1 SA 645.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 645 OF 2010 Rama Padvya Gavit, Age : 55 Years, Occu. : Agril. R/o Vad-Kalambi, Tq. Nawapur, Dist. Nandurbar. .. APPELLANT Versus Lakshya Kalya Gavit Deceased through his L.R.'s 1-A) Vishnu Laxya Gavit, Age : 35 Years, Occu. : Agril., R/o At Khali-Bordi, Post Raipur, Tq. Nawapur, Dist. Nandurbar. 1-B) Dhedabai Laxya Gavit, Age : 65 Years, Occu. : Agril., R/o At Khali-Bordi, Post Raipur, Tq. Nawapur, Dist. Nandurbar. 2. Nurji Hadadya Gavit, Age : 54 Years, Occu. : Agril., R/o Vadkalambi, Tq. Nawapur, Dist. Nandurbar. 2 SA 645.10 3. Devalya Tetya Gavit Age : 60 Years, Occu. : Agril., R/o Vadkalambi, Tq. Nawapur, Dist. Nandurbar. (Deleted as dead) 4. Noparibai W/o Nandadya Gavit, Age : 58 Years, Occu. : Agril., R/o Vadkalambi, Tq. Nawapur, Dist. Nandurbar. .. RESPONDENTS Shri S. P. Brahme, Advocate for the Appellant. Shri A. B. Kadethankar, Advocate for Respondent Nos. 1A, 1B and 4. Shri P. B. Pawar, Advocate for the Respondent No. 2. The Respondent No. 3 deleted. CORAM : S. V. GANGAPURWALA, J. DATE : 05TH APRIL, 2011. JUDGMENT : . One Lakshya Kalya Gavit filed R.C.S. No. 15/1989 for declaration of ownership, possession, injunction and for further declaration that Mutation Entry No. 179 is illegal and void. The Trial Court decreed the suit declaring the plaintiff i. e. Lakshya the sole owner of the suit land and directed the defendants to hand over peaceful possession of the suit lands to the plaintiff, so also clamped injunction restraining the defendants from 3 SA 645.10 obstructing the plaintiff to receive the compensation amount from the Land Acquisition Officer, Dhule. 2. The defendant No. 1 Rama Padvya Gavit filed an appeal being aggrieved by the aforesaid judgment. The District Judge - 1, Nandurbar partly allowed the appeal to the extent of declaration of mutation entry and injunction. However, maintained the decree regarding exclusive ownership of the plaintiff and directing delivery of possession to the plaintiff. The defendant No. 1 aggrieved thereby has filed the present second appeal. 3. Shri S. P. Brahme, the learned counsel for the appellant strenuously contended that it was erroneous to hold that plaintiff Lakshya was the sole and exclusive owner of the suit property. The record shows that the partition was effectuated and Govinda is validly granted share in the family arrangement. It was also erroneous on the part of the Court below not to rely on the provisions of the Hindu Succession Act. For the said purpose the learned counsel relies on the judgment of the Apex Court in a case of Madhu Kishwar and others V. State of Bihar and others reported in AIR 1996 S.C. 1864. If the Court came to the 4 SA 645.10 conclusion that no partition had taken place, then could not have passed the decree. It was also erroneous to hold that the present appellant would not get any share simply relying on the provisions of old Hindu Law. 4. Per contra, Shri Kadethankar, the learned counsel for the legal representatives of original plaintiff submitted that the lower Appellate Court has rightly come to the conclusion that as per the old Hindu Law, the defendants would not be entitled for any share. Hadadya is the original owner who died in 1942 leaving behind two sons and a daughter. The defendant No. 1 is claiming through Barkibai i. e. daughter of Hadadya who would not get any share, even as per the old Hindu Law. In such circumstances, the Court was right in negativing the claim. 5. Upon hearing the learned counsel for the parties, following substantial question of law arises. Whether, Barkibai inter-alia defendant No. 1 her son would get any share in the suit property applying the provisions of Hindu Succession Act ? 5 SA 645.10 Admit. 6. At this stage all the learned counsel for the respective parties submit that the appeal may be finally decided, as the evidence is not disputed. The relations between the parties are also not disputed and the dispute only revolves around the right of the parties vis-a-vis the provisions of the Hindu Succession Act. All the learned counsel further submitted that, if this Court comes to the conclusion that the defendants are entitled for some share, then a decree for partition and separate possession be passed, as it would be in nobodies interest to keep the matter pending. It was also submitted that, all the parties who would have interest in the property are before the Court. In the light of above, the matter is taken up for final disposal. 7. To understand the rights of the parties, it would be proper to lay down the pedigree as submitted by the appellant's counsel and which is not disputed. 6 SA 645.10 Hadadya Gavit (Original Ancestor) (Died in 1942) Leaving behind two sons and a daughter | ------------------------------------------------------------------------------------------- | | | | Kalya Govinda Barkibai Jethibai (Died in 1955) (Died on 6.1.85 | | issueless) | | Rama Devlya (Died issueless & deleted) Widow (Pasalibai) remarried after Kalya's death | | | Lakshya Shivaji Naparibai (Pltff.) (Died- (Conceded suit) | issueless) | Present Resp. No. Payalibai (2nd wife) 1-A & 1-B. | | Jethibai w/o Kutry (Payalibai's daughter from her 1st husband i. e. step daughter of Govinda) | Tarabai W/o Nurji (Deft. No. 2) 7 SA 645.10 8. Taking into account the above genealogy which is admitted by all the parties, it is clear that on the death of Hadadya in the year 1942 the properties would be inherited by his two sons Kalya and Govinda, Barkibai and Jethibai, the daughters would not be entitled for any share. Thereafter, Kalya the father of original plaintiff died in the year 1955. His share would be inherited by Lakshya. Naparibai i. e. the defendant No. 4 had conceded the suit in favour of plaintiff Lakshya. Thereafter on 06.01.1985 Govinda died issueless. So the share of Govinda would be inherited by Lakshya and Barkibai. Now Barkibai is also no more, so her share would be inherited by her son i. e. defendant No. 1 Rama. Devalya S/o Jethibai is also dead. He died issueless. Jethibai was daughter born to Payalibai from her first husband, so is not concerned with the family of the plaintiff and other defendants. As such, the share of Govinda would devolve upon Lakshya and Barkibai. As such, the Lakshya would be entitled to the 3/4th share and Rama would be entitled for 1/4th share. 9. Apart from the above, there is no controversy between the parties 8 SA 645.10 10. In the light of above, the impugned judgment and decree passed by the Courts below are set aside. It is held that the plaintiff i. e. present respondent Nos. 1A and 1B together shall have 3/4th share as Naparibai has conceded the suit in favour of the plaintiff/Lakshya. In this Court also the learned counsel for Naparibai has conceded her share in favour of the plaintiff. Naparibai shall not get any share. The defendant No. 1 i. e. present appellant will get 1/4th share. Tarabai W/o Nurji is the step daughter and is also not entitled for the share. The learned counsel representing Nurji also does not dispute this position. In the light of above, I pass the following order. O R D E R I) The plaintiff is entitled for 3/4th share and the defendant No. 1 Rama is entitled for 1/4th share. II) The decree be sent to the competent authority as per Sec. 54 of the Code of Civil Procedure for effecting partition. III) The second appeal is partly allowed with no order as to costs. [ S. V. GANGAPURWALA, J. ] bsb/April 11