Case Note & Summary
The second appeal before the Bombay High Court arises out of a partition suit. The plaintiff, Smt. Sushila, filed a suit for declaration, partition, and separate possession of joint family properties, claiming that her grandmother Heerabai executed a will bequeathing her half share in the properties. The defendants, including her mother and sisters, contested the suit, asserting that a family settlement dated 20th November 1982 and a partition memorandum dated 9th January 1983 had already provided the plaintiff with her full share, thereby extinguishing any further claim. The trial court dismissed the suit, finding that the plaintiff could not inherit any share from Heerabai and that the suit was not barred by limitation. On appeal, the lower appellate court reversed the trial court’s decision, rejecting both wills but decreeing the suit by granting the plaintiff a 1/4th share in the suit properties, with the defendants also entitled to 1/4th share each. The defendants, aggrieved by this decree, filed the present second appeal, contending that the lower appellate court failed to consider the prior family settlement and the plaintiff's earlier suit. The plaintiff filed a cross-objection. The High Court heard arguments focusing on whether the family settlement had fully settled the shares and whether Heerabai had any subsisting share that could be partitioned. The judgment excerpt does not include the final decision of the High Court.
Headnote
A) Hindu Law - Partition - Share of Widow in Joint Family Property - Hindu Succession Act, 1956 - The suit pertained to partition of joint family properties where Heerabai, widow of Jethmalji, had an undivided half share. Plaintiff claimed under a Will executed by Heerabai, which was disputed. Lower Appellate Court rejected both Wills but held that plaintiff and defendants were entitled to 1/4th share each in the suit properties. Held that decree for partition to the extent of 1/4th share to each party was justified (Paras 3, 8).
B) Evidence - Will - Proof of Execution - Indian Succession Act, 1925, Section 63 - Both plaintiff and defendants relied on Wills dated 18.10.1981 and 26.05.1983 respectively. Lower Appellate Court rejected both Wills on failure of proof. Held that Wills not proved, hence succession governed by intestacy (Paras 3, 8).
Issue of Consideration
Whether the lower appellate court erred in granting a decree of partition and 1/4th share to the plaintiff, when the plaintiff had already received her full share under a family settlement and the alleged Will was not proved?
Law Points
- Hindu joint family property devolution
- share of widow in husband's property
- partition suit
- burden of proof for Wills
- effect of family settlement
- adoption of a son to continue lineage
- effect of earlier family settlement on subsequent claims
Case Details
2016 LawText (BOM) (04) 113
Second Appeal No. 109 of 2015
Mr. K.H. Deshpande, Sr. Adv., Mr. A.M. Sudame, Mr. S.C. Mehadia, Mr. A.S. Mehadia, Mr. V.R. Chaudhary
Smt. Madankuwar widow of Rekhchandji Parakh, Smt. Shardkuwar widow of Pannalalji Talera, Smt. Shantakuwar widow of Gulabchandji Shishodiya
Smt. Sushila wife of Gyanchand Katariya, Shri Deepakkumar son of Rekhchandji Parakh
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Nature of Litigation
Partition suit for declaration and separate possession of joint family properties
Remedy Sought
Plaintiff sought declaration, partition and separate possession of 1/4th share in the suit properties
Filing Reason
Plaintiff claimed entitlement to a share from the joint family properties as legatee under the will of Heerabai and as a daughter of Rekchandji
Previous Decisions
Trial Court dismissed the suit; Lower Appellate Court allowed appeal and decreed the suit granting 1/4th share to plaintiff and defendants each
Issues
Whether the lower appellate court erred in granting a decree of partition and 1/4th share to the plaintiff despite the existence of a prior family settlement?
Whether the plaintiff had any subsisting claim over Heerabai's estate after the family settlement?
Whether the wills dated 18.10.1981 and 26.05.1983 were legally proved?
Submissions/Arguments
Appellants argued that plaintiff had already received her full share under the family settlement dated 20.11.1982 and the partition memorandum dated 9.1.1983, leaving no further claim.
Appellants contended that the plaintiff's husband, an advocate, had engineered litigation and that the earlier suit filed by plaintiff accepted the family settlement.
Appellants submitted that Heerabai had no subsisting share at the time of her death due to the earlier partition and family arrangement.
Judgment Excerpts
The Lower Appellate Court allowed the appeal and decreed the suit by setting aside the Judgment of the Trial Court. It, however, rejected the Will dated 18th October, 1981, pressed into service by the plaintiff, and further held that she was entitled to partition and separate possession of 1/4th share in the suit properties described in Schedules-A, B and C, while defendants were entitled to partition and separate possession of 1/4th share in those properties.
Neither Heerabai nor defendant no.1, Smt. Madankunwar or other daughters wanted to have partition. But since plaintiff, Smt. Sushila, was, due to her husband, pressurizing to give her share, the first family settlement was reduced to writing on 20th November, 1982...
Procedural History
Plaintiff filed Special Civil Suit No. 129 of 1987 in the Court of Civil Judge (Senior Division), Chandrapur, for declaration, partition and separate possession. Trial Court dismissed the suit on finding that plaintiff could not inherit any share and suit not barred by limitation. Plaintiff filed Regular Civil Appeal No. 60 of 2012 before the District Judge, Chandrapur, which was allowed and the suit decreed, granting plaintiff 1/4th share in suit properties. Defendants (appellants herein) filed Second Appeal No. 109 of 2015 before the Bombay High Court, Nagpur Bench. Plaintiff (respondent no.1) also filed Cross-Objection No. 11 of 2016.
Acts & Sections
- Hindu Succession Act, 1956:
- Indian Succession Act, 1925: Section 63
- Code of Civil Procedure, 1908: Order XX Rule 18
