SA 192 of 2022 - Judgment.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR SECOND APPEAL NO.192/2022 APPELLANTS : 1. SHRI. DHANARAJ S/o SHALIKRAM MOHARKAR, (Org. Defendant Aged about 53 years, Occupation - No.3) Service, R/o Shitalwadi, Post – K. K. Nagar, (as per R.A.) Tahsil – Ramtek, District – Nagpur (Maharashtra State). (Org. Defendant 2. SAU. BHAVANA W/o DHANARAJ MOHARKAR, No.4) Aged About 45 years, Occupation - (as per R.A.) Cultivator, R/o Shitalwadi, Post – K.K. Nagar, Tahsil – Ramtek, District – Nagpur (Maharashtra State) (Org. Defendant 3. SHRI SHALIKRAM S/o BONDAKU MOHARKAR, No.5) Aged about 82 years, Occupation – Nil, (as per R.A.) R/o Shitalwadi, Post – K.K. Nagar, Tahsil – Ramtek, District – Nagpur (Maharashtra State) (Org. Defendant 4. SAU. GODABAI W/o SHALIKRAM MOHARKAR, No.6) Aged about 78 years, Occupation – Nil, (as per R.A.) R/o Shitalwadi, Post – K.K. Nagar, Tahsil – Ramtek, District – Nagpur (Maharashtra State) (Or. Defendant 5. SHRI CHANDU S/o SHALIKRAM MOHARKAR, No.7) Aged about 59 years, Occupation - (as per R.A.) Cultivator, R/o Gautam Ward, Gohani Mohalla, Wadi of Hatwar, Pauni, Tahsil - Pauni, District – Bhandara (Maharashtra State) ...VERSUS… RESPONDENTS : 1. BANDU SHALIKRAM MOHARKAR (DEAD) (Org. Plaintiff No.1) Through his Legal Representatives. (as per R.A.) (Org. Legal Heirs of 1-A SMT. PRABATA Wd/o BANDU MOHARKAR, Plaintiff No.1) Aged about 65 years, Occupation - 2026:BHC-NAG:3202 SA 192 of 2022 - Judgment.odt 2 (as per R.A.) Cultivator, R/o Junona, Post – Walni, Pauni, Tahsil – Pauni, District - Bhandara (Maharashtra State) (Org. Legal Heirs of 1-B SHRI BHOLANATH S/o BANDU MOHARKAR, (Plaintiff No.1) Aged about 43 years, Occupation - (as per R.A.) Cultivator, R/o Junona, Post Walni, Pauni, Tahsil – Pauni, District - Bhandara (Maharashtra State) (Org. Legal Heirs of 1-C SANGITA D/o BANDU MOHARKAR, Plaintiff No.1) Aged about 40 years, Occupation - (as per R.A.) Cultivator, R/o Junona, Post – Walni, Pauni, Tahsil – Pauni, District- Bhandara (Maharashtra State) (Org. Legal Heirs of 1-D SHRI MAHESH S/o BANDU MOHARKAR Plaintiff No.1) Aged about 38 years, Occupation - (as per R.A.) Cultivator, R/o Junona, Post – Walni, Pauni, Tahsil – Pauni, District - Bhandara (Maharashtra State) (Org. Plaintiff No.2) 2. SHRI MULCHAND S/o SHALIKRAM (as per R.A.) MOHARKAR, Aged about 61 years, Occupation – Cultivator, R/o Junona, Post – Walni, Pauni, Tahsil – Pauni, District – Bhandara (Maharashtra State) (Org. defendant No.1) 3. STATE OF MAHARASHTRA, (as per R.A.) Through Collector, Bhandara, Tahsil & District – Bhandara (Maharashtra State) (Org. defendant No.2) 4. TAHSILDAR, PAUNI, Tahsil – Pauni, (as per R.A.) District – Bhandara (Maharashtra State) --------------------------------------------------------------------------------------------------- Mr. A.N. Ansari, Advocate for appellants Mr. Shubham Mokadam, Advocate for respondent Nos.1 (1-A) to (1-D) and 2 Mr. H.D. Dubey, AGP for respondent Nos.3 and 4 --------------------------------------------------------------------------------------------------- WITH SA 192 of 2022 - Judgment.odt 3 CROSS OBJECTION NO.87/2022 APPELLANTS : 1. Shri Dhanraj s/o. Shalikram Moharkar, Aged 53 years, Occu.-Service, R/o Shitalwadi, Post – K. K. Nagar, Tahsil – Ramtek, District – Nagpur. 2. Sau. Bhavana w/o. Dhanraj Moharkar, Aged 45 years, Occu.-Cultivator, R/o Shitalwadi, Post – K.K. Nagar, Tahsil – Ramtek, District – Nagpur. 3. Shri Shalikram s/o. Bondaku Moharkar Aged 82 years, Occu. – Nil, R/o Shitalwadi, Post – K.K. Nagar, Tahsil – Ramtek, District – Nagpur. 4. Sau. Godabai w/o. Shalikram Moharkar Aged 75 years, Occu. – Housewife, R/o Shitalwadi, Post – K.K. Nagar, Tahsil – Ramtek, District – Nagpur. 5. Shri Chandu s/o. Shalikram Moharkar Aged 59 years, Occu. – Cultivator, R/o. Gautam Ward, Gohani Mohalla, Wadi of Hatwar, Pauni, Tahsil - Pauni, District – Bhandara. ...VERSUS… RESPONDENTS : 1. Bandu Shalikram Moharkar (Dead) Through his Legal Representatives. 1-A Smt. Parbata wd/o. Bandu Moharkar Aged 65 years, Occu.- Cultivator, R/o Junona, Post – Walni, Pauni, Tahsil – Pauni, District – Bhandara. 1-B Shri Bholanath s/o. Bandu Moharkar, Aged 43 years, Occu.-Cultivator, R/o Junona, Post - Walni, Pauni, Tahsil – Pauni, District – Bhandara. SA 192 of 2022 - Judgment.odt 4 1-C Sangita d/o. Bandu Moharkar, Aged 40 years, Occu.- Cultivator, R/o Junona, Post – Walni, Pauni, Tahsil – Pauni, District- Bhandara. 1-D Mahesh s/o. Bandu Moharkar Aged 38 years, Occu. – Cultivator, R/o. Junona, Post – Walni, Pauni, Tahsil – Pauni, District – Bhandara. 2. Shri Mulchand S/o. Shalikram Moharkar, Aged 61 years, Occu. - Cultivator R/o Junona, Post – Walni, Pauni, Tahsil – Pauni, District – Bhandara. Mob. No.9657508794 3. State of Maharashtra , Through Collector, Bhandara, Tah. & District – Bhandara. 4. Tahsildar, Pauni, Tahsil – Pauni, District – Bhandara. Cross Objectors : 1) Bandu Shalikram Moharkar (Dead) Ori. Plaintiff No.1 Through his Legal Representatives. Legal Heir of 1-A) Smt. Parbata wd/o. Bandu Moharkar original Pl. No.1 Aged 65 years, Occu.- Cultivator R/o. Junona, Post – Walni, Pauni, Tahsil – Pauni, District - Bhandara. Legal Heir of 1-B) Shri Bholanath s/o. Bandu Moharkar, Original Pl. No.1 Aged 43 years, Occu.- Cultivator, R/o Junona, Post Walni, Pauni, Tahsil – Pauni, District – Bhandara. Legal Heir of 1-C) Sangita d/o. Bandu Moharkar original Pl. No.1 Aged 40 years, Occu. – Cultivator, R/o Junona, Post – Walni, Pauni, Tahsil – Pauni, District- Bhandara. Legal heir of 1-D) Mahesh s/o. Bandu Moharkar Original Pl. No.1 Aged 38 years, Occu.- Cultivator, SA 192 of 2022 - Judgment.odt 5 R/o Junona, Post – Walni, Pauni, Tahsil – Pauni, District – Bhandara. Original Pl. No.2 2. Shri Mulchand S/o. Shalikram Moharkar Aged 61 years, Occu.- Cultivator, R/o. Junona, Post – Walni, Pauni, Tahsil – Pauni, District – Bhandara. Mob. No.9657508794. --------------------------------------------------------------------------------------------------- Mr. A.N. Ansari, Advocate for appellants Mr. Shubham Mokadam, Advocate for cross-objectors --------------------------------------------------------------------------------------------------- CORAM : ROHIT W. JOSHI, J. DATE : 20/02/2026 ORAL JUDGMENT : 1. The present Second Appeal No.192/2022 is preferred against the judgment and decree dated 30/03/2021, passed by the District Judge-1, Bhandara in Regular Civil Appeal No.119/2017, whereby the learned first Appellant Court has dismissed the appeal filed against the judgment and decree dated 04/09/2017, passed by Joint Civil Judge, Senior Division, Bhandara in Regular Civil Suit No.95/2011. 2. The appellants are the original defendant Nos.3 to 7. The suit is dismissed by the learned Trial Court. The appeal is also dismissed. The appellants are however, aggrieved by certain findings with respect to nature of suit property, recorded by the learned first SA 192 of 2022 - Judgment.odt 6 Appellate Court. It is well settled that appeal lies only against a decree and not against any finding in the judgment. 3. In view of the above, Second Appeal is dismissed as not maintainable. No order as to costs. CROSS OBJECTION NO.87/2022 4. This cross-objection is preferred by the plaintiffs in Regular Civil Suit No.95/2011. The plaintiffs and defendant Nos.3 and 7 are brothers. Defendant No.4 is wife of defendant No.3. The defendant Nos.5 and 6 are father and mother of the plaintiffs and defendant Nos.3 and 7. 5. The case of the plaintiffs is that joint Hindu family comprising of defendant No.5 – Shalikram, his wife and children had several ancestral properties including the suit properties i.e. land bearing Gat No.159 and 359, land bearing Gat No.218/2 (correct No.218), 216, plot Nos.38 and 39 of village Junona. The plaintiffs contend that there was an oral partition in the family in the year 1994, in which the suit properties had fallen to their share. The plaintiffs further claimed that the oral partition arrived at in the month of April, 1994 was reduced into writing on 26/10/1995 (Exh.46) and that the property which had fallen to the share of each member of the family was thereafter enjoyed by them as true, lawful and absolute owners thereof. The plaintiffs have stated that this partition was accepted by all SA 192 of 2022 - Judgment.odt 7 the concerned and was all throughout acted upon. The plaintiffs challenged sale-deed dated 24/02/2011 executed by defendant No.5 in favour of defendant No.4 (daughter-in-law) on the ground that the suit property bearing Gat No.359 had fallen to share of plaintiff No.1 in the oral partition of the year 1994 and therefore, the defendant No.5 father had no sellable interest in the suit property on the date of execution of sale-deed i.e. on 24/02/2011. 6. Defendant Nos.3 to 7 filed common written statement opposing the suit. It was pointed out that the properties enumerated in the purported memorandum of partition dated 26/10/1995 were not joint Hindu family properties and that the properties were self acquired properties of defendant Nos.5 and 6 i.e. the parents. The contention that the properties were joint Hindu family properties was denied. Likewise, the defendants also denied the alleged oral partition of the year 1994 so also, the memorandum of partition dated 26/10/1995. 7. It will be pertinent to mention that one of the suit properties i.e. land bearing Gat No.259/2 admeasuring 0.61 HR is admitted to be ancestral property of the defendants. The learned Trial Court has dismissed the suit holding that the properties were separate properties of the plaintiff Nos.5 and 6, except the said property bearing Gat No.259/2. The learned Trial Court has accordingly dismissed the suit. SA 192 of 2022 - Judgment.odt 8 8. Being aggrieved by the dismissal of suit, the plaintiffs preferred appeal being Regular Civil Appeal No.119/2017. The learned first Appellate Court has dismissed the appeal, although the case of oral partition as also the memorandum of partition is held to be not proved by the plaintiffs. The learned first Appellate Court also found that the defendant Nos.5 and 6, who were owners of property, were not signatories to the memorandum of partition dated 26/10/1995 and that the said document was also not admissible in evidence since it was not registered and was insufficiently stamped. However, the learned first Appellate Court has recorded finding that the suit properties are joint Hindu family properties of the parties. 9. Mr. Shubham Mokadam, learned Advocate for the cross- objectors/original plaintiffs vehemently argues that although the memorandum of partition does not bear signature of the parents, in a short while after the execution of memorandum of partition, the father had made an application to Gram Panchayat for mutation of properties in the names of his sons on the basis of the said partition. He, therefore, contends that the finding by the learned Courts that the memorandum was not enforceable on the ground that it was not signed by the father is not correct. He further argues that the parties were placed in possession of their respective shares after the partition was arrived, which circumstances will indicate that the partition was accepted and SA 192 of 2022 - Judgment.odt 9 acted upon all throughout, which is also not taken into consideration by both the learned Courts. 10. It is not in dispute that property bearing Gat No.405, 408, House No.121 and Abadi Plot No.39 belong to the maternal grand- mother of plaintiffs and defendant Nos.3 and 7 i.e. mother of defendant No.6. The defendant No.6 derived the said property from her mother. It is well settled that a property derived from the maternal side is not ancestral or coparcenary property. The finding by the learned first Appellate Court that the aforesaid properties were ancestral properties is therefore not correct. 11. As regards the other properties i.e. land bearing Gat No.216, 218, Gat No.359 and Abadi Plot No.38, it is not in dispute that the sale-deeds of properties bearing Gat No.216, 218 and 359 are in the name of the father. It is also not in dispute that the father was in employment as a teacher with a Government school. Abadi Plot No.38 is allotted in the name of father is also not in dispute. 12. The memorandum of partition dated 26/10/1995 does not bear signature of defendant Nos.5 and 6 i.e. father and mother respectively. There is no explanation as to why signatures of parents are not obtained on the said document, although their property was subject matter of the said memorandum. It is also obvious that the properties derived by the mother from her mother could not be subject matter of SA 192 of 2022 - Judgment.odt 10 partition, since the said properties cannot be termed to be ancestral properties. Even if it is assumed that the father accepted partition and therefore moved application for mutation vide Exh.47, it is well settled that in a partition of joint Hindu family, a mother also gets a share. However, the memorandum of partition does not indicate that any property has fallen to the share of the mother in the partition. The mother has also not signed the said document. 13. In view of the aforesaid, the memorandum of partition as also the case of oral partition is rightly discarded by both the learned Courts. It is rightly held that the plaintiffs have failed to prove ownership over the suit properties referred in prayer Clause (a) of the plaint on the basis of the alleged oral partition. 14. As regards challenge to the sale-deed dated 24/02/2011 with respect to Gat No.359, even if it is assumed that the suit property was ancestral property, the father was the oldest male member and therefore, presumably Karta in the family. The alienation is not challenged on the ground of want of legal necessity. It is well settled that a Karta of joint Hindu family can sell property of the joint Hindu family only in case of legal necessity. However, it is equally well settled that an alienation of ancestral property by Karta is not void ab initio. It is only voidable and as such, the alienation is required to be challenged on the ground that the same was without any legal necessity or any SA 192 of 2022 - Judgment.odt 11 other ground enabling the Karta to alienate the ancestral property. In the present case, the alienation is not challenged on any such ground. The alienation is challenged only on the ground that the suit property was allotted to the share of the plaintiffs in the partition of the year 1994, which plaintiffs have failed to prove. 15. In view of the above, challenge to sale-deed dated 24/02/2011 must also fail. 16. In view of the reasons recorded above, no substantial question of law arises for consideration in the Cross-Objection. Cross- Objection is, therefore, dismissed with no order as to costs. (ROHIT W. JOSHI, J.) Wadkar Signed by: S.S. Wadkar (SSW) Designation: PS To Honourable Judge Date: 24/02/2026 18:27:54