1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 5850/2007 (Vilas Chandrakant Meshram & others VERSUS Sou.Usha Giridhar Fulzele) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Shri P.D. Meghe, counsel for the petitioners. Shri D.L. Dharmadhikari, counsel for the respondent. CORAM : SMT. VASANTI A. NAIK, J. DATE : OCTOBER 17, 2008. By this petition, the petitioner impugns the common order passed by the 2nd Joint Civil Judge (Senior Division), Nagpur, below Exhs.23 and 27, on 25.10.2007 permitting the respondent to substitute her name as legal representative of deceased decree holder and rejecting the application filed by the petitioners for substituting their names as the legal representatives of deceased decree holder. It is not in dispute that the father of the petitioner no.1 was married to one Smt. Anusuyabai. A year later, the father of the petitioner no.1 performed a second marriage with Smt. Purnabai. Petitioner no.1 was born from the wedlock of Chandrakant and Smt. Purnabai, whereas, respondent was born from the wedlock of Chandrakant and 2 Anusuyabai. Since Chandrakant had executed a will making a bequest of the property in dispute in favour of Anusuyabai, she had filed a suit against the petitioners and certain other parties for a declaration that she was the absolute owner of the property in pursuance of the will executed by Chandrakant and that the petitioners and the other parties should not disturb her possession. A further direction was sought against the petitioner nos.1 and 2 for vacation of the suit house. The suit was decreed on 30.06.2005. The petitioners preferred an appeal against the said decree but, the same was dismissed by the judgment dated 05.12.2006. On 19.01.2007, during the pendency of the execution proceedings, Smt. Anusuyabai expired. Respondent filed an application before the executing Court for substituting her name as the legal representative of Anusuyabai as the respondent was the daughter of Anusuyabai. Similarly, petitioners also filed an application for substituting their names on the ground that they were the sons and daughters of Chandrakant. The executing Court allowed the 3 application filed by the respondent and dismissed the one filed by the petitioners. The petitioners have impugned the order dated 25.10.2007 in the instant petition. Shri P.D. Meghe, the learned counsel for the petitioners, submitted that the executing Court was not justified in dismissing the application filed by the petitioners as the petitioners, though were the illegitimate children of Chandrakant, were entitled to inherit the property owned and possessed by Chandrakant in view of the provisions of Section 16 of the Hindu Marriage Act. It is submitted on behalf of the petitioners that though Anusuyabai was declared to be the absolute owner of the property by the judgment and decree dated 30.06.2005, after the death of Anusuyabai, the property again reverted to the heirs of Chandrakant, and hence, the executing Court was not justified in allowing the application filed by the respondent and dismissing the application filed by the petitioners. The counsel for the petitioners relied on the judgments reported in AIR 1992 Andhra Pradesh 234 and AIR 1998 Madhya Pradesh 114 to 4 substantiate his submission that the illegitimate children of the deceased from a second wife are also entitled to claim succession to the property of deceased in view of Section 16 of the Hindu Marriage Act, 1955. Shri D.L. Dharmadhikari, the learned counsel for the respondent, supported the order passed by the executing Court and submitted that the application filed by the petitioners before the executing Court was misconceived as Section 15 of the Hindu Succession Act, 1956 was applicable to the facts of the case. It is submitted on behalf of the respondent that the application was filed by the petitioner on an assumption that the property reverted to the heirs of Chandrakant after the death of Anusuyabai. It is submitted on behalf of the respondent that by the judgment and decree dated 30.06.2005, Anusuyabai was declared to be the absolute owner of the property in pursuance of the will executed by Chandrakant on 26.03.1996. In view of this position, according to the counsel for the respondent, the provisions of Section 15 of the Hindu Succession Act came into play and the property of Anusuyabai devolved upon the respondent 5 in view of the provisions of Section 15(1)(a) of the Hindu Succession Act. The counsel for the respondent relied on the decision reported in 1987 Mh.L.J. 551 for substantiating his submissions. The submissions made on behalf of the petitioner are totally ill-founded. By no stretch of imagination, it could be said that the property owned and possessed by Anusuyabai in pursuance of the will dated 26.03.1996 could revert to the legal heirs of Chandrakant. The trial Court had decreed the suit filed by Anusuyabai by the judgment dated 30.06.2005 holding therein that Anusuyabai became the absolute owner of the suit property in pursuance of the will dated 26.03.1996. Since the property was the absolute property of Anusuyabai, the provisions of Section 15 of the Hindu Succession Act, 1956 applied to the facts of the case. Since Anusuyabai had only one issue i.e., the respondent, the executing Court rightly allowed the application filed by the respondent as the property firstly devolved upon the respondent in view of the provisions of Section 15(1)(a) of the Hindu Succession Act, 1956. 6 The judgment reported in AIR 1992 Andhra Pradesh 234 and AIR 1998 Madhya Pradesh 114 and relied on by the counsel for the petitioners, are totally inapplicable to the facts of this case as the petitioners were not claiming for substitution of their names in place of Chandrakant and were seeking substitution of their names on record in view of the death of Anusuyabai. Since Anusuyabai was the absolute owner of the property, the property left behind by Anusuyabai could not have devolved on the petitioners under the provisions of Hindu Succession Act. The judgment reported in 1987 Mh.L.J. 551 and relied on by the counsel for the respondent, squarely applies to the facts of the case. There is no error whatsoever, much less, a jurisdictional error in the impugned order passed by the executing Court. The writ petition is, therefore, dismissed with costs. JUDGE APTE