Bombay High Court
Smt. Pratibha Prabhakar Patil And Anr vs Prabhakar Gopal Mhatre And Anr on 11 June, 2024
Author: N.R. Borkar
Bench: N. R. Borkar
2024:BHC-AS:22862
sa-619-22.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.619 OF 2022
1. Smt. Pratibha Prabhakar Patil
2. Smt. Seema Ramesh Juikar ...Petitioners
Versus
1. Shri. Prabhakar Gopal Mhatre
2. Shri. Anil Gopal Mhatre ...Respondents
WITH
CROSS OBJECTION NO. 2 OF 2023
Mr. Kunal Rane for the Appellant.
Mr. Rohit D. Joshi for Respondent No.1.
Ms Sonali Kunekar for Respondent No.2.
CORAM : N. R. BORKAR, J.
DATE : 11.06.2024.
JUDGMENT:-
1. This second appeal is filed against the judgment and decree dated 20.03.2020 passed by the Ad-hoc District Judge- 1, Raigad, Alibag in Regular Civil Appeal No. 421 of 2012.
2. Respondent No.1/plaintiff has filed the suit against the present appellants/defendant Nos.1 and 2 and respondent No.2/defendant No.3 for declaration, partition and separate possession. Defendant Nos.1 & 2 are sisters and defendant No.3 is the brother of the plaintiff. The father of the plaintiff ARUN and defendants died on 13.07.2004 and their mother RAMCHANDRA SANKPAL predeceased their father. According to the plaintiff, the land Digitally signed by ARUN RAMCHANDRA SANKPAL bearing Gat Nos.646/1, 646/2, 707, 922/2, 945 and house No. Date: 2024.06.11 14:23:14 +0530 60 situated at Dhokwawade, Tal. Alibaug, Dist. Raigad are joint family properties. He approached the defendants to effect Dinesh S. Sherla 1/8 ::: Uploaded on - 11/06/2024 ::: Downloaded on - 12/06/2024 15:42:48 ::: sa-619-22.doc partition of the suit properties, however, they did not agree. According to the plaintiff, he is entitled to 3/8th share in the suit properties.
3. The defendants in their written statement admitted the nature of suit properties as joint family properties. They have however, stated that House No.902 is also joint family property and not the self acquired property as claimed by the plaintiff and the said house property also be partitioned. A counter claim to that effect was filed. They disputed that the plaintiff is entitled to the share in the suit properties, as claimed by him.
4. The trial court by the judgment and decree dated 22.10.2012 decreed the suit partly. The operative part of the judgment and decree passed by the trial Court reads thus:
ORDER 1] The suit is partly decreed.
2] The counter claim is decreed.
3] It is hereby declared that the plaintiff and
defendants no.1 to 3 are having 1/4 th share each in the suit property.
4] It is hereby declared that house no.902 at Dhokawade, Tal.Alibag is the joint family property of plaintiff and defendants.
5] It is hereby declared that the plaintiff and defendants no.1 to 3 are having 1/ 4 th share each in the house property bearing no.902 situated at Dhokawade, Tal.Alibag.
6] The Decree shall be sent to The District Collector, Raigad-Alibag to effect the partition of the suit agricultural land and to put the plaintiff in possession of 1/4th share therein, vide Sec.54 of the Code of Civil Procedure, 1908.
7] The house property bearing no.60 and 902 situated at Dhokawade, Tal. Alibag shall be partitioned Dinesh S. Sherla 2/8 ::: Uploaded on - 11/06/2024 ::: Downloaded on - 12/06/2024 15:42:48 ::: sa-619-22.doc by appointing a Court Commissioner and the plaintiff and defendants no.1 to 3 shall be put in possession of 1/4th share each therein.
8) Remaining prayers stands rejected.
9) Parties to bear their own costs.
10) The preliminary decree be drawn up accordingly."
5. Being dissatisfied, the plaintiff filed an appeal against the the decree passed by the trial Court to the extent of refusing to grant 3/8th share as claimed by him and decreeing the counter claim of the defendants in respect of House No.902. The first appellate court, by the impugned judgment and decree dated 20.03.2020, has modified the decree passed by the trial court.
The operative part of the judgment and decree passed by the first appellate court reads thus:
"ORDER
1. The appeal is partly allowed.
2. The judgment and decree dated 22/10/2012 passed by the 3rd Joint Civil Judge Junior Division, Alibag in Regular Civil Suit No. 217 of 2010 is modified as follows:
i) It is declared that the plaintiff and the defendant No.3 are having 5/12th share in the suit properties as well as house No.902 situated at village Dhokawade, Tal. Alibag, Dist. Raigad. So also, it is declared that the defendants no.1 and 2 are having 1/12th share each in the said properties.
ii) Modified decree be sent to the Collector, Raigad- Alibag for effecting partition in view of section 52 of Code of Civil Procedure.
3. Parties to bear cost of appeal.
4. Record and proceedings of the suit along with copy of the judgment and order of this appeal be sent to the court of the Civil Judge Junior Division, Alibag.
5. A decree be drawn accordingly."
6. Hence, this second appeal at the instance of defendant Nos.1 and 2. By order dated 29.11.2022, this second appeal Dinesh S. Sherla 3/8 ::: Uploaded on - 11/06/2024 ::: Downloaded on - 12/06/2024 15:42:48 ::: sa-619-22.doc was admitted on the following substantial question of law:
"(i) Whether the judgment and decree of lower Appellate Court denying the share to the Appellants who are sisters is contrary to the judgment of Supreme Court reported in 2020 9 SCC 01 in the matter between Vineeta Sharma vs. Rakesh Sharma and ors. more particularly, in view of legal position as enumerated in paragraph 80 of the said judgment?
7. I have heard learned counsel for the appellants and learned counsel for contesting respondents.
8. The trial Court on the basis of pleadings and evidence of the parties has recorded the findings that the suit properties and House No.902 are joint family properties. The trial Court has held that the plaintiff and defendants are entitled to equal share, i.e., 1/ 4th each. The first appellate court has confirmed the finding of trial Court with regard to House No. 902. The first appellate court has, however, modified the shares of the plaintiff and defendants. The first appellate court has held that the plaintiff is entitled to 5/12 th share instead of 1/ 4th. The shares were modified on the basis of the judgment of the Honble Supreme Court in Prakash vs. Phulwati - AIR 2016 SC 269. The finding of the first appellate court to that effect reads thus:
16. The provisions of section 6 of the Hindu Succession (Amendment) Act, 2005 have been discussed in catena of cases by the Bombay High Court and the Hon'ble Apex Court in catena of cases, and finally in case of Prakash v/s.
Phulwati AIR 2016 SC 269 wherein, it is held that rights under amendment are applicable to living co-parceners as on 09th September, 2005, irrespective of when such daughters are born. In the case in hand, the plaintiff has come with the case that Gopal died on 13/07/2004. The said fact is not Dinesh S. Sherla 4/8 ::: Uploaded on - 11/06/2024 ::: Downloaded on - 12/06/2024 15:42:48 ::: sa-619-22.doc disputed by the defendants. It means that on the date of commencement of Hindu Succession (Amendment) Act, 2005 and Gopal was not alive. As such, provisions of said the Amendment Act, 2005 regarding granting rights to daughters in co-parcernery property will not applicable to the present set of facts. The daughters will have share in the ancestral and joint family properties according to old Hindu Succession Act, 1956, i.e. by notional partition. The partition is required to be made by presuming that father Gopal is alive. In that case, Gopal, the plaintiff and the defendant No.3 will get equal share, i.e. 1/3rd share each. After demise of Gopal, his 1/3rd share will be devolved upon the plaintiff and the defendants. As such the plaintiff and defendant No.3 will get 5/12th share each in the suit properties. So also, the defendants No.1 and 2 will get 1/12 th share each in the suit properties. Decree needs to be modified to the extent of share of the properties in the suit properties. Accordingly, point No.2 is answered in affirmative."
9. The learned counsel for the appellants submits that the judgment in Prakash vs Phulwati (supra) which the first appellate court has relied to modify the shares has been specifically overruled by the larger bench of Hon'ble Supreme Court in the case of Vinita Sharma Vs. Rakesh Sharma and ors.1. It is submitted that the decree passed by the first appellate court therefore, needs to be set aside.
10. The Hon'ble Supreme Court in Vinita Sharma (supra) has held :
"80. A finding has been recorded in Prakash v. Phulavati that the rights under the substituted Section 6 accrue to living daughters of living coparceners as on 9.9.2005 irrespective of when such daughters are born. We find that the attention of this Court was not drawn to the aspect as to how a coparcenary is created. It is not necessary to form a coparcenary or to become a coparcener that a predecessor coparcener should be alive; relevant is birth within degrees 1 2020(9) SCC 01 Dinesh S. Sherla 5/8 ::: Uploaded on - 11/06/2024 ::: Downloaded on - 12/06/2024 15:42:48 ::: sa-619-22.doc of coparcenary to which it extends. Survivorship is the mode of succession, not that of the formation of a coparcenary. Hence, we respectfully find ourselves unable to agree with the concept of "living coparcener", as laid down in Prakash v. Phulavati. In our opinion, the daughters should be living on 9.9.2005. In substituted Section 6, the expression 'daughter of a living coparcener' has not been used. Right is given under Section 6(1)(a) to the daughter by birth. Declaration of right based on the past event was made on 9.9.2005 and as provided in section 6(1)(b), daughters by their birth, have the same rights in the coparcenary, and they are subject to the same liabilities as provided in section 6(1)(c). Any reference to the coparcener shall include a reference to the daughter of a coparcener. The provisions of section 6(1) leave no room to entertain the proposition that coparcener should be living on 9.9.2005 through whom the daughter is claiming. We are unable to be in unison with the effect of deemed partition for the reasons mentioned in the latter part.
..... .... .....
137. Resultantly, we answer the reference as under:
137.1 The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.
137.2 The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before the 20th day of December, 2004.
137.3 Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.
137.4 The statutory fiction of partition created by the proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class I as specified in the Schedule to the Act of 1956 Act or male relative of such female. The provisions of the substituted Dinesh S. Sherla 6/8 ::: Uploaded on - 11/06/2024 ::: Downloaded on - 12/06/2024 15:42:48 ::: sa-619-22.doc Section 6 are required to be given full effect.
Notwithstanding that a preliminary decree has been passed, the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.
137.5. In view of the rigour of provisions of Explanation to Section 6(5) of the Act, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected (sic effected) by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.
138. We understand that on this question, suits/appeals are pending before different High Courts and subordinate courts. The matters have already been delayed due to legal imbroglio caused by conflicting decisions. The daughters cannot be deprived of their right of equality conferred upon them by Section 6. Hence, we request that the pending matters be decided, as far as possible, within six months.
139. In view of the aforesaid discussion and answer, we overrule the views to the contrary expressed in Prakash v. Phulavati and Mangammal v. T.B. Raju 2. The opinion expressed in Danamma v. Amar3 is partly overruled to the extent it is contrary to this decision. Let the matters be placed before appropriate Bench for decision on merits."
(emphasis supplied)
11. In view of the judgment of Hon'ble Supreme Court in Vinita Sharma (supra), the judgment and decree passed by the first appellate court cannot be allowed to stand and the same will have to be set aside.
2 (2018) 15 SCC 662 3 (2018)3 SCC 343 Dinesh S. Sherla 7/8 ::: Uploaded on - 11/06/2024 ::: Downloaded on - 12/06/2024 15:42:48 ::: sa-619-22.doc
12. It appears that the plaintiff has filed the cross objection taking exception to the concurrent findings recorded by the trial Court as well as first appellate court in relation to House No. 902. I have perused the evidence led by the parties on the said issue and there appears to be no perversity in the said finding. In the result, the following order is passed.
ORDER
a] Second Appeal is allowed.
b] The impugned judgment and decree dated
20.03.2020 passed by the first appellate court in Regular Civil Appeal No. 421 of 2012 is hereby set aside. The judgment and decree dated 22.10.2012 passed by the trial court in Regular Civil Suit No. 217 of 2010 is hereby restored.
c] Considering the facts and circumstances of the case, the parties shall bear their own costs.
d] Cross Objection No. 2 of 2023 is dismissed.
(N.R. BORKAR, J.) Dinesh S. Sherla 8/8 ::: Uploaded on - 11/06/2024 ::: Downloaded on - 12/06/2024 15:42:48 :::