Judicial Analysis Court Copy Headnote Facts Arguments Court observation

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
MILIND N. JADHAV, J.
Kishore Tulshiram Mantri - Petitioner
Versus
Dilip Janak Mantri & Ors. - Respondents
Writ Petition No. 2526 of 2023, Interim Application (ST) No. 14698 of 2024
Decided On : 01-07-2024

Advocates Appeared:
For the Petitioner: Mr. Rameshwar Totala a/w. Mr. Satkar Gosavi, i./by Mr. Vishal Tambat.
For the Respondent: Ms. Seema Sarnaik a/w. Mr. Anuj Tiwari.

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 constructive res judicata.

Headnote:(A) Code of Civil Procedure, 1908 - Sections 2(2), 47, and 97 - Writ Petition challenging rejection of application for framing issues regarding shares of legal heirs in partition suit - Deceased's will was presented belatedly, raising issues of due diligence and waiver - Court upheld the execution decree, addressing principles of constructive res judicata and emphasizing that executing courts cannot alter final decrees, reinforcing the sanctity of concluded proceedings. (Paras 1-36)

(B) Law of Partition - Legal heirs entitled to shares as determined by prior decrees - New evidence regarding a will does not grant a right to re-litigate established shares once the decree has become absolute. (Paras 10-12)

(C) Legal Obligations - Parties must disclose pertinent facts during proceedings - Concealment leads to dismissal of subsequent attempts to modify decrees - Allegations of false submission by opposing parties must be substantiated with evidence. (Paras 10, 25)

Facts of the case:
The writ petition stemmed from the rejection of an application by Defendant No.8 to re-determine shares based on a newly discovered will of the deceased owner, Tulshiram Mantri, after a final decree had been established.

Findings of Court:
The court upheld the Executing Court's order, determining that despite the introduction of new evidence regarding the will, the modification of shares was not permissible as the decree had become absolute.

Issues: Whether the execution court can modify a final decree based on new evidence presented after its conclusion?

Ratio Decidendi: The court ruled that introducing a previously known will after extensive litigation amounts to gross delay and issue of res judicata, not providing grounds for altering the established decree.

Result: Writ Petition dismissed.

Table of Content
1. overview of partition suit and key facts (Para 1 , 2)
2. claims regarding the registered will and change in circumstances (Para 3 , 4)
3. arguments for re-evaluation of shares based on will (Para 5 , 6)
4. need for final decree application versus execution claim (Para 7)
5. counterarguments contesting the petitioner’s claims (Para 8)
6. key observations on trial and appellate court judgments (Para 9 , 12 , 20)
7. finality in judgments is paramount, barring attempts to revisit closed matters. (Para 10 , 11)
8. court’s final determination on maintaining decree (Para 25 , 26)
9. conclusion and dismissal of the writ petition (Para 28 , 36)

JUDGMENT :

MILIND N. JADHAV, J.

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 bel