Second Appeal No.566 of 2001 [Shri Badrinarayan
Shankar Bhandari and others V/s Omprakash
Shankar Bhandari] with Second Appeal No.25 of
2013 [Shri Ashok Gangadhar Shedge V.s Ramesh
Gangadhar Shedge] and other group of Second
Appeals at Principal Seat and by the decision dated
14th August, 2014 the Full Bench has laid down that the
Act of 2005 is retrospective in operation. The entire law
is considered along with the State Amendment. Thus,
the law is now settled on this point.
12. In respect of other contention that there was no
specific repeal of the State law in the Central Legislation,
the learned counsel for Respondents submitted that the
provision of Article 254 of the Constitution of India is
sufficient to explain this point and he also placed
reliance on the case reported as 1995 (4) SCC 718 [Pt.
Rishikesh V/s Salma Begum]. The provision and the
observations made by the Apex Court show that when
the Central Law comes into force and its provisions are
repugnant to the provisions of an earlier law made by
the State (or even by the Parliament) the new law
becomes operational for the matter. In view of this
position, this Court holds that there is no force in the
other objection also.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
SECOND APPEAL NO.: 469 OF 2012
WITH
CIVIL APPLICATION NO.: 6866 OF 2012
IN
SECOND APPEAL NO.: 469 OF 2012
BHAUSAHEB PANDURANG WAGHASKAR Vs GANGUBAI BA;KRISHNA LAHARE
CORAM: T. V. NALAWADE, J.
DATED: 21st SEPTEMBER, 2015.
Citation;2016(2) ALLMR848
1. The appeal is filed to challenge the judgment and
decree of Regular Civil Suit No.276 of 2000 which was
pending in the Court of Civil Judge, Senior Division,
Shrigonda and also to challenge the judgment and
decree of Regular Civil Appeal No.57 of 2005 which was
pending before the Principal District Judge, Ahmednagar.
2. The suit filed by present Respondent Nos.1 and 2
for relief of partition and separate possession was partly
decreed in their favour by the trial Court. The relief of
partition in respect of moveable property was not given.
This decision was challenged by filing the aforesaid
appeal by original defendant. In the appeal cross
objections were filed by the original plaintiffs. The first
Appellate Court has modified the decree given by the
trial Court and instead of giving 1/10th share in the
immovable properties, the first Appellate Court has
made the share of the two plaintiffs as 1/5th. However,
the cross objections are dismissed. Only original
defendants have come in the appeal. Both the sides are
heard.
3. The plaintiff Nos.1 and 2 Smt. Gangubai and Smt.
Anjanabai and defendant Nos.1 and 2 are the issues of
Pandurang. Pandurang had one more daughter by name
Vimlabai but she is dead and she has left behind one
issue, defendant No.15. Pandurang died in the year
1974 and his wife Durgabai died in the year 1977.
Parties are Hindus. It is the case of plaintiffs, daughters
of Pandurang, that Pandurang had left behind ancestral
and joint family properties and no partition had taken
place in the life time of Pandurang and also amongst the
issues of Pandurang after the death of Pandurang. Some
properties were purchased in the names of defendants
and it is contended that those properties were purchased
from the income of joint family properties. it is
contended that the defendant Nos.1 and 2 were taking
care of the properties as they are the male issues of
Pandurang. It is contended that when the plaintiffs
realised that defendants were creating some revenue
record in respect of the suit properties and they were not
ready to give the share of the plaintiffs in the suit
properties, they demanded the partition at the time of
Diwali, 1989 and when there was refusal, they were
required to take steps like filing of the suit for partition.
it is contended that on the date of the suit all the suit
properties were joint Hindu family properties. The
properties mentioned as 1-E are movable properties and
other properties like 1A to 1D are immovable properties.
The plaintiffs had contended that they have 1/10th share
each in the property. During the pendency of litigation
plaintiff No.2 died and legal representatives of plaintiff
No.2 were brought on record. Plaintiff No.2A came on
the record as a legatee as will is executed by Anjanabai
in favour of plaintiff No.2A in respect of her share.
Plaintiff No.2B is the step son of Anjanabai but nothing is
left for him by Anjanabai.
4. Defendant Nos.1 and 3 filed joint written
statement. They admitted the relationship but they
contended that the properties were partitioned amongst
plaintiffs and defendants. It is also contended that
further partition was effected between Defendant No.1
and his sons. It is contended that in the year 1964
defendant Nos.1 and 2 purchased Survey No.432/3B.
They admitted that it was purchased from the income of
joint Hindu family properties. They have specifically
admitted that Survey No.408/1 and 408/2 from village
Pimpalgaon Pisa were purchased from the income of joint
Hindu Family property. However, they contended that in
the year 1967 husband of plaintiff No.1 had asked for
partition and at that time to give share to plaintiff No.1
land survey No.408/9 was allotted to the share of
plaintiff No.1 and so she has no right to claim partition.
5. It appears that the defendant Nos.1 and 3 tried to
defend the suit by contending that other relatives of
Pandurang were necessary parties and properties were
purchased in the names of the relatives of Pandurang.
No evidence was given in that regard and so there is no
need of mentioning the specific pleading in that regard
of defendant Nos.1 and 3. Similarly, there is no need of
giving particulars of specific pleading with regard to
partition case of defendants amongst themselves. This
written statement was adopted by remaining
defendants.
6. Both the sides gave evidence in the trial Court.
The issue framed against the defendants that there was
the partition is decided against defendants. Similarly, it
is held that the sale deed effected by defendant No.13
in favour of defendant No.21 in respect of one suit
property is not binding on the share of plaintiffs. There
was no question of disputing the right of plaintiff No.2A
under a will executed by Anjanabai but evidence is given
to prove the due execution of will.
7. The first Appellate Court has considered the
provisions of Hindu Succession Act, 2005 and has held
that both the plaintiffs need to be treated as coparcenars
and so equal share is given to sons and daughters of
Pandurang.
8. The learned counsel for the Appellants mainly
submitted that the Courts below ought to have applied
amendment effected to Hindu Succession Act by
Maharashtra Government in view of the fact that both
the plaintiffs were given in marriage much prior to
coming into force of Maharashtra Amendment and as
they were born also before 1956. On this point both the
sides placed reliance on some reported cases. The
prayer was made to formulate substantial question of
law only on this point though other grounds are
mentioned in the appeal memo. It was also submitted
that plaintiffs had no right to file suit for partition as they
are the female members of the joint family and the suit
is filed even in respect of house properties.
9. The learned counsel for the appellants placed
reliance on the case reported as 2009 DGLS (Soft.)
1446 [R. Mahalakshmi V/s A.V.Anantharaman and
others]. He drew the attention of this Court to para
No.29 in which some observations are made regarding
the shares which daughter can get, who had married
prior to 1989. Observations are made that they may not
get euqal share. However, if the decision is read in
entirety the decision shows that the Apex Court did not
disturb the shares given by the Courts below in
accordance with the present position of law and the
matter was remanded back for giving decision on two
points mentioned in para No.33 of the judgment. These
points had no concern with the extent of shares.
Reliance was placed on one reported case of this Court
viz. the case reported as 2008 (6) Bom.C.R. 445
[Aurangabad Bench] (Lata @ Bhagyashree
Arunkumar Sangole V/s Madhukar Rajaram
Ganjare and others),. In this case, this Court had
considered the provisions of Hindu Succession Act as
amended by Maharashtra Amendment Act, 1994 and
also the provisions of the aforesaid Central Act of 2005
and had observed that the provisions of Maharashtra
Amendment Act cannot be given retrospective effect and
so the daughters who had married before
commencement of the Act need to be dealt with as
provided under Hindu Succession Act, 1956. Reliance
was placed on one more reported case viz. reported as
2010 (3) All MR 262 [Aurangabad Bench]
(Champabai W/o. Darshrathsing Pardeshi and
others V/s Shamabai @ Shamkuwarbai Gajrajsing
Pardeshi and another). In this case, it is observed
that right to claim share in respect of dwelling house as
given in Amendment Act, 2005 cannot be given
retrospective effect. The provisions of Sections 6, 8 and
23 of Hindu Succession Act, 1956 are considered in
relation to the amended law. The learned counsel for the
appellants also made submission that as there was no
specific repel in the new Act of 2005 in respect of the
State Amendment of 1994, the law as laid down in
Amended Act of 1994 of the State Government needs to
be applied.
10. The learned counsel for Respondent, original
plaintiff placed reliance on the case reported as (2011)
9 SCC 788 [Ganduri Koteshwaramma and another
V/s Chakiri Yanadi and another]. in this case, the
Apex Court has considered the legislative intent behind
the amendments effected by Act of 2005 by Central
Government. It is laid down that for giving parity of
rights in coparcenars between Hindu male and female
this law is made. The facts of this reported case show
that the effect was given to the Amended Act of 2005 to
a litigation which was at stage of execution and in which
the preliminary decree was made in 1999. Thus, the
Apex Court has held that the Amended Act has
retrospective operation.
11. Full Bench of this Court has considered this point in
Second Appeal No.566 of 2001 [Shri Badrinarayan
Shankar Bhandari and others V/s Omprakash
Shankar Bhandari] with Second Appeal No.25 of
2013 [Shri Ashok Gangadhar Shedge V.s Ramesh
Gangadhar Shedge] and other group of Second
Appeals at Principal Seat and by the decision dated
14th August, 2014 the Full Bench has laid down that the
Act of 2005 is retrospective in operation. The entire law
is considered along with the State Amendment. Thus,
the law is now settled on this point.
12. In respect of other contention that there was no
specific repel of the State law in the Central Legislation,
the learned counsel for Respondents submitted that the
provision of Article 254 of the Constitution of India is
sufficient to explain this point and he also placed
reliance on the case reported as 1995 (4) SCC 718 [Pt.
Rishikesh V/s Salma Begum]. The provision and the
observations made by the Apex Court show that when
the Central Law comes into force and its provisions are
repugnant to the provisions of an earlier law made by
the State (or even by the Parliament) the new law
becomes operational for the matter. In view of this
position, this Court holds that there is no force in the
other objection also.
13. One more submission was made by learned counsel
for the Appellants that the Plaintiff No.1 could have got
the share under the new law provided that she was alive
at the time of the giving of the decision. On this point
also there is no need of discussion in view of position of
Hindu Law and further copy of death certificate of
plaintiff No.1 is produced to show that she died on 10th
July, 2011 i.e. after getting the decree from trial Court.
Thus, the law is well settled on the points raised and no
substantial questions of law as such can be formulated in
the appeal.
14. In the result, the appeal stands dismissed.
15. The learned counsel for Appellants submitted that
he wants stay to the execution of the decree for some
time and he submitted that the order of status-quo was
made by this Court and it has been in existence till
today. The learned counsel for decree holder submitted
that due to the orders, nothing is done. It can be said
that when the appeal is filed, the executing Court can be
allowed to take some steps which are necessary for
demarcating the shares which can be given to the
parties to the suit. The demarcation which needs to be
done cannot be stayed. So, only to the extent of actual
delivery of possession, the stay is granted for the period
of four weeks.
16. In view of final disposal of the second appeal civil
application No. 6866 of 2012 does not survive any more
and the same stands disposed of accordingly.
[T. V. NALAWADE, J.]
Dt.21/09/2015
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