Rohit Sanjay Panbisare And Another vs Sanjay Ganesh Panbisare And Others

2026:BHC-AUG:17940
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.14582 OF 2025
1. Rohit S/o. Sanjay Panbisare,
Age :- 21 Years, Occu. Student
R/o. C/o. Baburao Gowardhan Kasure
Tisgaon, Tq.& Dist.Aurangabad
2. Radha W/o. Sanjay Panbisare
Age :- 39 Years, Occu. Household
R/o. C/o. Baburao Gowardhan Kasure
Tisgaon, Tq.& Dist.Aurangabad Petitioners
(Ori. Plaintiffs)
VERSUS
1) Sanjay S/o. Ganesh Panbisare,
Age:- 43 Years, Occu. Agri. & Business.
R/o. Khawda Dongar Chaufuli,
Tisgaon, Tq. & Dist. Aurangabad.
2) Ganesh S/o. Ramlal Panbisare,
Age:- 61 Years, Occu. Agri.
R/o. As above.
3) Anil S/o. Ganesh Panbisare,
Age:- 41 Years, Occu. Agri.
R/o. Khawda Dongar Chaufuli,
Tisgaon, Tq. & Dist. Aurangabad.
4) Sunil S/o. Ganesh Panbisare,
Age:- 39 Years, Occu. Agri.
R/o. As above.
5) Nitin S/o. Ganesh Panbisare,
Age:- 37 Years, Occu. Agri.
R/o. As above.
6) Khimanbai W/o. Ganesh Panbisare,
Age:- 57 Years, Occu. Agri.
R/o. As above

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7)) Rajiv S/o. Kalyan Gadgul,
Age:- 34 Years, Occu. Agri.
R/o. As above
8) Karbhari S/o. Sakhahari Gayake,
Age:- 53 Years, Occu. Agri.
R/o. Sultanabad, Tq. Gangapur,
Dist. Aurangabad.
9) Hrutvik Nandkumar Kuklare,
Age:-21 Years, Occu. Agri. & Business,
R/o. Shiregaon, Tq. Gangapur,
Dist. Aurangabad.
10) Prabhakar S/o. Raghunath Mahalkar,
Age:- 41 Years, Occu. Agri. & Business,
R/o. Junegaon Sawata Mandir,
Ranjangaon Shenpunji,
Post: Ghanegaon, Tq. Gangapur, Dist. Aurangabad.
11) Ganesh Tukaram Pere,
Age:- 57 Years, Occu. Agri. & Business,
R/o. Plot No. 1, Adarsh Vidya Mandir,
Vidyut Colony, Padegaon,
Aurangabad. Respondents.
...
Advocate for Petitioners : Mrs. Pooja V. Langhe
Advocate for Respondents : Mr. H.S. Adwant h/f Mr. S.V.
Adwant
…

...

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JUDGMENT :-
1. Rule. Rule made returnable forthwith. With consent of
parties matter is taken up for final hearing at the stage of
admission.
2. Present writ petition takes exception to the order dated
8.10.2025 passed by the District Court, Aurangabad in Misc.
Civil Appeal No.76 of 2025, thereby reversing the order dated
21.3.2025 passed by learned Jt. Civil Judge S.D., Aurangabad
below Exhibit-5 in Special Civil Suit No.126 of 2024.
3. Brief facts, giving rise to the present writ petition, are as
under :-
Petitioners/(original plaintiffs) filed a suit for partition
and separate possession of suit property, which includes land
Gat no.224 alongwith house property constructed therein
situated at village Tisgaon Tq. & District Aurangabad.
Plaintiffs are further seeking declaration that sale deed day
book no.6021 of 2022 dated 1.9.2022 as null and void and not
binding upon share of plaintiffs. Plaintiffs have further sought
relief of perpetual injunction from transferring, alienating or

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creating third party interest in property to the extent of share
of plaintiffs.
4. The family tree depicting relationship between the
plaintiffs and defendants is as under :-
Bhagirath
Ramlal
(Great-Grandfather)
Mohan Ganesh (D-5) 4 Sisters
(Grandfather)




Radha (P-2) Sanjay (D-1) Anil (D-2) Sunil (D-3)
(Father)

Rohit (P-1)
(Son)

5. It is contention of petitioners that plaintiffs and
defendants are members of Hindu undivided joint family. The
joint family is having ancestral property i.e. agricultural land in
gat no.224. Ramlal i.e. great-grandfather of plaintiffs was
owner of the property. He partitioned the same amongst his
sons i.e. Mohan and Ganesh/defendant no.5 i.e. grandfather of
plaintiffs. Petitioners grandfather i.e. Ganesh/defendant no.5
received 3H 37R from his father in partition alongwith his

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brother Mohan. Till this date, there is no partition of Hindu
Joint Family headed by defendant no.1/Sanjay.
6. Pertinently, plaint is silent as to date of death of Ramlal
(Great-grandfather) and date when he partitioned property in
name of Ganesh & Mohan. Plaintiffs grandfather is added as
party in the suit, but it is not clarified as to whether property in
hands of Ramlal was ancestral or self-acquired or Ganesh
received it in terms of Sec. 8 or 6 of the Hindu Succession Act,
1956.
7. Petitioners/plaintiffs filed an application below Exhibit-5
claiming relief of temporary injunction against defendants to
restrain them from transferring or alienating the suit property
in favour of third party. Defendants contested the suit on
various counts. They raised objection that suit itself is not
maintainable as plaintiffs have no right to claim partition in the
suit property so long as father, grandfather are alive. The Trial
Court allowed application and temporarily restrained
defendants from creating third party interest in suit property in
any manner. Aggrieved defendant nos.1 to 5 i.e. father and
grandfather of plaintiff no.1 filed Misc. Civil Appeal no.76 of
2025 before District Judge at Aurangabad, who allowed

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appeal vide impugned judgment and order dated 8.10.2025
observing that plaintiffs failed to prove prima facie case as to
existing rights in suit property during life time of father and
grandfather and that there is nothing on record to hold that
suit properties are joint family properties.
8. Mrs. Pooja Langhe, learned advocate appearing for
petitioners submits that there is no dispute that suit properties
were originally owned by Ramlal i.e. great-grandfather of
plaintiff. He partitioned the same in favour of
Ganesh/defendant no.5 and his brother Mohan. Therefore,
plaintiffs father Sanjay and plaintiffs, being the members of
coparcenery are entitled for partition and separate possession
of suit properties. She would urge that Trial Court had rightly
appreciated factual and legal position while granting
temporary injunction against defendants, however, learned
District Judge on erroneous appreciation of facts and law,
allowed appeal and exceeded jurisdiction while disturbing Trial
Courts order in exercise of the appellate powers under Order
43 of Civil Procedure Code.

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9. Per contra, Mr. Advant, learned advocate appearing for
respondents would supports order impugned contending that
statutory scheme under 1956 Act contemplates that the
property inherited by the heirs looses its coparcenary character
and vests as individual and self acquired property in the hands
of the heirs. Plaintiff no. 1 being grandson of defendant no.5
has no locus to file suit for partition against him during life
time of his father much-less claim reliefs in the suit.
Grandfather being exclusive owner of the suit properties
alongwith his brother Mohan, enjoys absolute domain over the
same. Hence, suit sans cause of action. As such, application
for temporary injunction cannot be entertained. The Appellate
Court has rightly applied law in facts of this case and allowed
appeal by setting aside trial courts order.
10. Having considered submissions advanced by learned
advocates appearing for respective parties, it can be observed
that, there is no dispute that suit properties were originally
owned by Ramlal i.e. great-grandfather of plaintiffs and on
partition effected by him, those have been received by
grandfather i.e. Ganesh/defendant no.5 and his brother
Mohan. Undisputedly, there is no partition between defendant

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no.5 and defendant no.1. Plaint is absolutely silent on material
particulars about date of death of petitioners great-grandfather
Ramlal or date of partition between sons of Ramlal i.e.
Ganesh/defendant no.5 and Mohan. Plaint is also silent on the
point as to whether the suit properties were ancestral
properties of Ramlal or those were his self acquired properties.
In absence of aforesaid particulars, assuming that
Ganesh/defendant no.5 received suit property from his father
i.e. Ramlal, prima facie it has to be assumed that he had
acquired right under section 8 of the Hindu Succession Act.
11. Section 4 of the Hindu Succession Act overrides Hindu
Law in-force immediately before commencement of the Act,
which has been brought into force for the purpose of
regulating law relating to intestate succession amongst Hindus.
Section 6 of the Hindu Succession Act deals with devolution of
interest in coparcenary property. Section 8 deals with the
general rules of succession in case of males. It stipulates that
property of a male Hindu dying intestate shall devolve
according to the provisions of this Chapter i.e. firstly upon
heirs being relatives as specified in class-1 of Schedule and,
secondly, if there is no heir of class-1, then relatives specified in

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class-2 of the Schedule. Schedule of Class-1 heirs depicts that
son, daughter, widow, mother are included in exclusion of
grandson of the living son.
12. In case of Uttam Vs. Saubhag Singh and others reported
in (2016) 4 SCC 68 the Supreme Court of India after
considering relevant provisions of law and its exposition under
various judgments, summarized effect of section 4, 8 and 19 of
Hindu Succession Act so far as it applies to the joint family
property governed by Mitakshara School prior to the
amendment of 2005. The relevant observations are as
follows :-
(v)On the application of Section 8 of the Act, either by
reason of the death of a male Hindu leaving self-
acquired property or by the application of Section 6
proviso, such property would devolve only by
intestacy and not surviorship.
(vi). On conjoint reading of Sections 4, 8 and 19 of the
Act, after joint family property has been distributed
in accordance with Section 8 on principles of
intestacy, the joint family property ceases to be joint
family property in the hands of the various persons
who have succeeded to it as they hold the property
as tenants in common and not as joint tenants.
13. In case of Arshnoor Singh Vs. Harpal Kaur and Ors.
reported in AIR 2019 Supreme Court 3098, the Supreme Court

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after considering the law laid down in case of Yudhister Vs.
Ashok Kumar (1987) 1 SCC 204, observed in para no.7.5 and
7.6 as under:
7.5 After the Hindu Succession Act, 1956 came into
force, this position has undergone a change. Post –
1956, if a person inherits a self-acquired property
from his paternal ancestors, the said property
becomes his self-acquired property, and does not
remain coparcenary property.
7.6 If succession opened under the old Hindu law, i.e.
prior to the commencement of the Hindu Succession
Act, 1956, the parties would be governed by
Mitakshara law. The property inherited by a male
Hindu from his paternal male ancestor shall be
coparcenary property in his hands vis-a-vis his male
descendants upto three degrees below him. The
nature of property will remain as coparcenary
property even after the commencement of the Hindu
Succession Act, 1956.
14. It is therefore evident that on discontinuance of
coparcenary, property ceases to be joint family property and
succeed to respective sharers as tenants in common. The
property devolves upon them per stripes with right to alienate
the share, particularly, when the properties are partitioned and
entries are made in the revenue record.

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15. In the present case, petitioners grandfather/defendant
no.5 received the property from his father i.e. Ramlal.
However, plaintiffs have not pleaded whether property in the
hands of grandfather/defendant no.5 was ancestral property.
Therefore, at this stage, it will have to be presumed that in
terms of Section 8 of Hindu Succession Act, 1956 defendant
no.5 became exclusive owner of the property and holds right to
dispose it. Plaintiffs have therefore failed to show their
existing right in the suit property during the lifetime of father
i.e. defendant no.1.
16. Learned District Judge has rightly analyzed legal and
factual aspects of matter and held that after applying
provisions of section 6(3) and 8 of Hindu Succession Act, 1956
as long as father is alive, plaintiff no. 1 cannot maintain a
claim or have cause of action to seek reliefs as claimed.
Plaintiffs do not fall in any of the categories of class-1 heirs of
late Ramlal as prescribed under section 8 of Hindu Succession
Act. The inheritance right through father/defendant no.1 has
not opened up as he is very much alive. There is no question
of intestate succession at this stage.

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17. In result, writ petition sans merit, hence dismissed. Rule
discharged.
( S. G. CHAPALGAONKAR )
Judge
….
AAA/F