Full Judgment Text
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CASE NO.:
Appeal (civil) 7212 of 2002
PETITIONER:
Gulabrao Balwantrao Shinde & Ors.
RESPONDENT:
Chhabubai Balwantrao Shinde & Ors.
DATE OF JUDGMENT: 12/11/2002
BENCH:
V. N. Khare & Ashok Bhan.
JUDGMENT:
J U D G M E N T
Bhan, J.
Leave granted.
Plaintiffs, hereinafter referred to as the appellants, have filed this
appeal challenging the final judgment and order dated 2nd February, 2001
passed by Bombay High Court Bench at Aurangabad whereby the High
Court while allowing the appeal has set aside the judgment and decree
passed by the courts below and held that defendant-respondent No. 1 as the
absolute owner of entire suit property.
One Balwantrao Shinde (who died on 27th June, 1954) owned two suit
properties, namely, Gat No. 441 (Survey No. 204 admeasuring 2 Hectors 27
Ares at Tarsod, Taluku and District Jalgaon, Maharashtra and Gram
Panchayat House No. 2 and 26 at Tarsod, Taluka and District Jalgaon,
Maharashtra. Balwantrao Shinde married Anjanabai who died in the year
1940. After her death he married Chhabubai. Plaintiffs-appellants are the
children from Anjanabai whereas the respondents are Chhabubai and her
children. Appellants filed the suit for recovery of half share of the property
left by Balwantrao Shinde whereas respondents claimed ownership of the
entire property.
Trial Court on the pleadings of the parties decreed the suit filed by the
plaintiffs-appellants to the extent of 11/24th share of the suit property leaving
the remaining 13/24th share to the respondents. Respondents being
aggrieved filed an appeal. The appellate Court while dismissing the appeal
filed by the respondents held that the plaintiffs-appellants were owners to the
extent of entire suit property left by Balwantrao Shinde. Respondents
thereafter filed the second appeal in the High Court. The High Court
formulated the following two questions as substantial questions of law
arising from the order of the courts below:
"a) Balwantrao the husband of Chhabubai
(Appellant herein Orig. deft. No. 1) had died in the year
1954 before the Hindu Succession Act had come into
force. The Appellant No. 1 was in possession of the suit
property even before the Hindu Succession Act come into
the force but after the Hindu Succession Act the original
defendant No. 1 became the absolute owner of the suit
property which in her actual possession, as per Section 14
of the Hindu Succession Act. Even if it is taken for
granted that after the death of Balwantrao in 1954,
original defendant No. 1 come in possession of the suit
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property as an alienated owner, her ownership rights had
become absolute after the Hindu Succession Act had
come into force. Hence the respondents are not entitled to
claim any share in the suit property?
b) Did the Lower Appellate Court have jurisdiction
to give relief other than relief sought by the plaintiff
because the plaintiff had filed a suit for partition i.e. for
only half of portion, of the suit property, therefore, could
the District Court have passed an Order that plaintiff
became the absolute owner of the entire suit property?"
On question No. 1 it was held that Chhabubai possessed the property
left by Balwantrao Shinde in lieu of maintenance and after coming into force
of the Hindu Succession Act her right was enlarged to full ownership.
Under Question No. 2 it was held that the appellate Court could not grant
decree for the entire property in favour of the appellants as the appellants
themselves had claimed half portion of the property by way of partition.
The judgments of the courts below were accordingly set aside and the suit
filed by the appellants was ordered to be dismissed. The defendants were
held to be the owners in possession of the entire property.
Counsel for the parties have been heard.
Counsel for the appellants vehemently argued that in the absence of
any pleadings and evidence to the effect that the Balwantrao Shinde had
given the property to Chhabubai in lieu of maintenance, the High Court has
erred in recording a finding that the property in possession of Chhabubai
was in lieu of maintenance which could be enlarged into full ownership
rights on her. Counsel for the respondents virtually conceded that
Chhabubai did not either raise the plea nor lead any evidence to prove that
the properties were given to her by way of maintenance by Balwantrao
Shinde. It is also not disputed that properties in the hands of Balwantrao
Shinde were ancestral in nature. We agree with the plea raised by the
counsel for the appellants that in the absence of any pleadings to the effect
that Balwantrao Shinde had given the properties to Chhabubai by way of
maintenance and in the absence of any evidence to that effect, the finding
that the properties were given in lieu of maintenance to Chhabubai which
right could be enlarged into full ownership right could not be recorded. The
High Court was clearly fell in error in recording a finding to the effect that
Chhabubai had become absolute owner of the properties left by Balwantrao
Shinde. Another factor which persuades us to take this view is that the
properties were ancestral hands of Balwantrao Shinde in which plaintiff No.
1 had a right by birth. The entire property therefore could not have been
given to Chhabubai by way of maintenance.
For the reasons stated above, the findings recorded by the High Court
on question No. 1 are reversed.
We agree with the view taken by the High Court that since the
appellants had claimed only half share of the property by way of partition
they could not be declared owners to the entire extent of the property.
Finding of the High Court on question No. 2 is therefore upheld.
For the reasons stated above, the judgment of the High Court is
modified and the appeal is partly allowed. The judgment of the High Court
is set aside to the extent indicated above and the decree passed by the Trial
Court is restored. The suit shall stand decreed in terms of the decree passed
by the Trial Court. Parties shall bear their own costs.
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