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2010(4) ALL MR 834
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
C.L.PANGARKAR, J.
Ananda Krishna Tate (Since Deceased by L.Rs.) – Appellant
Versus
Draupadibai Krishna Tate & Ors. – Respondents
Second Appeal No.255 of 1989
Decided on : 2nd March, 2010.
"A mother cannot appeal a partition so long as to sons remain united. However, if a partition takes place between the sons, she is entitled [except in Southern India (Madras State)] to a s hare equal to that of a son in the coparcenary property. She is also entitled to a similar share on a partition between the sons and the purchaser of the interest of money or more of them.
Where unmarried son sued his two brothers for partition, but died during the pendency of the suit and the mother was brought in as the legal representative, she was held entitled only to his share and not a mother’s share. It is therefore clear that mother did not have a right under old Hindu Law to compel a partition.’’
Let Court consider the submission about a female’s right to claim partition under the Hindu Women’s Right to Property Act. Hindu Women’s Right to Property Act came into force in 1937, Section 3 of the said Act reads as follows :
"3(1) When a Hindu governed by the Dayabhag School of Hindu Law dies intestate his property, and when a Hindu governed by any other school of Hindu Law or by customary law dies intestate leaving separate property that separate property shall, object to the provisions of sub-section (3), devolve upon his widow along with his lineal descendants, if any, in like manner as it devolves upon a son :
The plaintiff did not have a right to claim partition of the joint family property at all.
The suit itself was misconceived. As a result, the appeal will have to be allowed and the judgments and decree passed by the Courts below are set aside and the suit dismissed.
2. Respondent No.1 - Plaintiff instituted a suit for partition and separate possession. It is her case that the suit property belongs to her husband. Her husband died in the year 1959 leaving behind him, his widow the Plaintiff, Defendant Nos.1 to 5 as his sons, Defendant Nos.6 to 13 as the heirs of his another son by name Ganpati. After the death of Plaintiffs husband Krishna, name of Defendant No.1, being the eldest son, came to be recorded as a manager of the joint family in the revenue record. One of the sons of the Plaintiff and Krishna died in the year 1974 and Defendant Nos.6 to 13 are his heirs. It is the contention of the Plaintiff that the Defendant Nos.2,3,4 and 5 have no avocation and they are addicted to vices, and therefore, they are not living in the joint family while Defendant No.2 has been living with the Plaintiff. It is the contention of the Plaintiff that the parties owned C.T.S. No.245. The Defendant Nos.1 to 6 have, however, sold their shares out of the said house to one Bhau Dattatraye Nerlekar. Rest of the portion in the said house is in occupation of the Plaintiff and Defendant No.2 and, no partition is sought for in respect of the said house since other sharers have already sold their shares. It is further contended that the suit land is an irrigated land and it was giving sufficient income to maintain the family. Yet the Defendant No.1 had executed a sale deed with a condition to repurchase in favour of the Defendant No.17. Further the Defendant No.1 has purchased shares of Defendant Nos.3, 4 and 5 and he had purchased those shares out of the income of joint family itself and, therefore, although those shares have been sold to the Defendant No. I, that property too is liable for partition. The Plaintiff contends that she is entitled to a share in the suit property and it should be divided and she should be put in separate possession thereof.
3. Except Defendant No.1 all other defendants have admitted the claim of the Plaintiff.
4. The Defendant No.1 however, opposes the claim of the Plaintiff and admits the relationship between the parties. He also admits that his father left behind him the suit property. He further admits that the family had executed a conditional mortgage deed in favour of the defendant No. 17 . The Defendant No.1 however disputes the contention of the Plaintiff that there was no necessity to sell and mortgage the suit property to Defendant No.17. It is his contention that the land was not giving sufficient income and in order to repay the loans of the banks etc., he has to mortgage the suit property with the Defendant No.17. Further it is his contention that he has purchased the shares of Defendant Nos.3, 4 and 5 from his own money and he is exclusive owner thereof. It is also his case that there was partition amongst brothers and each of the brother was supposed to cultivate his own share of the property. He, therefore, contends that the suit is not maintainable.
5. The learned Judge of the trial Court framed issues and found that the suit property was not sold for legal necessity. He also found that the Defendant No.1 did not purchase the shares of Defendant Nos.3, 4 and 5 from his exclusive income. He, therefore, found that the Plaintiff i.e. the mother of the Defendant No.1 was entitled to partition and separate possession of the suit property.
Ultimately he decreed the suit and held the Plaintiff to be entitled to 333/1024th share in the suit lands.
6. The Defendant No.1 preferred an appeal before the District Judge. The Additional District Judge, Sangli, who decided the appeal, concurred with the findings recorded by the learned Judge of the trial Court and dismissed the appeal. Feeling
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