1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.172 OF 1988 1) Rukhminibai w/o Dasu Savant; 2) Suman w/o Dnyanoba Shinde ..APPELLANT (Orig.Pltf.) VERSUS 1) Prayagbai w/o Narayan Bhosale 2) Gangubai w/o Limba Jagtap ..RESPONDENTS (Orig.Deft.) --- Mr.NK Tungar, Adv.h/for Mr.PV Mandlik, Sr.Counsel for the appellants. Mr.RD Mane,Advocate for Respondents. --- CORAM : K.U.CHANDIWAL, J. DATE : 23rd June, 2009 *** JUDGMENT : 1) The concurrent finding recorded against the plaintiff in RCS No.51/1975 decided on 21st October, 1981 and in RCA No.228/1981 by Additional District Judge, Osmanabad, dated 21st September, 1987 is assailed by the plaintiff. 2) On 11.08.1988 the appeal is admitted. The noting indicate as under : “Substantial question mentioned in ground no.10 is involved in this appeal. (A) Whether the Plaintiff’s right in ancestral property can be denied when it is undisputed 2 fact that Plaintiffs are grand- daughters of Nivrutti and are heirs of Nivrutti. (B) In view of the fact that the Hindu Womens Right to the Property Act came in force, in the State of Hyderabad in 1953, whether only the grand- daughters of Nivrutti will get the property and whether Defendant No.1 daughter-in-law of Nivrutti is entitled to claim any share in the property, in the circumstances that the Nivrutti died at the time of police action. (C) Whether the provisions of Hindu Succession Act, 1956 will be applicable in this case, in view of the fact that the Nivrutti died at the time of police action and the subject matter was within the jurisdiction of Hyderabad State. (D) Admittedly the Plaintiff and Defendant related with each other and admittedly it is an ancestral property of Nivrutti therefore after the death of Nivrutti the Plaintiffs as a grand-daughters of Nivrutti are entitled to claim their share in the property as a legal heirs and successors. (E) Whether it is necessary to frame the points for determination. (F) Whether the findings of Court below are perverse and 3 contrary to the law. 3) The controversies in the matter warrant brief summary of the interse relations between the parties. Nivrutti is the propitious. He had two sons, Mahadu and Narayan. Mahadu has two daughters, Rukminibai,(plaintiff no.1) and Suman (Plaintiff no.2). Narayan left behind his widow Prayagbai (defendant no.1) and daughter Gangubai (Defendant no.2). Mahadu, his wife and also Narayan died somewhere in 1948. Nivrutti expired subsequently in 1948. 4) Plaintiff nos. 1 and 2 Rukminibai and Suman plead that the suit property is their ancestral land since they are daughters of predeceased son of Nivrutti. The plaintiffs also assert to be in possession with the defendants. 5) The defendants, through their pleading, did not dispute the interse relations, but denied about existence of any right flowing in plaintiffs or about the joint possession of the plaintiffs. 6) The suit properties are situate at village Ieet, Tq. Bhoom District Osmanabad in Marathwada region in erstwhile region,description thereof can be seen in plaint paragraph 3 of the plaint. The plaintiffs assert that by virtue of Hindu Law of Inheritance (Amendment) Act, 1929, the plaintiffs have right in the property, they being son’s, married daughter of Nivrutti and the succession devolve after death of Nivrutti. 4 7) The revenue entries persistently including the inspection notes (Pahani Patrak) of the relevant period is exclusively in the name of deft. no.1 as owner and possessor of the property. This is persistently flowing after death of Nivrutti in 1948. 8) The area, where the suit property situate at the material time was forming part of old Hyderabad State, which was part-B as per First Schedule of Constitution of India. The position has been amended by Constitution (Seventh Amendment) Act, 1956, which came into force with effect from 1.11.1956. Prior to this amendment, the States which formed the Union of India were classified into four categories and enumerated in Part A, B, C and D of the First Schedule. Hindu Succession Act, 1956 and Hindu Law of Inheritance (Amendment) Act, 1929 are not applicable to the present case in view of the death of Nivrutti in the year 1948 and his son pre-deceased him. The succession of the parties came to be governed by Mitakshara law and the succession will be in three segments, namely, (1)Samanogotra or Sagotra Sapindas,; (2) Samanodakas; and (3) Bhinnagotra Sapindas or Bandhus. The status of the plaintiffs will be under the category of Bandhus while the status of defendant no.1 and 2 shall be under Gotra Sapindas. In view of the law prevalent at the material time, defendant nos. 1 and 2 naturally 5 have the preferential rights over Bandhus. One cannot be oblivious, that Mahadu and Narayan pre- deceased Nivrutti and after demise of Nivrutti, it was widow of Narayan, who succeeded the property being the only Sagotra Sapindas (heir) as the plaintiffs are given in marriage in other gotra, group and pursuant to the law in prevalence, they are inhibited staking any claim in the property of Mahadu. 9) The contention by counsel for the appellant that in the area in Marathwada, Bombay School was prevalent and consequently the plaintiff shall have the rights in the property, is again mis-placed contention, as after marriage, the plaintiffs come under different Gotras Sapindas while defendant no.1, though from different Gotra, having married to Narayan, comes in the category of Ist class heir and the property would devolve upon defendant no.1, who is the widow of pre-deceaed son of Nivrutti. In this scenario of the matter, it is defendant no. 1, who would prevail over the plaintiffs. 10) The provisions of Hindu Women’s Right to Property Act, 1937 extends to the whole of India except Part-B States (formerly outside British India and Hyderabad State governed by Nizam regime). It was obviously not made applicable till 1953. The devolution of property indicated in Section 3 of the Act of 1937 would not be applicable to the present case. 6 11) In the situation, the plaintiffs herein, having married in different Gotras, the law prevalent at the material time, exclude them from inheriting the property and consequently, they cannot stake claim to the order of succession as it would not be available to them. 12) The Counsel for the appellant placed reliance to a Full bench judgment reported in 1983 Mah.L.J. 379 – Anirudh Jagdeorao Vs. Babarao Irbaji and Ors. The question was custom and usage on adopting a male married man and while discussing the law in prevalence, the custom of male married man taken in adoption was approved. The question of law which has been referred to the Full Bench in this appeal is as under : “Whether the words `custom’ or `usage’ occurring in section 10(iii) and section 10(iv) of the Hindu Adoptions and Maintenance Act, 1956 read along with section 3(a) of the said Act includes within its sweep the rules of the Bombay School of Hindu Law (Mayukha) or interpretation of the text thereof by the Courts.” The law declared in the Full Bench Judgment will not be applicable to the present case, as the question revolves to the succession and not to the custom or adoption. The substantial question of law indicated that the plaintiffs have no right in the property though they are grand daughter of Nivrutti, the provisions of Hindu 7 Women’s Right to Property Act will not be applicable and consequently the plaintiffs will not get property from Nivrutti or from defendant no.1. The Mitakshara law was prevalent in the erstwhile Hyderabad region at the material time in 1948 up to 1952. The provisions of Hindu Succession Act, 1956 and the subsequent amendment therein will not be applicable to this case as Nivrutti died at the time of police action in 1948 and the property was within jurisdiction of Hyderabad State. The plaintiffs though are grand daughters of Nivrutti are not entitled to claim share in the property as legal heir or successor. The point for determination is correctly framed. The substantial question of law is answered as above. Second Appeal dismissed with costs sd/- ( K.U.CHANDIWAL) JUDGE agp/bdv/SA172.88 Authenticate copy (BD VADNERE,PS)