1 SA445/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 445 OF 2011 Thakubai w/o Shivaji Jodtale, Aged 36 years, Occupation Household, Resident of Hasegaonwadi, Taluka Ausa, District Latur Appellant V E R S U S Laxmibai w/o Babruwan Jodtale, since deceased, through her legal representatives Respondents 1 Balaji s/o Babruwan Jodtale, Aged 46 years, Occupation Agriculturist, Resident of Hasegaonwadi, Taluka Ausa, District Latur 2 Babruwan s/o Rama Jodtale, Aged 70 years, Occupation Agriculture, Resident of as above Shri C.R. Deshpande, Advocate for the appellant CORAM : A.V. NIRGUDE, J. DATED : 4th October, 2011 PER COURT : 1. This second appeal is challenging the concurrent findings of the Courts below. 2. Original respondent Laxmibai initiated this litigation by filing a suit for partition and also for claiming right under Section 22 of the Hindu Succession Act. Her case, in short, was as under : Her sons Shivaji & Balaji and her husband Babruwan were members of joint Hindu family and were cultivating the ancestral property. In 1993, a partition took place and her son Shivaji got the suit property as his share. Soon after the partition, Shivaji died intestate. The appellant is the widow of Shivaji. She has no children from Shivaji. After Shivaji’s death, Laxmibai apprehended that the appellant would sell away the entire property left 2 SA445/11 behind by Shivaji. So, she filed the suit for partition and also asserted that as per the provisions of Section 22 of the Hindu Succession Act, she is entitled to even purchase the share of the appellant if she intended to sell it away. 3. The appellant opposed the suit saying that Laxmibai also received her share at the time of partition of the ancestral property which took place, as said above, in 1993, and so, she has no right in her deceased son’s property etc. Unfortunately, during the pendency of the suit Laxmibai died and her son Balaji continued the suit as her legal representative. Her other legal representative, her husband Babruwan, was already party to the suit. In the facts and circumstances of the case, the Courts below held that the appellant and Laxmibai would get half share in the suit property. Both the Courts below held that since Laxmibai died during the pendency of the suit, her share would get devolved on her legal heirs namely her son and her husband. Since there was no apprehension of sale of the suit property at the hands of the appellant, the Courts below did not discuss the provisions of Section 22 of the Act etc. 4. The learned counsel appearing for the appellant raised three points and I am dealing with them one-by-one. (i) The learned counsel for the appellant said that since Laxmibai died during the pendency of the suit, the cause of action to the suit did not survive. He tried to place reliance on the Laxmibai’s assertion that she apprehended that the appellant would sell away the property without giving her the share. This contention is patently incorrect because even after Laxmibai death her share which she demanded though this suit would not devolve upon her daughter in law by survivorship. It remained separate and distinct and would go to her legal heirs. 3 SA445/11 (ii) The learned counsel for the appellant then said that in view of Section 14 of the Hindu Succession Act, the appellant being the widow of Shivaji, would get absolute title to the suit property, because she is in possession of the suit property since Shivaji’s death and because Laxmibai did not get her share in the suit property by metes and bounds. This again is a wrong proposition of law. The day Shivaji died intestate, Laxmibai / original plaintiff got her right to the suit property to the extent of half share, and even though she died prior to getting her share in her possession by metes and bounds, her right to get such share would survive in favour of her legal heirs. The provisions of Section 14 of the Act are misread. The day Shivaji died, both, his widow and his mother, each would get half share in the suit property and they became absolute owner of their respective shares, and even the original plaintiff Laxmibai did not deny the title of the appellant to the extent of her half share in the suit property. (iii) The learned counsel for the appellant further said that after Laxmibai’s death during the pendency of the suit, her son Balaji took over and continued the litigation. According to the learned counsel for the appellant, Balaji cannot continue this litigation, because during the life time of Laxmibai he had made a statement before the revenue authorities that he would recognize that the suit property belonged to the appellant absolutely. Assuming such a statement was made by him, it was patently incorrect, because it was not made after understanding the provisions of law. As said above, the moment Shivaji died, the suit property got devolved on his mother and his wife. So, even if Balaji said that his mother had no share in the suit property, it cannot bind him and has no relevance. It would not affect his mother’s share in the suit property. In turn, it would not affect his share in his mother’s property. The appeal should therefore fail. The 4 SA445/11 second appeal stands dismissed. In view of dismissal of the second appeal, civil application No. 11164 of 2011 stands disposed of. ( A.V. NIRGUDE, J. ) SRM/sa/445/11/4/10/11ok