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HIGH COURT OF BOMBAY
SHAILESH P. BRAHME, J
Vishwambhar s/o Namdev Nikam – Appellant
Versus
Sow. Sunanda w/o Maheshankar Suryawanshi – Respondent
CIVIL REVISION APPLICATION NO.119 OF 2025
Certainly. Based on the provided legal document, here are the key points:
The case involves a granddaughter claiming a share in her maternal grandfather's property, which was contested on the grounds that she lacks standing to claim such a share while her mother is alive and has not sought partition (!) (!) .
The plaintiff's suit for partition was filed against the background that her maternal grandfather's properties are joint family properties, and she seeks a declaration of her ownership and possession of her legal share, along with other reliefs (!) (!) - (!) .
The core legal issue pertains to whether the granddaughter has the right to claim a share in her maternal grandfather's property, considering her status as a coparcener or heir, and the classification of the property as coparcenary or obstructed heritage (!) - (!) .
The court examined the applicability of the law governing coparcenary rights, especially post-amendment, and clarified that a granddaughter becomes a coparcener by birth only if the property is in her paternal line. Since the property in question was inherited from her maternal grandfather, it is considered obstructed heritage, and she does not acquire a birthright interest in it (!) - (!) .
The court emphasized that the properties inherited from the maternal side are not coparcenary properties of the granddaughter, and as her mother is alive and has not claimed partition, the granddaughter cannot claim a share or demand partition of the property (!) (!) .
The concept of unobstructed versus obstructed heritage was explained, with the conclusion that the plaintiff's claim is based on obstructed heritage, which only devolves upon the death of the last owner without a male issue, and since her mother is alive, her claim is premature and without locus standi (!) - (!) .
The court also considered that the plaintiff's cause of action is illusory because her claim is based on denial of her mother's share, but the mother has not sought partition or challenged alienations, rendering the suit unsustainable (!) (!) .
The court noted that, due to legal provisions, the plaintiff's mother will become the absolute owner of her share upon allocation, and the plaintiff's rights are contingent upon her mother's death, making the suit an exercise in futility (!) (!) .
Ultimately, the court held that the suit was not maintainable, and the order of the lower court rejecting the application under Order 7 Rule 11 was correct. The court set aside the impugned order and allowed the application, resulting in the rejection of the plaintiff's suit (!) - (!) .
The decision underscores that a person claiming a share in ancestral property must establish their status as a coparcener or lineal descendant with a vested right, which the granddaughter in this case did not, especially since the property was inherited from her maternal grandfather and her mother is alive and has not sought partition.
| Table of Content |
|---|
| 1. overview of the case presenting the parties and the background for the dispute. (Para 1 , 2 , 3) |
| 2. arguments presented regarding the maintainability of the suit. (Para 4 , 5 , 6) |
| 3. discussion on the nature of coparcenary rights and the classification of heritage. (Para 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16) |
| 4. court's ruling on the applicability of claims made by the granddaughter in the suit. (Para 17 , 18) |
| 5. final ruling on the rejection of the plaint. (Para 19) |
CORAM : SHAILESH P. BRAHME, J.
RESERVED ON : 25.08.2025 PRONOUNCED ON : 03.09.2025.
JUDGMENT :-
1. Present revision is directed against an order dated 28.02.2023 below Exh.31, refusing to reject plaint under Order 7 Rule 11 of CPC in R.C.S.No.224 of 2022. Applicants are original defendant Nos.6 and 7. Respondent No.1 is original plaintiff. Respondent No.2 is her mother who is defendant No.1. The parties are referred by their original status in the suit.
2. Respondent No.1/plaintiff has filed R.C.S.No.224 of 2022 for declaration, partition, possession, perpetual injunction and mesne profit. Namdev Nikam was maternal grandfather of the plaintiff. Namdev had four daughters and four sons. His one of the daughters is defendant No.1 Prabhavati, mother of the plaintiff. Namdev and his wife Jalasabai are no more. The suit lands are undivided joint family properties of his sons and four daughters. The children are entitled to 1/8th share. It is contended that plaintiff’s maternal uncles stopped giving agriculture yield to her mother and her 1/8th share is denied. This is the cause of action to file suit.
3. The plaintiff has claimed following reliefs :
“1. That the plaintiff may kindly be declare as a owner and possessor the suit land property of awarded 1/2nd share in 1/8th share of her mother legal share in the suit property.
2. That, the plaintiff is entitle to receive mesne profit up to be extent of her 1/8th share legal share of date festival Gudipadva of 2021 to till this date.
3. The decree be sent to the collector u/s 54 C.P.C. for partition and possession.
4. That, the passing of the decree of perpetual injunction the defendants their servant and anybody through them kindly be restrain permanently from creating any third party interest of the suit property till disposal of the suit.
5. That, Any other just and equitable relief may kindly be granted in favour of plaintiff, for which she is entitle to.”
4. Applicants and other defendants submitted application Exh.31 under Order 7 Rule 11 contending that plaintiff being granddaughter is not entitled to maintain a suit for partition and claim any share when her mother defendant No.1 is alive and she is not claiming any partition. The plaintiff has also not challenged the alienation made by the defendants. Such a suit is not maintainable. Plaintiff did not file say to the application.
By impugned order, application Exh.31 was rejected.
5. Learned counsel would submit that plaintiff is not a coparcener having any birth right. It’s a case of obstructed heritage and therefore such a suit would not lie. It is further submitted that defendant No.1 has not claimed any share or partition. The suit is premature and cannot be entertained. It is further submitted that there is no cause of action and whichever is shown is illusory. It is submitted that learned Trial Judge committed patent illegality in holding that unless there is a full-fledged trial, the issue raised by the present applicants cannot be decided and serious injustice would be caused.
6. Per contra, learned counsel Mr. Swapnil Deshmukh supports impugned order. It is submitted that as per Section 6 , the plaintiff is the coparcener. He would submit that if all prayers in the plaint are considered then suit is maintainable. It is further submitted that the defendants are not giving share to plaintiff’s mother and creating third party interest is sufficient to institute the suit.
7. I have considered rival submissions of the parties. I have gone through plai
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