Tukaram Laxman Sonulkar And Another v. Tarabai Ramdas Malgunde And Others

IN THE HIGH COURT AT BOMBAY

APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 573 OF 2015 WITH CIVIL APPLICATION NO. 13138 OF 2015 WITH CIVIL APPLICATION NO. 8880 OF 2016 WITH CIVIL APPLICATION NO. 8881 OF 2016 WITH CIVIL APPLICATION NO. 8882 OF 2016 WITH CIVIL APPLICATION NO. 8883 OF 2016 WITH CIVIL APPLICATION NO. 8884OF 2016 1] Tukaram S/o Laxman Sonulkar Age: 47 years, Occ: Agriculture R/o Gavhanewadi, Sonulkar Vasti Tal. Shrigonda, District : Ahmednagar.

2] Balu S/o Laxman Sonulkar, Age : 51 years, Occ: Agriculture R/o Gavhanewadi, Sonulkar Vasti Tal. Shrigonda, District : Ahmednagar.

....Appellants.

(Orig. Defendants)

Versus

1] Sau. Tarabi w/o Ramdas Malgunde Age: 54 years, Occ: Agri & Labour R/o Dhoksangavi, Post Nimgaon Bhogi Tq. Shirur. District : Pune.

2] Gangubai W/o Laxman Sonulkar Age: 86 years, Occ: Nil R/o Ganji Bhoyare, Tal Parner District Ahmednagar.

3] Shri. Dagadu Lahanu Sonulkar Age: 93 years, Occ: Nil

4] Shri. Dadabhau Dagadu Sonulkar Age: 75 years, Occ: Agri 5] Shri. Dnyandeo Dagadu Sonulkar Age: 73 years, Occ: Agri 6] Shri. Shivaji Dagadu Sonulkar Age: 58 years, Occ: Agri 7] Sau. Vimal Shivaji Sonulkar Age: 53 years, Occ: Household 8] Sau. Deubai Dadabhau Sonulka Age: 70 years, Occ: household 9] Sau. Housabai Dnyandeo Sonulkar Age: 68 years, Occ: Household 10] Shri. Vithoba Lahanu Sonulkar Age: 91 years, Occ: Nil 11] Shri. Jaywanta Vithoba Sonulkar Age: 78 years, Occ: Nil 12] Sau. Radhabai Jaywanta Sonulkar Age: 73 years, Occ: Nil 13] Shri. Sukhdeo Vithoba Sonulkar Age: 76 years, Occ: Nil 14] Sau. Nababai Sukhdeo Sonulkar Age: 70 years, Occ: Nil 15] Shri. Gena Vithoba Sonulkar Age: 72 years, Occ: Nil 16] Sau. Suman Gena Sonulkar Age: 68 years, Occ: Household 17] Shri. Bhausaheb Sampat Sonulkar Age: 48 years, Occ: Agriculture 18] Shri. Sandip Sampat Sonulkar Age: 33 years, Occ: Agriculture

19] Shri. Rama Lahanu Sonulkar Age: 85 years, Occ: Nil 20] Sau. Indubai Rama Sonulkar Age: 78 years, Occ: Nil 21] Shri. Namdeo Rama Sonulkar Age: 68 years, Occ: Agriculture 22] Shri. Chandar Rama Sonulkar Age: 66 years, Occ: Agriculture 23] Shri. Ramdas Laxman Sonulkar Age: 47 years, Occ: Agriculture 24] Shri. Nivrutti Vithoba Sonulkar Age: 70 years, Occ: Agriculture 25] Smt. Sonabai @ Ratanbai Chima Sonulkar Age: 83 yeras, Occ: Nil 26] Shri. Sampat Chima Sonulkar Age: 75 years, Occ; Agriculture 27] Shri. Sonba Chima Sonulkar Age: 80 years, Occ: Agriculture 28] Shri. Bhau Baban Sonulkar Age: 73 years, Occ: Agriculture 29] Shri. Dadabhau Baban Sonulkar Age: 68 years, Occ: Agriculture 30] Shri. Kisan S/o Baban Sonulkar Age: 63 years, Occ: Agriculture 31] Shri. Popat Sadashiv Sonulkar Age: 61 years, Occ: Agriculture 32] Shri. Subhash Ananda Sonulkar Age: 48 years, Occ: Agriculture 33] Shri. Bapu Sadashiv Sonulkar Age: 53 years, Occ: Agriculture

34] Shri. Banan Sadashiv Sonulkar Age: 73 years, Occ: Agriculture 35] Shri. Vilas Ananda Sonulkar Age: 53 years, Occ: Agriculture 36] Shri. Anil Popat Sonulkar Age: 33 years, Occ: Agriculture 37] Arun Manohar Makhare Age: Major Occ: Agri 38] Sau. Sundarabai Balu Karhe Age: Major Occ: Agri 39] Sau. Anusaya Dattu Karhe Age: Major Occ: Agri 40] Sachin Somnath Gavhane Age: Minor, through his Minor Guardian: Mother Sau. Lata Somnath Gavhane Age: Major Occ: Agri Respondent Nos. 3 to 40 are R/o Gavhanewadi, Solunkar Vasti Tal Shrigonda, District Ahmednagar.

41] Hon. Managing Director, Bajaj Tempo Ltd, Akurdi Pune.

42] Shri. Jaywant Haribhau Wakhare Age: 69 years, Occ: Agri R/o Hingani, Tal. Shrigonda, District Ahmednagar.

43] Shri. Sampat Prabhakar Kouthale Age: 64 years, Occ: Agri R/o Devdaithan, Tal. Shrigonda District; Ahmednagar.

....Respondents.

( R. No. 1 is Original Plaintiff and R. No. 2 to 43 are Original defendant Nos. 3 to 43)

Mr. Niteen V. Gaware, Advocate for appellants. Mr. R.R. Karpe, Advocate for respondent No. 1. CORAM : T.V. NALAWADE, J.

DATED : 9th August, 2016.

JUDGMENT :

1) Appeal is admitted. Notice after admission is made returnable forthwith. Learned counsel Shri. Karpe waives notice for original plaintiff after admission. Heard both the sides for final disposal.

2) In short, the facts leading to the institution of the appeal, can be stated as follows :- Regular Civil Suit No. 169/2002 was filed by Smt. Tarabai against her brothers for relief of partition of ancestral and Joint Hindu Family properties. Some defendants, defendant Nos. 43 and 44 were the purchasers of some portion from defendant Nos. 1 to 3.

3) It is the case of plaintiff that her father Laxman died 30 years back, after 1956 and her mother Sakhubai died in the year 2001. It is contended that during lifetime of mother, defendant Nos. 1 to 3, her brothers kept on promising that they will give the share of plaintiff in the properties, but they avoided

to give the share. It is contended that when the plaintiff realized that defendants are trying to deprive her of her share in the properties, she demanded partition. It is contended that defendants have refused to give her share and partition the properties and so, cause of action took place for the suit. During pendency of the suit, one sale deed was made in favour of defendant Nos. 43 and 44 by defendant Nos. 1, 2, 5 to 7, 11, 20 and 26 and so, they were made parties. Prayer was made to set aside the sale deed made in favour of defendant Nos. 43 and 44. 4) Defendant Nos. 1 and 2 filed written statement and contested the suit. Defendant No. 43 also filed written statement to contest the suit. The defendants contended that defendant Nos. 1 and 2 had given Rs. 20,000/- to plaintiff as hand loan and when they demanded back the money, false suit is filed. It is also contended that some gold ornaments were given by mother of defendant Nos. 1 and 2 to plaintiff and to avoid to return of the ornaments, false suit is filed.

5) Issues were framed on the basis of aforesaid pleadings. The Trial Court held that the amended provision of section 6 of the Hindu Succession Act needs to be applied in favour of plaintiff, sister and held that she is entitled to 1/4th

share in the properties. Equal share was given to brothers and sister. The Trial Court protected the purchasers by refusing to set aside the sale deed made in favour of purchasers. The First Appellate Court in Regular Civil Appeal No. 60/2012, which was pending in the Court of 4th District Judge, Ahmednagar modified the judgment and decree and specifically directed to allot the property to defendants which is already sold by defendants to purchasers.

6) During arguments, it was submitted that widow of Laxman is not alive. The learned counsel for appellants placed reliance on the case reported as (2016) 2 Supreme Court Cases 36 [Prakash and Ors. Vs. Phulavati and Ors.] and submitted that the shares calculated by the Courts below are not correct and shares need to be corrected as per the interpretation made by the Apex Court in the case cited supra. In view of the submissions made, following substantial question of law is being considered in the present matter.

(i) Whether the plaintiff is entitled to have equal share along with brothers in suit properties which are admittedly ancestral and Joint Hindu Family properties of Laxman, father of plaintiff ?

7) In the case cited supra, the Apex Court has laid down that the amended provision of section 6 of the Hindu Succession Act, 1956 as amended in the year 2005 is not retrospective in operation. It is laid down that the provision applies in favour of female member only when both coparcener and his daughter were alive on the date of commencement of the Act i.e. 9.9.2005. In view of this circumstance, it needs to be presumed that partition had opened at the time of death of Laxman and whatever property was vested in other coparceners in view of the previous position of Hindu Law remained as it is. Thus, notional partition needs to be effected first amongst Laxman, his wife and two sons. In such notional partition, Laxman would get 1/4th share.

After the death of Laxman his 1/4th share can be equally divided amongst his widow, two sons and one daughter. So, in the partition in the share of Laxman, plaintiff would get 1/16th (1/4 x 1/4) share. As widow of Laxman was having her own share as 1/4th share and she would get 1/16th share in the property of husband, at the time of her death, she was having 5/16th share. This 5/16th share needs to be equally distributed amongst two sons and one daughter. Thus, in this partition, plaintiff gets 5/48th share. Thus, the plaintiff can get 1/16th + 5/48th share which comes to 8/48 i.e. 1/6th share. Each son accordingly gets 20/48th share i.e. 5/12th share.

appeal needs to be allowed partly to change the shares accordingly.

8) In the result, appeal is partly allowed. The judgments and decrees of the Courts below are hereby modified to make the share of plaintiff as 1/6th share and share of each brother as 5/12th. The remaining part of the judgment and decree of the District Court by which interest of the purchasers is protected stands as it is. Decree is to be prepared accordingly. All civil applications are disposed of.

[ T.V. NALAWADE, J. ] ssc/