( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 87 OF 1990 Smt. Siddhabai w/o. Laxman Hajare .. Appellant Age. 55 years, Occ. Agri., [Ori. defendant] R/o. Village Kundalwadi, Ta. Biloli, Dist. Nanded. Versus Gangabai w/o. Gangaram .. Respondent Age. 55 years, Occ. Household, [Ori. plaintiff] R/o. Village Kundalwadi, Ta. Biloli, Dist. Nanded. Shri P.G. Godhamgaonkar, Advocate for the appellant. Shri Vikas C. Misal h/f. Shri R.S. Deshmukh, Advocate for the respondent. CORAM : P.R. BORKAR,J. DATED : 26.06.2009 ORAL JUDGMENT :- 1. This is an appeal preferred by the original defendant being aggrieved by the judgment and decree passed by the II Additional District Judge, Nanded, in Regular Civil Appeal No.164 of 1985, decided on 13.10.1989, whereby the dismissal of the suit bearing Regular Civil Suit No.372 of 1981 by the learned Civil Judge, Junior Division, Biloli on 25th April, 1985, was set aside and the suit was decreed for partition and ( 2 ) separate possession awarding 2/3 share to the plaintiff and 1/3rd to the defendant/appellant and also directing the defendant/appellant to pay Rs.1200/- as past mesne profit and enquiry is directed regarding future mesne profit. 2. Some of the facts giving rise to this appeal may be stated as below:- . Narsimlu was the original owner of suit property which is survey No.250/A admeasuring 2 Acres 39 R situated at Kundalwadi, Tal. Biloli, Dist. Nanded. Narsimlu admittedly died somewhere prior to police action i.e. before the Hindu Succession Act, 1956 came into force. Narsimlu had a son Gangaram (Sr.), who also died prior to the Hindu Succession Act came into force on 17.06.1956. Gangaram (Sr.) died issue-less and his undivided interest devolved on other coparceners. Narsimlu was also survived by Gangaram (Jr.), who was husband of present respondent/plaintiff Gangubai, his widow Gangubai and daughter appellant/defendant. Gangubai w/o. Narsimlu admittedly died in 1967-68. ( 3 ) There is dispute as to when Gangaram (Jr.)- the husband of plaintiff/respondent died. According to the appellant/defendant said Gangaram (Jr) died eight days before Mahashivratri of 1956, in other words prior to the Hindu Succession Act, 1956 came into force; whereas the respondent/plaintiff came with a case that Gangaram (Jr.) died after the Hindu Succession Act came into force. There is thus dispute as to whether the shares allotted by the District Court are properly determined. 3. It is also case of the appellant/defendant that she was in adverse possession of the property from 1967 onwards and as such the suit filed in 1981 was barred by the limitation. The Trial Court held that the suit was time barred and the appellant/defendant had perfected title by adverse possession and as such dismissed the suit; whereas the Additional District Judge held that the suit was not time barred. The defendant/appellant had not perfected title by adverse possession over 12 years prior to the filing of the suit and the respondent/plaintiff was entitled 2/3 share; whereas the appellant/defendant was entitled to 1/3 share. ( 4 ) 4. By order dated 21.02.1990 this suit was admitted on ground Nos. A to D and 11 & 12. However, in view of discussion above, it can be said that two points which arise are mainly ground Nos. 11 and 12 and substantial questions of law raise can be summarized as follows:- (1) Whether the Appellate Court erred in holding that the suit is not barred by limitation and that he should have held that the appellant/defendant had perfected title over the suit property by adverse possession over 12 years prior to filing of the suit? (2) Whether the shares determined by the District Court were proper? 5. Heard Adv. Shri P.G. Godhamgaonkar for the appellant and Adv. Shri Misal h/f. Adv. Shri R.S. Deshmukh for the respondents. 6. It may be noted that Narsimlu had died prior to Police action and to this area the Hindu Women’s Right to Property Act, 1937 was made applicable somewhere in ( 5 ) 1954. So the heir-ship of deceased Narsimlu would be governed by the old Hindu Law, which is known as “Shastrik Law”. As per the law then prevailing widow and mother were entitled to inherit, if there is no coparcener. So, in the circumstances the property would devolve on Gangaram (Sr) and Gangaram (Jr) as both were coparceners when Narsimlu died. There is no much dispute that Gangaram (Sr.) died issue-less in 1953, so automatically his property would devolve on sole surviving coparcener i.e. Gangaram (Jr). The daughters do not inherit until all widows are dead, as can be seen from Section 43 of the Mulla’s Hindu Law (Part I) and widow of Narsimlu was alive when he was died, but as per old Hindu Law, since coparceners were there the property would go to coparceners and widow would be entitled to right of maintenance. Thus, when the Hindu Succession Act, 1956, came into force, Gangaram (Jr) would be only owner and his mother Gangubai would be only owner of the suit property. 7. It is not disputed that Gangubai the widow of Narsimlu died in 1967-68. So, when Gangaram (Jr) the ( 6 ) husband of plaintiff/respondent died prior to the Hindu Succession Act, 1956, came into force on 17th June, 1956, since both mother and widow would inherit him as per the Shastrik Law and even if I hold that said Gangaram (Jr.) died after the Hindu Succession Act, 1956, came into force still as Class-I heirs both would equally inherit the property. Thus after death of Gangaram (Jr) his mother Gangubai got ½ share and his widow plaintiff/respondent Gangabai got ½ share. After death of Gangubai widow of Narsimlu in 1967-68, both appellant/defendant and respondent/plaintiff would be Class-I heirs and both would inherit the property and in the circumstances Siddhabai the appellant/defendant would inherit 1/4th share in the suit property and plaintiff/respondent Gangabai would inherit 3/4th share. Accordingly I answer the substantial question of law No. 2. 8. So far as the substantial question of law No.1 is concerned, the relevant discussion by the Trial Court is in para 4. He observed that the defendant/appellant was in possession of the property from 1967 and her ( 7 ) title was hostile to the plaintiff. He also noted that the defendant/appellant had filed suit bearing Regular Civil Suit No.74 of 1973 for injunction against the present plaintiff/respondent and actually obtained injunction as against her. Present respondent/plaintiff then filed Regular Civil Appeal No. 21 of 1977, which came to be decided by the Assistant Judge, Nanded, on 12.02.1981. Thus, it is clear from these admissions that in the year 1973 the present respondent/plaintiff had interfered and obstructed into possession of present appellant/defendant and therefore her possession from 1967 cannot be said to be uninterrupted. This is very clear from the action of the appellant/defendant in filing Regular Civil Suit No.74 of 1973 and obtaining the injunction. It is worth noting that immediately after the decision of Regular Civil appeal No. 21 of 1977 on 12.02.1981, present suit for declaration and possession was filed on 09.07.1981. In this view of the matter the Trial Court has committed error in holding that the defendant/appellant was in possession of the suit property adversely for more than 12 years prior to the filing of the suit and it was uninterrupted, ( 8 ) continuous possession. 9. In this view of the matter, this appeal deserves to be allowed partly in view of the determination of shares by this Court only. In these circumstances, the appeal is partly allowed. The judgment and decree passed by the II Additional District Judge, Nanded, in Regular Civil Appeal No. 164 of 1985 dated 13.10.1981 is modified to the extent that it is held that the respondent/plaintiff would be entitled to 3/4th share whereas the appellant/defendant would be entitled to 1/4th share in the suit property. Rest of the judgment and decree passed by the II Additional District Judge, Nanded, is hereby confirmed. In the circumstances the parties are directed to bear their own costs. [P.R. BORKAR,J.] snk/2009/JUN09/sa87.90