Tuesday 23 September 2014

When widow becomes absolute owner of suit property?

In view of above observation based upon the evidence, it is contended on behalf of the appellants, that there was no justification on the part of the learned First Appellate Judge to come to a wrong conclusion that no decree for specific share in Khasara No. 52 can be passed. Particularly when the suit land was purchased from a Hindu woman who was in possession of the suit land pursuant to the partition in the family and she was successor of Govinda who had died long back, Chinkaki was a sole owner of the property as Hindu woman who was in her own right possessing the suit land as absolute owner thereof and she was in a position to transfer the land in favour of Kawadu under the registered Sale Deed. The provisions of Section 14 of the Hindu Succession Act, 1956 appears to have been ignored by the learned First Appellate Judge by assuming something which was not established on record. There was no reason for the learned First Appellate Judge to hold that the partition was not duly established and no such case was made out to challenge the registered Sale Deed in question nor any appeal was filed for questioning the registered Sale Deed executed by Chinkaki in favour of Kawadu. That being so, the First Appellate Court was not justified to partly allow the appeal by making interference in the impugned judgment and order passed by the trial Court which was well reasoned and in accordance with the legal position stated above. Hence, substantial questions of law must be answered in favour of the appellants. In view of above, the second appeal needs to be allowed.


IN THE HIGH COURT OF JUDICATURE AT BOMBAY, 
NAGPUR BENCH, NAGPUR.
Second Appeal No.86 of 1999
 Kawadu S/o Rushi Kowe 
::  versus  ::
Jainabai W/o Namdeo Sedmake

: A.P.BHANGALE, J.
: FEBRUARY 20, 2014.
Citation;2014(5) MHLJ 240

1.  
The present appeal is directed, against judgment 
and   order   dated   2.11.1998,   passed   by   the   learned 
Additional   District   Judge,   Chandrapur,   in   Regular 
Civil   Appeal   No.49   of   1986,   which   was   partly 
allowed, which arose from judgment and order dated 
4.2.1986,   passed   by   the   learned   Joint   Civil   Judge 
Junior Division,  Brahmapuri,  in Regular Civil Suit 
No.187 of 1977, whereby the suit was decreed.
2.  
Though served on merits, the respondents did not 


3.  
turn up for hearing.
The   appeal   was   admitted,   on   12.3.2001,   on   the 
substantial   questions   of   law   as   to   whether   the 
First Appellate Court was justified to grant relief 
of joint possession to the plaintiffs as joint co­
owners and whether any interference is required at 

The facts of the case, in brief, are thus:
4.  
ig
the instance of this Court.
That Kawadu son of Rushi Kowe purchased the suit 
land   Bearing   Khasara   No.52   admeasuring   2.57   HR, 
assessed   at   Rs.7.76,   situated   at   Mouza   Viticheck, 
P.C.No.36 in Tahsil Brahmapuri.
  
5.  
It   is   the   case   of   appellants   (original 
plaintiffs)   that   by   registered   Sale   Deed   dated 
28.12.1970   one   Chinkaki   wd/o   Govinda   Kumare   sold 
the suit land for sum of Rs.3,000/­ and placed the 
plaintiffs in possession of the suit land. The land 
was   described   as   Khasara   No.52,   admeasuring   2.57, 
assessed   at   Rs.0.58,   situated   at   Mouza   Vitickeck, 

P.C.No.36,   in   Tahsil   Brahmapuri,   District 
Chandrapur   which   was   bounded   to   the   East   by   the 
field of Kawadu Mahar, to the West by the field of 
Anjanabai   Kahate,   to   the   North   by   the   field   of 
Kisan Pusam and to the South by the field of Madhao 
Kumare.  It was the specific case of the plaintiffs 
that   the   suit   land   was   earlier   in   the   joint 
ig
ownership of Madhao S/o Baburao Kumare, Govinda S/o 
Baburao   Kumare   and   Kisan   Pusam.     Pursuant   to 
partition   in   the   family,   share   of   Govinda   was   in 
possession   of   his   widow   Chinkaki   and   Chinkaki   had 
sold the suit land in favour of Kawadu  Rushi  Kowe 
under a registered Sale Deed and Kawadu was placed 
in   possession   thereof.     It   is   thus   contended   that 
there   was   no   question   of   any   partition   to   be 
considered after execution of registered  Sale Deed 
because   nobody   had   challenged   the   registered   Sale 
Deed   nor   any   appeal   was   filed   by   any   person 
claiming   share   contrary   to   the   averments   made   in 
the registered Sale Deed.

It is under these circumstances, the decree for 

declaration   and   possession   was   prayed   before   the 
trial Court.  The learned trial Judge after hearing 
the   parties   going   through   the   evidence   adduced   by 
the witnesses and perusing documentary evidence had 
observed,   in     connection     with   contrary   stand   of 
ig
at paragraph No.16 thus:
the absence of partition raised by the defendants, 
“Therefore   the   fact   of   partition   and  
separate   possession   and   cultivation   of 
land   of   their   share,   I   have   also   no  
hesitation in coming to the conclusion  
that   the   land   bearing   Khasara   No.52  
area   7.72   acres   situated   at   mouza  
Vetichak   of   tahsil   Brahmapuri   of  
district   Chandrapur   was   partitioned  
amongst   the   three   brothers   namely  
Madhao   (Deft.No.1)   Govinda   and   Kisan  
and in the said partition northern land  
was   given   to   Kisan   central   one   was  
given   to   Govinda   and   southern   one   was 
given   to   the   Deft.No.1   Madhao,   and  
after   the   partition   each   of   the   share 
holder   was   put   in   the   possession   and 
cultivation of the land of their share.  
Accordingly, the deceased defendant No.
4 Chinki sold her land admeasuring 2.57  
acres   to   the   plaintiffs   for   the  
consideration   of   Rs.3000/­   and   in   the  
consideration   of   the   suit   land   on   the  
same   day   i.e.   28.12.1970.     The  
defendant Nos.1 and 2 themselves failed  
to   show   that   at   the   time   of   execution  
of   the   suit   sale­deed   deceased   Chinki  
Kumare   and   plaintiffs   were   not  
competent to enter into a contract and  


that   they   were   not   qualified   to   enter 
into   a  same.   The   defendant   No.1   and   2  
also   failed   to   show   that   there   was   no  
sale   transaction   at   all   and   the   same 
was not intended to be acted upon.”
In   view   of   above   observation   based   upon   the 
evidence,   it   is   contended   on   behalf   of   the 
appellants, that there was no justification on the 
ig
part   of   the   learned   First   Appellate   Judge   to   come 
to   a   wrong   conclusion   that   no   decree   for   specific 
share in Khasara No.52 can be passed.  Particularly 
when the suit land was purchased from a Hindu woman 
who was in possession of the suit land pursuant to 
the   partition   in   the   family   and   she   was   successor 
of Govinda  who had died long back, Chinkaki  was a 
sole owner of the property as Hindu woman who was 
in   her   own   right   possessing   the   suit   land   as 
absolute owner thereof and she was in a position to 
transfer   the   land   in   favour   of   Kawadu   under   the 
registered Sale Deed.  The provisions of Section 14 
of   the   Hindu   Succession   Act,   1956   appears   to   have 
been   ignored   by   the   learned   First   Appellate   Judge 
by assuming something which was not established on 

record.   There was no reason for the learned First 
Appellate Judge to hold that the partition was not 
duly established and no such case was made out to 
challenge the registered Sale Deed in question nor 
any appeal was filed for questioning the registered 
Sale Deed executed by Chinkaki in favour of Kawadu. 
That   being   so,   the   First   Appellate   Court   was   not 

justified   to   partly   allow   the   appeal   by   making 
interference   in   the   impugned   judgment   and   order 
passed   by   the   trial   Court   which   was   well   reasoned 
and   in   accordance   with   the   legal   position   stated 
above.  Hence, substantial questions of law must be 
answered  in favour of the appellants.   In view of 
above, the second appeal needs to be allowed.
6.  
In the result, the Second Appeal is, therefore, 
allowed.   The   judgment   and   order,   dated   4.2.1986, 
passed   by   the   learned   Joint   Civil   Judge   Junior 
Division, Brahmapuri, in Regular  Civil Suit No.187 
of   1977,   is   restored.     The   impugned   judgment   and 
order   dated   2.11.1998,   passed   by   the   learned 
Additional   District   Judge,   Chandrapur,   in   Regular 

Civil   Appeal   No.49   of   1986,   is   hereby   quashed   and 

set aside.
The Second Appeal is allowed accordingly.
                                  JUDGE

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