1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.155 OF 2009 WITH CIVIL APPLICATION NO. 2681 OF 2009 Madhukar s/o Tukaram Patil (Deceased) Through L.Rs. A) Ramkrishna Madhukar Patil, R/o. Kazipura, Tal.Chopda, District Jalgaon and others. .. Appellants Versus Sau. Kamalbai Tulshiram Patil, R/o. Kazipura, Tal. Chopda, District Jalgaon. .. Respondent ... Mr. P.B. Patil, Advocate for the appellants. Mr. S. A. Kulkarni, Advocate for respondent. ... CORAM : K.K. TATED, J. RESERVED ON : 26th JUNE,2009 PRONOUNCED ON: 9th JULY, 2009 PER COURT : 1. Heard learned Counsel for the parties. 2. This Second Appeal is directed against the judgment and decree dated 17-12-2008 passed by the District Judge-1 Amalner in Civil Appeal No. 2 16/2007 dismissing the appeal preferred by the defendants against the judgment and decree in R.C.S. No. 61/2001 decreeing the plaintiff's suit for declaration that the plaintiff have right to dispose of the suit property which were allotted to her share by way of consent decree dated 07-03-1969 and as per compromise pursis Exhibit-35/7. 3. Undisputed facts are that common ancestor Parsuram Patil had two sons namely Tulshiram and Tukaram. Tulshiram had two wives namely Kamalbai and Bhagabai. Tulshiram died issueless while he was residing with his brother Tukaram. During life time of Tukaram, Kamalbai and Bhagabai, after death of Parsuram Patil filed a suit for partition of joint family property. Said suit was compromised and as per compromise pursis Exhibit-35/7 dated 07-03-1969 and on the same day consent decree was passed. Suit property as per consent decree was given to Smt. Kamalbai and Bhagabai with stipulation that 3 after death of those two ladies, property shall revert back to the defendants. As per consent decree, those ladies were not to alienate the property allotted to them. R.C.S. No. 61/2001 filed by Kamalbai, after death of Bhagabai which was contested by the defendants, on the ground that the plaintiff as per consent decree had only life interest and she could not alienate the suit property in any way. It was also contended by the defendants that the suit was bad for non joinder of necessary parties. 4. Learned trial Court held that the provisions of Section 14(1) of Hindu Succession Act, 1956 applies and as such, the plaintiff became full owner of the suit property despite restrictions for alienation provided in the consent decree. He rejected the contention of the defendants that provisions of Section 14(2) of the said Act, 1956 applies and that plaintiff had only life interest in the suit property. Section 14(1) and (2) of the Hindu Succession 4 Act, 1956 read as under. "Section 14. Property of a female Hindu to be her absolute property.-(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation.- In this sub- section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after the marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act. (2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property." 5 5. Courts below also rejected the contention of the defendants that the suit was bad for non joinder of parties. Learned Appellate Court relying on the decision of the Supreme Court in the matter of Santosh and others vs. Saraswathibai reported in A.I.R. 2008 S.C. 500 up held the finding of the learned trial judge and dismissed the appeal. The defendants dissatisfied with the dismissal of their appeal, preferred this Second Appeal. 6. Learned Counsel for the appellants contended that as long as court decree is not set aside, consent terms on the basis of which consent decree was passed, were binding on the parties and therefore, the plaintiff could not claim full ownership with right to alienate the suit property. According to him, provisions of Section 14(2) of the said Act were attracted. He secondly contended that the appellate Court 6 did not decide second legal question that the suit was bad for non joinder for necessary parties and therefore, matter needs to be remitted back to the first appellate Court for decision on that point. 7. The decision of the Supreme Court in Santosh and others vs. Saraswathibai reported in A.I.R. 2008 SC 500 applies on all facts of the present case and therefore, the contention of the learned Counsel for the appellants that Section 14(2) applies to the facts of the present case, cannot be accepted. There is no legal infirmity in the concurrent findings of the two Courts below that Section 14(1) of the Hindu Succession Act applies to the facts of the present case. Hence the challenge to the said findings of the appellants fails. 8. Second contention of the appellants that the suit was bad for non joinder of the 7 necessary parties and as first appellate Court did not decide the said legal issue, the matter needs remand for obtaining finding of the first appellate Court. Learned Counsel for the appellant relied on the decision of the Supreme Court in the matter of Santosh Hajari vs Purushottam Tiwari (deceased) by LRs. reported in (2001) 3 S.C.C. 179. Along with the learned Counsel for the parties, I have gone through that decision and I find that the said decision is not at all applicable to the facts of the present case. In that case, Hon'ble Supreme Court found that substantial question of law did arise which was worth being heard by the High Court and for hearing of that substantial question of law, matter was remanded to the High Court. Such is not the case in the present case. In this case, defendants were trying to sell the suit property and hence, the plaintiff filed suit for declaration and perpetual injunction restraining them from transferring 8 the field Block Nos. 5, 11 and 16 in the suit. Therefore, it was not necessary to join others who did not try to sell the suit property or dispute title of the plaintiff to the suit property and hence, the trial Court rightly held that the suit was not bad for non joinder of necessary parties. The substantial question of law is not involved in this appeal and therefore, there is no substance in the contention of the learned Counsel for the appellants that the matter to be remitted back to the first appellate Court to decide that issue. 9. In the result, there is no substantial question of law involved in the present Second Appeal and the Second Appeal is liable to be dismissed and it is dismissed summarily. No order as to costs. 10. In view of the dismissal of present Second Appeal summarily, nothing survives in the Civil 9 Application and same is dismissed. ( K.K. TATED, J.) sut/JUL09/sa155.09