Case Note & Summary
The case involves a second appeal by the original plaintiffs, Vishnu Laxman Padule and Shantabai Laxman Padule, against the judgment and decree of the trial court in Regular Civil Suit No. 19/1975. The suit was filed for partition and separate possession of ancestral properties, namely Gat No. 323 and Gat No. 287, situated at village Raogaon, Taluka Karmala, District Solapur. The common ancestor was Rama, who had four issues: Laxman (defendant No.1), Sahebrao (defendant No.6), Tanubai (defendant No.7), and Sonabai (defendant No.8). Laxman married Shantabai (plaintiff No.2) and had a son Vishnu (plaintiff No.1). The plaintiffs alleged that defendant No.1 drove away plaintiff No.2 and started residing with defendant No.2 Shantabai, and that defendants Nos. 3 to 5 were sons born to defendant No.2. The plaintiffs were not permitted to draw income from the ancestral properties, leading to the suit. The trial court partly decreed the suit on 31st March 1987, allowing partition of Gat No. 287 and declaring a 1/6th share each to the appellants, but dismissed the claim for partition of Gat No. 323. The appellants, feeling aggrieved, filed the present second appeal. The High Court, after hearing counsel, found that the trial court's dismissal of the claim for Gat No. 323 was not justified and that the appellants were entitled to partition of both properties. The court allowed the appeal, set aside the trial court's judgment to the extent it dismissed the claim for Gat No. 323, and decreed the suit for partition of Gat No. 323 as well, granting each appellant a 1/6th share.
Headnote
A) Hindu Law - Partition - Coparcenary Rights - Ancestral Property - The appellants, being the wife and son of the coparcener Laxman, claimed partition of ancestral properties Gat No. 287 and Gat No. 323. The trial court decreed partition of Gat No. 287 only, granting 1/6th share each to the appellants, but dismissed the claim for Gat No. 323. The High Court, in second appeal, examined whether the dismissal was justified. Held that the appellants were entitled to partition of both properties as they were ancestral and the appellants were excluded from enjoyment. (Paras 1-5) B) Civil Procedure - Second Appeal - Substantial Question of Law - Under Section 100 of the Code of Civil Procedure, 1908, a second appeal lies only on a substantial question of law. The court considered whether the trial court's finding that Gat No. 323 was not ancestral was perverse. Held that the finding was based on misreading of evidence and thus a substantial question of law arose. (Paras 1-5)
Issue of Consideration
Whether the appellants, as coparceners, are entitled to partition and separate possession of ancestral properties Gat No. 287 and Gat No. 323, and whether the trial court's dismissal of the claim for Gat No. 323 was correct.
Final Decision
The High Court allowed the appeal, set aside the trial court's judgment to the extent it dismissed the claim for Gat No. 323, and decreed the suit for partition of Gat No. 323 as well, granting each appellant a 1/6th share.
Law Points
- Hindu Succession Act
- 1956
- Section 6
- coparcenary rights
- ancestral property
- partition
- ouster
- exclusion from enjoyment
