1 S.A.232/1985 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 232/1985 Anjanabai w/o Shahajirao Dudhbhate ...Appellant. Original Plaintiff. Versus 1 Narsu Rama Ghodake, 2 Maruti Rama Ghodake, 3 Ganpati Rama Ghodake, 4 Vishvanath Rama Ghodake ...Respondents. Original Defendants. Mr. Prashant Deshmukh, Advocate for the appellant. Mr. S.B. Bhapkar, Advocate for respondent Nos.1 to 4. CORAM : A.V. NIRGUDE, J. DATED : 28th June, 2011. ORAL JUDGMENT : 1. The facts leading to this litigation in short can be narrated as under. The appellant is sister of the four respondents, her brothers. Mayabai, the mother of these siblings was absolute owner of the suit property. She died in July, 1971. It was the case of the appellant at the trial stage that Mayabai executed a Will and bequeathed entire land to her and excluded her brothers, the respondents. She even stated that she was put in possession of the suit land but was dispossessed by her brothers. She filed the suit for declaration of ownership and for possession. The respondents, brothers opposed the suit and denied all the contentions about Will. The Courts below 2 S.A.232/1985 held that the Will was not genuine document. 2. The learned judge of the trial Court however, committed grave error by holding that after intestate demise of Mayabai in 1971, the suit land would devolve upon her only daughter, the appellant. He gave this finding placing reliance on the old Hindu law. He completely ignored the provisions of Hindu Succession Act, which came into force in the year 1956. The respondents, brothers filed an appeal against this rather weird finding and the learned judge of the first appellate Court promptly corrected the same, saying that if Mayabai had died intestate in 1971, her property would get devolved as per the provisions of Section 15 and 16 of the Hindu Succession Act, 1956. Since the parties to this litigation are only legal heirs being the children of Mayabai, they would get equal shares. In view of this, the learned District Judge allowing the appeal dismissed the suit. The proposition in this back ground of the appellant’s advocate is that if the learned District Judge held that the appellant was entitled to 1/5th share in the suit property, he ought to have decreed her suit for declaration that the appellant was owner to the extent of 1/5th share of the suit property and also for separate possession. This proposition was made the basis of substantive question of law. The learned advocate appearing for the appellant however, could not lay his hand on any judgment to support his contention. The appellant at no point of time made any attempt to amend the plaint for adding the alternate remedy for partition and separate possession of the suit land. So, there was no possibility for the learned judge of the first appellate court to hear the parties on such eventuality. The submission of the appellant’s advocate thus deserves to be rejected. None the less, the 3 S.A.232/1985 appellant, it appears, is still entitled to seek partition of the suit land and separate possession of her share in it. The appeal should therefore, fail. ORDER The appeal stands dismissed. [A.V. NIRGUDE,J.] ts k/2011/June28/sa232.85/ok