Bombay High Court
Haribhau Sitaram Malthane And Others vs Kalpana W/O Prakash Nagapure on 12 March, 2026
2026:BHC-NAG:4302
1 23-sa 95.2021.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 95 OF 2021
( HARIBHAU SITARAM MALTHANE AND OTHERS
VS
KALPANA W/O PRAKASH NAGAPURE )
Office Notes, Office Memorandum of Coram,
appearances, Court's orders or the directions, Court's or Judge's order
and Registrar's orders.
Mr. J.B.Gandhi, Advocate for appellants.
CORAM : ROHIT W. JOSHI, J.
DATED : MARCH 12, 2026
1) The present appeal is preferred challenging the
judgment and decree dated 06/12/2016, passed by the learned Civil Judge Junior Division, Patur in R.C.S.No.71/2012 and judgment and decree dated 17/12/2019, passed by the learned District Judge-2, Akola in R.C.A.No. 6/2017.
2) The plaintiff is the daughter of defendant No. 1, and defendant Nos. 2 and 3 are her brothers. The suit is filed for partition and separate possession. It is the case of the plaintiff that the suit property was initially owned by her great- grandfather, Raoji, who expired in 1948. Raoji had one son, Sitaram. Sitaram expired in the year 1980, he had two sons Haribhau (defendant No.1) and Dayaram. It is not in dispute that in the year 1975 there was a partition in between Sitaram and his two sons Haribhau (defendant No.1) and Dayaram. The suit for partition and separate possession has been filed in this backdrop of facts.
3) The suit was opposed contending that the property was separate or self-acquired property of the defendant No.1 KOLHE 2 23-sa 95.2021.odt Haribhau and as such during his lifetime her daughter could not claim any share in the property. Both the learned Courts have rejected this contention. Accordingly, the learned Trial Court has passed a decree for partition and separate possession, granting 1/4th share each to the plaintiff and defendant Nos.1 to 3. This decree is maintained by the learned first appellate Court.
4) Mr.Gandhi, learned counsel for the appellants/ defendant Nos.1 to 3 places reliance on judgment of the Hon'ble Supreme Court in the case of Uttam vs. Saubhag Singh, AIR 2016 SC 1169 and judgment dated 16/12/2025 passed by this Court in Second Appeal No.455/2023 and other connected appeals. The contention that the property will not be ancestral property of Haribhau (defendant No.1) is reiterated. This is the only point which is argued in the present Second Appeal.
5) It is not in dispute that the property was owned by Raoji, grandfather of the defendant No.1, who expired in the year 1948. Raoji died leaving behind Sitaram (father of defendant No.1) as a male descendant. The evidence does not indicate as to whether the property was held by Raoji as his separate or self-acquired property or ancestral property.
6) If the property is held to be ancestral property in the hands of Raoji, there cannot be two opinions about the fact that Sitaram got right in the property by birth being a co-parcener and that although the sons Dayaram and Haribhau were born subsequent to demise of Raoji, on their birth, they also got right over the suit property as co-parceners being sons of Sitaram. Reliance in this regard can be placed on the judgment of the Hon'ble Supreme Court in the case of Rohit Chavan vs. Surinder singh and others, (2013) 9 SCC 419, which lays down that when an ancestral property devolves upon a sole co-parcener, it KOLHE 3 23-sa 95.2021.odt becomes a separate property of the sole co-parcener, however, the moment a male descendant is begotten to such co-parcener, the property resumes the character of ancestral property.
7) Both the learned Courts have recorded finding that the suit property is ancestral property. Assuming that property was separate property in the hands of Raoji, and therefore, Sitaram inherited the property as his separate property, it is not in dispute that there was a partition between Sitaram and his two sons Haribhau (defendant No.1) and Dayaram in the year 1975. Sitaram could have partitioned the property between himself and his sons only by first putting the property into the common stock of the family, which would imply impressing the suit property with the character of Joint Hindu Family property immediately before effecting the partition. In that view of the matter, the suit property which has fallen to the share of defendant No.1 will have to be treated as a Joint Hindu Family property.
8) In view of amendment to Section 6 of the Hindu Succession Act, 1956 by virtue of Hindu Succession (Amendment) Act, 2005 the plaintiff being a daughter gets a right in the suit property as a co-parcener since birth. The judgment and decrees passed by the learned Courts, therefore, are correct and do not warrant any interference.
9) As regards the judgment in the case of Uttam(supra), the learned counsel has placed reliance on paragraph 20(vi). The Hon'ble Supreme Court held that property inherited by the Class-I legal heirs of a male Hindu is received by them as their separate property and not as ancestral property. There cannot be any dispute with respect to the legal position laid down by the Hon'ble Supreme Court in the aforesaid case. Indeed, the separate property of a male Hindu who dies after the KOLHE 4 23-sa 95.2021.odt commencement of the Hindu Succession Act, 1956 devolves upon his Class-I legal heirs as their separate property, in view of Section 8 read with Section 19 of the said Act. The properties are inherited as tenants-in-common and not as joint tenants, and they constitute the separate property of each legal heir. However, in the present case, the property has not devolved upon defendant No.1 by inheritance. It is received by him in a partition, therefore, the ratio in the case of Uttam (supra) cannot be applied to the facts of the present case.
10) In the judgment dated 16/12/2025 in Second Appeal No.445/2023, this Court has held that the property which was partitioned inter se between the father of plaintiff and his brothers was their separate property and the plaintiff did not have a right to seek partition of the same during the lifetime of the father. In that case the property was self-acquired property of the grandfather of the plaintiff which was inherited by the plaintiff's father with his brothers. The grandfather died after commencement of Hindu Succession Act, 1956. Since the property was first inherited under Section 8 of the Hindu Succession Act as separate property by plaintiff's father and his brothers, and it was thereafter partitioned, this Court held that the property could not be said to be ancestral property.
11) In the present case, the fact situation is the converse. The partition was effected during the lifetime of the father and his two sons. It is not a case of partition of property between two sons relating to property received by them by way of inheritance. The ratio of judgment in Second Appeal No.445/2023 is also not applicable to the facts of the present case.
KOLHE 5 23-sa 95.2021.odt
12) The Second Appeal does not give rise to any substantial question of law and is accordingly dismissed with no order as to costs.
( ROHIT W. JOSHI, J. ) KOLHE Signed by: Mr. Ravikant Kolhe Designation: PA To Honourable Judge Date: 16/03/2026 14:45:26