1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.240 OF 2009 with CIVIL APPLICATION 850 OF 2009 Smt.Parvatibai Bhiku Malusare & Others ..Appellants versus Shri Raubhau Malusare & Others ..Respondents Mr.A.V.Anturkar i/b. Sugandh Deshmukh for the appellants Mr.K.B.Sonwalkar for the respondents CORAM : R.Y.GANOO, J. DATE : 24th JUNE, 2009. P.C: 1. One Rambhau Malusare filed suit for partition against Parvati and Others in the Court of Civil Judge, Sr. Division, Wai, being Regular Civil Suit No.287 of 1992. During the pendency of the suit said Rambhau expired and that is how his heirs were brought on record and those heirs are before 2 the Court in the nature of respondent Nos.1A and 1B. The learned Judge dismissed the said suit. Against that judgment and decree said heirs of Raubhau, filed appeal in the District Court at Satara against Parvati and Others being Regular Civil Appeal No.1 of 2002. The learned District Judge-IV, Satara by his Judgment and Decree dated 16.2.2009 allowed the appeal and directed that the property be partitioned and passed other directions more particularly set out in the judgment delivered by him. Against the said judgment and decree Parvati and others have filed the present appeal. 2. I have heard learned Advocate Mr.Anturkar appearing for the appellants and Mr.Sonwalkar appearing on behalf of the respondents. Bhau was the father of Keshav, Bhiku, Bajira, Rau and three daughters namely Anusaya, Kashibai, Hansabai. Saguna was wife of said Bhau. Bhau expired in the year 1946, wife of Bhau expired in the year 1968. Rau, son of Bhau instituted the suit for partition 3 in the year 1992. The precise date of institution of the suit is 17.9.1992. Three married daughters of Bhau namely, Anusaya, Hansabai and Kashibai were not joined as party defendants. At the time of trial in the Regular Civil Suit No.87 of 1992 Parvati and others had raised objection as regards non-joinder of Anusaya and the other two sisters and the learned trial Judge by his reasons stated in the said judgment came to the conclusion that the said three sisters namely Anusaya and others were not required to be joined as party defendants and their non-joinder is not a defect on the basis of which the suit can be dismissed. These reasons are found in paragraph 28 of the judgment of the trial Court. 3. The dismissal of the suit was challenged by the heirs of Rau, the original plaintiff and two others. The finding given by the learned trial Judge on the question of non joinder of the three sisters was not considered as a point in appeal. Parvati and others being respondents in the 4 District Court had not challenged the said finding by filing cross objections. 4. The learned District Judge, considering the matter on merits had granted partition. Rau s heirs who had instituted the appeal are not aggrieved by the order passed by the learned District Judge, Parvati and others only have filed this second appeal. 5. Before this Court, the main point which was raised by learned Advocate Mr. Anturkar was on account of non-joinder of Anusaya and two other sisters in the suit. It was argued that non joining Anusaya and two other sisters was a patent defect in the nature of non joinder of necessary parties and therefore the decree passed by the learned District Judge was wrong requires interference. 6. According to learned Advocate Mr. Anturkar, on account of death of wife of Bhau in the year 1968, her share though not then physically divided could 5 be considered as the one which was available for division at the time when partition was demanded by Rau in 1992. It was submitted that since Anusaya and two others could be treated as heirs of wife of Bhau in accordance with the provisions of Hindu Succession Act, they should have been joined as party defendants. This argument was advanced on the basis of the judgment delivered by the Division Bench of this Court in the case of Kesu Pandu Yelawande vs.Indubai Ankush Khandagale reported in Bombay Law Reporter , 1970 page 471. 7. It was also sought to be argued by learned Advocate Mr. Anturkar, by placing reliance on the provisions of Section 6 of Hindu Succession Act, (as amended, which amendment came into effect on 9.9.2005) that after amending Act of Hindu Succession (Amendment) Act, 2005, Anusaya and two sisters could be termed as co-parceners. He had taken me through the provisions of Section 6. He submitted that Anusaya and two other sisters became co-parceners on account of provisions of 6 Section 6 as amended and hence they ought to have been joined as party defendants. 8. Learned Advocate Mr. Sonwalkar submitted that as the appellants did not challenge the finding recorded by the trial court as regards non joinder of Anusaya and two others as necessary parties before the District Court, now it is not open for the appellants to raise that point in the second appeal. as the appellants have accepted the said finding rendered by the learned trial Judge. This submission was advanced by placing reliance on Order I Rule 30 of CPC. It was also sought to be argued by learned Advocate Mr. Sonwalkar that in accordance with the provisions of Section 6(3) of the Hindu Succession Act, as amended, a daughter would be entitled to the share by virtue of she being a coparcener if the death of Hindu takes place after the commencement of Hindu Succession (Amendment) Act, 2005. He therefore submitted that the point raised by learned Advocate Mr. Anturkar by placing reliance on Section 6 of the 7 Hindu Succession Act should not be accepted. He had also submitted that the succession of a person opens on the day when he dies. 9. I have considered the rival submissions. It is true that the appellants had raised the point as regards non joinder of necessary parties in the trial court. It was contended before the learned trial Judge that the suit should be dismissed on the ground that the three daughters of Bhau i.e. Anusaya and two others have not been joined. The said objection was considered by the learned trial Judge and he had by reasons set out in paragraph 28 observed that three daughters of Bhau were not required to be joined. He also held that the suit is not bad for non joinder of Anusaya and two others. It is pertinent to note that Anusaya and two others had not made an application to the trial Court for being joined as party defendant. It is also pertinent to note that the point which was raised by the appellants as regards non joinder of the necessary party came to be decided 8 against the appellants in the trial Court. If the appellants were aggrieved by the said finding, it was necessary for the appellants to file cross objection in accordance with the provisions of law particularly when the original plaintiffs had instituted an appeal challenging the dismissal of the suit. In the absence of cross objections by the present appellants before the learned District Judge it was not necessary for the learned District Judge to go into the question of non- joinder of necessary parties. It can be observed that the finding which was recorded against the appellants by the learned trial Judge as regards non joinder of Anusaya and two others was accepted by the appellants and they had given up their right to file cross objection by not filing the cross objections. 10.As no cross objection was filed before the learned District Judge that aspect of non-joinder of Anusaya and two others was not required to be considered by the learned Judge and therefore 9 there was no occasion for the learned District Judge to record any observation whatsoever in regard to the non-joinder of Anusaya and two others. To that extent no fault can be found in the judgment delivered by the learned District Judge. 11.In view of the provisions of Order I Rule 30 of C.P.C. it is not now open for the appellants to raise the point of non-joinder of Anusaya and other two sisters in this second appeal. 12.It is pertinent to note that the appellants have not challenged the decree passed by the learned District Judge on any other count. 13.In view of the aforesaid discussion, the point raised by learned Advocate Mr Anturkar by placing reliance on the provisions of Section 6 of Hindu Succession Act, namely Anusaya and two others will be co-parceners would not fall for the determination of this Court and is not required to 10 be gone into. 14. In the result this appeal does not raise any substantial question of law and hence the second appeal filed by the present appellants will have to be dismissed. Hence the order. ORDER Appeal is dismissed with no order as to costs. (R.Y.Ganoo, J.) 11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION 850 OF 2009 in SECOND APPEAL NO.240 OF 2009 Smt.Parvatibai Bhiku Malusare & Others ..Appellants versus Shri Raubhau Malusare & Others ..Respondents Mr.A.V.Anturkar i/b. Sugandh Deshmukh for the appellants Mr.K.B.Sonwalkar for the respondents CORAM : R.Y.GANOO, J. DATE : 24th JUNE, 2009. P.C: In view of dismissal of the second appeal, this Civil application does not survive and the same is disposed of with no order as to costs. (R.Y.Ganoo, J.)