1 WP-3474-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3474 OF 2011 Rakhma Raoji Bachhav ..Petitioner Vs Smt.Shahabai Nandu Shelar and ors. ..Respondents -- Mr.Rameshwar N.Gite, for petitioner. -- CORAM : R.G.KETKAR, J. DATE : 18 th OCTOBER, 2011 P.C.: Heard Mr.Rameshwar Gite, learned counsel for the petitioner. 2] By this petition, the petitioner – original defendant challenges the judgment and order dated 26 th November, 2010 below exhibit 35 in Special Civil Suit no.32 of 2010 passed by the learned Joint Civil Judge Senior Division, Malegaon, Dist.Nashik. By that order, the learned trial Judge rejected the application made by the petitioner 2 WP-3474-11.sxw herein under Order 1 Rule 10(2) of the Code of Civil Procedure, 1908 (for short “C.P.C.”) for impleading her as party defendant in the suit. 3] The respondent no.1 herein instituted Special Civil Suit no.32 of 2010 for partition and separate possession of her share as also for perpetual injunction restraining the defendants from creating third party interests in respect of the properties in dispute. The plaintiff also claimed mesne profits from the defendants. It is the case of the plaintiff that defendant no.2 – Chandrabhagabai and plaintiff – Shahbai are the real sisters and the original defendant no.1 Sadarbai is their step-mother. The suit properties were partitioned between Vithoba (father of plaintiff and defendant no.2 and husband of defendant no.1) and his brother. In that partition, the properties bearing Gat no.951 was allotted and recorded in the name of original defendant no.1. On 19 th November, 1996, Vithoba had also purchased property bearing Gat No.894 in the name of defendant no. 1 Sadarbai. It is in these circumstances, the respondent no.1 plaintiff contended that the suit properties belonged to her father and she has 1/3 rd share in the suit properties. Yogesh Sitaram Bacchav and 3 WP-3474-11.sxw Rupesh Sitaram Bacchav were impleaded as defendant nos.3 and 4, because defendant no.1 sold the suit properties to defendant no.3 and 4 despite the order of injunction. 4] Pending suit, the petitioner took out the application at exhibit 35 for impleading her as party defendant. It is her case that original defendant no.1 Sadarbai died on 21 st July, 2010 issueless. She was residing with her husband and family members at maternal home. After the death of Vithoba, sons of brother of her husband were looking after defendant no.1. The applicant being the brother of the husband of defendant no.1, claimed that after the death of defendant no.1, the properties held by her will devolve upon her heirs as per Section 15 of Hindu Succession Act, 1956. The applicant being Class II heir of defendant no.1, is a necessary party. 5] Respondent no.1 – plaintiff opposed that application and denied all the adverse allegations made against her. It was contended that defendant no.1 had sold properties to defendant nos. 3 and 4 who were grandsons of the petitioner. The petitioner is not 4 WP-3474-11.sxw co-owner of the suit properties and consequently, has no concern whatsoever. 6] After hearing both the sides, learned trial Judge rejected the application holding that the respondent plaintiff is claiming to be a Class-I heir of deceased Vithoba and defendant no.1 whereas, the petitioner is claiming to be Class II heir of defendant no.1. He, therefore, came to the conclusion that the applicant is neither necessary party nor proper party. 7] It is not in dispute that the petitioner claims to be a class II heir of defendant no.1. It is also not in dispute that the plaintiff is claiming to be daughter of Vithoba and defendant no.1 is the step-mother of plaintiff and defendant no.2. It is the specific case of the plaintiff that in the partition between Vithoba and his brother, Gat no.951 was allotted to the share of Vithoba and was recorded in the name of defendant no.1. The other property bearing Gat no.894 was purchased by Vithoba in the name of defendant no.1 and thus, the suit properties originally belonged to her father Vithoba. 5 WP-3474-11.sxw 8] Section 8 of the Hindu Succession Act provides that property of a male Hindu died intestate shall devolve according to the provisions of Chapter II :- (a) firstly, upon the heirs, being the relatives specified in class 1 of the Schedule. (b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule. (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased, and (d) lastly, if there is no agnate, then upon the cognate of the deceased. 9] Having regard to the provisions of Section 8 and 9 of the Hindu Succession Act, the petitioner, who claims to be Class-II heir cannot derive any right, title and interest in the suit properties. In view thereof, the learned trial Judge rightly rejected the application made 6 WP-3474-11.sxw by the petitioner. I do not find that the learned trial Judge has committed any error of law apparent on the face of record. It cannot be said that the impugned order suffers from any perversity. The petition is devoid of any substance and hence deserves to be dismissed. The petition is dismissed. [R.G.KETKAR, J.]