HIGH COURT OF BOMBAY
SHAILESH P. BRAHME, J
Vishwambhar s/o Namdev Nikam – Appellant
Versus
Sow. Sunanda w/o Maheshankar Suryawanshi – Respondent
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.
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 declar
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