JINALBEN WD/O HIMANSHU VINODKUMAR AMRUTLAL NAYAK vs MALTIBEN VINODKUMAR AMRUTLAL NAYAK
- Court
- Gujarat High Court
C/SA/751/2026 JUDGMENT DATED: 02/11/2026
(GJHC240813352026)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 751 of 2026
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2026
In R/SECOND APPEAL NO. 751 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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JINALBEN WD/O HIMANSHU VINODKUMAR AMRUTLAL NAYAK
Versus
MALTIBEN VINODKUMAR AMRUTLAL NAYAK & ANR.
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Appearance:
MR. MAULIK M SONI(7249) for the Appellant(s) No. 1
MR. PATEL ATIT L(14223) for the Appellant(s) No. 1
MR.JAYSHIL H. PARIKH(21115) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 02/11/2026
JUDGMENT
1. Heard Mr. Prem K. Shah, learned advocate appearing on behalf of
Mr. Maulik M. Soni, learned advocate for the appellant and Mr. Rashesh
H. Parikh, learned advocate with Mr. Jayshil H. Parikh, learned
advocate for respondent No. 1 - caveator
2. This Second Appeal is filed under Section 100 of the Code of Civil
Procedure, 1908, arising out of the judgment and decree dated
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10.09.2026 passed by the Principal District Judge, Patan, in Regular
Civil Appeal No.2 of 2026, whereby the Appellate Court reversed the
judgment and decree dated 30.08.2025 passed by the Additional Senior
Civil Judge, Siddhpur in Regular Civil Suit No. 23 of 2018.
3. The appellant herein is the original plaintiff, whereas the
respondents herein are the original defendants. For the sake of
convenience and brevity, hereinafter they will be referred to as the
plaintiff and the defendant respectively.
SHORT FACTS :-
4. The plaintiff happens to be the daughter-in-law of defendant No.1
and sister-in-law of defendant No. 2. The husband of the plaintiff and
son of defendant No.1 died in the year 2017. Thereafter, the Regular
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Civil Suit No.23 of 2018 instituted by the plaintiff, seeking 1/3 share in
the suit property, i.e., Shop No.G/67, admeasuring 18.00 square meters,
situated at ground floor of “Tirupati Plaza” at Siddhpur, (for short “ the
suit shop” ).
4.1 It was the case of the plaintiff that the suit shop was purchased
from joint family property, i.e., ancestral property, and thereby, her
husband had a right, title and interest therein, and being the widow, she
is also entitled to receive her share.
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4.2 The defendant appeared and contested the suit by filing a written
statement. After completion of the pleadings, the Trial Court framed
following issues and answered accordingly: -
1 Whether the plaintiff proves that the suit property was
purchased from the savings of her father in law and her
husband and, therefore, is an ancestral property?
2 Whether the plaintiff proves that she is entitled to a
share to the extent of half of the suit property?
3 Whether the plaintiff proves that she is entitled to such a
declaration as asked for?
4 Whether the plaintiff proves that she is entitled to such a
perpetual injunction as asked for?
5 What order and decree?
1 In the Negative
2 In the Affirmative.
3 IN the Partly Affirmative
4
In the Affirmative
As per the final order
5
4.3 After appreciating the oral and documentary evidence came on
record, the Trial Court has found that the plaintiff failed to prove that
the suit shop was purchased from the savings of her father-in-law and
her husband, and thereby failed to prove that it was an ancestral
property. Even though, such a finding was arrived at by the Trial Court,
for the reasons best known to the Trial Court, it had partly allowed the
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suit by declaring that the plaintiff is having 1/3 share in the suit shop,
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and thereby the defendants are permanently restrained to sale,
mortgage, gift, etc., of the suit shop.
4.4 Feeling aggrieved and dissatisfied with the judgment and decree
passed by the Trial Court, the defendant preferred Regular Civil Appeal
No.2 of 2026 before the Appellate Court. After appreciating the
submissions advanced by the respective parties and upon re-
appreciation of evidence, the Appellate Court, in its impugned judgment
and decree, allowed the aforesaid appeal, and thereby dismissed the
suit.
4.5 Hence, the present Second Appeal.
SUBMISSIONS OF THE APPELLANT - PLAINTIFF :-
5. Mr. Prem K. Shah, learned advocate for Mr. Maulik Soni, learned
advocate, would submit that the Appellate Court has committed serious
error in law by reversing the judgment and decree passed by the Trial
Court, as the Trial Court has categorically found that the plaintiff has a
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1/3 share in the suit shop.
5.1 It is submitted that the plaintiff was able to prove on record by
leading evidence that the suit shop was purchased from the income of
her husband, and thereby she has a right to claim her share in the suit
shop.
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5.2 It is further submitted that the Appellate Court has, without
appreciating the issue in its proper perspective, arrived at a wrong
conclusion that merely because the plaintiff failed to prove that the suit
shop is an ancestral property, she is not entitled to receive any share in
the suit shop.
5.3 Mr. Shah, learned advocate would request this Court to entertain
this Second Appeal on substantial questions of law framed in the memo
of the appeal.
SUBMISSIONS OF THE RESPONDENT - DEFENDANT
6. Per contra , Mr. Parikh, learned advocate appearing for
respondent No. 1- original defendant No.1, has vehemently opposed this
appeal, contending, inter alia , that once the plaintiff failed to prove on
record that the suit shop was purchased from ancestral property and the
Trial Court has answered Issue No.1 in negative, there was no reason for
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the Trial Court to hold that the plaintiff has 1/3 share in the suit shop.
6.1 It is submitted that the Appellate Court has categorically observed
in para Nos.10.1 and 11 of its impugned judgment that defendant No.1
had purchased the suit shop out of her savings and pension income, and
defendant No.1's husband, i.e., father-in-law of the plaintiff, died on
09.10.2009, whereas the suit property was purchased on 27.05.2013.
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6.2 It is further submitted that so far as finding of facts recorded by
the Trial Court while answering Issue No.1 is concerned, the plaintiff did
not challenge it by way of cross-objection and/or make any dispute
before the Appellate Court in this regard, whereby the plaintiff has no
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right to claim any 1/3 share in the suit shop.
6.3 Mr. Parikh, learned advocate would further submit that the
present Second Appeal is, as such, devoid of any merit, inasmuch as no
substantial question of law arises in this appeal.
6.4 Mr. Parikh, learned advocate would further submit that after
passing of the impugned judgment and decree by the Appellate Court,
the defendant No.1 has already sold the suit shop and it no longer
remains with defendant No.1.
6.5 Mr. Parikh, learned advocate would rely upon the decision of this
Court in the case of Divya (Divyabalaben) Vinodchandra Patel
(Amin) W/o Vinubhai Desaibhai Patel Vs. Priyal Vinodbhai
Patel (Amin) rendered in Second Appeal No.425 of 2026 dated
17.08.2026.
6.6 Making the above submissions, Mr. Parikh, learned advocate,
would request this Court not to entertain this appeal.
7. No other and further submissions are being made by the learned
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advocates for the respective parties.
ANALYSIS AND REASONS :-
8. Having heard learned advocates for the respective parties and
upon perusal of the impugned judgment and decree passed by the
Courts below, it appears that the plaintiff has failed to prove on record
that the suit shop was purchased out of the savings of her father-in-law
and the plaintiff's husband, and even failed to prove that it was an
ancestral property. The law as regards ancestral property is concerned,
it is well-settled. As per the Hindu law, ancestral property is a property
which inherited by person up to four generations of male lineage, i.e.,
his or her father, father’s father, or great-grand father by birth. Put it in
simple term, for any property to become ancestral property, it needs to
be passed on to at least four generations. That means from great grand-
father to grand-father to father to son (now daughter as well), all on the
paternal side. [see:- Divya (Divyabalaben) Vinodchandra Patel
(Amin) W/o Vinubhai Desaibhai Patel (supra)] .
9. Once the Issue No.1 was answered in negative by the Trial Court,
whereby itself ruled out that the suit shop was an ancestral property and
or purchased from the savings of the plaintiff's husband, thereafter,
there was no reason for the Trial Court to hold that the plaintiff has 1/3
share in the suit shop. Whereas, the Appellate Court in Para-10.1 of its
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impugned judgment and decree, has categorically observed and
recorded a finding of fact that the suit shop was purchased out of
defendant No. 1's savings and her pension income. Moreover, it came on
record that the defendant No.1's husband, i.e., father-in-law of the
plaintiff, died on 09.10.2009, and the suit property was purchased on
27.05.2013. In absence of any material on record to show that the suit
shop was purchased out of the income of plaintiff's husband and/or
from any ancestral property, the plaintiff has no legal right to claim any
share in the suit shop, which otherwise owned by defendant No.1, who
happens to be her mother-in-law.
10. At this juncture, it would be apposite to record that the Appellate
Court has categorically observed in Para-11 of its impugned judgment
that so far as the decision of Trial Court in regard to Issue No.1 is
concerned, neither any cross-objection nor any dispute was raised by
the plaintiff in this regard. If it be so, the plaintiff has accepted the
finding of fact recorded by the Trial Court while answering Issue No.1 in
the negative, i.e., against her.
10.1 According to me, once the Trial Court answered Issue No.1 in
negative, i.e., against the plaintiff, there was no reason for the Trial
Court to grant any relief in favour of the plaintiff. In that view of the
matter, the Appellate Court has correctly examined such aspect of the
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matter and appropriately reversed the judgment and decree passed by
the Trial Court.
11. It is not out of place to refer to and rely upon the decision of the
Hon’ble Apex Court in the case of Jaichand (Dead) through Lrs
and Others v. Sahnulal and Another reported in 2024 SCC
OnLine SC 3864 , whereby, the Hon’ble Apex Court held as under:
“25. In Kshitisn Chandra Purkait v. Santhosh Kumar Purkait
reported in (1997) 5 S.C.C. 438) , this Court held that in the
Second Appeal, the High Court should be satisfied that the case
involves a substantial question of law and not mere question of
law.
27. This Court in Kondira Dagadu Kadam v. Savitribai Sopan
Gujarat reported in AIR 1999 S.C. 2213 held:-
“ The High Court cannot substitute its opinion for
the opinion of the first appellate Court unless it is
found that the conclusions drawn by the lower
appellate Court were erroneous being contrary to the
mandatory provisions of law applicable or its settled
position on the basis of pronouncements made by the
Apex Court, or was based upon inadmissible
evidence or arrived at without evidence .”
28. It is thus clear that under Section 100, C.P.C., the High Court
cannot interfere with the findings of fact arrived at by the first
Appellate Court which is the final Court of facts except in such
cases where such findings were erroneous being contrary to the
mandatory provisions of law, or its settled position on the basis of
the pronouncement made by the Apex Court or based upon
inadmissible evidence or without evidence.”
(Emphasis supplied)
12. Even, recently also, the Hon'ble Apex Court in the case of Russi
Fisheries (P) Ltd. v. Bhavna Seth , reported in 2026 SCC OnLine
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SC 555 , wherein it has been categorically held that this Court should
not interfere with finding of fact recorded by the Courts below unless it
is so perverse or grossly erroneous, and / or runs contrary to a settled
principles of law. The pertinent observations made in the said decision
read thus:
“31. It is settled in law that the findings of fact howsoever
erroneous, cannot be reopened and disturbed in second appeal
which is required to be adjudicated only upon the substantial
question of law, if any, arising therein. Thus, the argument that
the High Court in second appeal ought to have examined the
evidence to ensure the correctness of the findings of the First
Appellate Court has no legs to stand and fails.
32. Long back in 1981, three judges of this Court in the case of
Bholaram v. Ameerchand had ruled that even if findings of
facts by courts below are wrong or grossly inexcusable that by
itself would not entitle the High Court to interfere under
Section 100 CPC in the absence of clear error of law . A
similar view was reiterated in Madhavan Nair v. Bhaskar
Pillai (Dead) by Lrs ., wherein it has been laid down that even if
the First Appellate Court commits an error in recording a
finding of fact, that itself will not be a ground for the High
Court to upset the same.
33. In Kashibai w/o Lachiram v. Parwatibai w/o Lachiram , a
similar proposition of law was laid down by this Court and it
was held that the High Court cannot reappreciate the evidence
and interfere with the findings of facts unless a substantial
question of law or a question of law duly formulated is to be
decided. The second appeal does not lie on the ground of
erroneous findings of facts based on appreciation of the
relevant evidence.
35. Again, in Kulwant Kaur v. Gurdial Singh Mann (Dead) by
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Lrs , it was emphasized that the fact remains that in a second
appeal, a finding of fact, even if erroneous, will not be
disturbed unless it is found that it stands vitiated for want of
perversity. No such case for interference has been made out in
the present case.”
(Emphasis supplied)
13. Having gone through the aforesaid facts and circumstances and
having not found any perversity and/or any gross irregularity
committed by the Appellate Court while recording its finding of fact, this
Court is of the considered view that there is no substantial question of
law involved in this appeal.
14. In view of the foregoing discussion and reasons, I do not find any
merit in this appeal and accordingly it is dismissed in limine . No order
as to costs. The impugned judgment and decree passed by the Appellate
Court is hereby confirmed. Decree shall be drawn accordingly.
15. Connected Civil Application also stands disposed of.
(MAULIK J.SHELAT,J)
Lalji Desai
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