1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO. 8242 OF 2009 IN SECOND APPEAL NO. 852 OF 2005 Narhari s/o Hanumantrao Jomde (deceased through LRs) APPLICANTS Versus Bhimabai w/o Hanmantrao Jomde & others Respondents Shri S.D. Ghayal, advocate for the applicants. CORAM: R.M.BORDE, J. DATE : 20th August, 2009. PER COURT : This is an application for condonation of delay of 279 days occurred in presenting application for setting aside abatement and for bringing on record the legal heirs of deceased sole appellant. For the reasons stated in the application, application is allowed. Delay of 279 days occurred in presenting application for setting aside abatement and for bringing on record the legal heirs of deceased appellant stands condoned. Civil application stands disposed of. (R.M.BORDE) JUDGE dyb/sa852.05.odt 2 FARAD CONTINUATION SHEET NO. ____________ IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION ST. NO. 16368 OF 2009 IN SECOND APPEAL NO. 852 OF 2005 ------------------------------------------------------------------------------------------------------------ Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order ----------------------------------------------------------------------------------------------------------------------------------- CORAM: R.M.BORDE, J. DATE : 20th August, 2009 This is an application for bringing on record the legal heirs of deceased appellant. For the reasons stated in the application, application deserves to be allowed and the same is accordingly allowed. Legal heirs of deceased appellant are permitted to be brought on record. Civil appliation stands disposed of. (R.M.BORDE) JUDGE dyb/sa852.05.odt 3 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 852 OF 2005 Narhari s/o Hanumantrao Jomde Appellant Versus Bhimabai w/o Hanmantrao Jomde & others Respondents Shri S.D. Ghayal, Advocate for the appellant. CORAM: R.M.BORDE, J. DATE : 20th August, 2009. PER COURT : 1 This is an appeal by original plaintiff raising exception to the concurrent judgments recorded by the courts below. 2 Plaintiff instituted Regular Civil Suit no. 386/1997 claiming declaration of ownership and possession in respect of land block no. 110 admeasuring 25 R, block no. 112 admeasuring 44 R, block no. 228 admeasuring 1 H 88 R and block no. 230 admeasuring 85 R situate at village Sirsam, Tq. Palam, Dist. Parbhani and also seeking restrain order against the defendants from alienating the suit property. According to plaintiff, his father Hanmantrao had performed second marriage during 4 subsistence of his first marriage in the year 1957. Defendant nos. 2 to 4 are the daughters of defendant no. 1 and deceased Hanmantrao. Lands in question are the ancestral property of plaintiffs and defendant Hanmantrao. Defendant no. 1 Bhimabai had presented one suit being Regular Suit no. 303/1981 against father of the plaintiff claiming maintenance allowance. Suit ended in compromise and as per the terms of compromise, suit property was given in possession of defendant no. 1 in lieu of maintenance. It was condition mentioned in the compromise deed that defendant no. 1 would be entitled to possession of the property during her life time and she cannot become absolute owner thereof. It is also specifically mentioned in the compromise deed that defendant no. 1 shall not have entitlement to alienate the property. According to the plaintiff, defendant no. 1 is trying to alienate the property and she needs to be restrained from creating third party interest. 3 Defendants appeared and resisted the claim by filing written statement. According to defendant no. 1, she is legally wedded wife of deceased Hanmantrao and defendant nos. 2 to 4 are the legitimate daughters of deceased Hanmantrao. Presentation of earlier suit being Regular Civil Suit no. 303/1981 and compromise arrived at in the said suit 5 has been admitted by the defendants. It is further contention of the defendant that by virtue of operation of provisions of section 29 of the Hindu Succession Act, restricted ownership conferred on her is turned into full ownership and the restriction in relation to alienation of the property cannot deter her from creating third party interest. According to her, the case in respect of allotment of property to her would be covered by section 14 of the Hindu Succession Act and by operation of law, she becomes full owner of the property and section 14(2) of the Hindu Succession Act will have no application in the facts of the case. 4 Trial court after recording evidence of the parties recorded finding that defendant no. 1 is the legally wedded wife of deceased Hanmantrao. It has further been observed by the trial court that she had entitlement to receive maintenance out of the joint family property. By virtue of decree passed in Regular Civil Suit no. 303/1981, right of defendant no. 1 in respect of receiving maintenance out of the joint family property is recognised and by virtue of provisions of section 14 of the Hindu Succession Act, restricted ownership conferred on her is converted / turned into full ownership notwithstanding the fact that compromise prescribes limited interest for her in the property. Trial court 6 placing reliance on the several reported judgments has held in favour of the defendants and dismissed the suit presented by the plaintiff. Judgment and decree passed by the trial court was subjected to challenge at the instance of original plaintiff in Regular Civil Appeal no. 194/2001. Appeal also came to be dismissed by the 2nd Additional District Judge, Parbhani by judgment and decree passed on 6-2-2001. 5 I have perused the judgments recorded by both the courts below. It cannot be controverted that defendant no. 1 was the legally wedded wife of deceased Hanmantrao and had entitlement to receive maintenance out of the joint family property. Her right to receive maintenance out of joint family property has been recognised by virtue of compromise decree passed in Regular Civil Suit no.303/1981. Although compromise decree prescribes restricted entitlement in her favour, by virtue of operation of provisions of section 14(1) of the Hindu Succession Act, such restriction no more remains as bar in her exercising right as a full owner of the property. The courts below have properly appreciated the provisions of section 14(1) of the Hindu Succession Act and have held in favour of defendant no. 1. Considering all the relevant circumstances, I am of the opinion that this appeal does not give rise to any substantial 7 question of law. Appeal therefore stands dismissed summarily. 6 In view of dismissal of the appeal, pending civil application, if any, does not survive and stands disposed of. (R.M.BORDE) JUDGE ******* dyb/sa852.05.odt