( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 60 OF 1991 Trambak Barku Patil .. Appellant Age. 68 years, Occ. Agriculture, [Ori.plaintiff] R/o. Karan, Tal. Jalgaon, Dist. Jalgaon. Versus 1. Damu Chindhu Patil .. Respondents Age/ 73 years, Occ. Agri., [Ori.respondents] 2. Rupchand Chindhu Patil (deceased), by his heirs : 1 to 12: (1) Premchand Rupchand Patil Age. 34 years, Occ. Agri., (2) Gitabai w/o. Rupchand Patil, Age. 79 years, Occ. Nil (3) Sundarabai w/o. Rupchand Patil, Age. 68 years, Occ. Agri., (4) Tarachand Rupchand Patil Age. 54 years, Occ. Agri., (5) Vasant Rupchand Patil, Age. 49 years, Occ. Agri., (6) Sahebrao Rupchand Patil, Age. 42 years, Occ. Agri., (7) Pandit Rupchand Patil, Age. 34 years, Occ. Agri., ( 2 ) (8) Ramkrishna Rupchand Patil, Age. 29 years, Occ. Agri., (9) Sudhakar Rupchand Patil, Age. 26 years, Occ. Agri., (10) Ganu Rupchand Patil, Age. 23 years, Occ. Agri., (11) Gulab Rupchand Patil, Age. 20 years, (12) Sumanbai w/o. Dhudaku Patil Age. 42 years, Occ. Household, (Respondent Nos. 1 & 2 (1 to 11) are resident of Panchak, Tq. Chopda, Dist. Jalgaon and No.12 of Avdhan, Tq. Dhule, Dist. Dhule. [Appeal abated against respondent Nos. 2(2) to 2(4), 2(6) & 2(7) as per order dated 07.08.1996] Shri P.R. Patil, Advocate for the appellant. Shri R.L. Kute h/f. Shri R.N. Dhorde, Advocate for the respondents. CORAM : P.R. BORKAR,J. DATED : 25.06.2009 ORAL JUDGMENT :- 1. This is an appeal preferred by the original plaintiff whose suit for declaration and possession was though decreed by the Civil Judge, Junior Division, Chopada, in Regular Civil Suit No.57 of 1978, decided on ( 3 ) 30th November, 1981, said judgment and decree came to be reversed in the appeal by the IIIrd Additional District Judge, in Civil Appeal No. 53 of 1982, decided on 4th March, 1986. 2. Brief facts relevant for decision of this appeal may be stated as below:- . Plaintiff Trambak is adopted son of Barku. Barku had expired on 1.04.1938. Savitribai the widow of Barku sold suit-land to original respondent No.1-Damu Chindhu Patil and his brother respondent No.2-Rupchand on 26.05.1946 by a registered sale-deed. Plaintiff Trambak was adopted by Savitribai on 25.08.1944. Thereafter, Trimbak filed Regular Civil Suit No. 16 of 1945 before the Court of Civil Judge, Junior Division, Yawal, challenging the sale-deed executed by Savitribai in favour of the plaintiff. Copy of judgment in said Regular Civil Suit No.16 of 1945 is produced at Exh.42 and the learned Civil Judge passed the following order:- “It is hereby declared that the suit sale deed is not binding on plaintiff’s half share in the ( 4 ) suit property. Plaintiff do recover joint possession of his half share in the suit land after payment of Rs.303-6-0 to defendants Nos.1 and 2. Plaintiff shall recover costs of Rs. 560/- from defendant Nos.1 and 2. Defendant Nos. 1 to 3 do hear their own costs of the suit.” 3. The matter was taken in appeal and Civil Appeal No.178 of 1946 was filed in the District Court of East Khandesh at Jalgaon, as it was then known. Copy of said Appellate Court judgment is at Exh.43 and the Appellate Court on 25.02.1948 passed the following order:- “It is hereby declared that the suit sale-deed as per Exh.35 is not binding on the present plaintiff. Plaintiff do recover joint possession of a half share in the suit land from defendants 1 and 2 on payment of Rs. 170-6-0 to the defendants 1 and 2. The defendants Nos. 1 and 2 should continue to be in possession of the defendant No.3 on whose death the same should revert to the legal heir or heirs of the deceased Barku Puna. In other respects the decree of the lower court is confirmed. Reg. Civil Appeal No.178 of 1946 is hereby dismissed and Reg. Civil Appeal No.189 of 1946 is partly allowed. Under the circumstances of the case I order that each party should bear its own costs of these appeals.” 4. The matter was not taken further in appeal or revision and the order became final. Thus, by the order ( 5 ) of the District Court it is held that the sale-deed was not binding on plaintiff Barku and he was entitled to recover joint possession of ½ share in the suit land with respondent Nos. 1 and 2 i.e. Damu and Rupchand on payment of Rs.170-6-0. It is further said that defendant Nos. 1 and 2 to continue to be in possession of the property, until death of defendant No.3 – Savitribai, on whose death the same shall revert to the legal heir or heirs of the deceased Barku Puna. In other words the decree is confirmed to the extent that it is held that the sale-deed was not binding on Barku’s ½ share over the suit land. It is binding to the extent of widow’s limited extent. 5. Savitribai died on 01.09.1968. Thereafter, present appellant Trambak filed Regular Civil Suit No.57 of 1878 for possession and as stated earlier, the learned Civil Judge decreed the suit and held that ½ share of Savitribai is belonging to the plaintiff as he is only heir of Barku Puna and Savitribai and he is entitled to recover joint possession of ½ share of Savitribai. Said judgment was challenged in Regular ( 6 ) Civil Appeal No.53 of 1982 and it was allowed and said judgment and decree passed by the Trial Court was set aside. It is this order which is challenged in this appeal. 6. Thus, it is clear from the above said discussion and events that in the Civil Suit bearing Regular Civil Suit No.16 of 1945, as confirmed in Civil Appeal No.178 of 1946 it was held that respondent No.1 Damu and respondent No.2 Rupchand were entitled to enjoy the property during lifetime of Savitribai. So, what they have purchased was only rights of Savitribai known as ‘widow’s estate’ and nothing more. 7. Present appeal is admitted on the ground Nos. 3 and 4 as per order dated 12.09.1994. Ground Nos. 3 & 4 are as under:- (III) Whether the purchaser from a Hindu widow prior to commencement of Hindi Succession Act, 1956, can claim the benefit of Section 14 of Hindu Succession Act and ask for treating the property prior to 1956 as an absolute property of the Hindu widow eventhough it is not in possession of the widow? ( 7 ) (IV) Whether in view of previous judgments of the learned Trial Court and District Court in R.C.S. No.16 of 1945 and Civil Appeal No.178 of 1946 and 189 of 1946, the defendants are precluded from taking the plea of absolute ownership of the widow under Section 14 of Hindu Succession Act? 8. Now the question is what is the effect of provisions of the Hindu Succession Act, 1956 on the said judgment. It is argued on behalf of the appellant that Savitribai had become absolute owner during lifetime by virtue of Section 14 of the Hindu Succession Act. The Hindu Succession Act came into force on 17.06.1956. Section 14 of the Hindu Succession Act is as follows:- “14. Property of a female Hindu to be her absolute property :- (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation.- In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after the marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by ( 8 ) her as stridhana immediately before the commencement of this Act (2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a Civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.” 9. On the date of commencement of Hindu Succession Act, 1956, admittedly Savitribai had sold her share and she was not in possession of the property. It cannot be said that after execution of sale-deed in favour of respondent No.1 Damu and respondent No.2 Rupchand, Savitribai was in actual or constructive possession of the property. The learned advocates for the parties cited several authorities before me. I may refer to only couple of them. 10. In Gummalapura Taggina Matada Kotturuswami V/s. Setra Veeravva and Ors., AIR 1959 S.C.577, the Supreme Court laid down that the word “possessed” in S.14 is used in a broad sense and in the context means the state of owning or having in one’s hand or power. Thus the ( 9 ) opening words “property possessed by a female Hindu” obviously mean that to come within the purview of the famale concerned at the date of the commencement of the Act. That possession might have been either actual or constructive or in any form recognized by law, but unless the female Hindu, whose limited estate in the disputed property is claimed to have been transformed into absolute estate under this particular section, was at least in such possession, taking the word “possession” in the widest connotation, when the Act came into force the section would not apply. 11. Same view is taken in Munshi Singh and Ors. V/s. Smt. Sohan Bai (Dead) by LRs., AIR 1989 S.C.1179. In that case there was a gift of property by Hindu widow before the Act came into force. The widow was not having any right in property on the date on which Act came into force. It is held that she could not get any advantage from coming into force of the Act. In this view of the matter it cannot be said that Savitribai had become owner of ½ portion which she had sold to Damu or Rupchand. However, question arises whether Damu and ( 10 ) Rupchand became full owners after the Hindu Succession act came into force. Now the judgment delivered by the District Court of East Khandesh at Jalgaon in Civil Appeal No.178 of 1946 decided on 25.02.1948 has reached finality and it only declared that respondent No.1 Damu and respondent No.2 Rupchand would be entitled to enjoy the property during lifetime of Savitribai. In the abovesaid circumstances, I will have to answer ground Nos. 3 and 4 against the present respondents. 12. At the time of arguments, one of the major points that is raised before this Court is what is effect of order dated 07.08.1996 passed by the Additional Registrar of this Court. By said order it is observed that respondent Nos.1, 2(2), 2 (3), 2 (4), 2 (6) 2 (7) reported “dead” as per the Bailiff’s report. Though sufficient time was granted, no Civil Application was filed. Hence, the Second Appeal stood abated against said respondents. Thus, the appeal has abated against respondent No.1-Damu without bringing his legal representatives on record. Legal representatives Nos. 2 to 4, 6 & 7 of Rupchand have also died and their legal ( 11 ) representatives were not brought on record. So almost legal heirs of half of the respondents are not brought on record. The decree of possession on title cannot be said to be divisible. It cannot be executed in favour of some of the co-owners and remain un-executed against remaining, when there is no case or evidence of partition between the respondents inter se and holding of separate portions of property by each of them. In these circumstances the judgment of dismissal of suit passed by the District Court in Regular Civil Appeal No. 53 of 1982 dated 4th March, 1986 has become final as against respondent No.1 Damu, respondent No. 2/2 Gitabai, 2/3 Sundarabai, 2/4 Tarachand, 2/6 Sahebrao and 2/7 Pandit. 13. In the case of Shahazada Bi and Ors. V/s. Halimabi (since dead) by her heirs, (2004) 7 S.C.C.354 it is held that if the interests of the co-defendants are distinct and separate, suit would abate only as regards the specific interest of the deceased defendant, although all the defendants had been joined together in single suit. Test is whether abatement of suit against ( 12 ) the deceased defendant and decreeing of the suit against the remaining defendants would result in passing of two conflicting decrees so that enforcement of one would negate enforcement of the other. 14. In the circumstances, in my opinion, present appeal abates as a whole. It cannot be said that the suit stands dismissed finally in view of abatement against deceased defendants/ respondents and they are entitled to protect their possession; whereas the appellant is still entitled to execute the decree against the respondent Nos. 2(1), 2(5), 2(8) to 2 (12). So, in this view of the matter, in my opinion, this appeal will have to be dismissed as a whole as abated. Hence, the Second Appeal is dismissed. In the circumstances, the parties to bear their own costs. [P.R. BORKAR,J.] snk/2009/JUN09/sa60.91