Bombay High CourtShri. Shashikant Shripad Pandit ... vs Shri. Kaustubh Subhash Pandit And ... on 25 February, 2020Bench: R.D. Dhanukappn                                  1                            fa-1773.19(j).doc\n\n\n\n       IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n               CIVIL APPELLATE JURISDICTION\n\n                     FIRST APPEAL NO.1773 OF 2019\n                             ALONG WITH\n                   INTERIM APPLICATION NO.1 OF 2019\n\n1. Shashikant Shripad Pandit             )\nAge 81 years, Occ. Retired,              )\nR/at: Flat No.6, Suyash Residency,       )\n1039/4571, Gokhale Road,                 )\nModel Colony, Pune - 411 016.            )\n\n2. Sharad Shripad Pandit            )\nAge 76 years, Occ. Medical Practice )\nR/at : 290, Lord Wood Road, Harborn )\nBurning Ham, B17, 8A, U.K.          )\n\n3. Shirish Shripad Pandit              )\nsince deceased through his legal heirs )\n\n3A. Chitra Shirish Pandit             )\nAge 66 years, Occ. Household,         )\nR/at : Flat No.3, Sarla Rojes Housing )\nSociety, A Wing, City Survey No.538, )\nSurvey No.12/2/2, Plot No.8,          )\nSomeshwar Wadi Road, In front of )\nRajwada Hotel, Pashan, Pune 411 008.)\n\n3B. Sangram Shirish Pandit            )\nAge 38 years, Occ. Service,           )\nR/at : Flat No.4, Sarla Rojes Housing )\nSociety, A Wing, City Survey No.538, )\nSurvey No.12/2/2, Plot No.8,          )\nSomeshwar Wadi Road, In front of )\nRajwada Hotel, Pashan, Pune 411 008.)\n\n3C. Sanat Shirish Pandit, Adult       )\nR/at : Flat No.3, Sarla Rojes Housing )\nSociety, A Wing, City Survey No.538, )\nSurvey No.12/2/2, Plot No.8,          )\nSomeshwar Wadi Road, In front of )\nRajwada Hotel, Pashan, Pune 411 008.)        ..       Appellants\n                                                  (Original Defendants)\n\n\n\n\n      ::: Uploaded on - 25/02/2020                   ::: Downloaded on - 27/02/2020 20:34:41 :::\n ppn                                   2                            fa-1773.19(j).doc\n\n\n                Versus\n\n1. Kaustubh Subhash Pandit                )\nAge 46 years, Occ. Service,               )\nR/at : 1170/22, Revenue Colony,           )\nShivajinagar, Pune - 5.                   )\n\n2. Kedar Subhash Pandit                   )\nAge 44 years, Occ. Service,               )\nR/at : Yogesh Apartment,                  )\nTulshibagwale Colony,                     )\nSahakarnagar, Pune - 9.                   )\n\n3. Sou.Sumedha Sarang Gokhale             )\nAge 46 years, Occ. Household,             )\nR/at : 1170/22, Revenue Colony,           )\nShivajinagar, Pune - 5.                   )\n\n4. Sou. Urmila Subhash Kulkarni     )\nAge 67 years, Occ. Household,       )\nR/at : Building No.3C, Flat No.1,   )\nJagdishnagar, Aundh, Pune- 411 007. )         ..       Respondents\n                                                   (Original Plaintiffs)\n\n\n            ---\nMr.Girish R. Agrawal for the appellants.\nMr.Jaydeep Deo for the respondent nos.1 to 3.\n            ---\n\n                             CORAM         : R.D. DHANUKA, J.RESERVED ON   : 5th February 2020\n                             PRONOUNCED ON : 25th February 2020\n\nJudgment :-.               By this First Appeal filed under Section 96 of the Code of\n\nCivil Procedure, 1908, the appellants (original defendants) have\n\nimpugned the judgment and order dated 11 th March 2019 passed in\n\nSpecial     Civil Suit No.1120 of 2016 by 4 th Joint Civil Judge, Senior::: Uploaded on - 25/02/2020                    ::: Downloaded on - 27/02/2020 20:34:41 :::ppn                                   3                            fa-1773.19(j).doc\n\n\nDivision, Pune thereby decreeing the said suit partly which was filed\n\nfor seeking partition and permanent injunction in respect of some of\n\nthe properties. By consent of parties, First Appeal is heard finally at the\n\nadmission stage. The appellants were the original defendants whereas the\n\nrespondents were the original plaintiffs before the Trial Court. Some of\n\nthe relevant facts for the purpose of deciding this First Appeal are as\n\nunder :-2.              The suit properties are comprising of land bearing CTS\n\nNo.1170/22 area 878.16 sq.meter within four boundaries towards east-\n\nCTS No.1170/21 of Mr.Chiplunkar, Joshi, towards south-road, towards\n\nwest-CTS No.1170/23 of Dr.Kinikar and towards north -Government\n\nProperty comprising of building namely Hira Apartment ground plus\n\ntow storied building and Ushashri building consisting of ground and\n\ntwo storied building except first and second floor of Hira Apartment\n\n(hereinafter referred to as "the suit properties").3.              It was the case of the respondents (original plaintiffs) that\n\nthe suit properties were the self-acquired properties of Late Shripad\n\nPandit who was the grand father of the respondents. The suit properties\n\nwere purchased in the name of Late Smt. Usha who was wife of Shripad\n\nPandit and grand mother of the respondents. The said Shripad Pandit\n\nconstructed Ushashri building in the year 1956 out of his own income. He::: Uploaded on - 25/02/2020                    ::: Downloaded on - 27/02/2020 20:34:41 :::ppn                                   4                           fa-1773.19(j).doc\n\n\nalso constructed Hira Apartment and sold the tenaments except ground\n\nfloor under the provisions of Maharashtra Ownership Flats Act, 1970\n\nto Shri Arora, Chitnis and Pandit. The appellants (original defendants)\n\nare the uncles of the respondents (original plaintiffs). The respondents\n\nwere having paternal aunts namely Mrs.Pushpa, Mrs.Hema, Mrs.Leela,\n\nMrs.Anju. Mrs.Pushpa has expired. Father of the respondents Subhash\n\nalso expired in the year 1994. After the death of Subhash, mother of the\n\nrespondents who was the defendant no.4 got remarried. She was however,\n\njoined as party to the suit as one of the legal heirs of Subhash. Late\n\nShripad Pandit died intestate in the year 2006 at the age of 94 and his\n\nwife Usha Pandit predeceased him and died in the year 1999.4.              It was the case of the respondents (original plaintiffs) that\n\nthe said deceased Usha Pandit and Shripad Pandit had four sons and four\n\ndaughters. After demise of deceased Usha Pandit and Shripad Pandit,\n\neach son and daughter had 1/8th share therein. It was the case of the\n\nrespondents that sisters of the appellant nos.1 to 3 (defendant nos.1 to 3)\n\nrelinquished their undivided share in the suit property on 25 th November\n\n2006 by a registered release deed bearing No.7493/2006 and thus had no\n\nright, title and interest of any nature whatsoever in the suit property.5.              On 2nd September 2016, the respondent nos.1 to 3 filed\n\nSpecial Civil Suit no.1120 of 2016 in the Court of Joint Civil Judge,::: Uploaded on - 25/02/2020                   ::: Downloaded on - 27/02/2020 20:34:41 :::ppn                                          5                         fa-1773.19(j).doc\n\n\nSenior Division, Pune for partition, separate possession of their 1/4th\n\nshare in the suit property and permanent injunction and mense profit.6.              On 20th December 2016 and 5th April 2017, the appellant\n\nnos.1 and 2 filed their written statements before the Trial Court. The\n\nappellant no.3 died during the pendency of the suit. His legal heirs\n\nwere accordingly brought on record who adopted written statement filed\n\nby the appellant no.1.               The suit proceeded   ex parte       against      the\n\nrespondent no.4. The appellant nos.1 to 3 admitted the relation between\n\nthe parties and contentions raised in paragraphs 4 to 6 of the plaint and\n\ndenied the rest of the contentions of the plaint. It was further contended\n\nby the appellant nos.1 to 3 that sisters of the appellant nos.1 to 3\n\nrelinquished their right, title and interest in the suit property in favour of\n\nthe appellant nos.1 to 3 and thus the respondents were not entitled to\n\n1/4th share in the suit property.7.              Trial Court framed six issues for determination. Both the\n\nparties led oral and documentary evidence. On 11 th March 2019, after\n\nhearing both the parties, learned trial Judge allowed the said suit and\n\ndeclared that the appellants and the respondent nos.1 to 3 were having\n\n1/4th share each in units/apartments reserved for their joint family i.e.\n\nground floor, first floor and second floor of old building and ground floor\n\nof new building situated at CTS No.1170/22, Shivajinagar, Pune. It was::: Uploaded on - 25/02/2020                        ::: Downloaded on - 27/02/2020 20:34:41 :::ppn                                  6                           fa-1773.19(j).doc\n\n\nfurther held that the respondent nos.1 to 3 (original plaintiffs) are entitled\n\nfor partition, separate possession of their 1/4th share in the suit property.\n\nTrial Court also restrained the appellants permanently from creating\n\nthird party interest to the extent of 1/4th share of the respondent nos.1\n\nto 3 in the suit property and directed that partition of 1/4th share of the\n\nrespondent nos.1 to 3 be effected by appointing Court Commissioner\n\nand separate possession of their share be given to them. Being aggrieved\n\nby the said judgment and decree dated 11th March 2019, the appellants\n\nfiled this First Appeal.8.              Mr.Agrawal, learned counsel for the appellants                filed\n\ncompilation of documents comprising of pleadings/documents and\n\nevidence led by the parties before the trial Court. Learned counsel invited\n\nmy attention to some of the averments made in the plaint, written\n\nstatements and the oral evidence led by the respondent no.2 Shri Kedar\n\nSubhash Pandit. Learned counsel also invited my attention to Genealogy\n\nof Shripad Pandit who died on 7th November 2006 leaving behind his\n\nlegal heirs and representatives. His wife predeceased him and died in the\n\nyear 1999. He had four sons and four daughters. Son Subhash died in\n\nthe year 1994 and predeceased the said Shripad Pandit. Subhash left\n\nbehind his wife Urmila Kulkarni and three children who were the original\n\nplaintiffs. Shri Shirish Pandit was the original defendant no.3 and died\n\nleaving behind his wife Chitra and two sons who were impleaded as::: Uploaded on - 25/02/2020                  ::: Downloaded on - 27/02/2020 20:34:41 :::ppn                                      7                         fa-1773.19(j).doc\n\n\nparty-defendant nos.3A, 3B and 3C. It is not in dispute that the daughters\n\nof the said deceased Shri Shripad Pandit namely Pushpa, Leela, Hema\n\nand Anju executed a Release Deed on 25 th November 2006 in favour\n\nof the appellant nos.1 to 3.9.               It is submitted by the learned counsel that since those four\n\nsisters of the appellant nos.1 to 3 had executed the said Release Deed\n\nrelinquishing their 1/4th share each in favour of the appellants, the\n\nappellants become entitled to 7/8th share in the suit property. The\n\nrespondent nos.1 to 3 were thus entitled to remaining 1/8th share in the\n\nsuit property. Trial Court however, has held that the appellants and the\n\nrespondent nos.1 to 3 having 1/4th             share each in units/apartments\n\nreserved for their joint family and further held that the respondent nos.1\n\nto 3 (original plaintiffs) were entitled to partition, separate possession\n\nof their 1/4th share in the suit property.10.              Learned counsel for the appellants placed reliance on the\n\nfollowing judgments :-i)      Judgment of Supreme Court in the case of Thamma Venkata\n\nSubbamma Vs. Thamma Rattamma, AIR 1987 SC 1775;ii)     Judgment          of     Andhra Pradesh High Court in the case of\n\nM.Krishna Rao and Anr. Vs. M.L.Narasikha Rao & Ors., AIR 2003\n\n(AP) 498;iii)    Judgment of L. Sundaram and Ravichandran Vs. Lakshmanana::: Uploaded on - 25/02/2020                   ::: Downloaded on - 27/02/2020 20:34:41 :::ppn                                     8                        fa-1773.19(j).doc\n\n\n(died), L.Sadagopal & Ors., 2003 (1) Mh.LJ. 195;\n\niv)     Judgment of Supreme Court in the case of State of MaharashtraVs. Narayan Rao Sham Rao Deshmukh & Ors., (1985) 2 SCC 321;v)      Judgment         of    Supreme Court in the case of Mangammal @\n\nThulasi & Anr. Vs.T.B. Raju & Ors., 2018 (4) ALL MR 941 (SC);vi)     Judgment of Supreme Court in the case of Cherotte Sugathan\n\n(died) through Lrs. & Ors. Vs. Cherotte Bharathi & Ors., 2008 (3)\n\nALL MR 829;vii)    Judgment of this Court in the case of Sanjay Purshottam\n\nPatankar Vs. Smt.Prjakta Pramod Patil, 2015(5) ALL MR 570;viii) Judgment of Madras High Court in the case of Shanmugham &\n\nOrs. Vs. Saraswathi & Ors., AIR 1997 Madras 226;ix)     Judgment of Andhra Pradesh High Court in the case of Nalla\n\nVenkateshwarlu Vs. Porise Pullamma and Anr., AIR 1994 Andhra\n\nPradesh 87;x)      Unreported judgment of this Court delivered on 14 th August 2018\n\nin the case of Kishore Tulshiram Mantrim Vs. Dilip Jank Mantri &\n\nOrs. in Second Appeal No.374 of 2018;xi)     Judgment of Punjab and Haryana High Court in the case of\n\nSuraj Kaur & Ors. Vs. Ved Prakash and Ors., 2019 (4) R.C.R. (Civil)\n\n661;xii)    Judgment of Supreme Court in the case of Arshnoor Singh Vs.\n\nHarpal Kaur & Ors., 2019 ALL SCR 1982.::: Uploaded on - 25/02/2020                 ::: Downloaded on - 27/02/2020 20:34:41 :::ppn                                      9                         fa-1773.19(j).doc11.             Learned counsel invited my attention to the issues framed\n\nby the Trial Court and also to the order dated 11 th March 2019 passed\n\nby the learned Trial Judge below Exhibit-A in Special Civil Suit No.1120\n\nof 2016 and would submit that both the parties had agreed before the\n\nlearned trial Judge           that the suit properties were not the ancestral\n\nproperties of the appellants and the respondents. Learned Trial Judge has\n\naccordingly recast the issue no.1 i.e. "Does suit property is inherited by\n\nthe plaintiffs and defendants ?"12.             Learned counsel for the appellants invited my attention to\n\nthe findings rendered by the learned trial Judge in paragraph 16 of the\n\nimpugned judgment and decree and would submit that the learned trial\n\nJudge has erroneously proceeded on the premise that the suit properties\n\nwhich were subject matter of the Release Deed executed by the four\n\nsisters in favour of the appellants were co-parcenary properties and the\n\nparties were the co-parceners though all the parties had admitted before\n\nthe trial Court that the properties were not ancestral properties of the\n\nparties.13.             It is submitted by the learned counsel that the entire\n\njudgment and decree holding that the respondent nos.1 to 3 (original\n\nplaintiffs) would be entitled to 1/4th share is ex facie perverse and\n\ncontrary to various judgments delivered by the Supreme Court and this::: Uploaded on - 25/02/2020                    ::: Downloaded on - 27/02/2020 20:34:41 :::ppn                                        10                         fa-1773.19(j).doc\n\n\nCourt relied upon by the learned counsel. It is submitted by the learned\n\ncounsel that since the suit properties were not the ancestral properties,\n\nDeed of Release executed by four daughters were not in favour of the\n\njoint family but was exclusively in favour of the appellants. The other\n\nfamily members thus would not be entitled to the benefit of the said\n\nRelease Deed made by the sisters in favour of the appellants. He submits\n\nthat renunciation of the share of the sisters thus could not be for the\n\nbenefit of all other members of the family and thus the share of the sisters\n\nwould not be distributed amongst all the family members.14.             It is submitted by the learned counsel that the trial Court has\n\ntotally misinterpreted and wrongly applied the principles laid down by\n\nthe Andhra Pradesh High Court in the case of M.Krishna Rao and Anr.\n\nVs. M.L.Narasikha Rao & Ors. (supra) wherein it has been held that\n\nRelease Deed made in favour of some of co-parceners would enure to\n\nbenefit of all other co-parceners and not only in favour of those co-\n\nparceners in whose favour release deed was made. It is submitted by the\n\nlearned counsel that the trial Court also misinterpreted and wrongly\n\napplied the ratio enumerated by the Madras High Court in the case of L.\n\nSundaram and Ravichandran Vs. Lakshmanana (died), L.Sadagopal\n\n& Ors.,(supra) wherein               it has been held that in the Release Deed\n\nexecuted releasing interest in the suit property in favour of some of co-\n\nparceners, such release by any co-parcener could be in favour of co-::: Uploaded on - 25/02/2020                      ::: Downloaded on - 27/02/2020 20:34:41 :::ppn                                  11                           fa-1773.19(j).doc\n\n\nparcener as body and not in favour of one or more of them.15.             It is submitted by the learned counsel that a Hindu co-\n\nparcenary is a narrower body than the joint family. Only males who\n\nacquire by birth an interest in the joint or co-parcenary property can be\n\nmembers of the co-parcenary or co-parceners. Male members of a joint\n\nfamily of his sons, grandson and great grandsons constitute a co-parcener\n\nwho acquire right in the co-parcenary property by birth but his rights can\n\nbe definitely ascertained only when a partition takes place. When the\n\nfamily is joint, the extent share of a co-parcener cannot be definitely\n\npredicated since it is always capable of fluctuating. Such share would\n\nincrease by the death of a co-parcener and decreases on the birth of co-\n\nparcener.16.             It is submitted by the learned counsel that a joint family,\n\nhowever, may consist of female members. It may consist of male\n\nmember, his wife, his mother and unmarried daughters. The property of\n\na joint family does not cease to belong to the family merely because there\n\nis only a single male member in family. A joint family may consist of a\n\nsingle male member and his wife and daughter. It is not necessary that\n\nthere should be two male members to constitute a joint family.17.             Learned counsel for the appellants strongly placed reliance::: Uploaded on - 25/02/2020                  ::: Downloaded on - 27/02/2020 20:34:41 :::ppn                                         12                          fa-1773.19(j).doc\n\n\non the judgment of the Supreme Court in the case of Mangammal @\n\nThulasi & Anr. Vs.T.B. Raju & Ors., (supra) and would submit that\n\nany property inherited upto four generations of male lineage from\n\nfather, father's father or father's father's father i.e. father, grand father\n\netc. is termed as ancestral property. It is submitted that the entire property\n\nis held upto four generations of male members constitutes a co-parcenary\n\nproperty. He submits that in this case, none of these conditions were\n\nsatisfied by the respondent nos.1 to 3 to consitute the suit property as\n\nco-parcenary property.18.             Mr.Deo, learned counsel for the respondent nos.1 to 3, on\n\nthe other hand, does not dispute that Shri Shripad Pandit expired on 7 th\n\nNovember 2006 leaving behind four sons and four daughters.                            He\n\nsubmits that the suit properties were the self-acquired property of the\n\nsaid deceased Shri Shripad Pandit. He does not dispute that the said\n\nRelease Deed dated 25th November 2006 was executed by four daughters\n\nof Shripad Pandit i.e. Pushpa, Leela, Hema and Anju in favour of the\n\nappellants relinquishing             their 1/4th share    each in favour of the\n\nappellants.      Learned counsel fairly invited my attention to Clause 1 of\n\nthe said Release Deed which was duly registered and would submit that\n\nby the said Release Deed, those four sisters had released, relinquished,\n\nsurrendered and transferred             their undivided   share in favour of the\n\nappellants exclusively.::: Uploaded on - 25/02/2020                        ::: Downloaded on - 27/02/2020 20:34:41 :::ppn                                   13                          fa-1773.19(j).doc19.             Learned counsel for the respondent nos.1 to 3 did not deny\n\nthat the suit properties were not the ancestral properties and that the\n\nparties had jointly made a statement before the trial Court on 11 th March\n\n2019 that the suit properties were not ancestral properties of the parties.\n\nHe submits that the trial Court had accordingly recast the issue no.1.\n\nLearned counsel for the respondent nos.1 to 3 could not distinguish the\n\njudgments relied upon by Mr.Agrawal, learned counsel for the appellants.REASONS AND CONCLUSIONS :-20.             It is not in dispute that suit properties were self-acquired\n\nproperties of the said Shri Shripad Pandit who was the father of four sons\n\nviz. Subhash, Shashikant, Sharad, Shirish and four daughters viz.Pushpa,\n\nLeela, Hema and Anju. Subhash predeceased his father Shripad Pandit\n\nand died in the year 1994. It is also not in dispute that parties jointly\n\nhad made a statement before the Trial Court on 11 th March 2019 that the\n\nsuit properties were not the ancestral properties of the parties to the suit.\n\nTrial Court had accordingly recast the issue no.1 which reads as under : -\n\n "Does suit property is inherited by the plaintiffs and defendants ?"Trial Court recorded a finding on the said issue no.1 in affirmative.21.             A perusal of the judgment and decree passed by the trial\n\nCourt indicates that the trial Court though had rendered a finding that\n\nthe suit properties were inherited by the parties had rendered perverse::: Uploaded on - 25/02/2020                  ::: Downloaded on - 27/02/2020 20:34:41 :::ppn                                   14                          fa-1773.19(j).doc\n\n\nfinding that the suit properties were co-parcenary properties and Release\n\nDeed executed by the sisters of the appellants were for the benefit of all\n\nthe members of the family and not only the appellants. There was no\n\ndispute about the execution of the said Release Deed which was produced\n\non record by the appellants.22.             Learned trial Judge strongly placed reliance on the judgment\n\nof the Andhra Pradesh High Court in the case of M.Krishna Rao and\n\nAnr. Vs. M.L.Narasikha Rao & Ors.(supra) & L. Sundaram and\n\nRavichandran Vs.Lakshmanana (died), L.Sadagopal & Ors. (supra)\n\nand has held that relinquishment of the right and interest by the daughters\n\nof Shri Shripad Pandit and Usha was in favour of the entire family and\n\nnot in favour of the appellants only. Trial Court accordingly held that the\n\nrespondent nos.1 to 3 were entitled for equal share i.e. 1/4th share each in\n\nthe family unit reserved for the family of the appellants and the\n\nrespondent nos.1 to 3. Mr.Deo, learned counsel for the respondent nos.1\n\nto 3 could not support the said finding rendered by the trial Court and\n\ncould not dispute before this Court that the suit properties were self-\n\nacquired properties of Shripad Pandit. A perusal of the record indicates\n\nthat the learned trial Judge erroneously proceeded on the premise that\n\nthe Deed of Release by four daughters of Shripad Pandit in favour of the\n\nappellants were co-parcenary properties and not his self-acquired\n\nproperties.::: Uploaded on - 25/02/2020                  ::: Downloaded on - 27/02/2020 20:34:41 :::ppn                                  15                         fa-1773.19(j).doc23.             Supreme Court in case of Thamma Venkata Subbamma\n\n(supra) has adverted to a passage from Mulla's Hindu Law Fifth Edition,Article 264i.e. "Renunciation or relinquishment of his share" with\n\napproval and has held that a renunciation in favour of one of the\n\ncoparcener by another is for the benefit of all other coparceners and not\n\nfor the sole benefit of the coparcener in whose favour the renunciation\n\nwas made. It is thus clear that the principles laid down by the Supreme\n\nCourt in the said judgment would apply only if the renunciation in respect\n\nof the coparcenary property is made by one of the coparceners in favour\n\nof another which would enure for the benefit of all other coparceners and\n\nnot for the sole benefit of the coparceners or coparceners in whose favour\n\nthe renunciation is made. In this case, the suit properties were admittedly\n\nnot coparcenary properties nor the parties were coparceners. Andhra\n\nPradesh High Court in case of M. Krishna Rao and Anr. (supra) and\n\nHigh Court in case of L. Sundaram and Ravichandran (supra) has taken\n\nthe similar view.24.             Supreme Court in case of State of Maharashtra v/s.\n\nNarayan Rao Sham Rao Deshmukh and Ors. (supra) has held that a\n\njoint family may consist of female members, it may consist of a male\n\nmember, his wife, his mother and his unmarried daughters. The property\n\nof a joint family does not cease to belong to the joint family merely::: Uploaded on - 25/02/2020                ::: Downloaded on - 27/02/2020 20:34:41 :::ppn                                  16                           fa-1773.19(j).doc\n\n\nbecause there is only a single male member in the family. A Hindu\n\ncoparcenary is however, a narrower body than the joint family. Only\n\nmales who acquire by birth an interest in the joint or coparcenary\n\nproperty can be members of the coparcenary or coparceners. A male\n\nmember of a joint family and his sons, grandsons and great grandsons\n\nconstitute a coparcenary.25.             Supreme Court in case of Mangammal @ Thulasi and Anr.\n\n(supra) has held that any property inherited upto four generations of male\n\nlineage from father, father's father or father's father's father i.e. father,\n\ngrand father etc. is termed as ancestral property. A perusal of the\n\ngenealogy of Shripad Pandit produced on record does not indicate that the\n\nparties to the proceedings are members of the coparceners. They also did\n\nnot fall under four generations. Suit properties thus even otherwise cannot\n\nbe considered as ancestral properties. The principles of law laid down by\n\nthe Supreme Court in case of State of Maharashtra v/s. Narayan Rao\n\nSham Rao Deshmukh and Ors. (supra) and in case of Mangammal @\n\nThulasi and Anr. (supra) squarely apply to the facts of this case.26.             This Court in case of Kishore Tulshiram Mantrim (supra)\n\nafter adverting to the judgment of Supreme Court in case of Thamma\n\nVenkata Subbamma (supra) has held that if the properties are self-::: Uploaded on - 25/02/2020                  ::: Downloaded on - 27/02/2020 20:34:41 :::ppn                                  17                           fa-1773.19(j).doc\n\n\nacquired and not the ancestral coparcenary properties, would acquire on\n\nthe death of such person in self-acquired property, they will devolve\n\nequally on all his legal heirs and therefore some of the legal heirs can\n\ndefinitely relinquish their share in favour of another legal heir and it\n\nshould not be necessarily in favour of whole body. In my view, the\n\nprinciples of law laid down by the Supreme Court in the said judgment\n\nwould squarely apply to the facts of this case. Since, the suit properties\n\nwere self-acquired properties of the deceased Shripad Pandit, all the legal\n\nheirs of the said deceased were entitled to equal share including the four\n\ndaughters of the said deceased who were sisters of the appellants. The\n\ndaughters of the said deceased thus were free to relinquish their\n\nundivided share in the suit property in favour of the other legal heirs of\n\nthe said deceased exclusively.27.             In my view, such relinquishment of properties inherited by\n\nthe legal heirs of the person whose properties were self-acquired\n\nproperties would not enure for the benefit of all the legal heirs of the said\n\ndeceased but would enure only for those persons in whose favour such\n\ndeed of relinquishment/release was executed. The principles applicable to\n\nthe relinquishment of undivided share by coparceners in favour of another\n\ncoparcener in respect of ancestral property which relinquishment would\n\nenure for the benefit of all the coparceners would not apply in case of the::: Uploaded on - 25/02/2020                  ::: Downloaded on - 27/02/2020 20:34:41 :::ppn                                  18                           fa-1773.19(j).doc\n\n\nproperties inherited by legal heirs which were self-acquired properties of\n\nthe deceased. In my view, the learned Trial Judge erroneously applied the\n\nprinciples applicable to relinquishment of undivided share by a\n\ncoparcener in favour of another coparcener to the properties inherited by\n\nthe legal heirs of a deceased whose properties were self-acquired.28.             In my view, since the suit properties were not inherited by\n\nthe four generations of male lineage from father, father's father or father's\n\nfather's father i.e. father, grand father, the properties even otherwise\n\ncould not have been termed as ancestral property. The finding of the Trial\n\nCourt that though deed of relinquishment was executed by the four\n\ndaughters of the said deceased though in favour of the appellants, same\n\nwould act for the benefit of all the coparceners is ex-facie perverse and\n\ncontrary to the principles of law laid down by the Supreme Court and this\n\nCourt. Supreme Court in case of Arshnoor Singh (supra) has quoted a\n\npassage from Mulla in his commentary on Hindu Law (22nd Edition) at\n\npage 129 with approval stating the position with respect to succession\n\nunder Mitakshara and has held that after theHindu Succession Act, 1956\n\ncame into force, if a person inherits a self-acquired property from his\n\npaternal ancestral, the said property becomes self-acquired property and\n\ndoes not remain coparcenary property. Principles laid down by the\n\nSupreme Court in the said judgment would apply to the facts of this case.::: Uploaded on - 25/02/2020                  ::: Downloaded on - 27/02/2020 20:34:41 :::ppn                                    19                          fa-1773.19(j).doc29.             A perusal of the release deed which was produced on record\n\nin evidence executed by the four daughters of the said deceased i.e.\n\nPushpalata, Bharti, Hemlata and Varsha clearly shows that they had\n\nreleased all their undivided share right, title and interest in the suit\n\nproperty in favour of the appellant exclusively. Learned counsel for the\n\nrespondent nos.1 to 3 could not dispute this position. In my view, the\n\nrespondent nos. 1 to 3 thus would be entitled to only 1/8 th share in the suit\n\nproperty and not 1/4th share as erroneously held by the learned Trial\n\nJudge. The appellants would be entitled to remaining 7/8 th share in the\n\nsuit property.30.    I therefore pass the following order :-(a)    Impugned judgment and decree dated 11th March, 2019 passed in\n\nSpecial Civil Suit No. 1120 of 2016 by learned 4 th Joint Civil Judge,\n\nSenior Division, Pune holding that the plaintiff and defendant nos. 1 to 3\n\nare having 1/4th share each in suit property and that the plaintiffs are\n\nentitled for partition, separate possession of their 1/4 th share in the suit\n\nproperty is set aside. The impugned judgment and decree granting\n\npermanent injunction against the appellants (original defendant nos. 1 to3) from creating third party interest to the extent of 1/4 th share of the\n\nplaintiffs in the suit property and the partition of the property in respect of\n\n1/4th share of the plaintiffs is also set aside.::: Uploaded on - 25/02/2020                   ::: Downloaded on - 27/02/2020 20:34:41 :::ppn                                   20                            fa-1773.19(j).doc\n\n\n(b)    It is declared that the plaintiffs would be entitled to 1/8 th sharejointly in the suit property and will be entitled for partition, separate\n\npossession in respect of such undivided 1/8 th share of the suit property\n\nand also for a permanent injunction against the appellants from creating\n\nthird party rights to the extent of 1/8 th share of the plaintiffs in the suit\n\nproperty including prayer for partition in respect of such share. It is\n\ndeclared that the defendant nos.1 to 3 would be entitled to 7/8th share in\n\nthe suit property and for partition in respect of their 7/8th share.(c)    Impugned judgment and decree dated 11th March, 2019 is partly\n\nmodified to aforesaid extent.(d)    First Appeal No. 1773 of 2019 is allowed in aforesaid terms. In\n\nview of the disposal of the First Appeal No. 1773 of 2019, Interim\n\nApplication No.1 of 2019 does not survive and is accordingly disposed\n\noff. No order as to costs.R.D. DHANUKA, J.::: Uploaded on - 25/02/2020                    ::: Downloaded on - 27/02/2020 20:34:41 :::