SHASIDHAR & OTHERS versus SMT.ASHWINI UMA MATHAD &ANR.

Citation: [2015] 2 S.C.R. 1 · Decided: 13-01-2015 · Supreme Court of India · Bench: F.M. IBRAHIM KALIFULLA · Disposal: Appeal(s) allowed
Cited by 1 judgment(s) · see the full citation network in Lexace
Open in Lexace · Ask the AI about this case
Judgment (excerpt)

[2015] 2 S.C.R. 1 
SHASIDHAR & OTHERS 
V. 
SMT.ASHWINI UMAMATHAD &ANR. 
(Civil Appeal No. 324 of 2015) 
JANUARY 13, 2015 
[FAKKIR MOHAMED IBRAHIM KALIFULLA 
AND ABHAY MANOHAR SAPRE, JJ.] 
A 
B 
Code of Civil Procedure, 1908 - s. 96 rlw. Or. 41 r. 31 -
First appeal - Scope of- Suit for partition by coparcener/co-
owner - Partially allowed by trial court in preliminary decree C 
- High Court order in first appeal was detriment to the 
defendants - On appeal, held: The High Court should have 
answered the issues which were material for proper disposal 
of the partition suit by going into merits of the claims - Being 
the first appellate court, it was duty of the High Court to decide D 
the appeal, keeping in view the scope and powers conferred 
u/s. 96 rlw. Or. 41 r. 31 - Suit- Partition suit. 
Allowing the appeal and remitting the matter to High 
Court, the Court 
E 
HELD: 1. In a suit filed by a co-sharerer, coparcener,. 
co-owner or joint owner, as the case may be, for partition 
and separate possession of his/her share qua others,. it 
is necessary for the Court to examine, in the first F . 
instance, the nature and character of the· properties in 
suit such as who was the original owner of the suit 
properties, how and by which source he/she acquired 
such properties, whether it was his/her self-acquired 
property or ancestral property, or joint property or G 
coparcenery property in his/her hand and, if so, who are/ 
were the coparceners or joint owners· with him/her as 
the case may be. Secondly, how the devolution of his/ 
1 
H 
2 
SUPREME COURT REPORTS 
[2015] 2 S.C.R. 
A her interest in the property took place consequent upon 
his/her death on surviving members of the family and in 
what proportion, whether he/she died intestate or left 
behind any testamentary succession in favour of any 
family member or outsider to inherit his/her share in 
B properties and if so, its effect. Thirdly whether the 
properties in suit are capable of being partitioned 
effectively and if so, in what manner? Lastly, whether all 
properties are included in the suit and all co-sharerers, 
coparceners, co-owners or joint-owners, as the case 
C may be, are made parties to the suit? These issues, being 
material for proper disposal of the partition suit, have to 
be answered by the Court on the basis of family tree, 
inter se relations of family members, evidence adduced 
and the principles of law applicable to the case. [Para 
D 24] [13-D-H; 14-A-B] 
"Hindu Law" 17th Edition, Chapter XVI Partition and 
Reunion - Mitakshara Law by Mui/a - referred to. 
2. The High Court ought to have gone into the merits 
E of the claim of the respective parties in its proper 
perspective and then recorded a finding regarding extent 
of shares received by each coparcener/co-owner 
keeping in view the nature of properties such as whether 
F it was self acquired property or ancestral property and, 
if so, in whose hands, its source of acquisition by such 
person, the manner of devolution on the legal 
representatives of such person etc. These findings were 
required to be recorded after appreciating the evidence 
G keeping in view the provisions of the Hindu Succession 
Act and other related laws applicable to the issues arising 
in the case. [Para 26] [14-F-H; 15-A] 
3. Being the first appellate Court, it was, therefore, 
the duty of the High Court to decide the first appeal 
H keeping in view the scope and powers conferred on it 
SHASIDHAR v.ASHWINI UMAMATHAD 
3 
under Section 96 read with Order XLI Rule 31 CPC. The A 
High Court having not done, thereby, caused prejudice 
to the appellants whose valuable right to prosecute the 
first appeal on facts and law was adversely affected 
which, in turn, deprived them of a hearing in the appeal 
in accordance with law. [Para 25] [14-C-E] 
8 
Santosh Hazari vs. Purushottam Tiwari (Deceased) 
by L.Rs. (2001) 3 sec 179: 2001 (1) scR 948; 
Madhukar & Ors. v. Sangram & Ors. (2001) 4 SCC 756: 
2001 (3) SCR 138; H.K.N. Swami v. lrshad Basith (2005) c 
10 SCC 243; Jagannath v. Arulappa & Anr. (2005) 12 
SCC 303; B. V Nagesh & Anr. vs. H. V Sreenivasa Murthy 
(2010) 13 SCC 530: 2010 (11) SCR 784 State Bank of 
India & Anr. vs. Emmsons International Ltd. & Anr. (2011) 
12 SCC 174: 2011 (10) SCR 436 Vinod Kumar vs. 
O 
Gangadhar2014(12) Scale 171 - relied on. 
Kurian Chacko vs. Varkey Ouseph AIR 1969 Kerala 316 
- referred to. 
Case Law Reference 
AIR 1969 Kerala 316 
referred to 
Para 13 
2001 (1) SCR 948 
relied on
Excerpt shown. Read the full judgment & AI analysis in Lexace.