( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 395 OF 1990 WITH SECOND APPEAL NO. 15 OF 1991 * * * * * * SECOND APPEAL NO. 395 OF 1990 Namdeo Alias Waman Nagoji .. Appellant Alias Nagu Gawali (Died, hence through his L.Rs.) 1-A) Sakhubai Namdeo Alias Waman Gawali Age. 73 years, Occ. Household, R/o. Bhimwada, Purna, Tq. Purna, Dist. Parbhani. 1-B) Dhurabai Baburao Kamble, Age. 53 years, Occ. Household, R/o. Shrinagar Colony, Nanded. 1-C) Gangadhar Namdeo @ Waman Gawali, Age. 50 years, Occ. Service with Railway, R/o. Railway Quarters, Hyderabad. 1-D) Pralhad Namdeo @ Waman Gawali, Age. 48 years, Occ. Service with Railway, R/o. Bidar, Karnataka. 1-E) Tarabai Balaji Kamble Age. 46 years, Occ. Household, R/o. N-9, T.V. Centre, HUDCO, Aurangabad. 1-F) Kushabai Deorao Tighote, Age. 43 years, Occ. Household, R/o. Ashok Nagar, Purna. ( 2 ) 1-G) Ashok Namdeo alias Waman Gawali Age. 42 years, Occ. Service, R/o. Archana Complex, West Marpalli, Hyderabad. 1-H) Mayabai Raibaba Pattekar, Age. 38 years, Occ. Service with Railway, R/o. Railway Colony, Near Power House, Purna. 1-I) Chhayabai Laxmanrao Janghale, Age. 35 years, Occ. Service with Railway, R/o. Railway Colony, Purna. Versus 1. Sambhaji s/o. Pemaji Jagdand .. Respondents (Died) through his L.Rs. 1-A) Subhash s/o. Sambhaji Jogdand Age. 22 years, Occ. Agri., R/o. Village Kanadkhed, Tq. Purna, Dist. Parbhani At present residing at House No. 10/4, Shubhashri Colony, N-6, CIDCO, Aurangabad. 1-B) Maruti s/o. Sambhaji Jogdand, Age. 16 years, Occ. Agri., R/o. As above. 1-C) Sangita Ram Kisan Kadam, Age. 25 years, Occ. Household, R/o. Village Suhagan, Tq. Purna, Dist. Parbhani. 1-D) Surekha w/o. Deepakrao Dhus Age. 19 years, Occ. Household, R/o. Village Gunj, Tq. Purna, Dist. Parbhani. ( 3 ) 2. Pemaji s/o. Munjaji Jagdand, Age. 70 years, Occ. Agri., R/o. Kanadkheda, Tq. Parbhani, Dist. Parbhani. [Resp. No.2 deleted vide order dated 23.08.1991] WITH SECOND APPEAL NO. 15 OF 1991 Namdeo Alias Waman Nagoji .. Appellant Alias Nagu Gawali (Died, hence through his L.Rs.) 1-A) Sakhubai Namdeo Alias Waman Gawali Age. 73 years, Occ. Household, R/o. Bhimwada, Purna, Tq. Purna, Dist. Parbhani. 1-B) Dhurabai Baburao Kamble, Age. 53 years, Occ. Household, R/o. Shrinagar Colony, Nanded. 1-C) Gangadhar Namdeo @ Waman Gawali, Age. 50 years, Occ. Service with Railway, R/o. Railway Quarters, Hyderabad. 1-D) Pralhad Namdeo @ Waman Gawali, Age. 48 years, Occ. Service with Railway, R/o. Bidar, Karnataka. 1-E) Tarabai Balaji Kamble Age. 46 years, Occ. Household, R/o. N-9, T.V. Centre, HUDCO, Aurangabad. 1-F) Kushabai Deorao Tighote, Age. 43 years, Occ. Household, R/o. Ashok Nagar, Purna. ( 4 ) 1-G) Ashok Namdeo alias Waman Gawali Age. 42 years, Occ. Service, R/o. Archana Complex, West Marpalli, Hyderabad. 1-H) Mayabai Raibaba Pattekar, Age. 38 years, Occ. Service with Railway, R/o. Railway Colony, Near Power House, Purna. 1-I) Chhayabai Laxmanrao Janghale, Age. 35 years, Occ. Service with Railway, R/o. Railway Colony, Purna. Versus 1. Pemaji s/o. Munjaji Jogdand .. Respondents Age. 70 years, Occ. Agri., R/o. Kanadkhed, Tq. Parbhani, Dist. Parbhani. [Resp. No.1 deleted vide order dated 23.08.1991] 2. Sambhaji s/o. Pemaji Jagdand (Died) through his L.Rs. 2-A) Subhash s/o. Sambhaji Jogdand Age. 22 years, Occ. Agri., R/o. Village Kanadkhed, Tq. Purna, Dist. Parbhani At present residing at House No. 10/4, Shubhashri Colony, N-6, CIDCO, Aurangabad. 2-B) Maruti s/o. Sambhaji Jogdand, Age. 16 years, Occ. Agri., R/o. As above. ( 5 ) 2-C) Sangita Ram Kisan Kadam, Age. 25 years, Occ. Household, R/o. Village Suhagan, Tq. Purna, Dist. Parbhani. 2-D) Surekha w/o. Deepakrao Dhus Age. 19 years, Occ. Household, R/o. Village Gunj, Tq. Purna, Dist. Parbhani. 3. Ghyandeo s/o. Pemaji Jogdand Age. Adult, Occ. Agri., R/o. Kanadkhed, Tq. Parbhani, Dist. Parbhani. [Resp. No.3 deleted vide order dated 23.08.1991] Shri H.H. Padalkar h/f. Shri R.S. Deshmukh, Advocate for the appellant. Shri I.S. Thorat h/f. Shri S.K. Shinde, Advocate for the respondents. CORAM : P.R. BORKAR,J. DATED : 03.02.2010 O R A L J U D G M E N T :- 1. These two appeals are interconnected and can be conveniently disposed of by a common judgment. The parties to both these appeals are almost same. 2. Appellant Namdeo Gawali had purchased four acres land out of Survey No. 92 of village Kanadkheda, Tq. ( 6 ) Parbhani, Dist. Parbhani, by sale-deed dated 02.04.1973. Appellant – Namdeo purchased said property from Pemaji Munjaji Jogdand, who was respondent in the present appeals and whose name came to be deleted as per order dated 23.08.1991 in both appeals. Admittedly, Pemaji had two sons – Sambhaji - original respondent No.1 in both appeals and Gyandeo who was respondent No.3 in Second Appeal No. 15 of 1991, but who was not party to Second Appeal No. 395 of 1990. 3. Regular Civil Suit No. 147 of 1973 is filed by respondent Sambhaji for declaration that sale-deed dated 02.04.1973 by his father Pemaji was not for legal necessity and as such null and void, and for recovery for possession. He also came with a case that Survey No.92 was purchased by his mother’s mother Limbabai in the name of his mother Subhadra. Subhadrabai admittedly died in 1968. Limbabai was, however, alive, in-fact the suit was filed in the name of Sambhaji by Limbabai as his guardian. In the plaint Limbabai stated that she owned land Survey No. 67 of village Dhanora. She sold her land and purchased land Survey No.92 of village Kanadkheda in the name of her daughter deceased Subhadra out of sale proceeds received by her. However, Pemaji was shown ( 7 ) to be guardian of Sambhaji, in the revenue record of the land. However, Pemaji never cared for either his son Sambhaji or other son Gyandeo, who was stated to be lunatic. It is stated that in the year 1968, after death of Subhadrabai, Survey No. 92 belonging to her was partitioned between Sambhaji and his brother Gyandeo and eventhough Pemaji had no right, he sold four acres land out of the land allotted to the share of Sambhaji to present appellant Namdeo and as such said sale deed is not binding on Sambhaji and the suit was filed for declaration that the sale-deed dated 02.04.1973 executed by Pemaji in favour of present appellant was ineffective as against Sambhaji and for possession. 4. Thereafter, present appellant also filed Regular Civil Suit No. 52 of 1975 for declaration of his ownership over Survey No. 92 of Kanadkheda purchased by him and for perpetual injunction. 5. Both suits came to be heard together and common evidence was recorded. However, the Trial Court decreed the suit filed by Sambhaji and dismissed the suit filed by present appellant. As against the same present appellant – ( 8 ) Namdeo filed Regular Civil Appeal No. 146 of 1981 and Regular Civil Appeal No. 130 of 1981. Regular Civil Appeal No. 146 of 1981 was filed against decree passed in Regular Civil Suit No. 52 of 1975 and Regular Civil Appeal No. 130 of 1981 was filed against dismissal of Regular Civil Suit No. 147 of 1973. The First Appellate Court i.e. District Court dismissed Regular Civil Appeal No. 130 of 1981 but partly allowed Regular Civil Appeal No. 146 of 1981 and directed refund of consideration of Rs. 6000/-, which was paid by appellant Namdeo. The declaration of title sought by him was rejected. As against the same, these two appeals are filed. 6. Both the Second Appeals were admitted on the substantial questions of law which are raised in ground Nos. II, IV, VI and VII of the appeal memos. We may summarise substantial questions of law arising in these two appeals are as under :- (i) Whether the Trial Court and the First Appellate Court were right in holding that deceased Pemaji had no share in the suit property as one of the heir of Subhadrabai? (ii) Whether refusal to give declaration of title to present appellant even to the extent of share of Pemaji in the suit property was ( 9 ) justified? (iii) Whether the decree for possession passed in respect of four acres of land purchased by the appellant in favour of respondent Sambhaji was legal and justified in absence of prayer for partition and separate possession? 7. At the time of arguments, the learned advocate for the appellant submitted that assuming that the property was belonging to Subhadrabai, after her death, the property would not only vest in her two sons Sambhani and Gyandeo, but as per Section 15 (1) (a) of the Hindu Succession Act, 1956, the property devolves on son, daughter and husband of Subhadrabai and as such Survey No. 92 would devolve on Pemaji – father of present appellant and his two sons Sambahi and Gyandeo. Even assuming for a moment that sale by Pemaji was not for legal necessity, still Pemaji had right to sell his own share which was 1/3 out of total 20 acres area of Survey No.92, originally belonging to Subhadrabai. 8. The learned advocate for respondent has taken me through the judgment of both Courts below. There is nothing on record either in the pleadings or in evidence to show that after death of Subhadra, right of inheritance of Pemaji could ( 10 ) have been in any way negatived by Sambhaji or Gyandeo. There is no case of testamentary succession. Since Subhadrabai was survived by two sons Sambhaji and Gyandeo, the case does not fall under sub-section (2) of Section 15 of the Hindu Succession Act. In the facts of the case, both the Courts below committed error in not recognizing 1/3 share of Pemaji who was vendor of present appellant. Pemaji had right to sell 1/3 share out of Survey No. 92. Without partition between himself and his sons if he has sold 1/3 share, at least to the extent of share of Pemaji, the title of the suit land would vest in present appellant. 9. In this case unfortunately not even by way of alternate prayer, partition is prayed. In the suit filed by Limbabai as guardian of Sambhaji, only prayers are to declare the sale ineffective as against plaintiff Sambhaji and for delivery of possession. There is no prayer for partition. So, considering above said circumstances, in my opinion, the sale-deed executed by Pemaji dated 02.04.1973 (in respect of 4 acres of land out of Survey No. 92 of village Kanadkheda) can be declared to be not binding on respondent Sambhaji and his legal representatives. At the same time it is made clear ( 11 ) that the sale-deed in favour of the appellant is valid to the extent of share of Pemaji in Survey No. 92 of village Kanadkheda. The respondents would not be entitled to get actual possession of 4 acres land in the present suit from the appellant as he has become co-owner in settled possession. To that extent the decree of the Trial Court, as confirmed by the First Appellate Court will have to be set aside and decree of refund of purchase price passed by the First Appellate Court will also have to be set aside. In the circumstances the respondents will have to be left to option of filing suit for partition for getting possession, if advised. As one of the co-owners the appellant is entitled to protect possession of the land purchased by him until he is dispossessed in due course of law or only by way of decree in suit for partition. 10. The Second Appeals are accordingly partly allowed and disposed of. Parties to bear their own costs. [P.R. BORKAR,J.] snk/2010/FEB10/sa395.90