RADHABAI BALASAHEB SHIRKE Vs. KESHAV RAMCHANDRA JADHAV

JUDGEMENT

(1.) In Second Appeal No.593 of 1987, the following substantial question of law arose for consideration :

(2.) The facts giving rise to the aforesaid substantial question of law are that one Yeshwantrao had two wives, Laxmibai and Bhikubai - Yeshwantrao had two daughters from Laxmibai, namely Sonubai and Radhabai. From his marriage with Bhikubai, he had a daughter, Champubai. Laxmibai pre-deceased her husband in 1930. Sonubai expired in 1949 while Yeshwantrao expired on 10/6/1952. Bhikubai expired on 8/7/1973 after executing a will in favour of her daughter Champubai on 14/8/1956. Radhabai, the daughter from the first marriage of Yeshwantrao filed suit for declaration that she had half share in the properties left behind by her father and sought partition of the same. The trial Court dismissed the suit holding that Bhikubai alone inherited the suit properties in view of the provisions of the Hindu Women's Right to Property Act, 1937 (for short, "the Act of 1937") and she became the absolute owner in 1956 in view of the provisions of the Hindu Succession Act, 1956 (for short, "the Act of 1956"). The appeal preferred by Radhabai was also dismissed thus giving rise to the Second Appeal.

(3.) D. B. Bhosale, J. (as His Lordship then was) was of the view that a daughter was not treated as a coparcener under the Act of 1937 and hence would not come in the scene vis-a-vis the undivided coparcenary interest that her father had and which her mother acquired under Sec. 3(2) of the Act of 1937. On behalf of Radhabai, reliance was placed on the decision of learned Single Judge, K.J. Rohee, J. (as His Lordship then was) in Laxman Tukaram Vs. Bendrabai Tukaram Karwate, 2005(3) Mh.L.J. 506 wherein it was held that in view of paragraph 72 in Chapter VI of Mulla's Hindu Law and Sec. 3 of the Act of 1937, a daughter was entitled to one-half share in the property of her father who died prior to the Act of 1956 coming into force. Since D.B. Bhosale, J. the learned Single Judge was unable to agree with the view taken in Laxman Tukaram (supra), this reference has been made to the Division Bench which we are now called upon to answer.