition)]. Departure from this general law was permissible in very rare type of customs--Goda Datta being one such. The incident or characteristic of this custom which entitled either party to revoke the adoption was not a matter concerning the validity and the effect of adoption.
12. The aforesaid position of law, when applied to the facts of the present case, shows that defendant no.1-Sonibai, could not have claimed benefit of Section 14(1) of the Hindu Succession Act, 1956, to claim absolute ownership in the suit properties. As regards the impact of cancellation of adoption by registered document dated 2.5.1973, it was for the defendant no.1 or defendant no.2 and 3 (appellants herein), to demonstrate that the adoption in the present case was under a particular custom, wherein cancellation of such adoption was permitted, as a departure from the general Hindu Law that adoption once made could never be cancelled. Admittedly, under the present case, there are neither pleadings nor evidence on behalf of the appellants to support such a contention. Therefore, it is evident that the registered document dated Kavita ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 01:42:38 ::: 205-sa-445-03 judg..odt 18/19 2.5.1973, purportedly cancelling the adoption deed dated 13.4.1949, was unsustainable and could not have been looked into by the Courts.
13. The Courts below have therefore applied the position of law correctly to the facts of the present case, while granting decree in favour of the plaintiffs (respondent nos.1 to 3 herein), but a perusal of the operative portion of the order of the Trial Court, dated 25.3.1994, shows that while holding that the sale deeds in question would not be binding on the shares of the plaintiffs and defendant nos.4 to 6, the defendant nos. 2 and 3 (the appellants herein) have not been granted portion of the property that would fall to the share of defendant no.1, who was their vendor. The body of the judgment of the Trial Court correctly records that the sale deeds would not be binding to the extent of the shares of the plaintiffs and defendant nos.4 to 6, (the appellants herein), yet to the extent of the share of defendant no.1, the defendant nos.2 and 3 have not been granted any relief. The correct reading of the position of law as applied to the facts of the present case shows that defendant nos.2 and 3 are entitled to at least share of defendant no.1 Sonibai, which has been determined by the Trial Court in its judgment and order. The plaintiffs and other defendants can also Kavita ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 01:42:38 ::: 205-sa-445-03 judg..odt 19/19 make no grievance about such relief which is consequential to the view taken by the Trial Court. The Appellate Court has also failed to appreciate this error in the order of the Trial Court. Hence, while confirming the findings of the Courts below, to a limited extent, the appellants are entitled to relief i.e. they are held entitled to the extent of share of defendant no.1 as determined by the trial Court and confirmed by the Appellate Court, in part of the suit property that was subject matter of the sale deeds dated 18.7.1973 and 29.4.1986. To make it clear, it is held that the appellants are entitled to the extent of share of deceased defendant no.1-Sonibai in property at survey no.141/2 village Nimboli, Tq. Chandur Railway, Dist. Amravati. To that extent, the decree passed by the Courts below is modified. It is obvious that appellant no.2, being the subsequent purchaser on the basis of sale deed dated 29.4.1986, is entitled to the relief granted by this Court.
14. Accordingly, the appeal is partly allowed with no orders as to costs. The consequential directions given by the Trial Court shall be carried out in terms of the modified decree.
JUDGE Kavita ::: Uploaded on - 20/03/2018 ::: Downloaded on - 21/03/2018 01:42:38 :::