1 UNREPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.206 OF 2009. Prayagabai Wd/o Vithoba Dhage, Age 70 years, Occ.Household, R/o Rahuri, C/o Gitaram Maruti Tanpure Kirana Shop at & Post Tq.Rahuri, Dist. Ahmednagar... died, hence deleted. His L.R. is respondent NO.2 Shahabai W/o Dnyanoba Kadam, Age 60 years, Occ.Household, R/o Rahuri, C/o Gitaram Maruti Tanpure Kirana Shop At, post and Tq.Rahuri, Dist. Ahmednagar. ... Appellant. Versus 1. Shiva Bapu Dhage, Age 52 years, Occ.Agri., R/o Belgaon (Pimpalgaon), Tq. Bhoom, Died his L.Rs. 1/A Kashibai W/o Shiva Dhage, Age 63 years, Occ.and R/o as above. 1/B Mankawati W/o Maharudra More, Age 40 years, Occ. as above. l/C Jankabai W/o Nile Vibhute Age 45 years, Occ.As above. R/o Chinchpur (Dhage), Tq.Bhoom, Dist.Osmanabad. 2 2. Navnath S/o Shiva Dhage, Age 45 years, Occ.Agril., R/o Belgaon (Pimpalgaon), Tq. Bhoom, Dist. Osmanabad. ... Respondents. ... Mr.R.D.Mane, advocate for the appellant. Mr.S.Y.Mahajan, advocate for the Respondents. ... CORAM : V.R.KINGAONKAR,J. Date : 09.11.2009. ORAL JUDGMENT : 1. Challenge in this appeal is to judgment rendered by the Adhoc District Judge-2, Osmanabad in Appeal (RCA No.139/1997), whereby and whereunder partition decree granted by the trial Court in favour of present appellant (original plaintiff) came to be reversed. 2. The relationship between the parties may be gathered from following genealogy table : 3 Bapu / ------------------------------------------ / / / Vithoba Narhari Shiva (Died in 1958) (died in 1948) (Deft.No.1) | | ------------------- | / / | Prayagbai Shahabai (daughter) | (wife) (Plff.1) (Plff.No.2.) Navnath(Def.2) There is no dispute about the fact that the appellants (plaintiffs) are the widow and daughter of deceased Vithoba. The real dispute centers around the period of Vithoba's death. 3. The plaintiffs (appellants) sought partition and half share in the suit property on the ground that after death of Vithoba in 1958, they were entitled to seek half share which was transformed into full ownership by virtue of Section 14(1) of the Hindu Succession Act,1956 inasmuch as they had right of maintenance being the female members of the joint Hindu family. They submitted that the defendants refused to separate their shares and as such filed the suit 4 for partition and separate possession. 4. The contesting defendants resisted the suit chiefly on the ground that said Vithoba, i.e. the predecessor of the appellants, had died somewhere in 1951 before commencement of the Hindu Succession Act, 1956 and, therefore, the appellants could not have claimed any right by virtue of Section 14(1) thereof. They submitted that the appellants were not the coparceners or co-sharers in the properties owned by the joint Hindu family. According to them, defendant No.1 Shiva was sole surviving male coparcener and as such became the owner of the suit properties. They denied that the appellants were having right to seek partition in the suit properties. 5. The trial Court decreed the suit for partition, whereas the first appellate Court reversed the partition decree on the ground that the plaintiffs case does not come within the ambit of Section 14(1) of the Hindu Succession Act, 1956. 5 6. My learned predecessor (Tated, J.) formulated following two substantial questions of law in this appeal. "(i) Whether the learned first appellate Court has failed to take into consideration of the Hindu Women's Right to Property (Amendment) Act, 1938? since it has declared to have retrospective effect from 14.4.1937.? (ii) Whether the learned first appellate Court was justified in refusing the share of the appellants - plaintiffs in ancestral joint Hindu family property when the defendant No. 1/respondent NO.1 - Shiva has accepted/admitted the 1/3rd share of the appellants/plaintiffs in the appeal.?" 7. Before I proceed to consider the material placed on record, let it be noted that there is no scintilla of evidence on record to 6 infer that any of the suit property or part thereof was given to the appellants(plaintiffs) in lieu of maintenance. It is nobody's case that they had acquired the suit property or any part thereof in the exercise of right to claim maintenance. The succession could have opened when said Vithoba died. It is the concurrent findings of both the Courts that said Vithoba died somewhere in 1951-52. It has come on record that his name appeared in the concerned revenue record such as Pahani Patrak or record of rights only till 1952. It appears from the record that after 1953-54 name of defendant No.1 Shiva was mutated in respect of the suit land in place of deceased Vithoba. There is no dispute about the fact that the middle brother (Narhari) had pre- deceased Vithoba. He died issueless. Thus, Vithoba and Shiva were the only two brothers who were members of the joint Hindu family. They held the suit property as coparceners. It is manifest that when Vithoba had died, defendant No.1 Shiva was the sole surviving coparcener because the plaintiffs can not be treated as coparceners. They were female members and had no birth right 7 in the suit property. 8. The learned Civil Judge decreed the suit on the ground that rights of the plaintiffs could have crystalised due to the provisions of the Hindu Women's Rights to Property Act (XVIII of 1937). It is of common knowledge that the area where the suit properties are situated was under ex-Hyderabad State. The plaintiff No.1 could have a limited right of maintenance, if any,and no part of the suit property was allotted to her towards the maintenance. Under the old Law, she had limited interest which could have been transformed into full ownership by virtue of legal fiction i.e. by operation of Section 14(1) of the Hindu Succession Act, 1956. Still, however, for enlargement of her right as full owner, three (3) conditions had to be satisfied. They are : "(i) That the woman had pre-existing right in the property; (ii) The woman was in possession of the property in pursuance to the pre- 8 existing limited right; and (iii) The pre-existing right was not of limited nature, created by an instrument like will-deed." 9. The issue whether right of a woman could be crystalised when her husband had died before commencement of the Hindu Succession Act and that she was not given any limited ownership, is no more resintegra. A single Bench of this Court in "Dada Bhagwan Shinde and another Vs. Tulsabai W/o Narayan Shinde and others" 2008 (3) Mh.L.J.475, held that the applicability of Section 14(1) of the Hindu Succession Act would be available only when the widow had an occasion to claim the title to the property after commencement of the said Act. The relevant provisions of the Hindu Women's Rights to Property Act have also been considered by the learned Single Judge in the given case. The Apex Court in "Eramma Vs. Veerupana and others" AIR 1966 Supreme Court 1879, held that the relevant provisions of Section 14(1) of the Hindu Succession Act, 1956 would not be attracted 9 wherein husband of a Hindu female died prior to commencement of the Act of 1956. In the present case, husband of the appellant No.1 (plaintiff No.1) died much prior to commencement of the Hindu Succession Act. If she had acquired any legal right to retain possession of property and was found in possession of such a property then perhaps there could be acquisition of ownership by operation of legal fiction available U/s 14(1) of the Hindu Succession Act. Still, however, in absence of any separate pre-acquisition made by her before death of the husband, there was no occasion for her alleged claim to seek separate half share in the suit property. The provisions of the Hindu Succession Act, 1956 are not attracted inasmuch as the plaintiffs' predecessor, namely, Vithoba had died much before commencement of the said Act. Thus, the appellants (plaintiffs) were neither entitled as successors of Vithoba nor were the coparceners in relation to defendant No.1 Shiva and as such they were not entitled to seek partition of the suit properties under the provisions of Hindu Law (old). Considering these aspects of the matter, 10 I do not find any error committed by the first appellate Court. 10. In the result, the appeal fails and is dismissed. No costs. (V.R.KINGAONKAR,J.) asp/office/sa20609 Authenticated Copy (Pvt.Secy. to Hon'ble Judge)