Balwantrao Shinde & Ors Vs. Chhabubai Balwantrao Shinde & Ors  Insc
464 (12 November 2002)
N. Khare & Ashok Bhan. Bhan, J.
hereinafter referred to as the appellants, have filed this appeal challenging
the final judgment and order dated 2nd February, 2001 passed by Bombay High
Court Bench at Aurangabad whereby the High Court while allowing the appeal has
set aside the judgment and decree passed by the courts below and held that
defendant-respondent No. 1 as the absolute owner of entire suit property.
Shinde (who died on 27th
June, 1954) owned two
suit properties, namely, Gat No. 441 (Survey No. 204 admeasuring 2 Hectors 27
Ares at Tarsod, Taluku and District Jalgaon, Maharashtra and Gram Panchayat House No. 2 and 26 at Tarsod, Taluka and
District Jalgaon, Maharashtra. Balwantrao Shinde married Anjanabai
who died in the year 1940. After her death he married Chhabubai.
Plaintiffs-appellants are the children from Anjanabai whereas the respondents
are Chhabubai and her children. Appellants filed the suit for recovery of half
share of the property left by Balwantrao Shinde whereas respondents claimed
ownership of the entire property.
Court on the pleadings of the parties decreed the suit filed by the
plaintiffs-appellants to the extent of 11/24th share of the suit property
leaving the remaining 13/24th share to the respondents. Respondents being
aggrieved filed an appeal. The appellate Court while dismissing the appeal
filed by the respondents held that the plaintiffs-appellants were owners to the
extent of entire suit property left by Balwantrao Shinde. Respondents
thereafter filed the second appeal in the High Court. The High Court formulated
the following two questions as substantial questions of law arising from the
order of the courts below:
Balwantrao the husband of Chhabubai (Appellant herein Orig. deft. No. 1) had
died in the year 1954 before the Hindu Succession Act had come into force. The
Appellant No. 1 was in possession of the suit property even before the Hindu
Succession Act come into the force but after the Hindu Succession Act the
original defendant No. 1 became the absolute owner of the suit property which
in her actual possession, as per Section 14 of the Hindu Succession Act. Even
if it is taken for granted that after the death of Balwantrao in 1954, original
defendant No. 1 come in possession of the suit property as an alienated owner,
her ownership rights had become absolute after the Hindu Succession Act had
come into force. Hence the respondents are not entitled to claim any share in
the suit property?
the Lower Appellate Court have jurisdiction to give relief other than relief
sought by the plaintiff because the plaintiff had filed a suit for partition
i.e. for only half of portion, of the suit property, therefore, could the
District Court have passed an Order that plaintiff became the absolute owner of
the entire suit property?"
question No. 1 it was held that Chhabubai possessed the property left by Balwantrao
Shinde in lieu of maintenance and after coming into force of the Hindu
Succession Act her right was enlarged to full ownership.
Question No. 2 it was held that the appellate Court could not grant decree for
the entire property in favour of the appellants as the appellants themselves
had claimed half portion of the property by way of partition.
judgments of the courts below were accordingly set aside and the suit filed by
the appellants was ordered to be dismissed. The defendants were held to be the
owners in possession of the entire property.
for the parties have been heard.
for the appellants vehemently argued that in the absence of any pleadings and
evidence to the effect that the Balwantrao Shinde had given the property to Chhabubai
in lieu of maintenance, the High Court has erred in recording a finding that
the property in possession of Chhabubai was in lieu of maintenance which could
be enlarged into full ownership rights on her. Counsel for the respondents
virtually conceded that Chhabubai did not either raise the plea nor lead any
evidence to prove that the properties were given to her by way of maintenance
by Balwantrao Shinde. It is also not disputed that properties in the hands of Balwantrao
Shinde were ancestral in nature. We agree with the plea raised by the counsel
for the appellants that in the absence of any pleadings to the effect that Balwantrao
Shinde had given the properties to Chhabubai by way of maintenance and in the
absence of any evidence to that effect, the finding that the properties were
given in lieu of maintenance to Chhabubai which right could be enlarged into
full ownership right could not be recorded. The High Court was clearly fell in
error in recording a finding to the effect that Chhabubai had become absolute
owner of the properties left by Balwantrao Shinde. Another factor which
persuades us to take this view is that the properties were ancestral hands of Balwantrao
Shinde in which plaintiff No.1 had a right by birth. The entire property
therefore could not have been given to Chhabubai by way of maintenance.
the reasons stated above, the findings recorded by the High Court on question
No. 1 are reversed.
agree with the view taken by the High Court that since the appellants had
claimed only half share of the property by way of partition they could not be
declared owners to the entire extent of the property.
of the High Court on question No. 2 is therefore upheld.
the reasons stated above, the judgment of the High Court is modified and the appeal
is partly allowed. The judgment of the High Court is set aside to the extent
indicated above and the decree passed by the Trial Court is restored. The suit
shall stand decreed in terms of the decree passed by the Trial Court. Parties
shall bear their own costs.