Bombay High Court
SUBHADRABAI DIGAMBAR GIRIversusNIRANJAN SANTOSH BHARATI AND OTHERS
- Disposal
- DISPOSED OFF
- Bench
- S G CHAPALGAONKAR
Holding
The petitioner's objection to the execution of the decree is not maintainable; she cannot claim a share in the property during her father's lifetime and the decree is executable.
Summary
The petitioner, Subhadrabai, challenged the order of the Civil Judge rejecting her objection to the execution of a decree in a partition suit concerning a family property. She claimed, based on the Supreme Court's decision in Revansiddappa v. Mallikarjun, that as a daughter of the second wife of Santosh she was entitled to a share in the suit property and that the decree could not be executed against her. The trial court had denied her intervention in the original suit, a decision that was upheld by the Supreme Court in Civil Appeal No. 4398/2019. The High Court examined whether a non‑party to the suit could invoke the Supreme Court’s later ruling to block execution and whether she could claim a share during her father's lifetime. It held that the decree granted a specific share to Santosh, and the petitioner could not claim a partition of that share while Santosh was alive, nor could she prevent execution of the decree. Consequently, the writ petition was dismissed.
Issues considered
- Whether a decree passed in a partition suit is executable against a person who was not a party to the suit but claims a right under a later Supreme Court precedent.
- Whether the petitioner, as a child of the second wife, is entitled to a share in the suit property during the lifetime of her father Santosh.
- Whether the objection to the execution of the decree is maintainable under the Code of Civil Procedure.
Subjects
- partition suit
- execution of decree
- preliminary decree
- rights of children of second wife
- Civil Procedure Code
- objection to execution
- Supreme Court precedent
Judgment
2026:BHC-AUG:13610
(1) wp-14484-2025.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.14484 OF 2025
Subhadrabai w/o Digambar Giri,
Age: 38 years, Occu: Service,
R/o. Kupti, Tq. Umarkhed,
Dist. Yavatmal. ..Petitioner
(Orig. J.D. No.6)
Versus
1. Niranjan s/o Santosh Bharati,
Age- 57 years, Occupation-Service & Agril,
R/o. Sugaon, Tq. Degloor,
Dist. Nanded.
2. Awadhut s/o. Santosh Bharti,
Age- 52 years, Occupation- Agriculture,
R/o. Sugaon, Tq. Degloor,
Dist. Nanded.
3. Kondabai w/o. Santosh Bharati,
Age- 72 years, Occupation-Household,
R/o. Sugaon, Tq. Degloor,
Dist. Nanded.
4. Santosh s/o Ganesh Bharti,
Age- 76 years, Occupation-Agriculture,
R/o. Sugaon, Tq. Degloor,
Dist. Nanded.
5. Mankarnabai w/o Santosh Bharti,
Age- 67 years, Occupation-Household,
R/o. Sugaon, Tq. Degloor,
Dist. Nanded.
6. Shivaji s/o Gangaram Bamne,
Age- 54 years, Occupation-Agriculture,
R/o. Ibrahimpur, Tq. Degloor
Dist. Nanded.
7. Avinash s/o Santosh Bhati,
Age- 47 years, Occupation-Nil,
R/o. Sugaon, Tq. Degloor,
Dist. Nanded.
8. Anusaya d/. Santosh Bharti,
Age- 35 years, Occupation-Household,
R/o. Sugaon, Tq. Degloor,
Dist. Nanded. ..Respondents
(2) wp-14484-2025.odt
(Respondent no.1 to 3 are orig. D.H.
and Respondent No.4 to 8 are orig. J.D. No.1 to 5)
…
Mr. S. P. Katneshwarkar h/f Mr. S. B. Ghatol Patil, Advocate for
Petitioner.
Mr. V. V. Patil, Advocate for Respondent Nos.1 to 3.
Mr. S. S. Waghmare, Advocate for Respondent Nos.4 to 8.
…
CORAM : S. G. CHAPALGAONKAR, J.
DATED : 18th MARCH, 2026.
JUDGMENT:-
1. Rule. Rule made returnable forthwith. By consent of
parties, matter is taken up for final hearing at the admission stage.
2. The present writ petition takes exception to order dated
24.09.2025 passed below Exhibit-21 by Civil Judge Junior Division,
Degloor in Regular Darkhast No.2/2024, whereby petitioner’s
objection to execution of decree has been rejected.
3. The respondent nos.1 and 2 herein had instituted Special
Civil Suit No.41/2006 for partition and separate possession of suit
property. The petitioner was not party to said suit. However, her
father, mother and brothers were party to suit. Admittedly,
respondent no.3-Kondabai is first wife of respondent no.4-Santosh.
The respondent no.5 is his second wife. The petitioner, respondent
nos.7 and 8 are born to second wife Mankarnabai during
subsistence of first marriage of Santosh with Kondabai. During
pendency of partition suit, petitioner had filed her intervention
application as party in suit. However, same was rejected. She
challenged said order before this Court in Writ Petition, which was
(3) wp-14484-2025.odt
dismissed and finally order is confirmed by Supreme Court in Civil
Appeal No.4398/2019.
4. The Civil Judge, Junior Division, Degloor decreed suit for
partition and separate possession vide judgment and order dated
30.06.2014 and that plaintiffs, defendant no.1 i.e. Kondabai and
Santosh were held entitled for 1/4 th share each in suit property.
Eventually, Regular Darkhast No.2/2024 is filed by
plaintiffs/decree holders for execution of decree. At this stage,
petitioner filed application below Exhibit-21 contending that in
view of law laid down by Supreme Court in case of
Revansiddappa and Ors Vs. Mallikarjun and Ors. 1, petitioner
has right in suit property. The decree passed in suit without
adding her as party is not executable. However, Executing Court
rejected petitioner’s objection.
5. Mr. Katneshwarkar, learned Advocate appearing for
petitioner submits that there can be multiple preliminary decree.
In view of law laid down in case of Revansiddappa and Ors
(supra), petitioner who is daughter born from second wife of
Santosh would be entitled for share in suit property. Therefore,
augmentation of shares was necessary, however, Executing Court
erroneously rejected petitioner’s objection to the executability of
decree. Mr. Katneshwarkar would submit that in Civil Appeal
1 (2023) 10 SCC 1.
(4) wp-14484-2025.odt
No.4398/2019 filed by petitioner, remedy of seeking another
preliminary decree in terms of judgment in case of
Revansiddappa and Ors (supra) was kept open by Supreme
Court. The Executing Court completely missed to consider
aforesaid legal and factual aspect and erroneously rejected
petitioner’s objection to the executability of decree.
6. Having considered submissions advanced by learned
Advocate appearing for petitioner, it can be observed that
petitioner is raising her claim in suit property being daughter of
Santosh born from second wife Mankarnabai. The decree in
Special Civil Suit No.41/2006 decides shares between petitioner’s
father Santosh, his first wife Kondabai and two sons Niranjan and
Awadhut. Each of them is granted 1/4th share in suit property.
Mankarnabai i.e. second wife, her son and daughter are not given
any share in suit property. Even applying ratio laid down by
Supreme Court in case of Revansiddappa and Ors (supra),
progeny born from second wife of Santosh would be entitled to
claim right in share of Santosh. The decree in Special Civil Suit
No.41/2006 declares share of Santosh to the extent of 1/4 th in suit
property. The first wife Kondabai and her sons are held entitled
for 1/4th share each alongwith Santosh. The execution proceeding is
initiated by them in Regular Darkhast No.2/2024 for partition of
their 1/4th share each. Eventually, petitioner could not have any
(5) wp-14484-2025.odt
objection for execution of decree. She may have right in share
allotted to Santosh, but she cannot raise claim for partition during
his lifetime in light of law laid down in case of Revansiddappa
and Ors (supra). Further such share would not be available to her
during lifetime of Santosh. Pertinently, petitioner’s application for
impleadment as party in suit was rejected by Trial Court and said
order was confirmed upto Supreme Court.
7. In result, this Court do not find any reason to entertain
present Writ Petition. Writ Petition stands dismissed.
8. Rule stands discharged.
(S. G. CHAPALGAONKAR)
JUDGE
Devendra/March-2026
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