rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION REVIEW PETITION NO. 14 OF 2008 REVIEW PETITION NO. 14 OF 2008 REVIEW PETITION NO. 14 OF 2008 IN IN IN SECOND APPEAL NO.164 OF 2001 SECOND APPEAL NO.164 OF 2001 SECOND APPEAL NO.164 OF 2001 Saraswati Namdeo Morye .. Petitioner Vs. Manorama Rajaram Bhogate & Ors. .. Respondents Mr.A.S.Khandeparkar i/b. Khandeparkar & Associates for the Petitioner. Mr. H.S.Shreepad Murthy for the Respondents. CORAM : A.S.Oka, J. CORAM : A.S.Oka, J. CORAM : A.S.Oka, J. DATED : 5TH JANUARY, 2009 DATED : 5TH JANUARY, 2009 DATED : 5TH JANUARY, 2009 P.C. P.C. P.C. . The Review Petitioner is the Appellant in the Second Appeal which has been dismissed by the order dated 13th January, 2005. 2. The Review Petitioner filed a suit for partition. The case of the Review Petitioner is that she is a heir of her father Pandurang. The defence of the contesting Defendants in the written statement was that father of the Review Petitioner died prior to ( 2 ) 1957 and therefore the Review Petitioner will not be entitled to claim any share in the undivided share of her father. The Trial Court decreed the suit. The Appellate Court on the basis of the statement made by the first witness examined by the first Defendant accepted the case that the father of the Review Petitioner died prior to 1953. As the Appellate Court found that father of the Review Petitioner died prior to coming into force the Hindu Succession Act, 1956, the decree passed by the Trial Court for partition was set aside and suit filed by the Plaintiff was dismissed. 3. While dismissing the Second Appeal by order dated 13th January, 2005, this Court observed that the Review Petitioner was claiming a share in the suit property in her capacity as a legal representative of her father. This Court held that the father of the Review Petitioner admittedly died before coming into force of the Hindu Succession Act, 1956. 4. In this Review Petition, the Review Petitioner is relying on a certified copy of the death extract of ( 3 ) her father which records that the date of the death of the father is 30th October, 1957. The submission of the learned counsel appearing for the Review Petitioner is that in the reply filed to the Review Petition, the genuineness of the said document has not been disputed. He submitted that the trial Court did not frame any issue regarding the date of death of the Review Petitioner’s father. He pointed out that in Appeal there was no point for determination framed on this aspect. He, therefore, submitted that in view of availability of evidence in the form of death extract, the order in Second Appeal deserves to be reviewed. He submitted that as no issues was framed by the Trial Court on the aspect of date of death of the Petitioner’s father, there was no opportunity for the Review Petitioner to adduce evidence on this aspect. He, therefore, submitted the order passed in the Second Appeal be reviewed. 4. I have given careful consideration to the submissions. In the plaint, the Review Petitioner has not disclosed the date of death of her father. In the written statement a specific contention was raised ( 4 ) that the father of the Review Petitioner died prior to 1957 and hence, the Petitioner is not entitled to claim rights as heir of her father. The second Respondent Subhash Bhogate step into the witness box and deposed in examination-in-chief that father of the Review Petitioner died prior to the year 1953. There is no cross-examination made of the said witness by the Review Petitioner on this aspect. The Review Petitioner did not step into the witness box. 5. The learned counsel appearing for the Review Petitioner submitted that only on the basis of the statement in the evidence that the father of the Review Petitioner died prior to 1953, the Appellate Court has interfered. 6. This is not a case where either in the pleadings or in the evidence any foundation was laid by the Review Petitioner to the case that her father died after coming into force of the Hindu Succession Act, 1956. Infact, the Review Petitioner did not lead any evidence. When the second Respondent categorically stated in examination-in-chief of that ( 5 ) the Review Petitioner’s father died before 1953, not even a suggestion was given to the said witness that the said factual assertion was wrong. 7. The suit is of the year 1981. It was decided in the year 1985. By the defence raised in the written statement, the Review Petitioner was put to notice that a contention was sought to be raised by the Respondents that the Review Petitioner cannot claim to be the legal heir of her deceased father. Therefore, the Review Petitioner was fully aware that she is required to establish that her father died after coming into force the Hindu Succession Act, 1956. The first Appeal of the year 1985, was decided by the District Court in the year 1995. Therefore, at this stage, in a Review Petition in the Second Appeal of the year 2001, the Review Petitioner cannot be allowed to raise the said contention by producing alleged death extract of her father. Such a case ought to have been made by the Review Petitioner before the Trial Court. 8. Hence, there is no error apparent on the face of the record. Moreover, there is no other ground for ( 6 ) review. Accordingly, the Review Petition is rejected. 9. No orders as to costs. (A.S.Oka, J.) (A.S.Oka, J.) (A.S.Oka, J.)