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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
MANGESH S. PATIL, J.
Bindubai Daulatram Ajamere, deceased through her heirs and Others – Appellant
Versus
Uttamchand Sukhlal Ajmaere, deceased through his L.Rs. and Others – Respondents
Second Appeal No.315 of 1991 With Civil Application No.12278 of 2009
Decided on : 29-03-2022
Second Appeal - Partition - Hindu Women’s Rights to Property Act, 1937, Hindu Succession Act, 1956 - [Sukhlal's Properties] - [R.C.S. No.90/1945, Section 11, Order II Rule 2, Section 14 of Hindu Succession Act, 1956] - The court held that the decision in R.C.S. No.90/1945 did not operate as res judicata as it was not a decision on merits. The court also found that the claim under Hindu Women’s Rights to Property Act and Hindu Succession Act, 1956 was not barred by Order II Rule 2 as it was not available when R.C.S. No.90/1945 was filed. Additionally, the court ruled that the claim of adverse possession by the defendants was not proven, and the widow and daughters were entitled to a share in Sukhlal's properties.
Fact of the Case:
The plaintiffs filed a suit for partition and separate possession of properties against the defendants. The trial court dismissed the suit, and the lower appellate court upheld the decision. The plaintiffs appealed, and the Second Appeal was admitted on substantial questions of law.
Finding of the Court:
The court found that the decision in R.C.S. No.90/1945 did not operate as res judicata, and the claim under Hindu Women’s Rights to Property Act and Hindu Succession Act, 1956 was not barred by Order II Rule 2. The court also ruled that the claim of adverse possession by the defendants was not proven, and the widow and daughters were entitled to a share in Sukhlal's properties.
Issues: The issues included the proof of ancestral property, the plaintiff's share, limitation, adverse possession, res judicata, estoppel, and proper form of the suit.
Ratio Decidendi: The court held that the decision in R.C.S. No.90/1945 did not operate as res judicata as it was not a decision on merits. The court also found that the claim under Hindu Women’s Rights to Property Act and Hindu Succession Act, 1956 was not barred by Order II Rule 2 as it was not available when R.C.S. No.90/1945 was filed. Additionally, the court ruled that the claim of adverse possession by the defendants was not proven, and the widow and daughters were entitled to a share in Sukhlal's properties.
Final Decision: The Second Appeal was allowed, and the impugned judgments and orders of the courts below were quashed and set aside. The suit was decreed, and the widow and daughters were declared to have a share in Sukhlal's properties. The court appointed a commissioner to divide the properties and ordered a separate inquiry for future mesne profits. The parties were to bear their respective costs throughout.
JUDGMENT :
This is a Second Appeal by the plaintiffs. They filed the suit against the respondents’ predecessors Uttamchand and Manikchand who were the real brothers of plaintiff Bindubai’s deceased husband, for partition and separate possession of the suit properties comprising of movable and immovable properties. It was dismissed by the trial court which decree has been confirmed by the lower appellate court by the judgment and order under challenge.
2. The facts as are necessary for appreciation of the matter in controversy can be summarized as under :
ii) Bindubai instituted a suit for partition in the year 1945 bearing R.C.S. No.90/1945 against Sukhlal, Uttamchand and Manikchand asserting that the suit properties particularly the suit house property involved in the present suit was the ancestral and joint family property. A private arbitrator was appointed who passed an award (Exhibit-69) which he submitted along with his application (Exhibit-68) before the civil court on 08.03.1945.
iii) Sukhlal died on 07.05.1945.
iv) The civil court, on the basis of the award, passed a decree (Exhibit-67) on 02.10.1945.
v) By virtue of the decree the defendants therein i.e. Sukhlal, Uttamchand and Manikchand were directed to pay Rs.25/- per month with effect from 01.10.1944 to Bindubai and her two minor daughters Leelabai and Premabai out of which an amount of Rs.150/- for first six months was to be paid immediately. It was also directed that out of Rs.25/- per month Rs.15/- were for the maintenance of Bindubai till her life time and Rs.5/- each for the maintenance of her two daughters till they were married.
vi) Certain other conditions in respect of consent of Sukhlal and his sons at the time of marriage of the two daughters etc. were also imposed as a condition for payment of maintenance and certain provision was also made for that purpose. A charge of this amount of maintenance was created over one of the suit properties namely Gram Panchayat House No.350 admeasuring 66 feet east-west and 19 feet north-south consisting of a house property having three floors.
vii) Wife of Sukhlal died in the year 1968.
viii) Bindubai along with her two daughters started residing at her parental home at Jalgaon since before filing of R.C.S. No.90/1945.
ix) Bindubai served a notice to Uttamchand and Manikchand dated 21.07.1975 (Exhibit-77) through her advocate. By reciting aforementioned circumstances she complained that the amount of maintenance was paid only till 30.09.1965 and was stopped thereafter. She also complained that both of them had illegally got the record of the suit properties mutated in their name and demanded the arrears of maintenance.
x) Uttamchand and Manikchand replied the notice on 29.07.1975 (Exhibit-108) they denied about having stopped paying maintenance but asserted that it was in good faith that they had never insisted for any receipt and Bindubai was taking advantage of that fact to lay a false claim.
xi) Bindubai served another notice through her advocate to Uttamchand and Manikchand on 23.03.1976 (Exhibit-109). She asserted that after demise of Sukhlal her father-in-law on 07.05.1945 she has been intermittently staying at Jalgaon as also at Kopargaon. She asserted that the immovable properties mentioned therein bearing C.T.S No.169 and 170, C.T.S. No.933 and 934 and C.T.S. Nos.1885 to 1891 and the immovable properties described therein were the joint family properties and she had 1/3rd share and demanded it to be separated.
xii) Uttamchand and Manikchand replied that notice with their reply dated 06.04.1976 (Exhibit-110). They denied that the suit p
The main legal point established in the judgment is that the decision in R.C.S. No.90/1945 did not operate as res judicata, and the claim under Hindu Women’s Rights to Property Act and Hindu Successi....
A previous suit's dismissal for default does not operate as res judicata, nor does it bar a fresh suit in the presence of joint possession.
The main legal point established was the requirement for proper framing of points for consideration and the need for additional evidence when relying on documents such as Ex.B.2 in reaching a decisio....
The burden of proof in establishing joint family property and partition lies with the party alleging its existence. The court also emphasized the entitlement of daughters to share in joint Hindu fami....
A son born from a void marriage has rights to inheritance under amendments to the Hindu Succession Act, affirming equal status to legitimate and illegitimate children in claims for partition post the....
In disputes regarding partition of joint Hindu family property, the burden of proof lies on the party asserting partition, and the presumption of jointness remains unless clear evidence to the contra....
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