37-SA-245-2022.docx IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 245 OF 2022 Shantilal Bhikchand Surana … Appellant Vs. Kantilal Bhikchand Surana & Others … Respondents Mr. A. S. Rao for the Appellant. Ms. Kanchan Phatak a/w. Mr. A. M. Waradkar i/b. Mr. A. K. Kotecha (through VC) for Respondent Nos. 1 and 2. CORAM : GAURI GODSE, J. DATE : 17th JUNE 2026 ORDER : 1. This second appeal is preferred by the original defendant no. 1 to challenge the judgment and decree passed by the first appellate court, which granted a decree for partition and separate possession. 2. Learned counsel for the appellant submits that documents were produced on record in respect of House No. JA-2, 16/4 to show that the said property stands in the name of the appellant’s wife and does not belong to the joint family. He submits that the compilation of the additional documents tendered by him today shows two documents that would 1/7 rrpillai RAJESHWARI RAMESH PILLAI Digitally signed by RAJESHWARI RAMESH PILLAI Date: 2026.06.30 20:25:55 +0530 37-SA-245-2022.docx indicate that one of the suit properties, JA-2, belongs to the appellant’s wife and therefore could not have been added in a suit for partition. He relies upon the documents on page nos. 188 and 189 of the compilation to contend that an acquisition notice was issued to the appellant’s wife and possession was taken from the appellant’s wife 3. He further submits that the three sisters had executed relinquishment deeds in favour of the appellant. When the Partition Deed at Exhibit 88 was executed, one sister was a minor; hence, provisions for her marriage expenses and her share in the gold ornaments were mentioned in the partition deed. In the partition, Property No. 407-B was allotted to the appellant, and Shop No. 552 was allotted to the plaintiff. As per the Consent Agreement at Exhibit 326, which was also executed, defendant nos. 1 and 2 are residing in the respective premises allotted to them. Thereafter, another agreement, Exhibit 327, was executed, and all the brothers maintain their respective properties. 4. Learned counsel for the appellant submitted that, taking advantage of the dismissal of the appellant’s suit for declaration, the present suit was filed for partition, though 2/7 37-SA-245-2022.docx partition had already taken place. He submits that although a provision for marriage expenses and gold was made for the minor sister, the first appellate court held that she was not given a share and that there was no full partition. He therefore submits that the second appeal would raise a substantial question of law on the ground that the material documents indicating one of the suit properties in the name of the appellant’s wife and the division of the joint family properties were ignored by the first appellate court. Learned counsel for the appellant submitted that the first appellate court has not recorded any findings on his individual property. He therefore submits that the second appeal raises substantial questions of law, and the impugned judgment and decree would warrant interference. 5. Learned counsel for respondent nos. 1 and 2 submits that the documents on page nos.188 and 189, relied upon by the learned counsel for the appellant, were never produced before the trial court and therefore, for the first time in the second appeal, the same cannot be considered. On the issue of the partition deed, he submits that all the documents, including the release deeds, are rightly 3/7 37-SA-245-2022.docx appreciated by the first appellate court. Since the suit properties are joint family properties, all are granted equal shares as there was never any complete division of properties effected by metes and bounds. Hence, the impugned judgment and decree would not warrant any interference. 6. I have perused the papers of the second appeal. On the point of non-consideration of the document in respect of the property bearing House No. JA-2-16/4 is concerned, the first appellate court has discussed the evidence on record and held that there was no evidence produced to support the said claim of ownership. For want of satisfactory evidence, the theory of payment of the sale price by defendant No. 1’s wife is disbelieved. Considering the joint family status and the joint nucleus, the said property is rightly accepted as the joint family property. The two documents on page nos.188 and 189 are produced for the first time in this court. Hence, learned counsel for the respondents is right in objecting that the documents cannot be considered for the first time in this appeal. 7. The second point argued on behalf of the plaintiff 4/7 37-SA-245-2022.docx regarding the inclusion of certain provisions in favour of the minor sister at the time of seeking a partition deed is concerned; the same cannot be a ground to refuse an equal share to the sister. The first appellate court has therefore rightly referred to Section 6 of the Hindu Succession Act and decreed the suit by granting equal shares to the parties. So far as the partition deed is concerned, there is nothing to show that there was partition by metes and bounds in respect of all the suit properties. There is no dispute on the relations of the parties. 8. The first appellate court has discussed in detail the grounds raised by relying upon the partition deed at Exhibit- 88. The first appellate court, after appreciating the documentary and oral evidence, refused to accept that there was a partition by metes and bounds based on the partition deed at Exhibit-88. Hence, considering the nature of the properties and the relationship between the parties, the suit is decreed holding that the plaintiff and defendant nos. 1, 2 and 3 would be entitled to one-fourth share each. 9. I do not see any illegality or perversity in the findings of fact recorded by the first appellate court, which is the last 5/7 37-SA-245-2022.docx fact-finding court. The grounds raised on behalf of the appellant would amount to reappreciation of evidence, which is not permissible under Section 100 of the Civil Procedure Code, 1908. None of the grounds argued on behalf of the appellant raises any substantial question of law. Hence, the second appeal is dismissed. Interim Application No.3349 of 2026 10. This application is for bringing on record the heirs of the deceased respondent no. 8. The application is within time. Hence, the application is allowed in terms of prayer clause (b). Amendment shall be carried out within four weeks from the date of uploading this order on the website. 11. In view of the dismissal of the second appeal, all other pending applications are disposed of as infructuous. 12. At this stage learned counsel for the appellant requests that the ad-interim protection granted in the appeal be continued for eight weeks. 13. Learned counsel for the respondents opposes extension of any interim relief on the ground that the protection was granted only because the parties were 6/7 37-SA-245-2022.docx making an attempt to amicably resolve the dispute. In the facts and circumstances of the case, the execution proceedings pursuant to the partition decree may proceed; however, there will be a stay on the actual handing over of possession until the expiry of eight weeks from the date of uploading this order on the website. [GAURI GODSE, J.] 7/7