VERDICTUM.

IN
2025:BHC-AUG:23638
1 CRA.119-2025

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CIVIL REVISION APPLICATION NO.119 OF 2025

1. Vishwambhar s/o Namdev Nikam,

Age 56 years, Occu. Agril.,

2. Anant s/o Namdev Nikam,

Age 52 years, Occu. Agril.,
Both R/o Kasarjavla,
Tq. and Dist. Latur. … Applicants.
(Ori. Def. Nos.6 & 7)
Versus

1. Sow. Sunanda w/o Maheshankar Suryawanshi,

Age 45 years, Occu. Household,
R/o. Prakash Nagar, Latur.

2. Prabhavati w/o Sopan Salunke,

Age-70 years, Occu. Household,
R/o. Khuntegaon, Tq. Ausa, Dist. Latur.

3. Rajabai w/o Babru Khedkar,

Age 67 years, Occu. Household,
R/o. Takli (B.), Tq. and Dist. Latur.

4. Sagarbai w/o Uddhav Gavhane,

Age 60 years, Occu. Household,
R/o Palashi, Tq. Renapur. Dist. Latur.

5. Jalasabai w/o Namdev Nikam,

Age 90 years, Occu. Household,
R/o Kasarjavla, Tq, and Dist. Latur.

6. Digambar @ Baburao S/o. Namdev Nikam (died),

Deceased though L.Rs. namely;

6/1) Rajabai w/o Digambar Baburao,

Age-50 years, Occu. Household,

6/2) Vilas S/o. Digambar Baburao,

Age: 23 years, Occu, Education,
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6/3) Sow. Reshma Digambar Baburao,

Age: 45 years, Occu. Household,
R/o. As above.

6/4) Sow. Swati Digambar Baburao,

Age: 42 years, Occu. Household,
(6/1 to 6/4) R/o. Takli, Tq. and Dist. Latur.

7. Pawan s/o Anant Nikam,

Age: 20 years, Occu. Education,
R/o Kasarjavla, Tq. and Dist. Latur.

8. Gunvant S/o. Namdev Nikam (died),

Deceased though L.Rs.,

8/1) Yash s/o Gunvant Nikam,

Age: 19 years, Occu. Education,
R/o Kasarjavla, Tq. and Dist. Latur.

9. Shalubai w/o. Yuvraj Dhok,

Age: 48 years, Occu. Household,
R/o. Saman Darga, Tq. Ausa, Dist. Latur.

10. Sachin s/o Vishwambhar Nikam,

Age: 18 years, Occu. Household,
R/o Kasarjavla, Tq. and Dist. Latur.

11. Nitin s/o Vishwambhar Nikam,

Age: 20 years, Occu. Household,
R/o Kasarjavla, Tq. and Dist. Latur.

12. Murlidhar s/o Jotiba Nikam,

Age: 38 years, Occu. Agri..
R/o Kasarjavla, Tq. and Dist. Latur.

13. Sugrive s/o Jotiba Nikam,

Age: 35 years, Occu. Agri.,
R/o Kasarjavla, Tq. and Dist. Latur. … Respondents.
(Res. No. 1 is ori. Pl. &
R.Nos.2 to 13 ori. Def.)

...
Advocate for Applicants : Mr. Sushant V. Dixit.
Advocate for Respondents : Mr. Swapnil A. Deshmukh.
…
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CORAM : SHAILESH P. BRAHME, J.

RESERVED ON : 25.08.2025
PRONOUNCED ON : 03.09.2025.

JUDGMENT :-

1. Present revision is directed against an order dated

28.02.2023 below Exh.31, refusing to reject plaint under Order

7 Rule 11 of CPC in R.C.S.No.224 of 2022. Applicants are

original defendant Nos.6 and 7. Respondent No.1 is original

plaintiff. Respondent No.2 is her mother who is defendant

No.1. The parties are referred by their original status in the

suit.

2. Respondent No.1/plaintiff has filed R.C.S.No.224 of

2022 for declaration, partition, possession, perpetual

injunction and mesne profit. Namdev Nikam was maternal

grandfather of the plaintiff. Namdev had four daughters and

four sons. His one of the daughters is defendant No.1

Prabhavati, mother of the plaintiff. Namdev and his wife

Jalasabai are no more. The suit lands are undivided joint

family properties of his sons and four daughters. The children

are entitled to 1/8th share. It is contended that plaintiff’s

maternal uncles stopped giving agriculture yield to her mother

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and her 1/8th share is denied. This is the cause of action to file

suit.

3. The plaintiff has claimed following reliefs :

“1. That the plaintiff may kindly be declare as a owner

and possessor the suit land property of awarded 1/2 nd
share in 1/8th share of her mother legal share in the suit
property.

2. That, the plaintiff is entitle to receive mesne profit up

to be extent of her 1/8th share legal share of date festival
Gudipadva of 2021 to till this date.

3. The decree be sent to the collector u/s 54 C.P.C. for

partition and possession.

4. That, the passing of the decree of perpetual injunction

the defendants their servant and anybody through them
kindly be restrain permanently from creating any third
party interest of the suit property till disposal of the suit.

5. That, Any other just and equitable relief may kindly

be granted in favour of plaintiff, for which she is entitle
to.”

4. Applicants and other defendants submitted application

Exh.31 under Order 7 Rule 11 contending that plaintiff being

granddaughter is not entitled to maintain a suit for partition

and claim any share when her mother defendant No.1 is alive

and she is not claiming any partition. The plaintiff has also not
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challenged the alienation made by the defendants. Such a suit

is not maintainable. Plaintiff did not file say to the application.

By impugned order, application Exh.31 was rejected.

5. Learned counsel would submit that plaintiff is not a

coparcener having any birth right. It’s a case of obstructed

heritage and therefore such a suit would not lie. It is further

submitted that defendant No.1 has not claimed any share or

partition. The suit is premature and cannot be entertained. It

is further submitted that there is no cause of action and

whichever is shown is illusory. It is submitted that learned

Trial Judge committed patent illegality in holding that unless

there is a full-fledged trial, the issue raised by the present

applicants cannot be decided and serious injustice would be

caused.

6. Per contra, learned counsel Mr. Swapnil Deshmukh

supports impugned order. It is submitted that as per Section 6,

the plaintiff is the coparcener. He would submit that if all

prayers in the plaint are considered then suit is maintainable.

It is further submitted that the defendants are not giving share

to plaintiff’s mother and creating third party interest is

sufficient to institute the suit.

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6 CRA.119-2025

7. I have considered rival submissions of the parties. I have

gone through plaint which is the only document pressed into

service by both the parties to decide application filed under

Order 7 Rule 11. Undisputedly, suit lands are ancestral

properties of Namdev who was having four daughters and four

sons. Plaintiff’s mother Prabhavati is one of the daughters who

is alive and who is shown to be defendant No.1. Plaintiff is

claiming half share in 1/8th share allottable to her mother. The

prayers of mesne profit and separate possession of the share

are consequential. The prayer of perpetual injunction is

coached in a fashion of interlocutory prayer.

8. Plaintiff is claiming share in the joint family property of

her maternal side. The suit lands are joint family properties of

her maternal grandfather, mother, maternal side aunts and

uncles. It is necessary to examine as to whether the plaintiff is

member of coparcenary and the suit lands are coparcenary

properties. As per amended Section 6 of The Hindu Succession

Act, 1956, a daughter is given a birth right and she is at par

with son. In the present matter, plaintiff’s mother Prabhavati

can be said to have a birth right, but she has not filed suit for

partition and separate possession. She has not made any

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grievance that she has been denied her share in the joint family

property.

9. It is necessary to consider Section 6 (1)

“6. Devolution of interest in coparcenary property. ―(1) On

and from the commencement of the Hindu Succession
(Amendment) Act, 2005 (39 of 2005), in a Joint Hindu family
governed by the Mitakshara law, the daughter of a coparcener
shall,―

(a) by birth become a coparcener in her own right the same

manner as the son;

(b) have the same rights in the coparcenery property as she

would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said

coparcenery property as that of a son, and any reference to a
Hindu Mitakshara coparcener shall be deemed to include a
reference to a daughter of a coparcener.”

10. As per Section 6(1)(a), a daughter only can become a

coparcener in her own right in the same manner as the son.

Plaintiff is the granddaughter and she is not placed at par with

daughter. As per clause (b), a daughter is given same right in

the coparcenary property. The concept of coparcenary is made

clear by many decisions and lastly by the authoritative

pronouncement in the matter of Vineeta Sharma Vs. Rakesh

Sharma ; (2020) 9 SCC 1. Following extracts are relevant.

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“24. Coparcenary property is the one which is inherited

by a Hindu from his father, grandfather, or great
grandfather. Property inherited from others is held in his
rights and cannot be treated as forming part of the
coparcenary. The property in coparcenary is held as joint
owners.

25. Coparcener heirs get right by birth. Another method

to be a coparcener is by way of adoption. As earlier, a
woman could not be a coparcener, but she could still be a
joint family member. By substituted section 6 with effect
from 9.9.2005 daughters are recognised as coparceners in
their rights, by birth in the family like a son. Coparcenary
is the creation of law. Only a coparcener has a right to
demand partition. Test is if a person can demand a
partition, he is a coparcener not otherwise. Great great-
grandson cannot demand a partition as he is not a
coparcener. In a case out of three male descendants, one
or other has died, the last holder, even a fifth descendant,
can claim partition. In case they are alive, he is excluded.

26. For interpreting the provision of section 6, it is

necessary to ponder how coparcenary is formed. The
basic concept of coparcenary is based upon common
ownership by coparceners. When it remains undivided,
the share of the coparcener is not certain. Nobody can
claim with precision the extent of his right in the
undivided property. Coparcener cannot claim any precise
share as the interest in coparcenary is fluctuating. It
increases and diminishes by death and birth in the family.

27. In Sunil Kumar & Anr. v. Ram Parkash & Ors., (1988)
2 SCC 77, the Court discussed essential features of
coparcenary of birth and sapindaship thus:
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“17. Those who are of individualistic attitude and separate

ownership may find it hard to understand the significance of a
Hindu joint family and joint property. But it is there from the
ancient time perhaps, as a social necessity. A Hindu joint
family consists of male members descended lineally from a
common male ancestor, together with their mothers, wives or
widows and unmarried daughters. They are bound together by
the fundamental principle of sapindaship or family
relationship, which is the essential feature of the institution.
The cord that knits the members of the family is not property
but the relationship of one another.

18. The coparcenary consists of only those persons who have

taken by birth an interest in the property of the holder and
who can enforce a partition whenever they like. It is a
narrower body than a joint family. It commences with a
common ancestor and includes a holder of joint property and
only those males in his male line who are not removed from
him by more than three degrees. The reason why
coparcenership is so limited is to be found in the tenet of the
Hindu religion that only male descendants up to three degrees
can offer spiritual ministration to an ancestor. Only males can
be coparceners.

11. Thus, in the present matter, suit lands cannot be said to

be coparcenary property of the plaintiff. Those are coparcenary

property of her mother defendant No.1. But mother is not

coming forward claiming partition. Therefore, learned counsel

Mr. Dixit is right in contending that plaintiff cannot claim

partition. She is not coparcener and suit lands are not the

coparcenary properties.

12. My attention is also adverted to concept of unobstructed

and obstructed heritage which are again explained by Supreme

Court in Vineeta Sharma’s judgment. Relevant extract is

paragraph No.48.
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“48. In Mitakshara coparcenary, there is unobstructed

heritage i.e. apratibandha daya and obstructed heritage
i.e. sapratibandha daya. When right is created by birth, it
is called unobstructed heritage. At the same time, the
birthright is acquired in the property of the father,
grandfather, or great-grandfather. In case a coparcener
dies without leaving a male issue, right is acquired not by
birth, but by virtue of there being no male issue, it is
called obstructed heritage. It is obstructed because the
accrual of right to it is obstructed by the owner's
existence. It is only on his death that obstructed heritage
takes place. Mulla on Hindu Law has discussed the
concept thus:

"216. Obstructed and unobstructed heritage.

Mitakshara divides property into two classes, namely,
apratibandha daya or unobstructed heritage, and
sapratibandha daya or obstructed heritage.
(1) Property in which a person acquires an
interest by birth is called unobstructed heritage, because
the accrual of the right to it is not obstructed by the
existence of the owner.
Thus, property inherited by a Hindu from his
father, father's father, or father's father's father, but not
from his maternal grandfather, is unobstructed heritage
as regards his own male issue i.e. his son, grandson, and
great-grandson.61 His male issues acquire an interest in
it from the moment of their birth. Their right to it arises
from the mere fact of their birth in the family, and they
become coparceners with their paternal ancestor in such
property immediately on their birth, and in such cases
ancestral property is unobstructed heritage.
Property, the right to which accrues not by birth
but on the death of the last owner without leaving a
male issue, is called obstructed heritage. It is called
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obstructed, because the accrual of right to it is

obstructed by the existence of the owner.
Thus, property which devolves on parents,
brothers, nephews, uncles, etc. upon the death of the
last owner, is obstructed heritage. These relations do not
take a vested interest in the property by birth. Their
right to it arises for the first time on the death of the
owner. Until then, they have a mere spes successionis,
or a bare chance of succession to the property,
contingent upon their surviving the owner.
(2) Unobstructed heritage devolves by
survivorship: obstructed heritage, by succession. There
are, however, some cases in which obstructed heritage is
also passed by survivorship.”

13. The plaintiff has not acquired any birth right. Therefore,

there is no unobstructed heritage. She is not lineal descendant

of paternal ancestor. She is claiming partition of the lands of

maternal grandfather. It’s a case of obstructed heritage.

14. The reliance is placed on the judgment of privy council

in the matter of Muhammad Husain Khan and others Vs.

Kishva Nandan Sahai ; AIR 1937 PC 233 . In that case, one

Ganesh Prasad was the propositus. He was owner of landed

properties and he was survived by son Bindeshri Prasad and

daughter-in-law Giri Bala. Bindeshri Prasad had suffered

money decree at the instance of creditor and the properties

attached were sold in auction. He died and was survived by his

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wife. The sale was challenged by Giri Bala. A defence was

taken that she became owner being legatee under a Will

executed by Ganesh Prasad during his lifetime. The question

was as to whether the Will was valid or not. It was challenged

on the ground that testator had no authority to dispose of the

property because the suit properties were inherited by testator

from his maternal grandfather Jadu Ram. The following are

the relevant paragraph.

“The rule of Hindu law is well settled that the property

which a man Inherits from any of his three immediate
paternal ancestors, namely, his father, father's father and
father's father's father, is ancestral property as regards his
male issue, and his son acquhes jointly with him an
interest in it by birth. Such property is held by him in
coparcenary with his male issue, and the doctrine of
survivorship applies to it. But the question raised by this
appeal is whether the son acquires by birth an interest
jointly with his father in the estate which the latter
inherits from his maternal grandfather. Now,
Vijnanesvara, the author of Mitakshara, expressly limits
such right by birth to an estate which is paternal or
grand-paternal. It is true that Colebrooke's translation of
the 27th sloka of the first section of the first chapter of
Mitakshara, which deals with inheritance, is as follows: "It
is a settled point that property in the paternal or ancestral
estate is by birth." But Colebrooke apparently used the
word "ancestral" to denote grand-paternal, and did not
intend to mean that in the estate which devolves upon a
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person from his male ancestor in the maternal line his son
acquires an interest by birth. The original text of the
Mitakshara shows that the word used by Vijnanesvara,
which has been translated by Colebrooke as "ancestral", is
paitamaha which means belonging to pitamaha. Now,
pitamaha ordinarily means father's father, and, though it
is sometimes used to include any paternal male ancestor
of the father, it does not mean a maternal male ancestor.

Indeed, there are other passages in Mitakshara

which show that it is the property of the paternal
grandfather in which the son acquires by birth an interest
jointly with, and equal to that of, his father. For instance,
In the 5th sloka of the fifth section of the first chapter, it is
laid down that in the property "which was acquired by the
paternal grandfather the ownership of father and son is
notorious; and, therefore, partition does take place. For,
or because, the right is equal, or alike, therefore, partition
is not restricted to be made by the father's choice, nor has
he a double share. Now, this is the translation of the sloka
by Colebrooke himself, and it is significant that the
Sanskrit word, which is translated by him as "paternal
grandfather", is pitamaha. There can, therefore, be no
doubt that the expression "ancestral estate" used by
Colebrooke in translating the 27th sloka of the first
section of the first chapter was intended to mean grand-
paternal estate. The word "ancestor" in its ordinary
meaning includes an ascendant in the maternal, as well as
the paternal, line; but the "ancestral" estate, in which,
under the Hindu law, a son acquires jointly with his father
an interest by birth, must be confined, as shown by the
original text of the Mitakshara, to the property
descending to the father from his male ancestor in the
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male line. The expression has sometimes been used in its

ordinary sense, and that use has been the cause of
misunderstanding.

The estate which was inherited by Ganesh Prasad

from his maternal grandfather cannot, in their Lordships'
opinion, be held to be ancestral property in which his son
had an interest jointly with him. Ganesh Prasad
consequently had full power of disposal over that estate,
and the devise made by him in favour of his daughter-in-
law, Giri Bala, could not be challenged by his son or any
other person. On the death of her husband, the devise in
her favour came into operation and she became the
absolute owner of the village Kalinjar Tirhati, as of the
remaining estate; and the sale of that village in execution
proceedings against her husband could not adversely
affect her title.

For the reasons above stated, their Lordships are of

opinion that the decree of the High Court should be
affirmed, and this appeal should be dismissed with costs.
They-will humbly advise His Majesty accordingly.”

15. It is held that the estate was inherited from maternal

grandfather and that was not ancestral property in which

Bindeshri Prasad could have any interest jointly. It is clear from

the above observations that if the property is inherited from

the paternal side then and then only it can be treated to be

ancestral property giving birth right to son or daughter. The

same ratio can be made applicable in the present case. It is

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rightly submitted by learned counsel Mr. Dixit that plaintiff

does not have any interest as long as her mother is alive and

she does not claim any partition or share in the property of her

father.

16. Learned counsel for the respondents relied on the

judgment of Uttam Vs. Saubhag Singh and others ; (2016) 4

Supreme Court Cases 68. My attention is adverted to

paragraph No.14. The facts are distinguishable. It was not a

case of the property of the maternal grandfather, rather

property of propositus Jagannath Singh is ancestral property

on paternal side. No reliance can be placed on the judgment.

17. The cause of action shown in the plaint is denial of share

to plaintiff’s mother and plaintiff herself. Her mother is not the

plaintiff. During lifetime of mother, plaintiff cannot claim any

partition. It is incomprehensible as to why her mother is unable

to file suit for partition and possession. Therefore, it’s a case of

no cause of action. Plaintiff has no locus standi to file suit. The

cause of action shown in the plaint especially in paragraph

Nos.5, 6 and 7 is illusory. It’s a fit case to exercise power under

Order 7 Rule 11 of CPC. The suit is likely to consume time of

the Court. The bar of law is camouflaged by devious and clever

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drafting of a plaint. I am of the considered view that learned

Trial Judge committed grave error of jurisdiction in rejecting

the suit.

18. Another facet of the matter is that by implication of

Section 14 of the Act, the plaintiff’s mother defendant No.1

will become absolute owner of the property once she is allotted

a share in the property. Being absolute owner, the share or

estate will be at her disposal. If she dies intestate then only

plaintiff will have half share in her estate. Due to Section 14,

the plaintiff cannot be said to have any vested right or interest

in the property or share allottable to her mother. In such

circumstances, permitting the Trial Court to proceed with the

suit would be exercise in futility.

19. The Trial Judge has not dealt with the above aspects of

the matter and failed to exercise jurisdiction vested with it.

Impugned order is unsustainable. I, therefore, pass following

order :

ORDER

(i) Civil Revision Application is allowed and order dated

28.02.2023 passed by 6th Joint Civil Judge Junior

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Division, Latur below Exh.31 in R.C.S. No.224 of

2022 is quashed and set aside.

(ii) Application Exh.31 stands allowed and plaint in

R.C.S. No.224 of 2022 stands rejected.

(SHAILESH P. BRAHME, J.)

...

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