Second Appeal No. 291 of 1995. Case: Bhagirathibai Chandrabhan Nimbarte Vs Tanabai (dead) by LRs.. High Court of Bombay (India)
| Case Number | Second Appeal No. 291 of 1995 |
| Counsel | For Appellant: C. S. Kaptan, Sr. Adv., assisted by R. S. Kalangiwale, Adv. and For Respondents: Ms. Manju Ghatode, Adv. |
| Judges | R. K. Deshpande, J. |
| Issue | Hindu Women's Rights to Property Act (18 of 1937) - Sections 3, 4; Hindu Succession Act (30 of 1956) - Section 14(1) |
| Citation | AIR 2013 Bom 99 |
| Judgement Date | February 18, 2013 |
| Court | High Court of Bombay (India) |
Judgment:
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The appellants in Second Appeal No. 291 of 1995 are the original defendant Nos. 1 and 2 in Regular Civil Suit No. 407 of 1986 filed by the respondent Tanabai, claiming a declaration that she is the owner of half portion of the suit property, being the daughter of one Vithoba Nimbarte, who was the owner. The Trial Court, by its judgment and order dated 31-12-2001, has partly decreed the said suit and the declaration is granted that the plaintiff is the owner of 1/3rd share in the suit property. Accordingly, a decree for partition of the suit property has been passed and an enquiry into mesne profit has been ordered.
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In Regular Civil Appeal No. 26 of 1992, the learned 2nd Additional District Judge, Bhandara, has modified the decree 23-12-1994 by granting a declaration that the plaintiff is entitled to 1/4th share in the suit property, and accordingly a decree for partition and separate possession was maintained along with enquiry into mesne profit under Order XX, Rule 12 of the Civil Procedure Code. Hence, this second appeal by the original defendants.
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The appellants in Second Appeal No. 270 of 1995 are the original plaintiffs in Regular Civil Suit No. 279 of 1986 filed for declaration that they are the absolute owners of the suit property, being the widow and the daughter of the deceased Chandrabhan s/o Vithoba Nimbarte and Radhabai and that the defendant had no legal right over the properties of Vithoba. The respondent Tanabai, the daughter of Vithoba and Radhabai, was joined as the defendant. The Trial Court, by its judgment and order dated 31-12-1991, partly decreed the suit, holding that the plaintiffs are the owners of 2/3rd share in the suit property.
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In Regular Civil Appeal No. 27 of 1992 preferred by the appellants, the Appellate Court, by its judgment and order dated 23-12-1994, has held that the plaintiffs are the owners of 3/4th share in the suit property. The plaintiffs being aggrieved, by the decisions of the Courts below, have preferred Second Appeal No. 270 of 1995 claiming that they are the absolute owners of the suit property.
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Both the Courts have held that after the death of Vithoba on 23-1-1934, his widow Radhabai was not entitled to any share in the property of Vithoba as per the position prevailing prior to coming into force of the Hindu Women's Right to Property Act, 1937. For this purpose, the Appellate Court has relied upon Article 43 of Mulla's Hindu Law, Sixteenth Edition, in which the heirs of first category are given on page 100 as under:
Son, grandson (son's son) and great-grandson (son's son's son), and (after 14th April, 1937) widow, predeceased son's widow, and predeceased son's predeceased son's widow.
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The divergence in the views taken by the Courts below is that the Trial Court has held that after the death of Chandrabhan, Radhabai was entitled to 1/3rd share in the property of Chandrabhan and after the death of Radhabai, her share will be inherited by the daughter Tanabai, and Bhagirathibai and Wanmala. The Appellate Court has, however, held that after the death of Chandrabhan, the mother Radhabai, will get half share and the widow Bhagirathibai will get half share. Thus, they became the joint owners of the suit property. Upon the death of Radhabai, her daughter Tanabai and Wanmala, the daughter of Chandrabhan, will be entitled to 1/4th share each in the suit property.
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The Appellate Court has held that after the death of Vithoba, his widow Radhabai had a right of maintenance. Hence after coming into force of Section 14 of the Hindu Succession Act, she became the absolute owner of half share in the suit property of Vithoba. After the death of Chandrabhan, his widow Bhagirathibai, was entitled to get the property as limited owner as per the provisions of Section 3 of the Hindu Women's Right to Property Act, as Chandrabhan had no Class I heir. According to the Appellate Court, Radhabai and Bhagirathibai were in possession of the suit property and by virtue of Section 14 of the Hindu Succession Act, 1956, they became the owners of half portion each of the suit property. Upon the death of Radhabai...
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