CIVIL APPEAL,SHEGAON

Received on 1.11.2006
Registered on 1.11.2006
Decided on 20.11.22009
Duration 3Yrs. 0Ms.19 Ds.
Exh. No.
IN THE COURT OF DISTRICT JUDGE-1 KHAMGAON.
(Presided over by Shri A.S.Shiwankar)
Reg. Civil Appeal No. 68/2006
1 Shriram Bhavji Dongre
Age 55,
2 Namdeo Shankar Dongre,
Age 60,
Both Agriculturists , residents of Adsul
Tq. Shegaon, District Buldana. ...Appellants/Defendants.
Versus
Gaukarnabai w/o Dnyandeo Ingle
Age 56, Household duties, R/o Dongargaon,
Tq. Balapur, District .-Buldana. ..Respondent/Plaintiff.
---
CIVIL APPEAL UNDER SECTION 96
OF CODE OF CIVIL PROCEDURE.
---
Shri S.K. Dangra Advocate for Appellants.
Shri P.R. Joshi Advocate for Respondent.
---
JUDGMENT.
(Delivered on 20.11.2009)
1. Grievance of the judgment debtors against the decree dated
31.8.2006, passed by Civil Judge, Junior Division, Shegaon in Regular
Civil suit No. 60/1997 ( Gaukarna Ingle -Vrs- Shriram Dongare and
Namdeo Dongare), resulted into present appeal. The appellants happened
to be the original defendants while the respondent a plaintiff in the suit.
2. The facts no longer in dispute but necessary to be recapitulated

for the purpose of this appeal are as under.-
Appellant No.1 Shriram and respondent Gaukarna respectively
happened to be the son and daughter of Bhavji Dongare, who died on 1st
August 1984. He was a recorded owner of agricultural field S.No.33/2
area 4 Acres 5 Gunthas, situated at village Adsul and the house on the
plot admeasuring 60 feet x 60 feet, as described in the plaint. Description
of these properties given in the plaint, is not at all disputed. At the time of
demise of Bhavji, the appellant No.1 and respondent were the only legal
heirs of deceased Bhavji . The suit property was never partitioned
between the appellant No.1 and said Bhavji. In such a scenario, the
respondent Gaukarna in her capacity as a daughter of deceased Bhavji,
served appellant No.1: brother Shriram with a notice dated 17.7.1987 for
partition and equal division of the properties. The appellant No.1 however
declined to give any share to her in the property with specific submission
that the suit property was already bequeathed to him by a will-deed dated
23.1.1981, by his father Bhavji, and by virtue of it, he became a sole
owner of whole of the properties; owned by Bhavji. He denied the status
of property as a 'joint property' or 'ancestral property' of Bhavji. According
to appellants, the suit properties were self acquired properties of Bhavji
and therefore, the respondent would have no share in it. It is also not
disputed that appellant No.1 has purchased 1 Acre of the suit land by way
of registered sale-deed dated 11.1.1995 from appellant No.1 and since
then, has been in possession thereof. The respondent referred to the said
sale-deed and the will-deed allegedly executed by Bhavji as the document
ab-initio void. Appellants stated the suit to be barred by limitation. They
accordingly sought dismissal on this ground of limitation and the legal
grounds, they have raised through their pleadings referred to above.

3. In the wake of pleadings of parties, the learned Judge
formulated issues for determination as follows.
Issues
1 Does plaintiff prove that suit property is
ancestral property of her deceased father Bhavji?
2 Does plaintiff prove that the will-deed dated 23.12.1981
executed by deceased Bhavji is illegal and void?
3 Does the plaintiff prove that the sale-deed executed by
defendant on 11.1.1995 in favour of Namdeo Shankar
Dongare for one Acre land of S.No.33/2, Gat no.102, is illegal
void and not binding on her ?
4 Whether the suit is barred by limitation?
5 Is plaintiff entitled for partition and possession of ½ share
in the suit property ?
6 What order and relief ?
4. Mr. Dangra the learned Counsel for appellants, sought to
propagate that the suit property being ancestral one of deceased Bhavji ,
the father of appellant No.1 and respondent Gaukarnabai, during life-time
of Bhavji , appellant No.1 and Bhavji were the only co-parceners.
Admittedly Gaukarnabai married long back before 1994. The partition was
claimed by Gaukarnabai and on the repulse therefor by appellant No.1
brother, she served him with a legal notice claiming partition and
possession of her share in the suit properties. The appellant No.1 however
when did not respond to that notice, Gaukarnabai filed afore-said suit for
partition and possession, by virtue of provisions of Section 6 under Hindu
Succession Act 1956. However, by virtue of will-deed executed by
deceased Bhavji appellant No.1, became an absolute owner, especially

when during life time of Bhavji, Gaukarnabai had no right or share in an
ancestral property. In short, according to Mr. Dangra all the findings of
facts recorded by trial court, are contrary to an evidence on the record.
5. Per contra Mr. Joshi submitted that the findings of trial court,
are based on evidence on the record. The learned trial court, has rightly
held that the suit property was ancestral one and appellant No.1 failed to
prove alleged will-deed in his favour. In the circumstances, Gaukarnabai
had every right to file the suit for partition and claim one-half share in the
suit property. Mr. Joshi, thus sought to justify findings of trial court on the
issues as to status of suit property i.e. ancestral one , so also the finding
that alleged will-deed was not at all proved.
As to status of property and proof of will deed.:-
6. Having appreciated an evidence on record, within the legal
provisions of Law, learned Judge held that the suit property has been
proved to be an ancestral one of deceased Bhavji. The will-deed dated
23.12.1981 is not proved or otherwise it was void. The sale-deed dated
11.1.1995, of 1 Acre out of suit land, in favour of appellant No. 2 was
valid and binding on the parties. The suit was well within limitation and
by virtue of Hindu Succession (Amendment) Act, 2005, respondent
Gaukarnabai in her capacity as a daughter of deceased Bhavji and sister of
appellant No.1 became entitled to half share in the suit properties. The
court directed to partition the suit properties accordingly through Court
Commissioner. Preliminary decree was thus drawn, which is a subject
matter of present appeal.

7. In the light of rival contentions of learned Counsel for both the
parties, I meticulously perused an evidence on record. It discerns that the
respondent Gaukarnabai in her deposition testified that suit property was
inherited by her father Bhavji from her grandfather. Mother died before
her father. Therefore, according to her, the suit property which was never
purchased by her father, but inherited by him, was an ancestral property.
Appellant No.1 in his examination however deposed that the suit property
was a self acquired property of his father. In his cross-examination
however, he admitted that his father was an agricultural labour. He
expressed his ignorance as to whether his father had purchased this
property. He also fairly conceded that while making his affidavit, he had
not instructed that the suit property was a self acquired property of his
father. Appellant No.2 also deposed that both the suit properties were
owned by father of plaintiff and the same were the ancestral properties.
The appellants thus, failed to produce any documentary evidence on
record to show that the suit property was purchased by father Bhavji
during his lifetime, from his own income. Oral testimony of appellants,
referred to above, would indicate that the property was not purchased by
Bhavji. So obviously it would be presumed that it was an ancestral
property.
8. Appellant No.1 though claimed to have become an absolute
owner of the suit property, by virtue of will-deed allegedly executed in his
favour by his deceased father Bhavji on 13.12.1981, he failed to bare out
this fact of execution of will. No attesting witness is examined to prove
this will-deed. Contents thereof, are also not proved and it cannot be
gathered therefrom ; as to whether deceased Bhavji had referred to this

property as his self acquired property or ancestral one. In the
circumstances, will-deed cannot be considered to be a legal and valid
document. Once, it is considered that the suit property is an ancestral
property, appellant No.1 and his father Bhavji were the only co-parceners,
appellant No.1 acquired; share equal to his father in the said property by
his birth and therefore, Bhavji could have been competent to execute will-
deed only in respect of his share in an ancestral property. Therefore, also
alleged will-deed whereby whole of the ancestral property including the
share of appellant No.1, is disposed of, can be construed as contrary to the
provisions of Law. So far as the status of suit property is concerned when
admittedly it was recorded in the name of deceased father Bhavji and
appellant No.1 has come up with a specific case that whole of the property
has been bequeathed to him by way of will-deed considering the same to
be self acquired property of Bhavji, heavy burden was on him to establish
this fact. However, as I discussed above, he failed to bring forth on record
any such evidence. The learned trial court, has deeply cogitated upon these
facts and evidence adduced by the parties. It has been reasonably
appreciated by it and I find no reason or any ground to disagree with the
findings on these issues recorded by trial court. As such, on these issues,
as to ancestral property and will deed, impugned decree, is not liable to be
disturbed.
As to sale-deed in favour of appellant No.2.
9. It is not dispute that deceased Bhavji and appellant No. 1, were
the co-parceners till Bhavji died in 1984. The respondent being a married
daughter of Bhavji has been residing at her matrimonial home. Said
deceased Bhavji and appellant No.1 appear to have been joint till the

demise of Bhavji. In the circumstances, all that ancestral property which
was recorded in the name of deceased Bhavji , came into possession of
appellant No.1. Revenue record was also accordingly corrected . The suit
for partition and possession i.e. R.C.S. 68/2006, was filed by respondent
on 20.9.1997. However, prior to that 1 Acre agricultural land out of the
afore-said ancestral property has been disposed of by way of registered
sale-deed dated 11.1.1995 by appellant No.1 to appellant No.2, for
consideration of Rs.30,000/-. This sale-deed is coupled with delivery of
possession of sold land, and since then appellant No.2 has been in
cultivating possession thereof. In this background, because of the legality
of this sale-deed is questioned by respondent, an issue which arose for
consideration before trial court was; as to whether the alleged sale-deed in
favour of appellant No.2, executed by appellant No.1, for 1 Acre land out
of the suit land is valid or not?
10. It discerns from the record that validity of the afore-said deed
of sale, was questioned on the ground that transfer was affected by
provisions of Section 8 of Bombay Prevention of Fragmentation and
Consolidation of Holdings Act (for short “Fragmentation Act”).Paragraph
13 of the impugned judgment transpires that during the course of
arguments, learned counsel for respondent/plaintiff however did not press
that point by virtue of the decision in Jairam Baban and others-Vrs-
Bhagirthibai Mitharam and others, reported in 2005 (2) ALL M.R. 360.
The ratio of this authority is that unless and until the land is notified as a
fragment as contemplated by Section 6 (2) of the Fragmentation Act,
power under Section 7, which deals with transfer of lands of fragment,
cannot be pressed into service. Here, in this case, none of the parties could

show that the suit land had ever been notified as a fragment and the sale-
deed was executed in contravention of a legal bar under the said Act. So
on this legal ground, the learned trial court, rightly held that the sale-deed
in favour of appellant No.2 was not illegal or void.
11. Prior to Hindu Succession Act, 1956, a Hindu could not
dispose of his coparcenary interest even by will. However after
introduction of the Act of 1956, by virtue of Section 30 thereof, a Hindu
can dispose of his interest in co-parcenary by way of will or any other
testamentary disposition, what the joint owner or co-parcenary can
alienate under its provisions is only his share or interest. He cannot
dispose of any such land beyond or more than that his share in the
property. This analogy is based on the principle that one cannot transfer or
alienate more than that he had and the right better than he had. Therefore,
his transferee will get under a legal transfer; only to the extent of share of
the transferor co-parcener. In Civil Appeal No.321 of 2009 Jai Singh and
ors. -Vrs- Gurmej Singh, the Hon'ble Supreme Court, summarized the
principles relating to inter-se rights and liabilities of the co-owners or co-
sharers as follows.-
1. A co-owner has an interest in the whole property and also in
every parcel of it;
2. Possession of joint property by one co-owner is in the eye of
Law, possession of all even if all but one are actually out of possession;
3. A mere occupation of a larger portion or even of an entire
joint property does not necessarily amount to ouster as the possession of
one is deemed to be on behalf of all;
4. The above rule admits of an exception when there is ouster of a

co-owner by another. But in order to negative the presumption of joint
possession on behalf of all, on the ground of ouster, the possession of a
co-owner must not only be exclusive but also hostile to the knowledge of
the other as, when a co-owner openly asserts his own title and denies,
that of the other;
5. Passage of time does not extinguish the right of the co-owner
who has been out of possession of the joint property except in the event of
ouster or abandonment;
6. Every co-owner has a right to use the joint property in a
husband like manner not inconsistent with similar rights of other co-
owners and
7. Where a co-owner is in possession of separate parcels under
an arrangement consented by the other co-owners, it is not open to
anybody to disturb the arrangement without the consent of others except
by filing a suit for partition.
The Bench thus, held that when a co-owner is in exclusive
possession of some portion of joint holding, he is in possession thereof as
a co-sharer and is entitled to continue in its possession if it is more than
his share till the joint holding is partition. Vendor cannot sell any
property with better rights than himself. As a necessary corollary when a
co-sharer sells his share in the joint holding or any portion thereof and
puts the vendee into possession of the land in his possession what he
transfers is his right as a co-sharer in the said land and the right to
remain in its exclusive possession till the joint holding is partition
amongst all co-sharers. ( I lay my emphasis on the underlined portion.
12. So far as the present case is concerned, admittedly ancestral

agricultural land was 4 Acres 5 Gunthas. Even if the respondent is
considered to be co-parcener by virtue of Amended Act of 2005, her share
in the property, cannot be more than 2 Acres and 2 ½ Gunthas. The land
transferred in favour of appellant No.2, is only 1Acre. Consequent upon it
, the sale does not affect right or share of the respondent. Whatever land is
sold by appellant No.1 to appellant No.2, will be considered to be the land
of the share of appellant No.1. Hence, I find myself in agreement with the
conclusion reached by trial court that the said sale-deed executed by
appellant No.1, in favour of appellant No.2, was not at all void.
Limitation :-
13. While holding the suit was well within limitation of 12 years,
from the date of accrual of cause of action, learned Judge, observed in
para No.15 of the impugned judgment that the father of plaintiff No.1 and
respondent died on 8.1.1984. The respondent claiming partition in the
ancestral property (suit land) issued a notice to appellant No.1 on
17.7.1987. The suit was filed for partition and possession on 20.9.1997.
Article 110 provides limitation for filing suit for partition only 12 years
from the date of cause of action. So the suit was not hit by limitation.
14. The learned Counsel for appellant fairly conceded that the
limitation for bringing a suit for partition is of 12 years from the date of
accrual of cause of action. In my considered view, no sooner the notice
claiming partition was served by respondent on brother/appellant No.1;
claiming partition in an ancestral property, the cause of action started to
run from the very date of receipt of that notice. Period of 12 years would
have elapsed on 16.7.1999. The suit was however filed on 20.9.1997, that

means quite before the period of limitation was expired. There is
absolutely nothing on record to indicate that at any point of time, she had
surrendered her right to partition. As a sequel, I uphold the finding of trial
court that the suit was well within limitation.
What law will be applicable and what will be
the share of plaintiff/respondent No.1 :-
15. Once it is held that the suit property was an ancestral one and
deceased Bhavji did not alienate his share by any testamentary instrument,
by virtue of Section 6 of Hindu Succession Act, 1956, the respondent
being a daughter of deceased Bhavji, became entitled to the share in the
share of her father, in an ancestral property. The learned Counsel for both
the parties fairly conceded legal position of Law after introduction of
Section 6 of Hindu Succession Act, 1956. They appreciated that as per
this provision, respondent Gaukarnabai would be entitled to the share
equal to the share of appellant No.1, in the share of Bhavji. As per this rule
if the notional partition is effected, Bhavji would have ½ share in whole of
the ancestral property. That means in the land 4 Acres 5 Gunthas, he was
entitled to 2 Acres and 2 ½ Gunthas while the appellant No.1 became
entitled to the same share. Hence, after demise of Bhavji, this 2 Acres and
2 ½ Gunthas land, becomes capable or liable to be partitioned among
appellant No.1 and respondent Gaukarnabai . Gaukarnabai will therefore,
succeed to only 1 Acre 1 ¼ Guntha land out of the ancestral property i.e. 4
Acres 5 Gunthas.
16. The learned Counsel Mr. Joshi however submitted that afore-
said position under the Act of 1956, has been changed by Hindu
Succession(Amendment) Act 2005.According to this Act and amended

Section 6, Gaukarnabai became co-parcener along with appellant No.1 and
when the partitions were not opened till 20th
December 2004, or the decree
was not passed in the suit, Gaukarnabai; the respondent, became entitled
to ½ share in whole of the ancestral property i.e. suit land and house. Mr.
Joshi submitted further that the learned trial court very well considered
this changed position of Law during pendency of the suit and rightly held
that appellant No.1 as well as respondent Gaukarnabai have equal shares
in the suit properties.
17. As against the submission supra, Mr. Dangra, the learned
Counsel for appellants, vehemently contended that when partition was
claimed by respondent Gaukarnabai and suit was instituted, there was in
existence only Hindu Succession Act 1956. Therefore whatever the rights
of the parties are to be determined, should be as per provisions of Hindu
Succession Act 1956, in as much as,no enactment and especially Hindu
Succession (Amendment)Act 2005, could not have a retrospective effect.
According to settled position of Law, this Hindu Succession (Amendment)
Act 2005, is prospective and therefore, that would not be applicable to the
suits, which are based on the cause of action accrued much before
20.12.2004.
18. This is what a legal controversy I am required to cogitate upon,
in the light of provisions of Section 6 of Hindu Succession
(Amendment)Act 2005. Section 6 reads as under.-
“ 6 Devolution of interest in co-parcenary property :-
1. On and from the commencement of Hindu Succession
(Amendment)Act 2005, in a joint Hindu family governed by Mitakshara

Law, the daughter of a co-parcener shall:-
(a) By birth becomes a co-parcener in her own right in the same
manner as a son;
(b) Have the same rights in the co-parcenary property as she
would have had if she had been a son;
© But subject to the some liabilities in respect of said co-
parcenary property as that of a son and in reference to a Hindu
Mitakshara co-parcenary shall be deemed to include a reference to a
daughter of a co-parcenary.
(d) Provided that nothing contained in this sub section shall affect
or invalidate any disposition or alienation including any partition or
testamentary disposition of property, which had taken place before 20th
day of December, 2004
2. Any property to which a female Hindu becomes entitled by
virtue of sub section (1) shall be held by her with incidents of co-
parcenary ownership and shall be regarded, notwithstanding anything
contained in this Act or any other Law for the time being in force, as
property capable of being disposed of by her by testamentary disposition.
3. Where Hindu dies after commencement of the Hindu
Succession (Amendment)Act 2005, his interest in the property of joint
Hindu family governed by the Mitakshra Law, shall develop by
testamentary or intestate succession as the case may be under this act
and not by survivorship and the co-parcenary property shall be deemed to
have been divided as if a partition had taken place.
(a) A daughter is allotted the same share as is allotted to the son;

(b) The share of the predeceased son or a predeceased daughter,
as they would have got had they been alive at the time of partition, shall
be allotted to the survivor thereof of such predeceased son or of such
predeceased daughter and
( c) The share of the predeceased child of a predeceased son or a
predeceased daughter, as such child would have got had he or she had
been alive at the time of partition, shall be allotted to the child of such
predeceased child of the predeceased son or a predeceased daughter, as
the case may be
Explanation:- For the purpose of this sub-section the interest of a Hindu
Mitakshara co-parcener shall be deemed to be a share in the property
that would have been alloted to him if a partition of the party had taken
place immediately before his death, irrespective of whether he was
entitled to claim partition or not.
4. After the commencement of Hindu Succession (Amendment)
Act 2005, no court shall recognize any right to proceed against a son
grand son or great grandson for the recovery of any debt, due from his
father, grandfather or great grandfather solely on the ground of pious
obligation under the Hindu Law of such son, grandson or great grandson
to discharge any such debt; provided that in the case of a deed contracted
before the commencement of Hindu Succession(Amendment)Act 2005.
Nothing contained in this subsection shall affect:-
(a) A right of any creditor to proceed against the son, grand son
or great grandson, as the case may be; or
(b) Any alienation made in respect of or in satisfaction of any such
debt and any such right or alienation shall be enforceable under the Rule
of post operation in the same manner and to the same extent as it would

have been enforceable as if the Hindu Succession (Amendment) Act 2005,
had not been in-acted.
Explanation:-For the purpose of clause (a) the expression “son” grand
son or great grandson, shall be deemed to refer to the son, grandson or
great grand son, as the case may be who was born or adopted prior to the
commencement of the Hindu Succession (Amendment)Act 2005.
5. Nothing contained in this Section shall apply to a partition,
which has been effected before 20th
day of December, 2004.
Explanation:- For the purpose of this section”partition” means any
partition made by execution of deed of partition duly registered under the
Registration Act 1908 (16 of 1908) or partition effected by a decree of
court.
Mr Joshi strenuously contended that 20.12.2004, is a cut-off
date and therefore, on that date or prior to it, if partition is not effected, the
Amended Act of 2005, would be applicable, especially when the word
'partition' has also been defined in exception clause, it provides that :-
“Partition means
(i) any partition made by execution of deed of partition
duly registered under the Registration Act 1908, or
(ii) Partition effected by a decree of court.”
Hence, according to Mr. Joshi, in the case at hand, admittedly
the suit property was never partitioned between the parties and therefore,
question of execution of deed of partition, would not arise. So far next
criteria is concerned, it may be noted that when the Act was amended, the
suit was pending and impugned decree came to be passed; only after the
Amended Act was enacted and therefore, the trial court, was right in

applying the provisions of Amended Act.
19,. I am quite apprehensive of this submission because it is settled
Law that no sooner ;the partition is demanded by any member of the joint
family or co-parcener or person entitled to get share by way of intestate
succession and the suit is filed, the severance in the status of co-parcenary
takes place. Basic condition for an application of Amended Act, is that co-
parcenary must be in existence on the day when the Act came into force.
In my sincere view once the severance is presumed on filing of the suit,
the co-parcenary or joint family be deemed to be not in existence. In the
present case deceased Bhavji had constituted co-parcenary with appellant
No.1. So after his demise, his share in the co-parcenary became liable to
be devolved as per intestate succession and not by survivorship, as per the
provisions of Section 6 of Hindu Succession Act 1956. For the first time
by this Act of 1956, the daughter is given a share in the property or share
in co-parcenary property of the father. By virtue of Amended Act of 2005,
the significant change is brought in making the daughter as a co-parcenar
right from her birth. Since Bhavji died in 1984, the Law prevalent and
whereby the parties were governed was Hindu Succession Act 1956. This
position was there, even when the suit was instituted in 1997. Obviously
the suit was based on provisions of Section 6 of the Hindu Succession Act
1956. The Amended Act was not even in sight. Only because wrong
interpretation as to equal share along with son, the respondent/plaintiff
appears to have claimed one-half share in the property.It was safely
ignored that as per Section 6 of the Act of 1956, she was entitled to share
equal to the brother but only in the share of her father,which he could have
derived on notional partition.

20. It is pertinent to note that had respondent not filed the suit for
partition in 1997, obviously her claim after the period of 12 years, from
the date of accrual of cause of action i.e. in 1999, would have been expired
by virtue of Clause 110 of Limitation Act. The suit thereafter for partition
i.e. after 1999, should have held as time barred with presumption that the
respondent surrendered her claim by not prosecuting the demand of
partition continuously for 12 years after the notice for partition was served
on appellant No.1. Therefore, as per settled position, it would be construed
that status of jointness in estate was severed on the very date of filing the
suit and consequently, the date of institution of suit be considered as
deemed partition between appellant No.1 and respondent. Had the
concerned suit decided prior to coming into existence and in force
Amended Act of 2005, in that event evidently the shares in the property
could have been defined as per the Act of 1956. So only because the suit
was pending, it would be fallacy to say that the suit which was based on
the then existing Law, it will stand governed by any Act which came into
existence in future and during pendency of the suit .
21. We may come across with catena of rulings which made clear
that the Act or enactment is always having prospective effect unless and
until it is specifically provided that same would be retrospective in
operation. Amended Act 2005, that way is therefore prospective.
Hon'ble Summit Court in the case of Shiladevi and others -Vrs-
Lalchand and another (2006 (9) SCC 528) has held :-
“ The Act un-disputedly would prevail over old Hindu Law.
We may notice that the Parliament with a view to confer right upon the

female heirs, even in relation to the joint family property enacted Hindu
Succession Act 2005. Such a provision was enacted as far back in 1987 by
the State of Andhra Pradesh. The succession having opened in 1989,
evidently, the provisions of Amended Act 2005, would have no
application.”
This authority was subsequently followed by the Hon'ble
Summit Court in a case while rendering judgment in the case of
Bhavarsing -Vrs- Puran and others Civil Appeal No.1233 of 2008 decided
on 12.2.2008. Accordingly, in the wake of these authorities Hon'ble
Supreme Court, I hold that on the basis of facts and circumstances of the
case at hand, the Amended Act if 2005, will not be attracted or applied to
the case at hand. The learned trial court, in my sincere view, wrongly
defined the share of parties by applying the provisions of Amended Act of
2005.
21. In the ultimate analysis, I conclude that as per provisions of
Section 6 of Hindu Succession Act 1956, appellant/defendant No.1 and
respondent/plaintiff will respectively derive three-fourth and one-fourth
share in the suit properties i.e. an agricultural land so also the house
property.
22 Whether the dwelling house can be partitioned or not is a
question, which can be answered on the basis of judgment of Hon'ble High
Court in case of Anant Gopalrao Shende-Vrs- Jankibai widow of Gopalrao
Shende and others ( 1984 MH.L.J. 183). His Lordship held when a Hindu
dies intestate leaving only a single male heir and female heirs specified in
Clause I of the Schedule, the female heirs are entitled to claim partition of

the dwelling house. Their right to claim partition of dwelling house is not
excluded by Section 23 of the Hindu Succession Act, as the said provision
has no applicability in the case of their being a single male heir. In this
case too, the appellant No.1 is the only male heir of deceased Bhavji and
plaintiff/respondent happens to be the only female heir under Clause I.
Hence, I hold that the respondent/plaintiff is entitled to claim partition in
the suit house property.
22. Accordingly impugned decree needs to be modified . Hence,
the order as follows.-
ORDER.
1. The appeal is partly allowed.
2. The trial court's decree with respect to the declaration that the
plaintiff and defendant No.1 have one-half share each in the suit
properties, is hereby set aside and it is hereby declared that the
respondent/plaintiff Gaukarnabai is entitled to one-fourth share while
appellant/defendant No.1 Shriram is entitled to three-fourth share in the
suit properties i.e. agricultural land and dwelling house. Rest of the
impugned decree stands confirmed.
3. Parties to bear their own costs.
4. Decree be drawn up accordingly.
Sd/-
(A.S.Shiwankar)
District Judge-1, Khamgaon.
20.11.2009

CIVIL APPEAL,SHEGAON

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