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IN THE HIGH COURT OF BOMBAY
Milind N. Jadhav, J.
Kishore Tulshiram Mantri - Appellant
Versus
Dilip Janak Mantri & Ors. - Respondents
Interim Application (St) No. 14698 of 2024 in Writ Petition No. 2526 of 2023
Decided On : 01-07-2024
WILL - Partition of Property - Code of Civil Procedure, 1908, Sections 2(2), 47, 97 - The court discussed the nature of decrees under the Code of Civil Procedure, emphasizing that an executing court cannot go behind a decree that has become absolute. The court highlighted that the alleged Will, presented by the Writ Petitioner, was not previously disclosed in any of his pleadings, raising suspicions about its authenticity. The court concluded that the executing court lacks the authority to modify the partition decree based on the newly surfaced Will, as it would contravene the principles of res judicata and due diligence.
Fact of the Case:
The Writ Petition challenges the Executing Court's order rejecting an application by Defendant No.8 for framing issues regarding the shares of legal heirs based on a newly discovered Will of the deceased Tulshiram Mantri. The partition suit was filed in 2010, and a decree was passed in 2014, which became absolute after several unsuccessful appeals by Defendant No.8.
Finding of the Court:
The court found that Defendant No.8 had prior knowledge of the Will but failed to disclose it during the earlier proceedings. The court ruled that the Executing Court could not revisit the partition decree, which had been upheld through multiple appeals, and that the introduction of the Will did not constitute a valid basis for modifying the decree.
Issues: Whether the Executing Court can modify the partition decree based on the newly surfaced Will of Tulshiram Mantri, and whether the Writ Petitioner had the right to raise this issue after the decree had become absolute.
Ratio Decidendi: The court held that the executing court cannot entertain objections to a decree that has become final and absolute, and that the introduction of new evidence, such as the Will, does not permit a party to reopen settled matters unless there is a clear jurisdictional issue or the decree is a nullity.
Final Decision: The Writ Petition was dismissed, upholding the Executing Court's order and confirming that Defendant No.8 must comply with the partition decree without further delay.
JUDGMENT
1. This Writ Petition takes exception to the judgment and order dated 24.11.2022 passed by the Joint Civil Judge (Senior Division), Nashik (for short the 'Executing Court') in Application filed below Exhibit 89' in Final Decree Application No.7 of 2019. By virtue of order dated 24.11.2022, Executing Court has rejected Application below Exhibit 89' filed by Defendant No.8 - Writ Petitioner seeking framing of issues for deciding the shares of legal heirs of deceased Tulshiram Ratanchandra Mantri and seeking an inquiry for modification of shares determined by the preliminary decree dated 27.11.2014 in Special Civil Suit No.575 of 2010.
2. Briefly stated, Suit property is a non-agricultural land parcel bearing Survey No.2A/1A/2, C.T.S. No.1449 to 1507 admeasuring 1570 square meters alongwith one standing structure thereon admeasuring 125.46 square meters situated at M.G. Road, Old Lamp Road, Deolali, Shiwar, Nashik (for short 'Suit property'). Respondent Nos.1 and 2 are original Plaintiffs in Special Civil Suit No.575 of 2010 before the Civil Judge, (Senior Division), Nashik. Suit was filed for partition and separate possession of Suit property on 23.09.2010. Suit property admittedly belonged to Tulshiram Ratanchandra Mantri, father and predecessor-in-title of parties to Special Civil Suit No.575 of 2010.
2.1. Tulshiram Mantri expired intestate on 27.05.1975 and his wife predeceased him on 03.04.1975 as stated in the Suit plaint. They are survived by two sons and six daughters who were arrayed as Plaintiff No.2 and Defendant Nos.1 to 8 to the partition Suit. Partition Suit was filed on the premise that each of the eight siblings are entitled to 1/8th share in the Suit property. Some of the original parties to the Suit expired in the interregnum and are now represented by their legal heirs. Original Defendant Nos.1, 3, 4, 5 and 7 admitted the case of Plaintiff and consented for partition. Original Defendant No.8 - Writ Petitioner resisted and contested the Suit unsuccessfully right upto the Second Appeal stage in this Court. After failing in Second Appeal he did not challenge the partition decree any further and thus the said decree become absolute. He is the Petitioner before me.
2.2. In the partition Suit proceeding before the Trial Court, on 18.03.2014, Plaintiff No.2 filed Affidavit-in-lieu of examination-in-chief and was extensively cross-examined by Advocate for Defendant No.8 -Writ Petitioner. On 07.10.2014, Defendant No.8 - filed Affidavit-in-lieu of examination-in-chief and he was extensively cross-examined by Advocate for Plaintiffs. By judgment and decree dated 27.11.2014, Suit was partly decreed, inter alia, declaring that Plaintiff No.2 being entitled to 5/8th share in the Suit property and 1/8th share in the property described as No.2(a-i) in the Suit plaint. There is one more property mentioned in the Suit which was left out since there were many other stakeholders therein. Some of the siblings (sisters) relinquished their share in favour of Plaintiff No.2 (brother).
2.3. On 07.07.2015, Plaintiffs filed Special Darkhast No.39 of 2015 which was converted to Final Decree Application No.7 of 2019 for realization of decree dated 27.11.2014. All that was required to be done was to effect division of shares as per partition decree.
2.4. In 2016, much belatedly original Defendant No.8 - Writ Petitioner filed Civil Appeal No.442 of 2016 before the District Court, Nashik to challenge the judgment and decree dated 27.11.2014. On 03.03.2017, the District Judge dismissed Civil Appeal No.442 of 2016. Being aggrieved by dismissal of Appeal, in the year 2018, Defendant No.8 - Writ Petitioner filed Second Appeal No.374 of 2018 in this Court. By judgment dated 14.08.2018, Second Appeal was dismissed. Defendant No.8 - Writ Petitioner filed Review Petition (Stamp) No. 26121 of 2018 before this Court, which was dismissed on 10.10.2018. Defendant No.- Petitioner did not challenge the dismissal of his Second Appeal before the Supreme C
An executing court cannot modify a final decree based on newly discovered evidence that was not previously disclosed, as this would violate principles of res judicata and due diligence.
Executions courts cannot alter final decrees based on belatedly introduced evidence without due diligence; concealment of known facts undermines later legal claims, affirming principles of constructi....
The main legal point established in the judgment is that the execution of wills must be proved in the manner known to law, and failure to do so may result in the wills being disbelieved by the court.
The main legal point established is the requirement to prove a Will as per the provisions of the Indian Succession Act and the Indian Evidence Act, and the distinction between a Settlement deed and a....
Joint family property laws affirm equal entitlement to heirs in intestate succession, rejecting claims of prior partition absent conclusive evidence.
The court affirmed that prior final decrees in partition suits are binding and that claims based on wills must be established in separate proceedings.
Suit for partition - Partial partition not permissible - Admission of parties - Will duly established and cannot be held to be forge or fabricated one.
The court affirmed the validity of a Will executed under proper procedures, ruling that mere relationships or opportunities do not imply undue influence unless proven with clear evidence.
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