1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION SECOND APPEAL NO.945 OF 2007 Shri Mhasku Sonu Jarande & Ors. ...Appellants. v. Shri Dattatray Babu Khaladkar & Anr. ...Respondents. Ms.Pallavi N. Dabholkar, advs. For the Appellants. Mr.P.K.Hushing, adv. For the Respondents. CORAM : J.H. BHATIA, J. DATED : 5th August , 2009 P.C. 1 Heard the learned counsel for the Parties. 2 This is the second appeal filed by the original plaintiffs. Admittedly one Krishna had four sons namely, Hari, Rajaram, Namdeo and Sonu. Hari had three sons. Rajaram died issueless. Namdeo died in 1940 leaving behind his widow Sarubai. Sonu died leaving behind two sons, namely, Mhasku and Dashrath, who are the plaintiffs in the present litigation. Krishna and his sons formed a joint family holding certain properties. As Rajaram had already died issueless, Hari, Namdeo and Sonu would have 1/3rd share each in the property. After death of Namdeo, on 12.2.1955 his widow Sarubai filed regular civil suit no.97/55 seeking partition and separate possession to the extent of 1/3rd share in the joint family property. On 5.4.1956, i.e., before Hindu Succession Act, 1956 2 came into force, compromise took place between the parties and as per the consent decree passed in favour of the Sarubai, she accepted present suit properties as her share under Hindu Women’s Right to Property Act, 1937 with restriction that she would not alienate property to anybody. On 5.11.82 Sarubai executed mortgage deed by conditional sale in favour of the defendant no.2 and on 16.12.1995 she executed a gift deed in favour of the defendant no.3. Sarubai died on 12.7.2000. After her death, plaintiffs/appellants filed regular civil suit no.179/2000 for declaration that the said gift deed was not valid and they claimed possession of the property. Defendant nos.2 and 3 contested suit. According to them after Hindu Succession Act, 1956 had come into force, Sarubai had become absolute owner of the property by virtue of Section 14(1) of the Hindu Succession Act and, therefore, the plaintiffs have no right or title over the suit property. The trial Court dismissed the suit. Plaintiffs preferred regular civil appeal no.47/05. That appeal also came to be dismissed. Hence, the Second Appeal. 3 After hearing the learned counsel for the parties and after perusal of the judgments of both the Courts below as well as facts, it is clear that Sarubai had pre-existing right to the extent of certain share in the joint family property when the compromise took place on 5.4.1956 3 and because of that pre-existing right, suit property was given to her as per the consent decree. It is settled position of law that Section 14(2) is exception or proviso to Section 14(1) and it will be applicable only if a woman got the certain property under will, gift deed or any other instruments for the first time with certain restrictions but this would not be applicable where the woman had pre-existing right in the property. This position has been settled by catena of the judgments of the Supreme Court including V.Tulasamma and Others v Sesha Reddy (Dead) by L.Rs. (1977) 3 Supreme Court Cases 99 as well as Sadhu Singh v Gurdwara Sahib Narike and Others AIR 2006 SCW 4790. Courts below have correctly applied legal position while dismissing the suit as well as the appeal filed by the present appellants. Taking into consideration the facts and the legal position, I do not find any substantial question of law involved in the present appeal. 4 In the result, appeal stands dismissed. (J.H. BHATIA,J.)