RAJARAM DADU KABNURE Vs. GUNWANTI DHULAPPA KETKALE

JUDGEMENT

(1.) Heard Mr. Surel Shah for the Appellant. The Appellant is the Original Defendant No. 1 in R.C.S. No. 302/99 filed by Respondent No. 1 and 2 in the Civil Court at Ichalkaranji for partition and separate possession of four properties described in paragraphs 1-A to 1-D of the plaint. It is admitted position that the Plaintiffs are real sisters of the Defendants. It is also admitted position that the father Dadu died intestate. One of the properties viz. property No. 1-C was the separate property of the deceased Mother Tarabai and it was the claim of the Appellant/Defendant No. 1 that she had executed a Will in respect of that property in favour of the son of the Appellant. The Appellant also raised the defence regarding non inclusion of one property bearing City Survey No. 4. By Judgment and Order dated 29-1-2004, learned Jt. Civil Judge, J.D., Ichalkaranji partly decreed the suit and passed decree for partition and separate possession in respect of the properties at Sr. 1-A and 1-B awarding 5/40th share to each of the plaintiffs. Property No. 1-C was held to be validly bequeathed by deceased Tarabai. Property 1-D which is a dwelling house was held to be the property in which the parties to the suit had right, but by construing the provisions of section 23 of the Hindu Succession Act, 1956 prior to its deletion by Hindu Succession (Amendment) Act, 2005 with effect from 9-9-2005, the decree for partition was declined in respect of dwelling house being property No. 1-D. Being aggrieved by this decree, the original Plaintiffs filed Reg. Civil Appeal No. 160/2005 whereas the present Appellant has filed Reg. Civil Appeal 279/2005 in the District Court, Kolhapur. Subsequently those appeals were transferred to the Court of Additional District Judge, Ichalkaranji and hence, were assigned the numbers of the year 2005 though they were filed in the month of March, 2004.

(2.) Pending the Appeals, Hindu Succession (Amendment) Act, 2005 came into force w.e.f. 9-9-2005. Provisions of section 23 have been deleted from the statute. The learned District Judge, Ichalkaranji thereafter decided both the Appeals by common judgment. R.C.A. 160/2005 filed by the original Plaintiffs was partly allowed and a decree for partition was passed in respect of dwelling house, whereas R.C.A. 279/2005 filed by the present Appellant was dismissed. The findings regarding the property at Sr. 1-C was not disturbed.

(3.) It is against this decree whereby the trial Court and the District Court had granted decree in respect of property 1-A and 1-B and the decree in respect of property No. 1-D was passed against the Appellant/ Original Defendant No. 1, hence, the present Second Appeal is filed. The correctness of the findings in respect of property 1-C, which has been held to be validly bequeathed by Tarabai to the son of the Appellant, is not challenged in this Second Appeal and hence, the controversy involved in this Second Appeal is restricted to the properties at Sr. 1-A, 1-B and 1-D.