HINABEN SURESHCHANDRA MAHETA Vs. SURESHCHANDRA GULABCHAND MAHETA

JUDGEMENT

(1.) This First Appeal under Section 299 read with section 295 of the Indian Succession Act is at the instance of the person who opposed the grant of letters of administration in the court below and is directed against the judgment and order dated 16th January 2014 passed by the 3red Additional Senior Civil Judge, Rajkot, in the Civil Misc. Application No.479 of 2006.

(2.) This litigation is between the father and his daughter. The father, i.e. the respondent herein, preferred the Civil Misc. Application in the court below for obtaining the letters of administration on the strength of the Will executed by late Gulabchand Vradhman Mehta and Nirmalaben Gulabchand Mehta. Gulabchand Mehta and Nirmalaben Mehta happened to be the parents of the respondent herein and paternal grandparents of the appellant herein. The respondent herein has four daughters inclusive of the appellant herein. The only son passed away. The appellant herein preferred the Special Civil Suit No.99 of 2007 in the court of the Additional Senior Civil Judge, Rajkot, for partition of the ancestral properties. The appellant claims that she has a share in the ancestral properties. The suit of the appellant herein referred to above came to be dismissed on the ground that during the lifetime of the father, a married daughter cannot claim partition of the co-parcenery properties. The court took the view that although the amendment of the year 2005 puts a married daughter also at par with other co-parceners, yet the succession would open only upon the demise of the father. In such circumstances, the suit came to be dismissed. The appellant, being dissatisfied with the judgment and decree passed by the court below dismissing the suit, preferred an appeal in this Court. However, there was a delay of 485 days in preferring the First Appeal before this Court. In such circumstances, the appellant herein preferred the Civil Application No.12620 of 2009 and prayed for the condonation of delay. The said application came to be rejected by a learned Single Judge of this Court vide order dated 9th March 2010. The order reads thus :

(3.) In the mean time, the father preferred an application in the court below for the letters of administration. The appellant opposed the same on the ground that she being a co-parcener in the co-parcenery properties, the letters of administration should not be issued in favour of the father. The court below overruled the objections raised by the appellant herein and granted the letters of administration in favour of the respondent herein. Being dissatisfied with the order passed by the court below, the appellant is here before this Court with this Appeal.