* 1 * FA-510-511/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 510 OF 2010 A L O N G W I T H FIRST APPEAL NO. 511 OF 2010 Mrs. Medhavini Vijay Borawke ] (since deceased), the appellant nos. ] 1 to 3 are her heirs & legal representatives ] 1. Mr. Vijay Nivrutti Borawke ] Age : 66 yrs, Occ :Retired ] 2. Pushkraj Vijay Borawke ] Age :47 years, Occ: Service ] Both are Indian Inhabitants ] Residing at Bhagyashree Residency ] 3. Miss. Saudamini Vijay Borawke ] Age : 32 years @ Mrs.Sunanda ] Swapnali Dhadge, ] Indian Inhabitant, ] Residing at Parel, Mumbai ] 4. Mrs. Anjali Dilip Agate ] Age: 54 yrs, Occ: Business ] 5. Mrs. Sushma Manik Pabari ] Age : 53 years, Occ: Medical Practitoner ] Indian Inhabitant, Both R/o ] Dahanu Road (East), Tal-Dahanu ] Dist.Thane ]Appellants/ Orig.Plaintiffs. :V E R S U S : Mr. Ramkrishna Janardhan Karandikar ] (Since deceased), the respondents ] no.1 to 4 are his heirs and legal representatives ] * 2 * FA-510-511/2010 1. Mrs. Shailaja Laxman Soman, ] Age about 79 years, Occ : Household ] Indian Inhabitant, R/o. Omkrishna Kunj ] Co-op Hsg. Soc.ltd, Opp. Kamala ] Nehru Park, Pune ] 2. Smt. Bhanumati Prabhakar Karandikar ] Age : 70 years, Occ : Business ] Indian Inhabitant, ] R/o. Block No.2, Vinayak Kunj Co-op ] Hsg.Soc.Ltd Lane no.1, Dahanukar Colony] Kothrud, Pune-400 029. ] 3. Mrs. Sanjiwani Narayan Abhyankar ] Adult, Indian Inhabitant, R/o.1214, TXADA, Conquitton B.C. V-3, V-5, f-2, Vanvauver, Canada ] 4. Mr. Sudhir Sriniwas Karandikar ] Age : 51 years, Indian Inhabitant ] Occ : Business, R/o. Anandi Bhuwan, ] Dahanu Road, (East), Tal-Dahanu ] Dist-Thane ]Respondents/ Orig.Defendants -------- Mr. S.S. Gawade, advocate for the appellants. Mr. P.M. Arjunwadkar, advocate for the respondents. CORAM :- A.P. DESHPANDE, & SMT. R.P. SONDURBALDOTA, JJ. DATED :- - 8 th April, 2010. JUDGMENT : [PER : SMT. R.P. SONDURBALDOTA, J] 1. This is a common order on the above appeals filed by the same appellants and arising out of the same judgment and order dated 29th * 3 * FA-510-511/2010 April, 2006. Considering the facts and circumstances of the case, we have heard the appeals for final disposal at the stage of admission by dispensing with the paper-book and production of records and proceedings. 2. The impugned order is common to four suits i.e. Special Civil Suit No. 593 of 1996, Special Civil Suit No. 773 of 1996, Special Civil Suit No. 774 of 1996 and Special Civil Suit No.193 of 1996. The first two suits were filed by Medhavini alongwith her two sisters Anjali and Sushma against their grandfather Ramkrishna and brother Sudhir. The other two suits were filed by Ramkrishna against Anjali and Sushma respectively. During the pendency of the suits, Ramkrishna expired and his heirs, present respondents no.1 to 3 were brought on record. By the time, the present appeal was filed Medhavini also died. Hence, the appeal is filed by her heirs, appellants no1 to 3 alongwith Anjali and Sushma. The appeals challenge only part of the impugned judgment and decree, the part relating to dismissal of Special Civil Suit No. 593 of 1996 and Special Civil Suit No.773 of 1996. In the circumstance, for the sake of convenience, the appellants will hereinafter be referred to as “Plaintiffs”, respondents no.1 to 3 as “defendant no.1” and respondent no. 4 as “defendant no.2”. * 4 * FA-510-511/2010 3. The undisputed facts of the matter are that, one Janardhan, predecessor of the parties died intestate in the year 1931. He had four sons, Dattatraya, defendant no.1-Madhusudan, Atmaram and a daughter. The daughter had no claim to his properties having married prior to 1937. Dattatraya having died issueless and his widow having remarried, the properties of Janardhan were inherited by defendant no.1-Madhusudan and Atmaram. Then, there was partition between Atmaram on one side and two brothers on the other side. This partition resulted into mutation of revenue records (Exhibit-126, Exhibit-128). Later, there was partition between defendant no.1 and Madhusudan resulting into mutation entries (Exhibit-129). Defendant no.1 had two sons, Prabhakar and Shriniwas. Prabhakar died in the year 1953. There was further partition between defendant no.1 and Shriniwas on 17th April, 1958 and the revenue records mutated accordingly (Exhibit-125, 126). The fact of this partition is referred to in the plaint by the plaintiffs, as well as, admitted in oral evidence. Shriniwas, thereafter, sold part of the property fallen to his share in partition by executing registered sale-deed on 27th January, 1977. Out of the sale-proceeds, he purchased securities in his name. This sale is not challenged by the plaintiffs. Shriniwas died on 28th January, 1989. Defendant no1 executed will dated 19th February, 1991 bequeathing his * 5 * FA-510-511/2010 properties in favour of defendant no.2. All the plaintiffs are married daughters of Shriniwas, their marriages having taken place much prior to 22nd June, 1994 i.e. in the year 1968, 1972 and 1976 respectively. 4. Special Civil Suit No. 593 of 1996 was filed by the plaintiffs for a declaration that the will dated 19th February, 1991 by defendant no.1 is null and void and not binding on them. They also sought permanent injunction to restrain the defendants from acting upon the will. Special Civil Suit No. 773 of 1996 filed by them was for partition of and separate possession of the properties alleged to be joint family properties. The trial court found that the suit filed by the appellants for partition was not maintainable. There was no Hindu undivided family existing amongst deceased Shriniwas and the defendants. The properties shown in Schedules, B, C and D are not ancestral properties or of the HUF of plaintiffs and the defendants. There was oral partition between defendant no.1 and deceased Shriniwas in April, 1958 which had been acted upon. As such Shriniwas had no share in the properties of defendant no.1. The will dated 19th February, 1991 was properly executed by defendant no.1 and valid and that the property bequeathed by him under the will was not the ancestral property. The trial court found that the plaintiffs being married daughters and their marriages being * 6 * FA-510-511/2010 solemnized in the years 1968, 1962, 1976 cannot be recognised as members of joint family of Shriniwas since their marriage. Consequently, there can be no Hindu Undivided Family between them and the defendants. It held that, there can be no claim of the appellants of being co-parceners of Hindu Undivided Family under the amended provision of Hindu Succession Act as Section 29A came to be inserted in Chapter-IIA of Hindu Succession Act granting equal right to daughter in co-parcenery property with effect from 22nd June, 1994 and sub-section (iv) of it specifically provided that nothing in Chapter-II shall apply to a daughter married before the date of commencement of Hindu Succession ( Maharashtra Amendment) Act, 1994. The trial court also found another obstacle in the way of the plaintiffs, that the suit had been filed during the lifetime of defendant no.1. The plaintiffs being their grand-daughters are not entitled to file suit for partition asking the grandfather to partition the ancestral property when partition had already taken place between the grandfather and their father in the year 1958. With the partition having taken place, the property in the hands of either their grandfather/defendant no.1 and their father Shriniwas, was their respective exclusive property and hence no claim could be laid by the parties to the property of defendant no.1 during his lifetime. The trial * 7 * FA-510-511/2010 court also found that the will of defendant no.1 sought to be challenged by the plaintiffs had been validly executed considering the evidence on record. The trial court found the evidence of two Doctors examined by the defendants as convincing. Advocate Mr. Bothra had identified both the Doctors at the time of registration of the will. With these findings, the trial court dismissed both the suits. We find no infirmity whatsoever with the findings of the trial court. The appellants being married grand- daughters of defendant no.1 whose marriages had taken place prior to the year 1994 could not take advantage of the amended provision of Section 29A of Hindu Succession Act, 1956. Their challenge to the validity of the will was also not supported by the evidence led in the matter. In the circumstances, in our opinion, there is no substance in the appeals filed by the plaintiffs. Hence, we dismiss the same. [SMT. R.P. SONDURBALDOTA, J] [A.P. DESHPANDE, J]