1 wp5779.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION No. 5779 OF 2011 Dhondiba S/o Ramal Labade PETITIONER -VERSUS- Janabai W/o Dashrath Amte and others. RESPONDENTS ...... Shri S.S. Deshmukh, advocate for the petitioner. Smt. Anjali Dube (Bajpai) advocate for respondents. ...... CORAM : S.V. GANGAPURWALA, J. DATE : 5th September, 2011. PER COURT : 1. The present respondent no.2 has filed the suit for partition and separate possession against the present petitioner and the respondent nos. 3 to 39. During the pendency of the suit, the present respondent no.1 filed an application for addition of party as plaintiff on the ground that she has also interest in the suit property. The said application is allowed. The petitioner assail the said order in the present Writ Petition. 2. Shri. S.S. Deshmukh, the learned counsel for the petitioner submits that the present respondent no.1 immediately on 2 wp5779.11 the death of Shankar remarried with one Dashrath. After her remarriage the said respondent no.1 will not have any right, title or interest in respect of the suit properties in view of Section 24 of the Hindu Succession Act. The learned counsel relies on the judgment of the learned Single Judge of this Court in the case of "Baliram Atmaram Dhake V/s Rahubai @ Saraswatibai Madhavrao Bhole", reported in "2009(4) Bom.C.R. 820". According to the learned counsel even the application does not give necessary particulars by which it can even prima facie be said that respondent no.1 has got some interest of the suit properties. In view of the undisputed facts narrated in the plaint itself by the plaintiff, who is daughter of the respondent no.1 that the respondent no.1 after death of father i.e. Shankar had remarried, therefore, the respondent no.1 cannot claim any right. Inter-alia the respondent no.1 was not a necessary nor a proper party. According to the learned counsel this aspect has not been considered by the Court. 3. Smt. Dube, the learned counsel for the respondent no.1 opposes the Petition and submits that it is undisputed that the respondent no.1 was wife of Shankar and the suit is for partition and separate possession, in which properties, Shankar had right and title. As such the respondent no.1 is a necessary party as she has also share in the suit properties. 3 wp5779.11 4. No doubt, the application for addition of party as plaintiff lacks particulars regarding the date of death of Shankar and date of remarriage of respondent no.1, it is suit for partition and separate possession. At this stage, it would be premature to decide about the rights of either of the parties. One thing is not disputed at this stage by the plaintiff that is respondent no.1 was the wife of Shankar and the suit is filed for partition and separate possession on the ground that she is daughter of Shankar and has got right to claim partition. As the respondent no.1 is shown to be wife of Shankar by plaintiff herself. In such circumstances, I do not think any error has committed by the trial Court in allowing the application for addition of party as plaintiff. Needless to state, the Court would consider the effect of Section 24 of the Hindu Succession Act so also the contentions of the petitioner at the time of trial and adjudication of the suit. 5. While considering the application for addition of party as plaintiff on the above premise, it is not necessary to consider the judgment in the case of Baliram Atmaram Dhake V/s Rahubai @ Saraswatibai Madhavrao Bhole cited supra by Shri. Deshmukh, the learned Advocate for the petitioner. 6. As far as the contentions of cost is concerned, the 4 wp5779.11 trial Court has got necessary jurisdiction to consider the case for imposing compensatory cost, if the facts of the case satisfies the ingredients thereof. The Writ Petition is accordingly dismissed, however, with no order as to costs. [S.V. GANGAPURWALA] JUDGE ga s/wp 5779.11