Bombay High Court
Vina W/O Chandrakant Madelwar And ... vs Suryakant S/O Walmikrao Madelwar And ... on 30 April, 2026
2026:BHC-NAG:6806
-- 1 -- SA 254.2019 (J).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO. 254 OF 2019
1. Vina W/o Chandrakant Madelwar
aged about 50 years, Occ : Cultivation
2. Chandrakant S/o Walmikrao Madelwar .. Appellants
aged about 61 years, Occ : Cultivation (Ori. Defendant Nos.2 & 3)
Both R/o Shirpur, Tah.Deoli,
District Wardha.
Versus
1. Suryakant S/o Walmikrao Madelwar
aged about 59 years, Occ : Service,
R/o Near Khandoba Mandir, Cotton (Ori. Plaintiff)
Market, Nagpur Tah. & Dist. Nagpur
2. Walmikrao S/o Chudaman Madelwar (Ori.Def.No.1)
aged about 84 years, Occ : Nil, Deleted as per order dated
Tah. & Dist. Wardha 11/03/2026
3. Laxmikant S/o Walmikrao Madelwar
aged about 56 years, Occ : Service (Ori.Def.No.4)
R/o - Civil Lines, Wardha
4. Ashok S/o Walmikrao Madelwar (Ori.Def.No.5)
(Dead) through LRs.
(a) Chhaya wd/o Ashok Madelwar .. Respondents
aged about 40 years, Occ: Service
(b) Shivani d/o Ashok Madelwar
aged about 17 years Occ : Student
Minor through guardian mother
Chhaya w/o Ashok Madelwar
Both R/o Plot No.319, Lokmat Nagar,
Near Ram Mandir, Hingna
Tah. Hingna Dist. Nagpur
5. Alka w/o Vilasrao Addalwar
aged about 54 years, Occ : Household
R/o - Plot No.174 Balaji Apartment, (Ori.Def.No.6)
Kamla Road, Pande Layout, Nagpur
PAGE 1 OF 6
-- 2 -- SA 254.2019 (J).odt
6. Vimalbai W/o Walmikrao Madelwar
aged about 72 years, Occ : Household (Ori.Def.No.7)
R/o Plot No. 161, Pradip Society, Deleted as per order dated
Opp Gajanan Kirana Store, Shankar 11/03/2026
Nagar, Nagpur, Tah & Dist. Nagpur
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Mr. Ritesh Badhe, Advocate for appellants.
Mr. J.M.Gandhi and Mr. A.S.Gawande, Advocates for respondent
Nos.1, 3, 4(a & b) and 5
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CORAM : ROHIT W. JOSHI, J.
DATED : APRIL 30, 2026
ORAL JUDGMENT
CIVIL APPLICATION NO. 545/2026 (1) This is an application filed by the applicants/respondents seeking permission to produce original documents as additional evidence on record.
(2) For the reasons mentioned in the application, the same is allowed. The documents are relied upon for the purpose of deciding the appeal. The documents indicate that grandfather of the plaintiff and father of defendant No.1 had purchased the suit property.
(3) Civil Application is disposed of. SECOND APPEAL NO. 254 OF 2019 (1) The present appeal is preferred challenging the judgment
and decree dated 20/10/2018, passed by the learned District Judge-1 Wardha in R.C.A.No.07/2015 and judgment and decree dated PAGE 2 OF 6
-- 3 -- SA 254.2019 (J).odt 01/12/2014, passed by the learned 8th Joint Civil Judge Junior Division, Wardha in R.C.S.No.273/2012. The respondent No.1 is the original plaintiff. The appellants and respondent Nos.2 to 6 are the original defendants. The parties will hereinafter be referred to as plaintiff and defendants.
(2) The defendant No.2 had purchased the suit property from the defendant No.1 vide registered sale deed dated 15/04/2006. The plaintiff who is the son of defendant No.1 filed a suit for partition and separate possession and declaration that sale deed dated 15/04/2006 executed by defendant No.1 in favour of defendant No.2 is illegal and void. The contention of the plaintiff is that the suit property is joint Hindu Family property and that the defendant No.1 was not competent to sell the same in the absence of any legal necessity. The defendant No.2 purchaser contended that the suit property was separate property of the defendant No.1 and he had absolute right to sell the same. That the property is ancestral in nature and it was sold without legal necessity is the only ground on which the sale deed is impugned. (3) The learned trial Court framed issues and held that the suit property was an ancestral property which was sold by defendant No.1 to defendant No.2 without any legal necessity. Accordingly, the learned trial Court decreed the suit holding that the sale deed executed PAGE 3 OF 6
-- 4 -- SA 254.2019 (J).odt by defendant No.1 in favour of defendant No.2 was null and void and by granting a decree for partition and separate possession of 1/7th undivided share each to the plaintiff and defendants in the suit property. Aggrieved by the aforesaid decree, the present appellants who are the original defendant Nos.2 and 3 preferred R.C.A.No.07/2015, which also came to be dismissed. (4) Vide order dated 04/07/2019, notice was issued in the present appeal on the following substantial questions of law :-
(i) Whether the Courts below were right in holding that Walmik sold portion of the land in favour of Vina was from and out of ancestral property ?
(ii) What will be the effect of Section 8 of the Hindu Succession Act in the present case ?
(5) The answer to the questions devolves upon whether the suit property is ancestral property or self-acquired or separate property of the vendor/defendant No.1. During the course of hearing held on earlier date, a query was made as regards material on record to arrive at inference that the property is an ancestral property. The respondents have filed Civil Application (S) No.545/2026 seeking permission to lead additional evidence under Order 41 Rule 27 of CPC, interalia seeking permission to produce relevant revenue records to PAGE 4 OF 6
-- 5 -- SA 254.2019 (J).odt demonstrate that the suit property was purchased by father of defendant No.1 and grandfather of the plaintiff to contend that the suit property is an ancestral property.
(6) In reply to a specific query made, the learned advocate for the respondents in fairness admits that the grandfather has expired in the year 1968 i.e. after commencement of Hindu Succession Act, 1956. The substantial questions of law are required to be answered in the backdrop of the fact that the suit property was purchased by the grandfather of plaintiff and father of defendant No.1-vendor who died after commencement of Hindu Succession Act, 1956 and it devolves upon the defendant No.1 and other Class-I legal heirs of his father upon his demise in the year 1968.
(7) The issue is no longer res integra and is conclusively answered by the Hon'ble Supreme Court in the case of Commissioner of Wealth Tax Kanpur vs. Chander Sen reported in AIR 1986 SC 1753. The judgment of the Hon'ble Supreme Court categorically holds that property of a Hindu who dies after commencement of the Hindu Succession Act, devolves upon his Class-I legal heirs by inheritance or succession and not by survivorship. Section 8 is required to be read in conjunction with Section 19 of the Hindu Succession Act, which provides a property inherited under Section 8 is inherited as tenants in common and not as joint tenants. The property is thus inherited in PAGE 5 OF 6
-- 6 -- SA 254.2019 (J).odt separate title with unified position. The property inherited is thus separate property of the defendant No.1 and not his ancestral property.
The plaintiff does not have right in his suit property since birth as is contended by him.
(8) In view of the aforesaid both substantial questions of law are answered in favour of the appellants/original defendant Nos.2 and 3 and against the plaintiff and other respondents/defendants. Second Appeal is accordingly allowed in the following terms :-
(a) The judgment and decree dated 20/10/2018, passed by the learned District Judge-1 Wardha in R.C.A.No.07/2015 and judgment and decree dated 01/12/2014, passed by the learned 8th Joint Civil Judge Junior Division, Wardha in R.C.S.No.273/2012 are quashed and set aside.
(b) R.C.S. No.273/2012 decided by the learned 8 th Joint Civil Judge Junior Division, Wardha is dismissed.
(c) Parties to bear their own costs.
(9) At this stage learned advocate for the applicants/
respondents pray that the original documents filed along with Civil Application No.545/2026 be returned to the applicants by permitting them to place photo copies of the same on record.
(10) Permission is granted.
[ ROHIT W. JOSHI, J. ]
KOLHE
Signed by: Mr. Ravikant Kolhe PAGE 6 OF 6
Designation: PA To Honourable Judge
Date: 02/05/2026 15:31:02