TARUBAI DAMU SAWANT Vs. BHIKU ANTU YADAV

JUDGEMENT

(1.) One Babu Pawar, who died on 1-2-1959, left behin him his widow Hiranbai and five daughters (1) Hirabai, (2) Tarubai, (3) Babi, (4) Muktabai and (5) Sushilabai. Tarubai is the original applicant and is also appellant before this Court in this second appeal. Other four daughters are respondents Nos. 2 to 5 in this appeal and they were original opponents Nos. 2 to 5. Bhiku, Original opponent No. 1 and present respo dent No. 1 is the husband of one of the sisters, by name, Hirabai. Admit tedly, Hirabai died on 26-12-1967, but prior to her death on 5-9-1967, Hiratnbai and two daughters Hirabai and Sushilabaisold the entire prope rty left by Babu Pawar to Bhiku by a registered sale-deed.

(2.) In the year 1968, the present appellant Tarubai filed a suit in the Civil Court contending that the sale-deed executed by Hiranbai, Hirabai and Sushilabai was not binding vis-a-vis her share in the property and she claimed partition and separate possession of her share in the property left by Babu.. This suit was ultimately withdrawn on 8-10-1969 by Tarubai with liberty to file a fresh suit on the same cause of action. In the meanwhile, on 16-6-1969, one of the daughtersMuktabai gave her consent to the sale-deed executed by Hiranbai and others to Bhiku opponent No. 1 and on 23-8-1971, Babi ixecuted a deed of consent to the sale-deed Exh. 32 executed by Hira bai, Hirabai and Sushilabai in favour of Bhiku opponent No. 1. It is also significant to note that on 20-8-1969, appellant Tarubai also sold her shart to Krishna and Raghunath Pawar but on 1-2-1971, these purchasers Paws rs re-sold that property to appellant Tarubai admitting therein that the earlier sale-deed dated 20-8-1969 by Tarubai in their favour was in the natu e of a mortgage. Although Tarubai withdrew the earlier Suit No. 111/68 on 8-10-1969, it does not appear that she filed any other suit, but, on : 2-9-1972, she filed an aoplication in the trial Court under section 22 of tb ; Hindu succession Act to enforce her right of pre-emption in respect of sa e in favour of Bhiku, the opponent and present respondent No. 1.

(3.) This application was resisted by opponent respondent No. 1 Bhiku, inter alia, on the grounds that such application under section 22 of the said Act is not maintainable. He contended also that the application is barred by limitation and he contended further that the applicant Tarubai has no right to file this application in view of the fact that she herself had sold her share in the property to Krishna and Raghunath Pawar.