1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2181 OF 2009 Shri Khandu Mahadu Tajane. .. Petitioner Vs Smt. Gulabbai Sahadu Tajane & Ors. .. Respondents -- Shri U.B. Nighot for the Petitioner. Shri Ashwin Kapadnis for Respondent Nos.1A to 1C, 2 and 3. Shri Milind Deshmukh for Respondent No.4A. -- CORAM : A.S.OKA, J. DATE : 24TH FEBRUARY, 2010 JUDGMENT : 1. Heard learned counsel appearing for the parties. Taken up for final disposal at the admission stage. The Petitioner is the 1st Defendant in a suit filed by the 1st Respondent. The suit relates to the various agricultural lands and a house property. According to the case of the 1st Respondent, one Mahadu was the owner of the suit properties who died in the year 1978. The said Mahadu was survived by his sons Khandu ( the Petitioner - 1st Defendant ) and Sahadu. Mahadu was survived by two daughters Chandrabhaga ( the 2nd Defendant ) and Chabubai ( the 3rd Defendant ). The 1st Respondent – Plaintiff is the widow of Sahadu who died in the year 1992. It appears that Ramchandra and Shashikant, the sons of the Petitioner were impleaded as 3rd and the 4th Defendants in the suit. By a judgment and decree dated 28th July, 1999, the suit filed by the 2 1st Respondent was decreed and it was held that the original Plaintiff was entitled to 5/12 shares in the suit property described in Paragraph 1 of the Plaint. The Trial Court directed that the decree be sent to the Collector, Pune for effecting partition of the agricultural lands and a Court Commissioner be appointed for effecting partition of the house property. 2. An application for execution was filed by the legal representatives of the 1st Respondent. The said application was filed in the year 2000. An application was made in the pending execution application by Respondent Nos.4A and 4B stating that the 4th Defendant Ramchandra died on 22nd April, 2003 and the said Respondents are the legal representatives of the deceased Ramchandra. A prayer was made for impleading the said Respondent Nos.4A and 4B as the legal representatives of the deceased Ramchandra. By an order dated 1st February, 2005, the said application was allowed. In the said application, the Respondent 4A claimed to be the widow of the deceased Ramchandra and the Respondent No.4B claimed to be the son of the deceased Ramchandra. Thereafter, another application was made by one Sakhubai and four others. The said Sakhubai claimed to be the first wife of the deceased Ramchandra. The 3rd applicant in the said application claimed to be a third wife of the deceased Ramchandra and the 4th and the 5th Applicants claimed to be the children of the deceased Ramchandra. They applied for bringing their names on record as the legal representatives of the deceased Defendant No.4. The said application was rejected by the learned Trial Judge. As of today, the 3 said Sakhubai has not challenged the said order. Thereafter, an application was made by Respondent No.4A praying that even the share of the deceased Ramchandra be separated subject to payment of Court Fees and the Collector be directed to partition the said 5/48th shares. The said application has been allowed on the impugned order dated 31st December, 2008. 3. The learned counsel appearing for the Petitioner submitted that Respondent Nos.4A and 4B are not the legal representatives of the deceased Ramchandra. He submitted that Respondent No.4A did not produce any document to show that she was legally wedded wife of the deceased Ramchandra. He submitted that in fact the deceased Ramchandra was lawfully married to one Sindhu on 1st June, 1983 and infact the said Sindhu ought to have been brought on record as the legal representative of the deceased Ramchandra. He submitted that the Petitioner was not heard when Respondent Nos.4A and 4B were brought on record. He submitted that the 4th Defendant Ramchandra had admitted that he had no share in the share of his father i.e. the Petitioner. He submitted that in the absence of any evidence brought on record by Respondent Nos.4A and 4B that they are the legal representatives of the deceased Ramchandra, they are not entitled to claim any share. 4. I have given careful consideration to the submissions. The first order which is challenged in the Petition is of 1st February, 2005 by 4 which Respondent Nos.4A and 4B were brought on record as the legal representatives of the deceased Ramchandra. The Petitioner was a party to the execution application. It is not the case of the Petitioner that he was not aware of the said order. His only grievance was that the said order was passed without hearing him. In fact, thereafter the application made by the third party i.e. Smt. Sakhubai was heard and rejected by an order dated 2nd November, 2006. A reply dated 11th January, 2007 filed by the Petitioner at Exhibit-38 shows that the Petitioner had full knowledge as on 11th January, 2007 that the Respondent Nos.4A and 4B have been impleaded as the parties to the suit. The Petitioner contested the application made by the said Respondents for grant of shares by filing a reply dated 20th January, 2007. The Petitioner could have challenged the said order dated 1st February, 2005 at least in the year 2006 or 2007. The present Petition has been filed on 2nd February, 2009. There is hardly any explanation for the gross delay in approaching this Court. It must be stated here that one Smt. Sakhubai and 4 others made an application dated 21st November, 2004 claiming that they are the legal representatives of the deceased Ramchandra. The said application was rejected by an order dated 2nd November, 2006. The said Smt. Sakhubai and others have not challenged the said order. Now the present Petition has been filed when the Trial Court passed an order that the share of the deceased Ramchandra be separated and allotted to Respondent Nos.4A and 4B. Perusal of the judgment in the suit filed by the 1st Respondent which is placed on record shows that there is already a finding that the suit properties are ancestral 5 properties. Ramchandra was the son of the 1st Defendant-Petitioner. The finding of the Trial Court has not been challenged by the Petitioner. In absence of any relinquishment by the said Ramchandra, he is entitled to a share equal to that of his father i.e. the Petitioner. The said share has been ordered to be separated at the instance of Respondent Nos.4A and 4B who have been impleaded as the legal representatives of the deceased Ramchandra. There is no evidence of relinquishment by the deceased Ramchandra. The statement made by him in the Written Statement was that he was not claiming any share in the share of his father. In the circumstances, no fault can be found with the impugned orders. No case for interference is made out in writ jurisdiction under Article 227 of the Constitution of India. The Writ Petition is rejected. (A.S.OKA, J) ash/