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BOMBAY HIGH COURT
T.V.Nalawade, J.
Ramrao Nilkanthrao Patil (Died through L.Rs.) Shobhbai Ramrao Patil & Ors. —Appellants
versus
Dhondaji @ Ramesh (Died through L.Rs.) Shakuntala Dhondaji @ Ramesh Patil
& Ors. —Respondents
Second Appeal No.323 of 1991
Decided on 16.4.2014
For the Appellants:Mr. Milind Patil, Advocate
For the Respondent Nos.1(a) to 1(d): Mr. G.R. Syed
h/f. Mr. G.P. Shinde, Advocate
For the Respondent Nos.4(a) to 4(c):Mr. H.F. Pawar, Mr. A.R. Nikam, Smt. Surekha Mahajan, Advocates
IMPORTANT POINT
Alienation can be challenged by member of Hindu joint family who in existence or at least in mother’s womb on date of alienation.
Headnote:(i) Hindu Succession Act, 1956 — Section 14 (1) — Alienation of Property — HELD — Plaintiff was not in existence on date of alienation or partition made by father — No right to challenge disposal of property made by his father prior to his birth. [Para 19]
(ii) Limitation Act, 1963 — Article 109 (Old Article 126) — Alienation — HELD — if alienee takes possession of property — Alienation needs to be challenged within 12 years — If son was minor on date of alienation — He would get concession and can challenge within three years from date of attaining majority. [Para 19]
Result: Appeal dismissed
T.V. Nalawade, J.—The appeal is filed against judgment and decree of Regular Civil Appeal No. 239/1982 which was pending in the Court of 3rd Additional District Judge, Nanded. The judgment and decree of Regular Civil Suit No. 150/1979 filed by the present appellant for relief of partition and possession was partly decreed by the Trial Court, the Court from Degloor, and this decision is confirmed by the District Court in First Appeal. Both the sides are heard.
2. The suit was filed in respect of agricultural lands situated at village Aloor, Tahsil Degloor, District Nanded. The plaintiff/appellant had claimed 7/18th share in all the agricultural lands. The relief is given to the plaintiff in respect of few suit properties, but the Courts below have held that lands Gat Nos. 630, 643 and 96 belonge to defendant No. 5 and she is the absolute owner of these three lands. The Courts below have given 1/3rd share to the plaintiff in remaining lands. The decision only in respect of aforesaid three lands is challenged by the plaintiff.
3. The suit was filed by appellant through his maternal uncle and the maternal uncle represented as next friend. Defendant No. 6 - Saraswatibai is the mother of plaintiff. Defendant No. 5 - Anusayabai is the step-mother of plaintiff. Nilkanthrao, father of plaintiff, had married two wives. Anusayabai is first wife and as Nilkanthrao had no son from Anusayabai, he married with defendant No. 6. Defendant No. 4 is daughter of defendant No. 5. Defendant No. 1 is a son of defendant No. 6 and defendant Nos. 2 and 3 are daughters of defendant No. 6.
4. It is the case of plaintiff that all the suit properties were ancestral properties of his father, Nilkanthrao. It is contended that in revenue record of few lands the names of defendant Nos. 5 and 6 were entered at the instance of Nilkanthrao, but they never became absolute owners of those properties as the properties belonged to joint Hindu family. It is contended that during his lifetime, Nilkanthrao was cultivating all his properties including the properties which were shown to be owned by defendant Nos. 5 and 6.
5. It is the case of plaintiff that his relations with defendants are not cordial and he is living with his maternal uncle. It is his case that the defendants are refusing to give his share and so, he is required to file suit.
6. The suit proceeded ex parte against defendant Nos. 3 and 6, sister and mother of plaintiff. Defendant Nos. 1 and 2 filed consent written statement. Only defendant Nos. 4 and 5 contested the suit.
7. It is the case of defendant No. 5 that after the second marriage, the dispute started between the two wives of Nilkanthrao. It is contended that due to the dispute, Nilkanthrao gave land survey No. 29/1, 29/2, 30 and Malal land No. 6A and 11 to defendant No. 5 in lieu of the maintenance. It is her case that possession of these properties was given to her by Nilkanthrao and her name was entered in title column in revenue record.
8. It is the case of defendant No. 5 that property admeasuring more than 29.68 Hectors was with Nilkanthrao and he gave only 6 Hectors 90 R. portion to defendant No. 5. It is contended that in the year 1960 this property was given to her and since then she has been cultivating the property separately. It is her case that in view of provisions of section 14 of Hindu Succession Act, 1956, she has become absolute owner of these lands. These lands are now given numbers as Gat Nos. 630, 96 and 643.
9. It is the case of defendant No. 5 that properties were given to defendant No. 6 also in lieu of maintenance and the name of defendant No. 6 was also entered in the revenue record of those lands. It is contended that plaintiff, defendant No. 6 and defendant Nos. 1 to 3 have joined hands to deprive defendant No. 5 of her property. It is contended that defendant No. 1 had taken some steps and he had got entered his name in the revenue record in respect of lands given to defendant No. 5. It is contended that the said entr
