1 wp-7651-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Mhi WRIT PETITION NO. 7651 of 2010 Shri Hanamant Dattu Jadhav ) Aged 55 years, Major, Occupation ) Agri. R/o Kulkarni Lane, Uttur, ) Taluka Ajara, District Kolhapur. ).. Petitioner (Orig. Applicant) Vs. 1. Sou. Kerubai Vasant Chougale ) Age Major, Occupation Household ) & Agriculture, R/o Arjuni, ) Taluka Kagal, District Kolhaur. ) 2. Sou. Tarubai Janaba Hatkar, ) Age Major, Occupation Household ) & Agriculture, R/o Mahagondwadi ) Taluka Ajara, District Kolhapur. ) No.1 & 2 through their Power of ) Attorney Holder, Shri Jotiba ) Bhimrao Jadhav ) Age major, occupation Agri. ) R/o. A/P Uttur, Taluka Ajara, ) District Kolhapur. ) 3. Bhimrao Dattu Jadhav, ) Aged 54 years, Occupation Agri. ) R/o. Gargoti Ring Road, Uttur, ) Taluka Ajara, District Kolhapur. ) 4. Smt. Laxmibai Dattu Jadhav, ) Aged 71 years, Occ. Housewife ) R/o Gargoti Ring Road, Uttur, ) Taluka Ajara, District Kolhapur. )..Respondents (Orig. Opponents) 2 wp-7651-10.sxw Mr. Prashant Bharke i/b. N.V.B andiwadekar,Advocate, for the petitioner. Mr. S.S.Patwardhan,Advocate for the respondent Nos. 1 & 2. CORAM: J.H.BHATIA,J. DATE : 28th September, 2010. JUDGMENT: 1. Rule. Rule made returnable forthwith. Heard the learned Counsel for the parties. 2. Respondent Nos. 1 and 2 are the sisters of the present petitioner and respondent No.3 - Bhimrao. Respondent No.4 Laxmibai is their mother. Dattu, husband of respondent No.4 and father of the petitioner and the respondent Nos. 1 to 3, died in 1994 leaving behind certain joint family ancestral property. The respondent Nos. 1 and 2 filed Regular Civil Suit No.16 of 2004 for partition and separate possession. That suit was contested mainly by the defendant no.2 Hanamant, who is petitioner before this Court. According to him, partition had already taken place and the suit filed by the present respondent nos. 1 and 2 could not be decreed. However, the trial Court by the Judgment dated 28.2.2007, decreed the suit holding that the plaintiff and defendant Nos. 1 to 3 had 1/5th share each in the suit lands and the suit house. Accordingly, decree for partition and separate possession was passed. The present petitioner filed an appeal challenging the said judgment and decree along with Misc. Application NO.22/2009 for 3 wp-7651-10.sxw condonation of delay in filing the appeal. That application was filed on 23.7.2009. Thus, there was delay of about 2 years and 4 months. According to him, another suit No.86/2000 was filed by him for permanent injunction and both the suits were pending. The suit filed by him was dismissed and the appeal was preferred. He was never informed by the Advocate that he will be required to remain present in Regular Civil Suit No.16/2004 filed by the sisters for partition. He also contended that due to old age, he could not come to the Court repeatedly. The trial Court did not find any substance in both the contentions and the application came to be rejected. That order is challenged in the present petition. 3. As far as the condonation of delay is concerned, there does not appear much substance in the application filed by the present petitioner. However, it needs to be noted that the present petitioner had filed Regular Civil Suit No.86 of 2000. In the suit, he had taken a plea that partition had taken place and he was in separate possession of the property, but the suit was against his another brother Bhimrao and mother Laxmibai. Against dismissal of that suit, he preferred Civil Appeal No.2 of 2006 which is still pending in the Court of District Judge, Gadhinglaj. In that case, the question is whether partition had taken place and whether the present petitioner was in possession of the property on the basis of that partition. In the suit filed by the respondent Nos. 1 and 2 also the contention 4 wp-7651-10.sxw of the petitioner is that partition had taken place after the death of his father in 1994 and therefore, the suit filed by the respondent nos. 1 and 2 for partition was not tenable. It is material to note that Sec.6 of the Hindu Succession Act came to be amended in the year 2005 whereby sisters were placed at par with brothers. The right of equal share in the co-parcenary property was given to the daughters or sisters.However, if the partition had taken place prior to 20.12.2004, that would not be invalidated and they may not be entitled to get equal share though they may be entitled to claim share out of the share of their father. As the Regular Civil Appeal No.2/2006 which is still pending and wherein also the question of that partition is involved, in my considered opinion, it will be in the interest of justice to condone the delay in filing the appeal by the present petitioner challenging the decree for partition. In view of the peculiar facts and circumstances, the delay may be condoned. 4. For the aforesaid reasons, the Writ Petition is allowed subject to payment of costs of Rs.5,000/- to be paid to the respondent Nos. 1 and 2 within four weeks from this day. The impugned order rejecting the application for condonation of delay is hereby set aside. Misc. Application No.22/2009 is hereby allowed. Delay is condoned. The appeal filed by the petitioner before the District Court, Ghadinglaj challenging the judgment and decree in Regular Civil 5 wp-7651-10.sxw Suit no.16/2004 be registered. Said appeal and the Regular Civil Appeal No. 2/2006 filed by him earlier shall be expedited and disposed of together as early as possible. 5. In view of this, the execution of the decree in Regular Civil Suit No. 16/2004 shall remain stayed for a period of eight weeks from this day. The petitioner shall have liberty to move the District Court for stay to the decree and that application may be decided on its own merits by the District Court. (J.H.BHATIA,J.)