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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO. 445 OF 2003
1. Sahadeo Shankarrao Thool
Aged about 40 years, Cultivator,
R/o Baghapur,Tq.Chandur Rly.
District:- Amravati.
2. Vithal Dinaji Bhagat,
Aged about 45 years, Labourer
R/o at post Nimboli,
Tq. Chandur Rly,
Dist.Amravati. .. APPELLANTS
…VERSUS…
1) Shiodas Pralhad Dhanke
Aged about 26 years,
Occupation:Cultivator
2) Devidas Pralhad Dhanke
Aged about 26 years, Occup. Cultivator,
3) Smt.Anjanabai Pralhad Dhanke,
Aged abut 45 years, Occ: Cultivator,
All resident at Nimboli, Tq. Chandur Rly,
Dist.Amravati.
4) Kusum Krishnarao Bhagwat
Aged about 37 years,Occup. Household
R/o Watkhed,Tq.Babhulgaon, Dist.Yawatmal.
5) Kunda Shankarrao Waghmare,
Aged about 31 years, Household work
Residing at Chandegaon,
Tq.Deoli, Dist.Wardha .. RESPONDENTS
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————————————————————————————————–
Mr. Badal Lonare Counsel for the appellants
Mr. P.R.Agrawal a/w Shyam Jaiswal, Counsel for the
respondents.
—————————————————————————————————
CORAM : MANISH PITALE, J.
DATE:- 15th March 2018
ORAL JUDGMENT :
1. The unsuccessful defendant Nos.2 and 3 in this case are
appellants, challenging the concurrent findings rendered against
them by the two Courts below. This appeal arises out of partition
suit filed by respondent Nos.1 to 3 against their grandmother being
defendant no.1, the purchasers of the suit property i.e. defendant
nos.2 and 3 (appellants herein) and defendant nos.4 to 6, who were
sisters of the plaintiffs. The husband of defendant no.1 Champat
died somewhere around 1943, the date not being clear from the
record, but the year was admittedly 1943. After his death, his
widow Sonibai (defendant no.1) adopted Pralhad on 13.4.1949, by
a registered adoption deed. The plaintiffs herein are the wife and
two sons of said Pralhad (adopted son). It is discernible from the
record that on 2.5.1973, the said defendant cancelled the adoption
deed by executing a registered document (Exh.200), claiming that
her adopted son i.e. Pralhad was not taking care of her and
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on 18.7.1973, the defendant no.1 sold part of the suit property to
defendant no.2. Subsequently, on 7.11.1984, said Pralhad (adopted
son) died. On 29.4.1986 said defendant no.2, in turn, sold the said
part of the suit property to defendant no.3.
2. The plaintiffs i.e. respondent nos.1 to 3 herein, on
5.12.1996, filed suit for partition and separation possession in
respect of the suit property specified in schedules A and B of the
plaint. Schedule A contained details of agricultural lands, including
survey no.141/2 situated in village Nimboli, Tq.Chandur Rly,
District Amravati, which was subject matter of sale deeds executed
as aforesaid. Schedule B pertained to two house properties. The
plaintiffs claimed partition of the said suit properties and further
claimed that the defendant no.1 was not entitled to execute sale
deed in respect of part of the suit property in favour of defendant
no.2, who had in turn sold it to the defendant no.3. The defendant
nos.1 to 3 being the contesting parties, opposed the prayers made
on behalf of the plaintiffs in the suit. It was the stand of defendant
no.1 that, having cancelled the adoption deed on 2.5.1973, she was
the sole owner of the suit property and that she was entitled to
execute the sale deed in respect thereof. The defendant Nos.2 and
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3 also contested the claims of the plaintiffs on similar grounds. On
the basis of the evidence and material on record, the Trial Court
framed 14 issues. These included issue pertaining to effect of
cancellation of the adoption deed on 2.5.1973 and as to whether
the defendant no.1 had become absolute owner of the suit property
by virtue of section 14(1) of the Hindu Succession Act, 1956. These
issues went to the very root of the matter, because findings on them
would decide the fate of not only the suit, but the extent to which
the purchasers were entitled to lay their claim on the suit property.
3. By its judgment and order dated 25.3.1994, the Trial
Court found that defendant no.1 could not be said to have become
absolute owner of the suit property under Section 14(1) of the
Hindu Succession Act, 1956, because after the death of her husband
Champat in 1943, the intervening event of adoption of Pralhad by
her on 13.4.1949 had a direct impact on her claim of being an
absolute owner of the suit property. It was further held by the
Trial Court that the adoption of Pralhad was under Hindu Law and
such an adoption could not have been cancelled. On this basis, the
Trial Court accepted contention of the plaintiffs and decreed the
suit, thereby specifying the share to which the parties were entitled.
It was held that the sale deed executed by defendant no.1 in favour
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of defendant no.2 and the subsequent sale deed executed in favour
of defendant no.3 were not binding on the shares as claimed by the
parties.
4. Aggrieved by the same, the defendant nos.2 and 3 filed
appeal before the Court of District Judge, Amravati. By the
impugned judgment and order dated 21.4.2001, the Appellate
Court dismissed the appeal, thereby confirming the decree passed
by the Trial Court. In the impugned judgment and order also there
was exhaustive discussion on various points that were framed for
determination on the basis of the arguments advanced on behalf of
the contesting parties.
5. Aggrieved by the impugned judgment and order, the
defendant Nos.2 and 3 have filed this appeal. On 11.7.2008, this
appeal was admitted on a substantial question of law. Thereafter,
on 23.2.2018, an additional substantial question of law was framed
by this Court by exercising powers under Section 100(5) of the Civil
Procedure Code. Accordingly, the following two substantial
questions of law fall for consideration in this appeal;
i) Whether Sonibai, the widow of Champat, became the
absolute owner of the suit property in view of provisions
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of Section 14(1) of the Hindu Succession Act, 1946?
ii) Whether the adoption of Pralhad vide Deed dated 13 th
April 1949 can be said to be canceled by Sonibai on 2 nd
May, 1973? The adoption being undertaken prior to the
Hindu Adoption Maintenance Act, 1956 coming into
force, whether provisions of Section 15 of the Act can be
relied upon?
6. I have heard the counsel for the parties on the above
mentioned substantial questions of law. Mr. Badal Lonare, learned
counsel appearing on behalf of the appellants, has submitted that
upon enactment of the Hindu Succession Act 1956, under Section
14(1) thereof, the defendant no.1 Sonibai had become the absolute
owner of the suit properties and that therefore, the sale deed
executed by her on 18.7.1973, in favour of defendant no.2
(appellant no.1 herein) was valid and that the plaintiffs (respondent
nos.1 to 3.) had no right to challenge the same, as they had no
right, title or interest in the suit properties. It was contended that
the defendant no.1 was having interest in the suit properties when
the Hindu Succession Act, 1956 was brought into force and being in
possession of the properties as a female Hindu, she became
absolute owner thereof. It was contended that adoption of Pralhad
by her after the death of her husband Champat did not have any
adverse effect on the absolute right that she enjoyed by virtue of
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section 14(1) of the Hindu Succession Act, 1956. It was further
submitted that, even otherwise, by a registered document dated
2.5.1973, defendant no.1 had cancelled the adoption deed and that
therefore, the adopted son Pralhad and through him, the plaintiffs
could not claim any right in the suit property. In support of his
contentions, the learned counsel relied upon the judgment of this
Court in the case of Kesharbi Jagannath Gujar Vs. The State of
Maharashtra and others reported in AIR 1981 Bombay 115 and
Tanaji Rau Kurlekar Vs. Sonubai reported in I (1995) DMC 661.
7. Per contra, Mr.P.R. Agrawal, Advocate along with
Mr.Shyam Jaiswal, learned counsel appearing on behalf of the
respondents, submitted that the concurrent findings of the Courts
below were based on proper appreciation of the facts and law and
that the substantial questions of law framed by this Court deserved
to be answered in favour of the respondents and that this appeal
deserved to be dismissed. It was contended that the fact that
Pralhad was adopted by the defendant no.1 Sonibai on 13.4.1949,
by a registered adoption deed, prior to coming into effect of the
Hindu Succession Act, 1956, was the decisive factor in the present
case. It was pointed out that once, Pralhad stood adopted, it was
akin to a civil birth of a natural son on 13.4.1949 and he acquired
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right in the suit property which had to be taken into account while
analysing rights that defendant no.1 Sonibai in the suit property. It
was pointed out that in the judgments relied upon by the counsel
appearing for the appellants, the factum of adoption had occurred
post 1956 when the Hindu Succession Act, 1956 had already come
into force. Thus, on the basis of this defence, it was pointed out
that reliance placed on the aforesaid judgments was misplaced. It
was further pointed out that adoption having been undertaken by
defendant no.1 Sonibai upon execution of registered adoption deed
dated 13.4.1949, it could not have been cancelled by the registered
document dated 2.5.1973. It was pointed out that though section
15 of the Hindu Adoptions and Maintenance Act, 1956, provides
that no adoption which has been validly made can be cancelled,
even under the law of prevailing prior to 1956, the position of law
was the same under Hindu Law and that such purported
cancellation of adoption deed could not be taken into account by
the Court at all. On this basis, it was submitted that the findings
rendered by the Courts below were fully justified and that the
instant appeal deserved to be dismissed. The learned counsel
placed reliance upon the judgment of the Hon’ble Supreme Court in
the Case of Daniraiji Vrajlalji, Junagadh Vs. Maharaj Shri.
Chandraprabha reported in AIR 1975 SC 784 as also judgment of
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Orissa High Court in the case of Bruti Pradhan and Anr.vs.
Rampriya Pradhan (died) Prasanna Pradhan and ors reported in
(2011) 112 CLT 84.
8. In the instant case, admitted facts are that Champat,
husband of defendant no.1 Sonibai, expired in the year 1943.
Thereafter, the defendant no.1 adopted Pralhad by registered
adoption deed dated 13.4.1949. The plaintiffs (respondent nos.1 to
3) are the wife and sons of the said Pralhad. The question as to
whether the defendant no.1 Sonibai had exclusive ownership of the
suit properties or whether the aforesaid plaintiffs were justified in
claiming partition and separate possession has to be decided on the
effect of enactment of the Hindu Succession Act, 1956 and Hindu
Adoptions and Maintenance Act, 1956 on the facts of the present
case.
9. The facts of the present case show that the said Pralhad
was adopted on 13.4.1949, which was prior to 1956 when the
Hindu Succession Act 1956 came into force. Section 14(1) of the
said Act would give defendant no.l Sonibai absolute ownership of
the suit property, if it is found that she was either a full owner or a
restricted owner and in possession of the suit properties. The said
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provision was a progressive piece of legislation to ensure that Hindu
Woman, who was hitherto denied rights of absolute ownership in
properties, was granted such rights by Legislation. But, in order to
successfully take benefit of the said provision, by defendant no.1,
Sonibai, it would have to be analysed as to what would be the effect
of adoption of Pralhad on 13.4.1949 by defendant no.1. In the
judgments relied upon on behalf of the appellants i.e. Kesharbi
Jagannath Gujar Vs. The State of Maharashtra and others
(supra) and Tanaji Rau Kurlekar Vs. Sonubai (supra), it was held
that if there was an adoption by a Hindu woman post 1956 when
the Hindu Succession Act, 1956 came into force, it would not
adversely affect the right acquired by her under Section 14(1) of the
said Act. In the aforesaid judgment of this Court in the Case of
Kesharbi Jagannath Gujar Vs. The State of Maharashtra and
others (supra) reliance is placed on the judgment of the Hon’ble
Supreme Court in the case of Punithavalli Ammal Vs. Minor
Ramalingam and anr. reported in AIR 1970 SC 1730. In the said
judgment also, adoption by a Hindu Woman had been undertaken
after the Hindu Succession Act, 1956 came into force. Therefore, all
these judgments would not advance the case of the appellants
because the distinguishing feature in the present case is the fact that
Pralhad was adopted by defendant no.1 Sonibai on 13.4.1949, prior
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to the coming into force of the Hindu Succession Act, 1956. The
moment Pralhad was adopted, the defendant no.1 did not remain
the sole owner or in possession of the suit properties. Hence, the
Courts below were justified in holding that defendant no.1 Sonibai
could not be said to have become absolute owner of the suit
properties under Section 14(1) of the Hindu Succession Act, 1956.
10. The other issue that arises for consideration and which
is the subject matter of the substantial questions of law framed by
this Court, is the impact of the registered document dated 2.5.1973
whereby defendant no.1 purportedly cancelled the earlier adoption
deed dated 13.4.1949. The question pertains to whether reliance
can be placed on section 15 of the Hindu Adoptions and
Maintenance Act, 1956, to claim that no such cancellation could
have been undertaken. Section 15 of the said Act specifically
provides that no adoption which has been validly made can be
cancelled by the adoptive father or mother or any other person, nor
can the adopted child renounce his or her status as such and return
to the family of his or her birth. As to whether the aforesaid
provision can be relied upon to claim that the adoption in the
present case could not be cancelled by the registered document
dated 2.5.1973, requires reference to Sections 4 and 30 of the
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Hindu Adoption and Maintenance Act, 1956. Section 4 pertains to
the overriding effect of the Act and section 30 provides that nothing
contained in the Act shall affect any adoption made before the
commencement of the said Act. Such a question arose for
consideration before the Hon’ble Supreme Court in the case of
Daniraiji Vrajlalji, Juna gadh, Vs. Maharaj Shri. Chandraprabha
supra. Upon consideration of the relevant provisions of the Hindu
Adoptions and Maintenance Act, 1956, particularly sections 4, 15
and 30 thereof, the Hon’ble Supreme Court held as follows;
“Even if Section 15 of the Act which prohibits
cancellation of adoption once validly made were to apply to
an adoption made prior to coming into force of the Act, it
would not affect that adoption, its validity or effect. Instead
of affecting the adoption it would not permit it to be
affected. In my judgment, therefore, the main ratio of the
decision of the High Court in this regard based upon section
30 of the Act is not correct.
17. Section 4 of the Act reads as follows:
Save as otherwise expressly provided in this Act,
(a) any text, rule or interpretation of Hindu law or any
custom or usage as part of that law in force immediately
before the commencement of this Act shall cease to have
effect with respect to any matter for which provision is made
in this Act;
(b) any other law in force immediately before the
commencement of this Act shall cease to apply to Hindus in
so far as it is inconsistent with any of the provisions
contained in this Act.”
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18. We are concerned with clause (a). In the Act, provision
has been made in Chapter II, Sections 5 to 17 in regard to
various matters in relation to adoption. Section 5(1)says
“No adoption shall be made after the commencement of this
Act by or to a Hindu except in accordance with the
provisions contained in this Chapter, and any adoption
made in contravention of the said provisions shall be void.”
Section 6 prescribes requisites of a valid adoption. Section 7
and 8 provide for capacity of a male or female Hindu to
take in adoption. Sections 9 and 10 deal with persons
capable of giving in adoption and persons who may be
adopted. The other conditions for a valid adoption are
enumerated in section 11. Section 12 provides for the effects
of adoption. Section 15 reads as follows :
“No adoption which has been validly made can be
cancelled by the adoptive father or mother or any other
person, nor can the adopted child renounce his, or her
status as such and return to the family of his or her birth.”
19. Any custom or usage as part of the Hindu Law in force
prior to the commencement of the Act has ceased to have
effect in regard to any matter for which provision has been
made in Chapter II, except what has been expressly provided
in the Act, such as, clauses (iii) and (iv) of Section 10. The
custom of Goda Datta no longer exists. No adoption could
be made in the, Goda Datta form after coming into force of
the Act and hence there would be no question of its
revocation. Section 4 is clearly prospective and not
retrospective. If section 15 prohibits cancellation of adoption
validly made even prior to the ,commencement of the Act,
then it is manifest that section 4 finishes the custom of
cancellation after the commencement of the Act, by a
prospective operation and not by any retroactive action. If
the cancellation would have been made before coming into
force of the Act, neither Section 4 nor Section 15 had any
retrospective operation to annul such cancellation. The act
of cancellation in this case coming into existence after the
commencement of the Act, the whole and sole question
which falls for determination is whether the cancellation of
the adoption of the appellant by the respondent by Ext. 292
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was in contravention of Section 15 of the Act. If it was so,
the cancellation was invalid and could not be saved by
section 30. If not, the cancellation was good and operative
on its own force and not as being saved by section 30.
20. The difficulty in interpreting the language of Section
15 arises because of the fact that it merely says “No
adoption which has been validly made can be
cancelled………..” The Legislature, if I may say so, has
omitted to use some more words in the section to express its
intention clearly. It says neither “adoption which has been
validly made after the commencement of the Act” nor
“adoption which has been validly made either before or after
the commencement of the Act.” In such a situation it
becomes the duty of the Court to supply the gap and read
the intention of the Legislature in the context of the other
provisions contained in the Act. It would bear repetition to
say that the law contained in the fifteenth section of the Act
was by and large the law prevalent before its
commencement. Exceptions were very rare as in the case of
Goda Datta. Did the Legislature intend to finish a part of
that custom by providing in the fifteenth section against
cancellation of the adoption? Or, did it intend to say that
only the adoption which has been validly made in
accordance with the provisions of the Act could not be
cancelled ?
21. In my considered judgment Section 15 applies to an
adoption which has been validly made in accordance with
the provisions contained in Chapter II of the Act and after
its commencement. It does not do away with the incident
and characteristic of revocability of the custom of Goda
Datta. Whole of Chapter II deals with the regulation of
adoption made after the commencement of the Act. The
effects of adoption provided in the twelfth section are
undoubtedly the effects of adoption made in accordance
with the Act. Section 13 says that “… an adoption does not
deprive the adoptive father or mother of the power to
dispose of his or her property by transfer inter vivos or by
will.” It does induce some change in the Hindu Law as it
existed before the commencement,of the Act, but obviously
in respect of an adoption made thereafter. The presumption
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as to registered documents relating to adoption provided for
in Section 16 does relate to a registered document recording
an adoption made after the commencement of the Act. In
the context and the set-up of the fifteenth section of the Act
it is difficult to enlarge its scope and permit it to embrace
any adoption which has been validly made before the
commencement of the Act. In my view the Legislature did
not intend to change the incident or characteristic of a Goda
Datta adoption, which made the position of the adopted
person in the words of Kania, J “nothing higher than that of
a dignified employee, or licensee engaged to perform the
rites and enjoy the privileges for the time he continued to be
such a son.” It may be that the Legislature inadvertently left
the custom of revocability of Goda Datta adoption
untouched by the fifteenth section of the Act. In either view
of the matter I am constrained to hold that the cancellation
of adoption of the appellant made by the respondent by the
registered document dated July 17, 1958 Ext. 292 in
accordance with the custom of Goda Datta under which the
adoption had been made was not rendered illegal or invalid
for the alleged infraction of section 15 of the Act. There was
no violation of the law contained in that section”.
11. The ratio of the aforesaid judgment of the Hon’ble
Supreme Court makes it clear that reliance cannot be placed only
on section 15 of the Hindu Adoptions and Maintenance Act, 1956 to
claim that an adoption that had been undertaken prior to 1956,
cannot be cancelled or revoked by placing reliance on the provisions
of the said Act. In the said case, the Hon’ble Supreme Court was
concerned with custom of adoption and its method of cancellation
pertaining to Godda Datta adoption. It was held that if there was
evidence and material placed on record that there was a provision
for cancellation of an adoption in a particular custom, such
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adoption having been undertaken prior to 1956, it could be
demonstrated that section 15 of the Act would not have any impact
and that cancellation of such adoption was sustainable. It was
further held that under Hindu Law even before coming into force of
the aforesaid Act in 1956, the position of law was that a valid
adoption once made could not be cancelled and that departure from
this general law would have to be specifically pleaded and proved.
The relevant portion of the said judgment of the Hon’ble Supreme
Court in the case of Daniraiji Vrajlalji, Junagadh Vs. Maharaj
Shri. Chandraprabha (supra), in this context reads as follows:-
”14. Section 30 is a saving clause in the Act and says
“Nothing contained in this Act shall affect any
adoption made before the commencement of this Act,
and the validity and effect of any such adoption shall
be determined as if this Act had not been passed.
The second part of the section merely clarifies what is
embodied in the first Part. The provisions of the Act
are not to affect any adoption made before its
commencement. That is to say the validity of the
adoption made before the commencement of the Act
as also its effect will have to be examined and
determined with reference to the law or the custom as
it stood prior to the coming into force of the Act and
not in accordance with it. The expression “affect any
adoption” necessarily means affect an adoption as to
its “validity and effect.” Neither of the expressions
takes within its sweep any of the other incidents or
characteristics of the law or the custom of adoption
under which it was made. It is to be noticed that
almost the entire field in relation to any adoption was
covered in its validity and effect. Yet something
remained outside it. The custom of revocability of
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adoption at the instance of either party in the Goda
Datta form was one such matter. Under the Hindu
Law even as it stood before coming into force of the
Act
A valid adoption once made cannot be cancelled by
the adoptive father or the other parties thereto, nor
can the adopted son renounce his status as such and
return to his family of birth” [vide section 493 at
page 556 of Mulla’s Hindu Law (Fourteenth
Edition)]. Departure from this general law was
permissible in very rare type of customs–Goda Datta
being one such. The incident or characteristic of this
custom which entitled either party to revoke the
adoption was not a matter concerning the validity
and the effect of adoption.
12. The aforesaid position of law, when applied to the facts
of the present case, shows that defendant no.1-Sonibai, could not
have claimed benefit of Section 14(1) of the Hindu Succession Act,
1956, to claim absolute ownership in the suit properties. As regards
the impact of cancellation of adoption by registered document
dated 2.5.1973, it was for the defendant no.1 or defendant no.2
and 3 (appellants herein), to demonstrate that the adoption in the
present case was under a particular custom, wherein cancellation of
such adoption was permitted, as a departure from the general
Hindu Law that adoption once made could never be cancelled.
Admittedly, under the present case, there are neither pleadings nor
evidence on behalf of the appellants to support such a contention.
Therefore, it is evident that the registered document dated
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2.5.1973, purportedly cancelling the adoption deed dated
13.4.1949, was unsustainable and could not have been looked into
by the Courts.
13. The Courts below have therefore applied the position of
law correctly to the facts of the present case, while granting decree
in favour of the plaintiffs (respondent nos.1 to 3 herein), but a
perusal of the operative portion of the order of the Trial Court,
dated 25.3.1994, shows that while holding that the sale deeds in
question would not be binding on the shares of the plaintiffs and
defendant nos.4 to 6, the defendant nos. 2 and 3 (the appellants
herein) have not been granted portion of the property that would
fall to the share of defendant no.1, who was their vendor. The body
of the judgment of the Trial Court correctly records that the sale
deeds would not be binding to the extent of the shares of the
plaintiffs and defendant nos.4 to 6, (the appellants herein), yet to
the extent of the share of defendant no.1, the defendant nos.2 and 3
have not been granted any relief. The correct reading of the
position of law as applied to the facts of the present case shows that
defendant nos.2 and 3 are entitled to at least share of defendant
no.1 Sonibai, which has been determined by the Trial Court in its
judgment and order. The plaintiffs and other defendants can also
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make no grievance about such relief which is consequential to the
view taken by the Trial Court. The Appellate Court has also failed to
appreciate this error in the order of the Trial Court. Hence, while
confirming the findings of the Courts below, to a limited extent, the
appellants are entitled to relief i.e. they are held entitled to the
extent of share of defendant no.1 as determined by the trial Court
and confirmed by the Appellate Court, in part of the suit property
that was subject matter of the sale deeds dated 18.7.1973 and
29.4.1986. To make it clear, it is held that the appellants are
entitled to the extent of share of deceased defendant no.1-Sonibai
in property at survey no.141/2 village Nimboli, Tq. Chandur
Railway, Dist. Amravati. To that extent, the decree passed by the
Courts below is modified. It is obvious that appellant no.2, being
the subsequent purchaser on the basis of sale deed dated
29.4.1986, is entitled to the relief granted by this Court.
14. Accordingly, the appeal is partly allowed with no
orders as to costs. The consequential directions given by the Trial
Court shall be carried out in terms of the modified decree.
JUDGE
Kavita
::: Uploaded on – 20/03/2018 21/03/2018 01:42:38 :::