WAMAN GOVIND SHINDORE Vs. GOPAL BABURAO CHAKRADEO

JUDGEMENT

(1.) This appeal has been referred to the Full Bench as the Division Bench which heard the appeal was of the opinion that the earlier decision of the Division Bench of this Court in (Purshottam Waman Gabale and others v. Shripad Ramchandra Pargaonkar & others) A.I.R. 1976 Bom. 375 needed reconsideration.

(2.) In Purshottams case, the Division Bench on a construction of provisions of sections 18 of the Hindu Succession Act, took the view that the effect of section 18 was that only if there is a brother of full blood and a brother of half blood then the brother of full blood will exclude the brother of half blood and similarly, where there is a sister of full blood and a sister of half blood, the former will exclude the latter. The Division Bench was of the view that if there is a brother of a half blood and a sister of full blood the former will not be excluded by the latter and that it will be only the presence of a relation of a heir of half blood along with an heir of full blood in that particular category of the heir that the full blood heir will exclude the half blood heir. The correctness of this view of the Division Bench has been challenge by Mr. Abhyankar appearing on behalf of the appellants in this appeal.

(3.) The appellants in this appeal are original defendants Nos. 1 to 5 and 15 to 17. For a proper understanding of the nature of controversy, it is necessary to reproduce the genealogical table showing the relationship between the plaintiffs and the defendants. <IMG>JUDGEMENT_530_BCR1_1984Image1.jpg</IMG> One Dinkar had two wives. From his first wife he had a son Baburao who died in 1950. His son Bhalchandra had predeceased him in 1930. Bhalchandra left behind him widow Yeshodhabai and daughter Sudha. They are defendants Nos. 6 and 7. From the second wife Dinkar had a son called Amrit and two daughters by names Radhabai and Bhagirathibai, Amrit died issueless in 1970. Radhabai died in 1969 and defendants Nos. 1 to 5 are her sons and daughters. Bhagirathibai died in 1932. The defendants Nos. 15 to 17 are her sons. The plaintiff Gopal is son of deceased Baburao who was the step-brother of deceased Amrit. Amrit had left behind certain property which is the subject matter of the suit. According to the plaintiff. Amrit had executed a will on 10th September, 1968 which was duly registered and by the said will Amrit had bequeathed his property to the plaintiff. According to the plaintiff, Amrit had never cancelled this will on 10th April, 1969, as alleged by the defendants. But alternatively his case was that this deed of cancellation must have been got executed by the defendants by taking undue advantage of the-weakness of mind and body of the deceased Amrit and by using undue influence and by fraud. According to the plaintiff, though he was sole owner of property for Amrit, since he desired that he should share the estate amongst his brothers the defendants Nos. 8 to 19, he made certain statements before the City Survey Officer at Solapur and according to him, the defendants Nos. 1 to 5 were not in possession of any property. Alternatively, according to the plaintiff, he along with defendants Nos. 8 to 14 had becomes owners of the suit property under the provisions of the Hindu Succession Act. A further alternative case pleaded by him was that he along with all other defendants Nos. 1 to 14 had become the owners of the suit property, and therefore, partition should be effected and the shares of the respective parties should be determined.