sa 467-2007.odt 1/10

0IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR

SECOND APPEAL

No.

467

OF 20

07

Nandkishor S/o Pandurangpant Chopkar,

Aged about Major,

Occ. Business, R/o Near

Vyayam Shala, Ganeshpeth,

Nagpur

... APPELLANT

...VERSUS...

1. Shankarrao S/o Pandurangpant Chopkar

Aged about 49 years, Occ. Service,

R/o Near Vyayam Shala, Ganeshpeth,

Nagpur.

2. Mrs. Indubai w/o Pundlikrao Charde,

Aged about Major, Occ- Household,

R/o Plot No.12, Bhande Plot Chowk,

Makde Layout, Umrer Road, Nagpur

3.

Mrs. Shashikala W/o Deoraoji Bhure,

Aged about Major, Occ. Household,

R/o Plot No.471, New Subhehdar Layout,

Nagpur

...RESPONDENTS

------------------------------------------------------------------------------------

Shri Sanjay Kotwal, Advocate for the appellant

None for the respondents

------------------------------------------------------------------------------------

sa 467-2007.odt 2/10

CORAM : SMT. M.S. JAWALKAR, J

.

DATE : 13

^th JUNE, 2022

.

JUDGMENT

Heard learned Counsel for the appellant. None present

for the respondents since long.

2.

This Court vide order dated 03/10/2008 framed

following substantial question of law:-

“Whether the First Appellate Court as well as the

Trial Court erred in determining the share of the

parties?”

3.

Being aggrieved by the judgment and decree passed by

Adhoc District Judge, Nagpur in Regular Civil Appeal No. 227/2004

dated 19/12/2006, present appeal is filed by the appellant-original

defendant no.1. Respondent No.1 has filed a suit against appellant

and the other respondents on the ground that the suit property is

an ancestral property and is having 1/4th share in the house

property. The appellant herein and respondent Nos. 2 to 5 have

filed their written statements and resisted the claim. It is pointed

out that the respondent no.1 is having only 1/5th share in the

sa 467-2007.odt 3/10

house property and the remaining respondents have relinquished

their right in favour of the appellant, therefore appellant is owner

of remaining portion of the suit property. The learned Trial Court

decided the suit and granted 1/3rd share in the house bearing

Municipal Corporation house No. 173 as well as Nazul plot bearing

No. 122. The learned Lower Court also granted 1/5th share in the

share of deceased father in house bearing No.173 and 1/4th share

out of Nazul plot bearing No. 122. Accordingly decree was passed.

The appellant was also directed to pay Rs.8,380/- along with

interest @ of 12% per annum and respondent 2 and 3 were

directed to pay Rs.8,000/-.

4.

The appellant herein challenged the said judgment and

decree passed by the learned Lower Court in Regular Civil Appeal

No. 227/2004 and the same came to be decided on 19/12/2006.

By this judgment learned Appellate Court modified the judgment

and decree passed by the Lower Court and respondent No.1 has

been allotted 5/16th share in the house No. 173 and plot No. 122

and also in fixed deposit and National Saving. It is contended that

the order passed by the learned Appellate Court is patently illegal.

sa 467-2007.odt 4/10

The shares are not properly calculated. There is no finding in

respect of share in the fixed deposit as well as National Savings

Certificate. Therefore, the decree is illegal. It is pointed out that

while giving finding in respect of a joint family properties, the

learned Lower Court came to the conclusion that then immovable

properties are joint properties and therefore all the legal heirs are

having an equal share in the suit properties. All the parties to the

suit have admitted this position that the suit property i.e. house and

Nazul plot are joint Hindu family property and therefore all the

legal heirs are having equal shares as well as equal rights. While

deciding this issue, the learned Trial Court held in affirmative but

while passing the decree, the learned Lower Co