Shankar Bapu Shinde v. Tanaji Krishna @ Bapu Shinde And ORS
Digitally signed by VARSHA VIJAY RAJGURU Date:
2024.10.24 11:17:31 +0530 VARSHA VIJAY RAJGURU
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
varsha CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 552 OF 2018 WITH CIVIL APPLICATION NO. 1283 OF 2018 WITH INTERIM APPLICATION NO. 10795 OF 2024 IN SECOND APPEAL NO. 552 OF 2018 Shankar Bapu Shinde ... Appellant/Applicant vs.
Tanaji Krishna @ Bapu Shinde and Ors ... Respondents Ms. Shakuntala A. Mudbidri for Appellant.
CORAM : GAURI GODSE, J.
DATED : 18th OCTOBER 2024 ORDER:
1.
Heard learned counsel for the appellant. Second appeal is admitted on the following substantial questions of law : I) That the Courts below erred in law by failing to appreciate that the suit land was thrown in the common hotchpotch for ensuring to the beneficial interest of all the joint Page no. 1 of 4
family members by Defendants No.2 and hence defendant No.2 could not have been treated as the exclusive owner of said land and hence could not have legally created any right in favour of respondent No.1, which fact is clearly mentioned in the Written Statement filed by defendant No.2 in the present proceedings;
II) The admission of defendant no.2 in her Written Statement that the suit land bearing Gat No. 2450 was purchased by using joint family funds for and on behalf of the joint family is completely ignored and overlooked by the Courts below and have wrongly come to a conclusion that the said land is the separate and exclusive property of Defendant No.2?
III) Whether both the courts erred in not considering aspect regarding the entitlement of plaintiffs to claim share in Gat No. 2450 in view of death of defendant no.2(mother). IV) In the event, Gat No. 2450 is accepted as a joint family property, in view of admissions given by defendant no.2(mother) in written statement, whether the sale deed executed in favour of defendant no.1 would be binding upon the plaintiffs right to claim share in the said property? Page no. 2 of 4
2.
In addition to Court notice, learned advocate for the appellant to serve the respondents, by private notice and file affidavit of service.
3.
Call for records and proceedings.
4.
Printing is dispensed with.
5.
Learned advocate for the appellant shall file private paperbook within a period of one year from today. INTERIM APPLICATION NO. 10795 OF 2024 .
6.
Learned counsel for the appellant submits that the Interim Application No. 10795 of 2024, is filed for bringing on record names of heirs and legal representatives of deceased respondent no.1. She submits that though the application was ready it could not be filed immediately. Hence, there is negligible delay of around 8 days. She therefore seeks leave to amend the application to add prayers regarding condonation of delay and set aside abatement with supporting averments. Leave granted. Amendment to be carried out forthwith in the court.
7.
Learned counsel for the appellant has tendered the original Interim Application which is taken on record. Learned advocate for the appellant is granted permission to carry out amendment in the Page no. 3 of 4
hard copy.
8.
Office is directed to issue notice to heirs and legal representatives of deceased respondent no.1 in the interim application.
9.
Office to issue notice of second appeal to the remaining respondents.
10.
In addition to Court notice, learned advocate for the applicant to serve respondents, by private notice and file affidavit of service, before the next date.
CIVIL APPLICATION NO. 1283 OF 2018 .
11.
Rule on interim relief in terms of prayer clause (b) is made returnable after 12 weeks.
12.
In addition to Court notice, learned advocate for the applicant to serve respondents, by private notice and file affidavit of service, before the next date.
(GAURI GODSE, J.) Page no. 4 of 4