SHRI. SHANKAR SITARAM KURHADEversusMRS. KONDABAI SOPAN PADEKAR

                                                              10-sa-381-2015-casst-33388-2017.doc




            varsha          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CIVIL APPELLATE JURISDICTION
                                     SECOND APPEAL NO. 381 OF 2015
                                                    WITH
                               CIVIL APPLICATION (ST) NO. 33388 OF 2017
                                                    WITH
                                  CIVIL APPLICATION NO. 1173 OF 2015


                     Shri Shankar Sitaram Kurhade and Anr           … Appellants/Applicants
                               vs.
                     Kondabai S. Padekar(D/H) Tulshiram S. … Respondents
                     Padekar(d/h) 1A.1) Anjana T. Padekar and
                     Ors

                     Mr. Uday B. Nighot for the Appellants/Applicants.
                     Mr. Ravindra Mali h/f. Mr. Suresh More for Respondent Nos. 1b and
                     1c.
                     Mr. Bhakti Wast i/b. Mr. Sanjiv Sawant for Respondent Nos. 4 and 5.



                                                   CORAM : GAURI GODSE, J.
        Digitally
        signed by
                                                    DATED : 10th JULY 2026
        VARSHA
VARSHA VIJAY
VIJAY   RAJGURU
RAJGURU Date:
        2026.07.14
        14:02:42
        +0530
                     ORDER:

                     1.    This second appeal is preferred by the original defendant nos.

                     1 and 2 to challenge the judgment and decree passed by the first

                     appellate court granting partition and separate possession to

                     respondent no. 1, who claims share in the suit property through her

                     father Sitaram. The appellants, i.e. defendant nos.1 and 2 are the

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sons of Sitaram. Defendant no.3 and the plaintiff are the daughters

of Sitaram. Hence, according to the plaintiff, she would be entitled to

the share through Sitaram. The trial court has dismissed the suit.

However, the first appellate court held that the theory of partition

pleaded by the defendants was without any material evidence to

show that there was partition by metes and bounds. Hence, in view

of the Explanation to sub-section (5) of Section 6 of the Hindu

Succession Act, 1956 (‘said Act’), the plaintiff cannot be refused her

share on the ground that there existed no coparcenary joint family

on the date of filing of the suit. Hence, the first appellate court has

granted 1/4th share to the plaintiff.

2.    Learned counsel for the appellants submits that the plaintiff

has admitted that the parties are occupying the suit property

separately and thus, she admitted that there is a partition. Once,

there was a partition of the suit, even according to the plaintiff, there

was no question of granting any benefit to the plaintiff in view of the

amended Section 6 of the said Act. He further submits that the

plaintiff’s father expired on 28th January 1978. Hence, the suit filed in

1993 is barred by limitation in view of Article 110 of the Schedule to

the Limitation Act. He therefore submits that the second appeal

raises substantial questions of law on the issue of limitation, and


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that the plaintiff is not entitled to any partition as the property was

already partitioned before the amended Section 6 of the said Act.

3.     I have perused the papers of the second appeal. The

relationship between the parties is not disputed. It is also not in

dispute that the suit property is ancestral joint family property. The

trial court has referred to the oral evidence to record findings that,

even according to the plaintiff, there was a partition as the parties

were residing separately. The first appellate court has reappreciated

the evidence on record and rightly held that the partition as per the

Explanation to sub-section (5) of Section 6 of the said Act would

mean a valid partition either by way of execution of a registered

deed of partition or a partition effected by a decree of the court.

4.     In the absence of any material that the valid partition by

metes and bounds was effected as recognized under the law, the

plaintiff cannot be refused her share on the ground that the parties

are residing separately. So far as the issue of limitation is

concerned, the death of the father cannot be the ground to calculate

the period of limitation for filing the suit for partition and separate

possession. Under Article 110 of the Schedule to the Limitation Act,

the period of 12 years would begin from the date of exclusion known

to the plaintiff.

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5.    In the present case, no such pleading and material is shown

to hold the suit for partition is barred by limitation as it is filed

beyond 12 years from the exclusion of the plaintiff from the property.

The first appellate court held that in 1993, the plaintiff had exercised

her right to seek partition, which was refused. Hence, the suit

cannot be held to be barred by limitation merely because she had

not applied for partition immediately after the death of her father. In

view of the aforesaid findings recorded by the first appellate court,

the grounds raised on behalf of the appellants would not require any

consideration. There is no illegality or perversity in the reasons

recorded by the first appellate court. In view of the admitted facts

and the findings recorded by the first appellate court as referred to

above, the second appeal would not raise any substantial question

of law.

6.    The second appeal is therefore dismissed. In view of the

dismissal of the second appeal, the pending civil application is

disposed of as infructuous.



                                                      (GAURI GODSE, J.)




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