SHANTILAL BHIKCHAND SURANAversusKANTILAL BHIKCHAND SURANA(DECD.THR.LRS) SHAKUNTALA KANTILAL SURANA AND ORS

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           rrpillai
                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     CIVIL APPELLATE JURISDICTION
                                    SECOND APPEAL NO. 245 OF 2022


                        Shantilal Bhikchand Surana               …     Appellant
                             Vs.
                        Kantilal Bhikchand Surana & Others       …     Respondents


                        Mr. A. S. Rao for the Appellant.
                        Ms. Kanchan Phatak a/w. Mr. A. M. Waradkar i/b. Mr. A. K.
                        Kotecha (through VC) for Respondent Nos. 1 and 2.

                                               CORAM : GAURI GODSE, J.

                                               DATE :       17th JUNE 2026

                        ORDER :


                        1.    This second appeal is preferred by the original

                        defendant no. 1 to challenge the judgment and decree

                        passed by the first appellate court, which granted a decree

                        for partition and separate possession.


                        2.    Learned counsel for the appellant submits that

                        documents were produced on record in respect of House No.

                        JA-2, 16/4 to show that the said property stands in the name

                        of the appellant’s wife and does not belong to the joint family.

                        He submits that the compilation of the additional documents
           Digitally
           signed by
           RAJESHWARI
RAJESHWARI RAMESH       tendered by him today shows two documents that would
RAMESH     PILLAI
PILLAI     Date:
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indicate that one of the suit properties, JA-2, belongs to the

appellant’s wife and therefore could not have been added in

a suit for partition. He relies upon the documents on page

nos. 188 and 189 of the compilation to contend that an

acquisition notice was issued to the appellant’s wife and

possession was taken from the appellant’s wife


3.    He further submits that the three sisters had executed

relinquishment deeds in favour of the appellant. When the

Partition Deed at Exhibit 88 was executed, one sister was a

minor; hence, provisions for her marriage expenses and her

share in the gold ornaments were mentioned in the partition

deed. In the partition, Property No. 407-B was allotted to the

appellant, and Shop No. 552 was allotted to the plaintiff. As

per the Consent Agreement at Exhibit 326, which was also

executed, defendant nos. 1 and 2 are residing in the

respective premises allotted to them. Thereafter, another

agreement, Exhibit 327, was executed, and all the brothers

maintain their respective properties.


4.    Learned counsel for the appellant submitted that,

taking advantage of the dismissal of the appellant’s suit for

declaration, the present suit was filed for partition, though


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partition had already taken place. He submits that although a

provision for marriage expenses and gold was made for the

minor sister, the first appellate court held that she was not

given a share and that there was no full partition. He

therefore submits that the second appeal would raise a

substantial question of law on the ground that the material

documents indicating one of the suit properties in the name

of the appellant’s wife and the division of the joint family

properties were ignored by the first appellate court. Learned

counsel for the appellant submitted that the first appellate

court has not recorded any findings on his individual

property. He therefore submits that the second appeal raises

substantial questions of law, and the impugned judgment and

decree would warrant interference.


5.   Learned counsel for respondent nos. 1 and 2 submits

that the documents on page nos.188 and 189, relied upon by

the learned counsel for the appellant, were never produced

before the trial court and therefore, for the first time in the

second appeal, the same cannot be considered. On the

issue of the partition deed, he submits that all the

documents,    including   the    release   deeds,      are    rightly



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appreciated by the first appellate court. Since the suit

properties are joint family properties, all are granted equal

shares as there was never any complete division of

properties effected by metes and bounds. Hence, the

impugned judgment and decree would not warrant any

interference.


6.    I have perused the papers of the second appeal. On

the point of non-consideration of the document in respect of

the property bearing House No. JA-2-16/4 is concerned, the

first appellate court has discussed the evidence on record

and held that there was no evidence produced to support the

said claim of ownership. For want of satisfactory evidence,

the theory of payment of the sale price by defendant No. 1’s

wife is disbelieved. Considering the joint family status and

the joint nucleus, the said property is rightly accepted as the

joint family property.   The two documents on page nos.188

and 189 are produced for the first time in this court. Hence,

learned counsel for the respondents is right in objecting that

the documents cannot be considered for the first time in this

appeal.


7.    The second point argued on behalf of the plaintiff


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regarding the inclusion of certain provisions in favour of the

minor sister at the time of seeking a partition deed is

concerned; the same cannot be a ground to refuse an equal

share to the sister. The first appellate court has therefore

rightly referred to Section 6 of the Hindu Succession Act and

decreed the suit by granting equal shares to the parties. So

far as the partition deed is concerned, there is nothing to

show that there was partition by metes and bounds in

respect of all the suit properties. There is no dispute on the

relations of the parties.


8.    The first appellate court has discussed in detail the

grounds raised by relying upon the partition deed at Exhibit-

88. The     first   appellate   court,   after   appreciating     the

documentary and oral evidence, refused to accept that there

was a partition by metes and bounds based on the partition

deed at Exhibit-88. Hence, considering the nature of the

properties and the relationship between the parties, the suit

is decreed holding that the plaintiff and defendant nos. 1, 2

and 3 would be entitled to one-fourth share each.


9.    I do not see any illegality or perversity in the findings of

fact recorded by the first appellate court, which is the last


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fact-finding court. The grounds raised on behalf of the

appellant would amount to reappreciation of evidence, which

is not permissible under Section 100 of the Civil Procedure

Code, 1908. None of the grounds argued on behalf of the

appellant raises any substantial question of law. Hence, the

second appeal is dismissed.


Interim Application No.3349 of 2026


10.   This application is for bringing on record the heirs of

the deceased respondent no. 8. The application is within

time. Hence, the application is allowed in terms of prayer

clause (b). Amendment shall be carried out within four weeks

from the date of uploading this order on the website.


11.   In view of the dismissal of the second appeal, all other

pending applications are disposed of as infructuous.


12.   At this stage learned counsel for the appellant requests

that the ad-interim protection granted in the appeal be

continued for eight weeks.


13.   Learned   counsel      for     the   respondents    opposes

extension of any interim relief on the ground that the

protection was granted only because the parties were


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making an attempt to amicably resolve the dispute. In the

facts and circumstances of the case, the execution

proceedings pursuant to the partition decree may proceed;

however, there will be a stay on the actual handing over of

possession until the expiry of eight weeks from the date of

uploading this order on the website.




                                       [GAURI GODSE, J.]




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