1. The appeal is filed to challenge the judgment and decree of Regular Civil Suit No.276 of 2000 which was pending in the Court of Civil Judge, Senior Division, Shrigonda and also to challenge the judgment and decree of Regular Civil Appeal No.57 of 2005 which was pending before the Principal District Judge, Ahmednagar.
2. The suit filed by present Respondent Nos.1 and 2 for relief of partition and separate possession was partly decreed in their favour by the trial Court. The relief of partition in respect of moveable property was not given. This decision was challenged by filing the aforesaid appeal by original defendant. In the appeal cross objections were filed by the original plaintiffs. The first Appellate Court has modified the decree given by the trial Court and instead of giving 1/10th share in the immovable properties, the first Appellate Court has made the share of the two plaintiffs as 1/5th. However, the cross objections are dismissed. Only original defendants have come in the appeal. Both the sides are heard.
3. The plaintiff Nos.1 and 2 Smt. Gangubai and Smt. Anjanabai and defendant Nos.1 and 2 are the issues of Pandurang. Pandurang had one more daughter by name Vimlabai but she is dead and she has left behind one issue, defendant No.15. Pandurang died in the year 1974 and his wife Durgabai died in the year 1977. Parties are Hindus. It is the case of plaintiffs, daughters of Pandurang, that Pandurang had left behind ancestral and joint family properties and no partition had taken place in the life time of Pandurang and also amongst the issues of Pandurang after the death of Pandurang. Some properties were purchased in the names of defendants and it is contended that those properties were purchased from the income of joint family properties. it is contended that the defendant Nos.1 and 2 were taking care of the properties as they are the male issues of Pandurang. It is contended that when the plaintiffs realised that defendants were creating some revenue record in respect of the suit properties and they were not ready to give the share of the plaintiffs in the suit properties, they demanded the partition at the time of Diwali, 1989 and when there was refusal, they were required to take steps like filing of the suit for partition. it is contended that on the date of the suit all the suit properties were joint Hindu family properties. The properties mentioned as 1-E are movable properties and other properties like 1A to 1D are immovable properties. The plaintiffs had contended that they have 1/10th share each in the property. During the pendency of litigation plaintiff No.2 died and legal representatives of plaintiff No.2 were brought on record. Plaintiff No.2A came on the record as a legatee as will is executed by Anjanabai in favour of plaintiff No.2A in respect of her share. Plaintiff No.2B is the step son of Anjanabai but nothing is left for him by Anjanabai.
4. Defendant Nos.1 and 3 filed joint written statement. They admitted the relationship but they contended that the properties were partitioned amongst plaintiffs and defendants. It is also contended that further partition was effected between Defendant No.1 and his sons. It is contended that in the year 1964 defendant Nos.1 and 2 purchased Survey No.432/3B. They admitted that it was purchased from the income of joint Hindu family properties. They have specifically admitted that Survey No.408/1 and 408/2 from village Pimpalgaon Pisa were purchased from the income of joint Hindu Family property. However, they contended that in the year 1967 husband of plaintiff No.1 had asked for partition and at that time to give share to plaintiff No.1 land survey No.408/9 was allotted to the share of plaintiff No.1 and so she has no right to claim partition.
5. It appears that the defendant Nos.1 and 3 tried to defend the suit by contending that other relatives of Pandurang were necessary parties and properties were purchased in the names of the relatives of Pandurang. No evidence was given in that regard and so there is no need of mentioning the specific pleading in that regard of defendant Nos.1 and 3. Similarly, there is no need of giving particulars of specific pleading with regard to partition case of defendants amongst themselves. This written statement was adopted by remaining defendants.
6. Both the sides gave evidence in the trial Court. The issue framed against the defendants that there was the partition is decided against defendants. Similarly, it is held that the sale deed effected by defendant No.13 in favour of defendant No.21 in respect of one suit property is not binding on the share of plaintiffs. There was no question of disputing the right of plaintiff No.2A under a will executed by Anjanabai but evidence is given to prove the due execution of will.
7. The first Appellate Court has considered the provisions of Hindu Succession Act, 2005 and has held that both the plaintiffs need to be treated as co-parcenars and so equal share is given to sons and daughters of Pandurang.
8. The learned counsel for the Appellants mainly submitted that the Courts below ought to have applied amendment effected to Hindu Succession Act by Maharashtra Government in view of the fact that both the plaintiffs were given in marriage much prior to coming into force of Maharashtra Amendment and as they were born also before 1956. On this point both the sides placed reliance on some reported cases. The prayer was made to formulate substantial question of law only on this point though other grounds are mentioned in the appeal memo. It was also submitted that plaintiffs had no right to file suit for partition as they are the female members of the joint family and the suit is filed even in respect of house properties.
9. The learned counsel for the appellants placed reliance on the case reported as 2009 DGLS (Soft.) 1446 [R. Mahalakshmi V/s A.V.Anantharaman and others]. He drew the attention of this Court to para No.29 in which some observations are made regarding the shares which daughter can get, who had married prior to 1989. Observations are made that they may not get euqal share. However, if the decision is read in entirety the decision shows that the Apex Court did not disturb the shares given by the Courts below in accordance with the present position of law and the matter was remanded back for giving decision on two points mentioned in para No.33 of the judgment. These points had no concern with the extent of shares. Reliance was placed on one reported case of this Court viz. the case reported as 2008 (6) Bom.C.R. 445 [Aurangabad Bench] (Lata @ Bhagyashree Arunkumar Sangole V/s Madhukar Rajaram Ganjare and others),. In this case, this Court had considered the provisions of Hindu Succession Act as amended by Maharashtra Amendment Act, 1994 and also the provisions of the aforesaid Central Act of 2005 and had observed that the provisions of Maharashtra Amendment Act cannot be given retrospective effect and so the daughters who had married before commencement of the Act need to be dealt with as provided under Hindu Succession Act, 1956. Reliance was placed on one more reported case viz. reported as 2010 (3) All MR 262 [Aurangabad Bench] (Champabai W/o. Darshrathsing Pardeshi and others V/s Shamabai @ Shamkuwarbai Gajrajsing Pardeshi and another). In this case, it is observed that right to claim share in respect of dwelling house as given in Amendment Act, 2005 cannot be given retrospective effect. The provisions of Sections 6, 8 and 23 of Hindu Succession Act, 1956 are considered in relation to the amended law. The learned counsel for the appellants also made submission that as there was no specific repel in the new Act of 2005 in respect of the State Amendment of 1994, the law as laid down in Amended Act of 1994 of the State Government needs to be applied.
10. The learned counsel for Respondent, original plaintiff placed reliance on the case reported as (2011) 9 SCC 788 [Ganduri Koteshwaramma and another V/s Chakiri Yanadi and another]. in this case, the Apex Court has considered the legislative intent behind the amendments effected by Act of 2005 by Central Government. It is laid down that for giving parity of rights in coparcenars between Hindu male and female this law is made. The facts of this reported case show that the effect was given to the Amended Act of 2005 to a litigation which was at stage of execution and in which the preliminary decree was made in 1999. Thus, the Apex Court has held that the Amended Act has retrospective operation.
11. Full Bench of this Court has considered this point in Second Appeal No.566 of 2001 [Shri Badrinarayan Shankar Bhandari and others V/s Omprakash Shankar Bhandari] with Second Appeal No.25 of 2013 [Shri Ashok Gangadhar Shedge V.s Ramesh Gangadhar Shedge] and other group of Second Appeals at Principal Seat and by the decision dated 14th August, 2014 the Full Bench has laid down that the Act of 2005 is retrospective in operation. The entire law is considered along with the State Amendment. Thus, the law is now settled on this point.
12. In respect of other contention that there was no specific repel of the State law in the Central Legislation, the learned counsel for Respondents submitted that the provision of Article 254 of the Constitution of India is sufficient to explain this point and he also placed reliance on the case reported as 1995 (4) SCC 718 [Pt. Rishikesh V/s Salma Begum]. The provision and the observations made by the Apex Court show that when the Central Law comes into force and its provisions are repugnant to the provisions of an earlier law made by the State (or even by the Parliament) the new law becomes operational for the matter. In view of this position, this Court holds that there is no force in the other objection also.
13. One more submission was made by learned counsel for the Appellants that the Plaintiff No.1 could have got the share under the new law provided that she was alive at the time of the giving of the decision. On this point also there is no need of discussion in view of position of Hindu Law and further copy of death certificate of plaintiff No.1 is produced to show that she died on 10th July, 2011 i.e. after getting the decree from trial Court. Thus, the law is well settled on the points raised and no substantial questions of law as such can be formulated in the appeal.
14. In the result, the appeal stands dismissed.
15. The learned counsel for Appellants submitted that he wants stay to the execution of the decree for some time and he submitted that the order of status-1uo was made by this Court and it has been in existence till today. The learned counsel for decree holder submitted that due to the orders, nothing is done. It can be said that when the appeal is filed, the executing Court can be allowed to take some steps which are necessary for demarcating the shares which can be given to the parties to the suit. The demarcation which needs to be done cannot be stayed. So, only to the extent of actual delivery of possession, the stay is granted for the period of four weeks.
16. In view of final disposal of the second appeal civil application No. 6866 of 2012 does not survive any more and the same stands disposed of accordingly.