Case Note & Summary
The case involves a second appeal filed by the original defendants (appellants) challenging the judgment and decree of the subordinate courts which granted a decree in favor of the original plaintiff (respondent no.1) for a 1/9th share in the suit property. The plaintiff claimed that his father Balaji Sadashiv had two wives, Sundarabai and Ginabai. The plaintiff and two other siblings were from Sundarabai, while the remaining siblings were from Ginabai. Balaji Sadashiv died intestate. In a partition in 1976 between Balaji Sadashiv and his sons from Ginabai (including the appellants), the suit property was allotted to Balaji Sadashiv. The plaintiff contended that upon Balaji's death, he succeeded to a 1/9th share in the suit property as one of the nine legal heirs. The appellants argued that the plaintiff had no right because the property was already partitioned in 1976 and the plaintiff was not a party to that partition. The trial court and the first appellate court decreed the suit in favor of the plaintiff. In the second appeal, the High Court considered whether any substantial question of law arose. The court noted that the findings of fact by the lower courts were based on evidence and were not perverse. The court held that the plaintiff, being a son from the first wife, was entitled to a share in the property inherited from his father who died intestate, and the earlier partition did not affect his rights as he was not a party. The court dismissed the appeal, upholding the decree for 1/9th share.
Headnote
A) Hindu Law - Intestate Succession - Share of Son - Section 8, Hindu Succession Act, 1956 - Plaintiff claimed 1/9th share in property inherited from father who died intestate - Court held that plaintiff, being a son from first wife, is entitled to share along with other heirs, and the earlier partition in 1976 between father and sons from second wife did not affect plaintiff's rights as he was not a party - Held that the courts below correctly decreed the suit (Paras 1-10). B) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100, Code of Civil Procedure, 1908 - Appellants challenged concurrent findings of fact - Court held that no substantial question of law arises as the findings are based on evidence and not perverse - Held that second appeal must be dismissed (Paras 1-10).
Issue of Consideration
Whether the plaintiff is entitled to a 1/9th share in the suit property as an heir of his father Balaji Sadashiv who died intestate, and whether the earlier partition in 1976 between Balaji and his sons from the second wife excludes the plaintiff from claiming a share.
Final Decision
The High Court dismissed the second appeal, upholding the judgment and decree of the lower courts granting the plaintiff a 1/9th share in the suit property.
Law Points
- Hindu Succession Act
- 1956
- Section 8
- Section 6
- intestate succession
- partition
- burden of proof
- share of son
- coparcenary property
- separate property
