SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Sahadeo Shankarrao Thool … vs Shiodas Pralhad Dhanke & 5 Others on 15 March, 2018

205-sa-445-03 judg..odt
1/19

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

Kavita

::: Uploaded on – 20/03/2018 21/03/2018 01:42:38 :::
205-sa-445-03 judg..odt
2/19

————————————————————————————————–
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

Kavita

::: Uploaded on – 20/03/2018 21/03/2018 01:42:38 :::
205-sa-445-03 judg..odt
3/19

therefore, she was constrained to cancel the adoption. Thereafter,

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

Kavita

::: Uploaded on – 20/03/2018 21/03/2018 01:42:38 :::
205-sa-445-03 judg..odt
4/19

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

Kavita

::: Uploaded on – 20/03/2018 21/03/2018 01:42:38 :::
205-sa-445-03 judg..odt
5/19

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
Kavita

::: Uploaded on – 20/03/2018 21/03/2018 01:42:38 :::
205-sa-445-03 judg..odt
6/19

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

Kavita

::: Uploaded on – 20/03/2018 21/03/2018 01:42:38 :::
205-sa-445-03 judg..odt
7/19

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

Kavita

::: Uploaded on – 20/03/2018 21/03/2018 01:42:38 :::
205-sa-445-03 judg..odt
8/19

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
Kavita

::: Uploaded on – 20/03/2018 21/03/2018 01:42:38 :::
205-sa-445-03 judg..odt
9/19

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

Kavita

::: Uploaded on – 20/03/2018 21/03/2018 01:42:38 :::
205-sa-445-03 judg..odt
10/19

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
Kavita

::: Uploaded on – 20/03/2018 21/03/2018 01:42:38 :::
205-sa-445-03 judg..odt
11/19

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

Kavita

::: Uploaded on – 20/03/2018 21/03/2018 01:42:38 :::
205-sa-445-03 judg..odt
12/19

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.”

Kavita

::: Uploaded on – 20/03/2018 21/03/2018 01:42:38 :::
205-sa-445-03 judg..odt
13/19

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

Kavita

::: Uploaded on – 20/03/2018 21/03/2018 01:42:38 :::
205-sa-445-03 judg..odt
14/19

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

Kavita

::: Uploaded on – 20/03/2018 21/03/2018 01:42:38 :::
205-sa-445-03 judg..odt
15/19

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
Kavita

::: Uploaded on – 20/03/2018 21/03/2018 01:42:38 :::
205-sa-445-03 judg..odt
16/19

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

Kavita

::: Uploaded on – 20/03/2018 21/03/2018 01:42:38 :::
205-sa-445-03 judg..odt
17/19

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
Kavita

::: Uploaded on – 20/03/2018 21/03/2018 01:42:38 :::
205-sa-445-03 judg..odt
18/19

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

Kavita

::: Uploaded on – 20/03/2018 21/03/2018 01:42:38 :::
205-sa-445-03 judg..odt
19/19

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 :::

Leave a Reply

Your email address will not be published. Required fields are marked *


Not found ...? HOW TO WIN 498a, DV, DIVORCE; Search in Above link

All Law documents and Judgment copies
Laws and Bare Acts of India
Landmark SC/HC Judgements
Rules and Regulations of India.

STUDY REPORTS

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation