1 RA 46.11 in SA 729.2010 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD REVIEW APPLICATION NO. 46 OF 2011 IN SECOND APPEAL NO. 729 OF 2010 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr. S.S.Choudhari, Advocate for the applicant. Mr.Sachin Deshmukh,Advocate for Resp. no. 1 & 2 .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 28/03/2011 PER COURT : 1. The applicant no. 1 was the appellant no. 1 in Second Appeal No. 729 of 2010, which was dismissed vide Judgment and Order dated 1/12/2010, thereby confirming the Judgment and decree passed by the trial Court decreeing the Suit for partition and separate possession. 2. Mr. S.S. Choudhari, the learned counsel for the applicants submits that in fact the adoption would relate back to the date of death of the husband of Prayagbai. As such, it would relate back to 1946 and Chandrabhagabai who was the 2 RA 46.11 in SA 729.2010 daughter, would not get any share. The learned counsel further contends that till the year 1994 as no right was claimed by chandrabhagabai, the Suit would be barred by limitation. According to the learned counsel, this aspect requires to be considered. 3. The theory of relating back to the date of death of the adoptive father is the legal position, but, the provision of Section 12 Clause ( C) of the Hindu Adoption and Maintenance Act, 1956 specifically lays down that the adopted son would not divest any of the heirs of the rights in the property, which has already accrued to them. The Apex Court in the case of Namdev Vyankat Ghadge and another V/s Chandrakant Ganpat Ghadge and others reported in AIR 2003 Supreme Court – 1735 have interpreted clause ( C) of Section 12 and has specifically held that even the sole surviving coparcener could not divest the properties vested in the heirs of the sole surviving coparcener so as to claim his share in view of the proviso ( C) of Section 12. 4. Further, the appellants have not taken the plea of ouster in the Written Statement. In absence of plea of ouster, the lower appellate Court was right in concluding the Suit as not 3 RA 46.11 in SA 729.2010 barred by limitation and that fact is considered by this Court while deciding the Appeal. 5. In view of the above, there is no error apparent on the face of record. As such, the Review Application is dismissed, however with no order as to costs. [ S.V. GANGAPURWALA,J. ] KNP/RA 46.11 in SA 729.2010