10-sa-381-2015-casst-33388-2017.doc 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. Padekar(d/h) 1A.1) Anjana T. Padekar and Ors … Respondents 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. DATED : 10th JULY 2026 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 Page no. 1 of 4 varsha VARSHA VIJAY RAJGURU Digitally signed by VARSHA VIJAY RAJGURU Date: 2026.07.14 14:02:42 +0530 10-sa-381-2015-casst-33388-2017.doc 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 Page no. 2 of 4 10-sa-381-2015-casst-33388-2017.doc 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. Page no. 3 of 4 10-sa-381-2015-casst-33388-2017.doc 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.) Page no. 4 of 4