Ndm 1 sa.140.98.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 140 OF 1998 Moreshwar Raghunath Patil. ... APPELLANT VERSUS Sou. Tulsabai Balu Tandel and ors. ... RESPONDENTS ------------------------ Shri. S.M.Kamble for the Appellant. Shri. K.N.Kore for the Respondent No.1 ------------------------ CORAM : J.H. BHATIA, J DATE : 11th August, 2009. P.C. 1 Heard learned counsel for the parties. The Appellant before this Court is the original Plaintiff. According to him, certain properties, which were originally owned by his grandmother Girijabai, had come down to her two daughters and a predeceased son’s widow. The Defendant No. 1 is daughter of the son of Girijabai while plaintiff and Defendant Nos. 2 to 5 were sons and daughter of Yeshubai who was daughter of Girijabai. The property was acquired by Government and Defendant no.1 alone was trying to claim the compensation. According to him, she was given 1/5 share and therefore, she should be restrained from claiming whole of the compensation. According to Defendant No. 1, she was alone owner of the suit property and plaintiff and other Defendants have no right, title and interest in the property. The trial Court however, decreed the suit and held that the plaintiff and Defendant No. 2 to 5 are entitled to 1/5 share each. The Defendant No. 1 was restrained from accepting the compensation amount from the Land Acquisition Officer. That decree was challenged by the Defendant ndm sa.140.98.sxw Ndm 2 sa.140.98.sxw No. 1 in Regular Civil Appeal No. 161 of 1990. The appeal was allowed and the judgment passed by the trial Court was set aside. Hence the original plaintiff has preferred the present Second Appeal. 2 The learned counsel has taken me through the judgment of both the courts below as well as the relevant provisions of the Hindu Law. 3 Admitted facts are that husbands of Bayabai and Girijabai were brothers. The suit property was standing in the name of Bayabai and after death of Bayabai as well as both the brothers, the property came in the hands of Girijabai. Girijabai died in 1954 leaving behind her predeceased son Arjun’s widow and two daughters namely, Yamunabai and Yashubai. Yamunabai died in 1986. Yashubai died in 1978 leaving behind four sons and a daughter who are plaintiff and Defendant No. 2 to 5. The Defendant No. 1 is the daughter of Arjun, who was predeceased son of Gayabai. According to the plaintiff, Yamunabai had relinquished her share in favour of her sister Yasubai, and therefore, legal heirs of Yamunabai were not made parties to the suit. 4 The trial Court assumed that the suit property was the Stridhan of Gayabai while in fact there is no evidence to that effect. The property had not come to Gayabai from her parental side nor there is any evidence on record to show that the property was presented to her as Stridhan by anybody. From the facts stated above, it appears that the property was of her husband and husband’s brother and it was standing in the name of her husband’s brother’s wife Bayabai. After death of Bayabai the property came in the hands of Gayabai, 5 As per Section 43 from the Chapter 4 of Hindu Law by Mulla pertaining to the order of inheritance according to Mitakshara Law, prior to Hindu ndm sa.140.98.sxw Ndm 3 sa.140.98.sxw Succession Act, 1956, the property would go to son, grandson, great-grandson and after enactment of the Hindu Women’s Right to Property Act it would also go to the widow, predeceased son’s widow, predeceased son’s predeceased son’s widow. The widow got the limited estate. In that chapter, daughter is shown in Serial No. 5 and it is specifically mentioned that daughters do not inherit until all the widows are dead. Section 72 of Chapter 6 about the order of succession to males in the Bombay State provides that son, son’s son and son’s son’s son, and after 1937 Act, widow, widow of a predeceased son and widow of predeceased son’s predeceased son’s inherits in like manner as a son, if there is no son surviving of such predeceased son. After these heirs are exhausted, then came daughter at serial No. 7. 6 In the present case, in 1954, when Girijabai died, the property in her hands could not be inherited as a Stridhan property but would goes to legal heirs of her husband. As stated above, her son’s widow and two daughters were available. Therefore, on death of Girijabai, the property would be inherited by her son’s widow. After her death the property would be succeeded by the Defendant No.1 Tulasabai. Yamunabai and Yashubai, who were daughters of Girijabai were excluded from inheritance by virtue of the legal provision. Taking into consideration this legal position, the First Appellate Court dismissed the claim of the plaintiff, who is son of Yashubai and held that Defendant No.1 alone is the owner of the property and is entitled to receive compensation. 7 In view of the legal position and the facts, I do not find any fault in the said judgment nor any question of law is involved in the present Appeal. Therefore, this appeal stands dismissed. J.H. BHATIA, J ndm sa.140.98.sxw