Non-Challenge to Registered Will and Failure to Prove Ancestral Nature Precludes Partition in Property Purchased Benami

The Appellant (original Plaintiff) filed a suit for partition and declaration claiming a 1/5th share in the suit property (C.S. No. 319, Kolhapur)

She alleged the property was purchased in 1971 by her father, Baburao, in the names of her mother (Malutai) and brother (Subhash) using joint family funds

Baburao died in 1990 and Subhash in 1994

Malutai executed a registered Will in 1997, bequeathing her half-share to Subhash’s children (Respondents 2 and 3), and died in 2003

The Trial Court partly decreed the suit, granting the Plaintiff a 1/5th share

The First Appellate Court reversed this, dismissing the suit on the grounds that the claim was barred by the Benami Transactions (Prohibition) Act and the Plaintiff failed to prove the property was joint family/ancestral property

1. What is the nature of the suit property (ancestral vs. self-acquired)?

2. Whether the original Plaintiff proved that the Will executed by Malutai on 30th June 1997 was illegal and invalid?

3. Whether the Plaintiff possesses a share in the property and if any substantial questions of law arise under Section 100 CPC?

The Court applied Section 100 of the Code of Civil Procedure, 1908, which restricts Second Appeals to "substantial questions of law," as interpreted in Ishwar Dass Jain v. Sohan Lal and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar

Substantive law included Sections 3 and 4 of the Benami Transactions (Prohibition) Act, 1988, which prohibit claims to recover property held benami unless the holder is a coparcener in a Hindu Undivided Family (HUF) holding the property for the benefit of the family

The Court also referenced Section 6 of the Hindu Succession Act, 1956, regarding daughter's rights in coparcenary property

The Court found the Plaintiff's pleadings contradictory, alternating between claiming the property was Baburao’s self-acquired property and joint family property

The Plaintiff failed to provide evidence that Baburao provided the consideration for the 1971 purchase

Furthermore, the Court held that even if Baburao paid for it, Section 3(2) of the Benami Act only protects property held in the name of a wife or unmarried daughter; here, the property was also in the name of a son (Subhash), making the transaction hit by the prohibition in Section 4

Regarding the Will, the Plaintiff did not challenge its execution but only Malutai’s right to bequeath the share; however, since the Plaintiff admitted receiving cash and gold under the same Will’s terms, and the attesting witness (DW-2) proved its execution, the Will was held valid

Consequently, Malutai was legally permitted to bequeath her half-share to her grandchildren

The Court affirmed the First Appellate Court’s decision, finding no substantial question of law was involved; the Second Appeals were dismissed as "not admitted," and all pending interim applications were disposed of