Shri. Krishnaji Bhaguji Gaikwad ... vs Smt. Parvati Kisan Kalhapure on 26 September, 2018

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Bombay High Court

Shri. Krishnaji Bhaguji Gaikwad ... vs Smt. Parvati Kisan Kalhapure on 26 September, 2018

Bench: A.M.Dhavale

                                              1                       3) sa581-15.doc

   SAS
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                            CIVIL APPELLATE JURISDICTION

                            SECOND APPEAL NO.581 OF 2015
                                         WITH 
                           CIVIL APPLICATION NO.800 OF 2017

         Krishnaji Bhaguji Gaikwad (deceased)
         through LRs. & Ors.                                  ..Appellants. 
                     V/s.
         Smt. Parvati Kisan Kalhapure                         ..Respondent. 

         Mr.Sugandh   B.Deshmukh   i/b.   Mr.Rajaram   B.Deshmukh   for   the
         appellants. 

                                         CORAM :   A.M.DHAVALE, J.

                                         DATE    : SEPTEMBER 26, 2018

         P.C.:-

Heard learned counsel Mr.Sughandh Deshmukh. The appeal is sought to be admitted on the two following substantial question of law :-

(i) The mother of the plaintiff and defendant Nos.2 to 5 was not made a party;

(ii) There was partition before December 28, 2004 which was reflected in the revenue records as well.

2 3) sa581-15.doc

2. As per the Full Bench judgment in the case of Badrinarayan Shankar Bhandari and others V/s. Omprakash Shankar Bhandari1, even oral partition will restrain the daughters from claiming partition after the amendment in 2005.

3. As far as the second point is concerned, there is no pleading about partition. There is some evidence but as held in Abubakar Abdul Inamdar (dead) by LRs. and others V/s. Harun Abdul Inamdar and others2 when there is no pleading, their cannot be any substantial question of law. Hence no substance is found in the second question.

4. So far as the first question is concerned, substantial question of law arises. The appeal is admitted on the substantial questions as under:-

"a) Whether both the learned Courts below erred in overlooking the fact that the mother of the plaintiff was not made a party in the suit for partition ?

1 2014 (5) Mh. L.J. 434 2 A.I.R.1996 Supreme Court 112 3 3) sa581-15.doc

b) Whether the decree for partition is tenable when the mother is not a party to it ? "

5. Considering the narrow controversy of the matter, it will be taken up expeditiously for final hearing. Call record and proceedings.

6. Issue notice to the respondents for final hearing of the matter, returnable on October 29, 2018.

7. In the meanwhile, there shall be stay to the execution of the decree.

(A.M.DHAVALE, J.) Digitally signed by Srikrishna Srikrishna Ananth Sharma Ananth Sharma Date: 2018.09.28 16:13:04 +0530

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