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2016 Supreme(Bom) 1607
IN THE HIGH COURT OF BOMBAY AT NAGPUR BENCH
R.K. DESHPANDE, J.
Madhukar Ganpatrao Wankhede (since deceased through its legal heirs) - Petitioner
Versus
Smt. Lilabai wd/o Manoharrao Wankhede, (since deceased, through L.Rs.) – Respondent
Second Appeal No. 465 of 2003
Decided on : 18-08-2016
Advocate Appeared:
For the Appellants : Shri Rohan Chhabra, Counsel.
For the Respondents: Shri Yash Maheshwari, Counsel h/f Shri S.V. Bhutada, Counsel.
The main legal point established in the judgment is the application and interpretation of the legal provisions under the Hindu Succession Act, Order 21, Rules 84 and 85 of Civil Procedure Code, and the Partition Act, 1893.
Headnote:
Hindu Succession Act - Partition - Order 21, Rules 84 and 85 of Civil Procedure Code - Partition Act, 1893 - [Hindu Succession Act] - [Partition] - [Order 21, Rules 84 and 85 of Civil Procedure Code, Partition Act, 1893] - The court discussed the entitlement of shares under the Hindu Succession Act, the application of Order 21, Rules 84 and 85 of Civil Procedure Code, and the appointment of a Court Commissioner as per the Partition Act, 1893. The court's decision was influenced by the interpretation of these legal provisions and their application to the case.
Fact of the Case:
The trial Court passed a decree for partition and directed the appointment of a Commissioner to effect the partition. The parties' entitlement to shares under the Hindu Succession Act was specified. The final decree proceedings and subsequent challenges led to the court's analysis of the application of Order 21, Rules 84 and 85 of Civil Procedure Code and the Partition Act, 1893.
Finding of the Court:
The court found that the order passed by the executing Court and the lower appellate Court were quashed and set aside. The executing Court was directed to appoint a Court Commissioner to ascertain the divisibility of the property and proceed in accordance with the law.
Issues: The issues involved the entitlement of shares under the Hindu Succession Act, the application of Order 21, Rules 84 and 85 of Civil Procedure Code, and the appointment of a Court Commissioner as per the Partition Act, 1893.
Ratio Decidendi: The court's decision was based on the interpretation and application of the legal provisions under the Hindu Succession Act, Order 21, Rules 84 and 85 of Civil Procedure Code, and the Partition Act, 1893.
Final Decision: The order passed by the executing Court and the lower appellate Court were quashed and set aside. The executing Court was directed to appoint a Court Commissioner to ascertain the divisibility of the property and proceed in accordance with the law.
R. K. Deshpande, J.
In Regular Civil Suit No. 2005 of 1986, the trial Court on 20.02.1988 passed a decree for partition and directed an appointment of Commissioner to effect the partition. The parties are held entitled to their shares as specified in paragraph 11 of the judgment, which is reproduced below.
"11. The defendants No. 7 is the widow of deceased Ganpatrao and in view of provision of Hindu Succession Act, after the death of Ganpatrao, she is also entitled to the share in the suit house as described in plaint para 5. The plaintiff is entitled to the share in the suit house 5/12 and defendant No. 6 & 7 1/12 and defendants No. 1 to 5 in common they have to share in 5/12 and all defendants 1 to 5 have equal right in 5/12 share, therefore, my findings to issue No. 1 and 3 are in affirmative, and pass the following order.
ORDER
1. The suit is decreed.
2. Looking to the relations of the parties, there is no order as to costs.
3. A Commissioner be appointed in this case to effect partition as per decree.
4. A preliminary decree be drawn accordingly"
2. The appellant-original plaintiff is held entitled to 5/12 share in the suit house, whereas the defendant Nos. 1 to 5 together are held entitled to 5/12 share and the defendant Nos. 6 and 7 are held entitled to 1/12 share each. This was a preliminary decree passed by the trial Court and the final decree proceedings were instituted by filing an application, registered as Final Decree Application No. 2005 of 1986. The said application was allowed granting a declaration that the defendant No.1 shall be the purchaser of the suit property and she was directed to deposit 25% of the purchase money with the Nazir under Order 21, Rule 84 of the Civil Procedure Code.
3. The defendant no.1 did not deposit the requisite amount within a stipulated period and there is a controversy in respect of it to the effect that there was extension granted by the executing Court or not. Be that as it may, the executing Court passed an order on 15.04.1997 below Exh.48, setting aside the sale of the property in favour of defendant No.1 and directing fresh auction to be conducted on the finding that there was violation of Order 21, Rules 84 and 85 of the Civil Procedure Code.
4. The order dated 15.04.1997 was the subject matter of challenge in Regular Civil Appeal No. 480 of 1998, which has been allowed by the lower appellate Court on 17.03.2003, and the order passed below Exh. 48 by the executing Court has been set aside. The plaintiff is directed to deliver the possession of the suit house to the defendant No.1 and also the execution of sale deed. This is the subject matter of challenge in this second appeal by the original plaintiff.
5. On 12.07.2005, this Court passed an order framing the substantial questions of law, which is reproduced below.
"Heard Adv. Bhangde for appellant/Decree Holder. Nobody appears for respondent. Under the circumstances, Rule returnable early. Question No.1 and 4 in the appeal memo which reads as under shall be the Substantial Question of law.
(1) Whether the order dated 15.04.1997 passed by the 4th Joint Civil Judge (J.D), Nagpur, below Exh. 48 in F.D.A. No. 2005/86, holding that the respondent is not entitled for sale deed to be executed in her favour is a "Decree" as defined in Section 2(2) of the C.P.C, 1908. It is submitted that the said order is not a decree and therefore, no appeal lay against the same before the District Court u/s 96 of C.P.C?
(2) Whether the Lower Appellate Court is justified in law in reversing the order of Trial Court, without deciding one of the main issue viz., whether the respondent herein had deposited complete price of the property in question Rs.40,000/-? It is submitted that the respondent herein had deposited Rs.14,470/- only as held by the Trial Court.?
6. It is not in dispute that while passing a preliminary decree which was not appeal against, the trial Court directed appointment of the Court Commissioner, which was required to be made in ter
