ssm sm sm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO. 752 OF APPEAL NO. 752 OF APPEAL NO. 752 OF 2006 2006 2006 Mrs.Ashalata Narayan Kelkar, through Power of Attorney holder Shri Narayan Hari Kelkar, R/o.Mhatre Chawl, Mahatma Phule Road, Kalyan, Dist.Thane. ...Appellant. (Orig.Plaintiff) Vs. 1. Shri Vinayak Shankar Joshi. 2. Shri Balkrishna Hari Joshi. (Since deceased through his L.Rs.) 2/1. Alka Aathale, 2/2. Surekha Patwardhan, 2/3. Madhuri Mungekar, 2/4. Manisha Ahire, 2/5. Suhas Balkrishna Joshi, 2/6. Anjali Balkrishna Joshi, 2/7. Atul Balkrishna Joshi, (deceased) All R/o. Sevadal Ali, Joshi Wada, Roha, Tq.Roha, Dist.Raigad. 3. Shri Rameshchandra Hari Joshi, R/o.Parmanand Bldg., French Bridge, Girgaon, Bombay-400 004. 4. Smt.Manu Shankar Joshi, R/o. Joshi Wada,Sevadal Ali, Roha, Tq.Roha, Dist. Raigad. 5. Shri Bhaskar Narayan Zemse, R/o. Chinchpada, "Nishigandha", At Pen, Tq.Pen, Dist.Raigad. ( 2 ) 6. Shri Raman Kumar Mehara, R/o. Jolly Apartment, 95/97, Cuff Parade, Bombay-400 005. 7. Shri Gautam Mehara, R/o. Jolly Apartment, 95/97, Cuffe Parade, Bombay-400 005. ...Respondents. (Orig. Defendants) Mr.Bhushan Walimbe i/by Miss.P.P.Tendulkar for the Appellant. Mr.Daulat Khamkar for the Respondents. CORAM CORAM CORAM : ANOOP V. MOHTA,J. : ANOOP V. MOHTA,J. : ANOOP V. MOHTA,J. DATED DATED DATED : 2nd June, 2008 : 2nd June, 2008 : 2nd June, 2008. JUDGMENT:- JUDGMENT:- JUDGMENT:- . This is a Second Appeal filed by the Original plaintiff whereby a suit for partition, possession and declaration with regard to her share in property in question was dismissed by both the courts. 2. The appellant contended that the Appellant is the only daughter of late Shankar Hari Joshi and, thus has a lawful share in the property of her father late Shankar Hari Joshi. 3. In the year 1973, as late Shankar Hari Joshi had no male issue, he adopted defendant/respondent No.1 as his son. However, after the said adoption, defendant No.1 never gained confidence of plaintiff’s father ( 3 ) Shankar Joshi and their relations were to some extent strained. 4. In the year 1982, wife of Shankar Hari Joshi i.e. plaintiff’s mother Mrs. Manorama died in the year 1982. Thereafter, Shankar Joshi got married to defendant No.4. 5. On 27/08/1993, Shankar Hari Joshi died after his long ill-health and of old age. 6. On 29/03/1994, defendant No.1 fraudulently executed a Sale-deed with respect to part of ancestral property of the plaintiff and her father in favour of defendant Nos.5,6 and 7. The said Sale-deed was executed fraudulently behind the back of the plaintiff. 7. On 25/04/1994, plaintiff was shocked to see the Notice published in a local newspaper by defendant No.1 wherein defendant No.1 had invited objections as he proposed to sell off the ancestral property of the plaintiff and her deceased father. defendant No.1 claimed to be absolute owner of the ancestral property on the basis of an alleged last Will executed by ( 4 ) deceased Shankar Joshi in his favour. 8. On 28/05/1994, the plaintiff objected notice of defendant No.1 and published her reply in the same local newspaper. 9. On 18/06/1994, defendant No.1 published a rejoinder in the same local newspaper denying the averments made by the plaintiff in her notice/reply and reiterated that there is a complete bequest of the property by deceased Shankar Joshi in his favour. 10. The plaintiff sent a notice through her advocate to defendant No.1 raising objections regarding proposed sale of property by defendant No.1 and called upon him to give the names of intender purchasers. 11. The plaintiff did not receive any reply to her notice from the defendants. Thereafter, she came to know regarding the sale-deed between defendant No.1 and defendant Nos. 5,6 and 7. Hence, the plaintiff was constrained to file Special Civil Suit No.105 of 1994 for declaration, injunction, possession and setting aside the same. ( 5 ) 12. On 26/08/1997, the learned Civil Judge, Senior Division, Alibag at Raigad was pleased to dismiss the suit filed by the plaintiff. It is pertinent to note that although the learned Trial Judge had recorded a finding that plaintiff is entitled to claim 1/27th share in the suit property, he has not awarded the same to the plaintiff in his final order and decree. 13. On 29/04/2006, the plaintiff filed an Appeal being Civil Appeal No.198 of 1997 in the District Court of Raigad at Alibag. However, the learned District Court was pleased to dismiss the Appeal filed by the plaintiff. 14. Hence the present Second Appeal. 15. The Appellate Court has dismissed the appeal by answering the following four issues. 1. Whether late Shankar had validly and legally bequeathed his share of property by his last Will dated 14/03/1990 to his adopted son, defendant No.1, Vinayak? Yes. 2. Whether sale-deed dated 29/03/1994 is not binding upon the share of plaintiff Ashalata? Does not survive. 3. Whether plaintiff Ashalata is entitled to declaration, injunction and ( 6 ) possession of her 1/2 share as prayed. No. 4. What order? As per final order below. 16. The Trial Court however, had decided the suit based upon the following issues and findings. 1. Does plaintiff prove that she has share in the suit property? The plaintiff is entitled to claim 1/27th share in the suit property. 2. Whether she has locus-standi to file this suit? In the negative. 3. Does plaintiff prove that the registered will deed executed by her deceased father in favour of defendant No.1 is sham, bogus, fabricated and illegal document? In the negative. 4. Does she further prove that the sale-deed in respect of the suit property is executed fraudulently by defendant No.1 in favour of defendant Nos.5,6 and 7 which is not legal, operative and binding on plaintiff? In the negative. 5. Does she also prove that she is in joint possession of the suit property? In the negative. 6. Does defendants prove that the defendant Nos.5,6 and 7 are the bonafide purchaser? In the affirmative. 7. Is plaintiff entitle to the partition and separate possession of her share if any? In the negative. 8. Is she entitle to the declaration sought? In the negative. 9. Is she further entitle to the injunction ( 7 ) sought? In the negative. 10. Is she entitle for the rendition of accounts? In the negative. 11. Whether the sale-deed executed by defendant No.1 in favour of defendant Nos. 5,6 and 7 is liable to be set aside? In the negative. 12. What order and decree? As per the final order below. 17. The following questions of law arise for consideration. 1. Whether the Appellate Court’s reasoning and Judgment is contrary to the record, considering the evidence of P.W.1 itself alongwith other material that the entire property if not partitioned notional or otherwise remains ancestral property? 2. In view of above, whether the deceased Shankar had power to dispose of the property and the alleged Will dated 14/03/1990 in favour of adopted son excluding the plaintiff-daughter is valid and binding and so also the Sale deed dated 29/03/1994? 3. Whether the statement of the parties which is contrary to the material as recorded by the Trial Court can be accepted by the appellate Court to overlook the reasoning given by the Trial Court with regard to the aspect of notional partition and the share of the plaintiff in the property of the father? 4. What order? 18. Without going further into this issue, the issue No.1 as framed by the Trial Court having decided in ( 8 ) favour of the plaintiff, the Appellate Court without framing the said issue and giving any reason wrongly confirmed the same only based upon the parties statement as recorded in para 11 "that there was no partition prior to the death of late Shankar between Shankar and his brothers. Therefore, this also cannot be a ground to reject the will in question". 19. The Trial Court, however, while answering this issue No.1 referring to Section 6 of Hindu Succession Act 1956 readwith the cross-examination of P.W. 1 Narayan observed as under:- . "In the cross-examination, the P.W.1 Narayan Hari Kelkar has admitted that the deceased Shankar Hari Joshi, his brother Balkrishna- the defendant No.2 and Rameshchandra the defendant No.3 are having 1/3rd share each in the suit properties. By way of notional partition deceased-Shankar, his second wife-Manu-the defendant No.4 and his adopted son-the defendant No.1 will get 1/9th share each. It is admitted by the P.W.No.1 in his cross-examination that the plaintiff is having 1/3rd share in the share of Shankar, in the suit properties. Hence, the plaintiff, the defendant No.4-Manu, and defendant No.1-Vinayak will each get ( 9 ) 1/9th/1/3rd of 1/27 share. Hence, the plaintiff is entitled to claim 1/27th share in the suit property and hence I decide the issue No.1 accordingly." 20. Therefore, if there is no partition as observed by the Appellate Court based on the statement recorded, by overlooking the cross-examination of P.W.1 and as recorded by the Trial Court, it is difficult to understand how the deceased Shankar could have gifted the property without any partition or notional partition as referred by the Trial Court, but same was not considered by the Appellate Court as recorded above. The question of law No.1, according to me need detailed reasoning from the Appellate Court in view of the reasoning given by the trial court based on the material available on record. The impugned order and reasoning with this regard is contrary to the record. Without details and proper reasoning, the statement made by the parties first time in the Appellate Court which is contrary to the material as well as evidence on record by the Trial Court need to be cautiously considered by giving sufficient reasons. The parties statement, contrary to the record and or material available at the time of hearing of the Appeal just cannot be accepted by ( 10 ) brushing aside the reasoning as well as the evidence and material available on record. 21. The facet of amendment to the Hindu Succession Act 1956 w.e.f. 2005 referring to the share of daughter in the Ancestral Property need to be considered with regard to the suit properties including dwelling house, if any. 22. The trial Court has decided all the issues as referred above against the plaintiff and as Appellate Court failed to decide this basic issue No.1, therefore, keeping the point open, with regard to the Will dated 14/03/1990 and Sale-deed dated 29/03/1994, to be resubmitted before the Appellate Court, by both the parties. The Appellate Court also after considering the material and by giving opportunity to all the concerned decide the issues as framed in the trial Court. 23. All other questions of law are interlinked and connected with issue No.1 reasonings. However, in view of the above reasonings all other issues i.e. 2 and 3 questions of law are answered in negative. ( 11 ) 24. Keeping overall view of the matter as the Appellate Court failed to give detailed reasons with regard to the issues as framed by the Trial Court and basically issue No.1, the impugned Judgment and decree passed by the first Appellate Court dated 29/04/2006 (District Judge, Raigad at Alibag) is quashed and set aside. The matter is remanded back for re-hearing before the District Judge, Raigad at Alibag with above observation. 25. The Appeal be heard by the District Judge preferably within a period of six months by giving full opportunity to both the parties. The parties to appear before the Appellate Court within a period of one month from the date of pronouncement of Judgment. 26. The impugned Judgment and order of the appellate Court is, therefore, quashed and set aside and the matter is remanded back to the Appellate Court to reconsider, if necessary, by framing additional issues based upon the above findings. 27. In view of above, the Second Appeal is allowed. . No costs. ( 12 ) (ANOOP (ANOOP (ANOOP V. MOHTA, J.) V. MOHTA, J.) V. MOHTA, J.)