Case Note & Summary
Background — The dispute concerned joint family properties left by Jethmalji, who died in November 1956, survived by his widow Smt. Heerabai and step-son Rekchandji. Rekchandji died on 20 January 1980 leaving his widow Smt. Madankunwar and three daughters, including the plaintiff Smt. Sushila. Heerabai died on 30 June 1983. The parties were Hindu and the properties were described as joint family immovable and movable properties. Facts — Plaintiff Smt. Sushila filed Special Civil Suit No. 129 of 1987 seeking declaration, partition, and separate possession of her share in the joint family properties. She pleaded that Heerabai had a half share in the joint family properties and had bequeathed that share to her by a Will dated 18 October 1981. She alleged that defendants were alienating properties and that she had been allowed to receive rents out of love and affection but later prevented. Defendants denied the Will, asserting that a family settlement dated 20 November 1982 had already given the plaintiff her full share from the estates of Rekchandji and Heerabai, and that a subsequent memorandum of partition dated 9 January 1983 had further distributed the remaining properties. There were also competing Wills — the plaintiff’s Will dated 18 October 1981 and a later Will dated 26 May 1983 produced by defendants, both rejected by the Trial Court. The Trial Court dismissed the suit, holding that the plaintiff could not inherit any share in Heerabai’s properties and that defendant no. 4 Deepak was a validly adopted son of Rekchandji. The Lower Appellate Court reversed, decreeing 1/4th share to the plaintiff and 1/4th share to the defendants in the suit properties, rejecting the plaintiff’s Will but allowing partition on other grounds. Legal Issues — The central questions included the effect of the family settlement and memorandum of partition on the plaintiff’s rights; the validity of the two Wills; the shares of the parties in the joint family properties after the death of Heerabai; and the impact of the adoption of Deepak. Arguments — Senior Advocate Mr. Deshpande for the appellants submitted that the family settlement of 20 November 1982 gave the plaintiff her entire share, which she accepted and acted upon; the plaintiff’s husband, an advocate, later manipulated the situation and set up a false case; the pleadings in an earlier suit (Regular Civil Suit No. 238 of 1984) showed the plaintiff had no further claim. The respondent’s arguments are not fully recorded in the provided text. Court’s Analysis and Decision — The text of the oral judgment ends during the appellants’ arguments and does not contain the court’s analysis, decision, or directions.
Issue of Consideration
Second Appeal No. 109 of 2015
Case Details
2016 LawText (BOM) (04) 114
Second Appeal No. 109 of 2015
Mr. K.H. Deshpande, 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
Civil suit for declaration, partition and separate possession of joint family properties.
Remedy Sought
Plaintiff sought a decree declaring her share based on a Will executed by Smt. Heerabai, and for partition and separate possession of her share in Schedules A and B properties.
Filing Reason
Plaintiff alleged that defendants were alienating joint family properties despite her oral objections, causing loss to her share, and she needed to secure her inheritance from Heerabai’s estate.
Previous Decisions
The Trial Court dismissed the suit, holding that the plaintiff could not inherit any share from Heerabai’s properties and that the adopted son was valid. The Lower Appellate Court allowed the appeal, set aside the Trial Court’s judgment, and decreed 1/4th share in the suit properties to the plaintiff and 1/4th share to the defendants, rejecting the plaintiff’s Will.
Submissions/Arguments
[a] The first family settlement dated 20th November 1982 gave plaintiff her complete share from the joint family properties, including Heerabai’s estate, and plaintiff accepted and acted upon it.
[b] The plaintiff’s husband, Gyanchand, an advocate, manipulated the situation by having Heerabai send notices on his ill-advice, and later set up a false case that plaintiff had not received any share in Heerabai’s properties.
[c] The pleadings in the earlier suit (Regular Civil Suit No. 238 of 1984) clearly showed that plaintiff had received her entire share and had nothing left to claim from the estates of Rekchand and Heerabai.
Judgment Excerpts
The plaintiff filed Special Civil Suit No. 129 of 1987 in the Court of Civil Judge [Senior Division], Chandrapur, for a declaration, partition and separate possession.
The Lower Appellate Court allowed the appeal and decreed the suit by setting aside the Judgment of the Trial Court.
The Trial Court further found that the plaintiff could not inherit any share in the properties of Heerabai.
Procedural History
The plaintiff filed Special Civil Suit No. 129 of 1987 on 13 November 1987 in the Court of Civil Judge (Senior Division), Chandrapur. The Trial Court dismissed the suit. The plaintiff filed Regular Civil Appeal No. 60 of 2012 before the District Judge, Chandrapur. The Lower Appellate Court allowed the appeal and decreed the suit on [date not mentioned]. The original defendants filed Second Appeal No. 109 of 2015 before the High Court. Respondent No.1 also filed Cross-Objection No. 11 of 2016.
