Shalinibai Madhusudan Joshi vs Nana Maroti Patil

S.B. Shukre, J.—This appeal has been preferred against the order passed below Exhibit-1 and Exhibit-22 on 19.4.1999 by Civil Judge, Senior Division, Akola, thereby dismissing the suit of the appellant as not maintainable in the form in which it was filed.

The appellants/plaintiffs had filed this suit for partition, possession, mesne profits and injunction against the respondents claiming that they being the daughters of respondent Nos. 1 and 2, have right and interest in the ancestral property held by the respondent Nos. 1 to 3.

The respondents/defendants appeared and filed their written statement resisting the suit. Later on they filed an application vide Exhibit-22 claiming that the suit was not maintainable as the appellants/plaintiffs were not entitled to claim partition. Since by that time the issues were already framed, the respondents prayed for framing of additional issue on these lines and disposing of the suit on the additional issue only. The trial Court had already framed six issues and after the said application, it also framed an additional issue as to whether or not the suit in the form in which it was filed was maintainable. The trial Court without letting parties adduce any evidence discussed the rival claims as pleaded by both the sides and found that the daughters could not claim partition in the property of the father in his lifetime in as much as the appellants/plaintiffs having been married before 22.6.1994 were not entitled to claim any partition and accordingly, it held that the suit was not maintainable. Therefore, the trial Court, by its order dated 19.4.1999 dismissed the suit.

Being aggrieved by this order the appellants/plaintiffs have filed the present first appeal.

I have heard Ms. Sukhada Tatwawadi holding for Mr. Anjan Dey, learned counsel for the appellant and Mr. Sawan Alaspurkar holding for Mr. Anand Parchure, learned counsel for the respondents. With their assistance I have gone through the memo of appeal, impugned order and record of the Court below.

It is not in dispute that the application vide Exhibit-22 filed by the respondent Nos. 1 to 3 was for framing of additional issue and trying and disposing of the suit in terms of this additional issue, which was in the nature of a preliminary objection. The objection was that the appellants/plaintiffs having been married before 22.6.1994 were not having any right or interest as co-parceners in the ancestral property and that in any case, they being the daughters, could not claim partition in the property of the father during his lifetime. However, as seen from the impugned order, the learned Civil Judge, Senior Division, not only tried the additional issue regarding maintainability of the suit in its present form, but also tried the other issues framed by him.

Learned counsel for the appellants/plaintiffs submits that other issues could not have been tried without giving of opportunity of adducing of evidence to the parties. She further submits that there have been amendments carried out to the Hindu Succession Act, 1956 whereby Section 6 has been substituted by Hindu Succession (Amendment) Act, 2005 with effect from 9.9.2005, and a daughter of the co-parcener has been made a co-parcener in her own right by birth in the same manner as the son and these amendments would also have to be considered for their applicability to the suit filed by the appellants. On the other hand, learned counsel for the respondents/defendants submits that there was absolutely no need for giving of any opportunity to the parties to the suit for adducing of evidence in the matter as the learned trial Judge rightly held that when the suit itself was not maintainable, for deciding the ancillary issues, evidence was not required. He further submits that to the facts of the present case, Amendment of 2005 to the Hindu Succession Act, 1956 is not applicable as it is well settled law that operation of the amendment is prospective in nature, as held in the case of G. Sekar Vs. Geetha and Others,

In the light of the rival submissions, the appeal is admitted. Both counsel waive service of notice. The point that arises for my determination is:

"Whether the impugned order is sustainable-in-law?"

I would have accepted the argument canvassed on behalf of the respondents/defendants had the learned Civil Judge, Senior Division restricted himself only to the additional issue which was in the nature of a preliminary objection and recorded his finding thereon and had there been no subsequent developments in the law governing the field.

It is seen from the impugned order that while finding that the suit was not maintainable in the form in which it was filed, the learned judge had reasoned that the appellants/plaintiffs were the daughters married before 22.6.1994 and, therefore, not entitled to claim partition. Learned Civil Judge, Senior Division has also considered other issues relating to the nature of the suit property and entitlement of the appellants/plaintiffs to the relief''s of injunction and mesne profits and recorded negative findings thereon. While doing so, learned Civil Judge, Senior Division observed that the appellants/plaintiffs did not submit any documentary proof that the property in dispute was ancestral and joint and that the respondents/defendants, on their part, failed to submit any proof about the suit property being self acquired property. He also observed that there was no positive proof that the partition of the property was effected in between the defendants (respondents) on 4.1.1994. I do not understand the propriety of making these observations when the suit was found to be ultimately not maintainable on the basis of a preliminary objection taken by the respondent Nos. 1 to 3. But, learned Civil Judge, Senior Division has done it and done it without giving any opportunity to the parties to adduce evidence on their respective stands taken in this case. Such an order, therefore, cannot be sustained-in-law.

Besides, there would also be a question about the impact of subsequent developments in the nature of bringing in the statute book a new provision of Section 6 by the Amendment Act of 2005, conferring birth right upon a daughter as a co-parcener in her own right and in the same manner as the son, on the facts of this case. Of course, in the case of G. Sekar (supra) the Hon''ble Supreme Court has held that neither the Hindu Succession Act, 1956 nor the Amendment Act of 2005 seek to re-open vesting of rights where succession had already taken place and that operation of the Hindu Succession (Amendment) Act, 2005 is prospective in nature. But, there is a later judgment rendered in the case of Ganduri Koteshwaramma and Another Vs. Chakiri Yanadi and Another, and the law laid down in this would also need appropriate consideration for its applicability. Therefore, as already said by me, impact of this subsequent development on the facts of the present case would also have to be considered in the light of the law laid down by the Hon''ble Apex Court. For this reason also, the impugned order cannot be sustained.

Thus, I find substance in the argument advanced on behalf of appellants/plaintiffs and no merit in the argument canvassed on behalf of the respondents/defendants. The impugned order deserves to be quashed and set aside and the case remanded back to the trial Court for deciding the application vide Exhibit-22 afresh. The point is answered accordingly.

The appeal is allowed and the impugned order dated 19.4.1999 passed below Exhibit-22 is hereby quashed and set aside.

The matter is remanded back to the learned Civil Judge, Senior Division, Akola for deciding the application vide Exhibit-22 afresh and proceeding in the matter if need arises, in accordance with law. Parties are directed to appear before the trial Court on 24.2.2014.