INDUBAI Vs. VYANKATI VITHOBA SAWADBA

JUDGEMENT

(1.) THIS revisional application arises out of an order made under the provisions of Order 22 Rule 4 of the Code of Civil procedure in a suit.

(2.) THAT short facts are that the one Balajis left two sons vithoba and Pandurang after his death who were members of the joint family. Vithoba died in 1912 leaving behind him Vyankati, defendants No. 1and Gopalam defendants No. 2 Pandurang died in 1941 levying behind him his widow Sarubai and daughter behind him his Indubari who was married. At the time of this death the joint family was posed to the suit property. In August 1961. Pandurang's widow Sarubai filed a suit claiming partition of the her share in the property against the defendants. After issue were framed, sarubai was examined on commission. Thereafter she died on 20th October 1962. Before the her death she hand excited a will and bestowed her properties in favor of her daughter India. Indubai then made an application under the provisions of Order 22 R. 3 for being brought or record in placed of her mother as the plaintiff claiming the properties under the with or in nay event by reasons of S. 15 of the Hindu Succession of Act 1956. She claimed thereof to be the legal representative of the deceased plaintiff. Further evidence had not been led. The learned trial judge dismissed the application.

(3.) THE learned judge rejected the contention of the petitioner that S. 14 of the Hindu succession act, 1956 applied as Sarubai was not in possession of the property at the date of the suit. He relied upon her evidence on the commission that the after her husbands death she did not live with the defendants that is since 1941 she did not stay in the family house saying "she remind allege form the family for more than twenty years after her husbands death. Therefore it could not be inferred that the she was in possession as a widow of her husband of and her interest become enlarged by reason by the S. 14 of the Hindu Succession Act. " Then he relied upon Sudersan Das v. Ram Kirpa Das AIR PC 44 and Banaji Daso v. Jivaji Yeshvant, AIR 1930 Bom 333 and Said "the doctrine is the that possession of joint estate is adverse to any claim to such an estate is as separate one and the possession of by a family may by lapse of time become adverse to a separate estate". The while considering 1959 SC 577, he observed "surabaya never showed any concern to the suit property right after 1941. She remained away immediately after Pandurangs, death. The defendants possession therefore become adverse" death of held that in such a case rights of reversionary heirs would of course be barred at the expiration of the twelve years from pandurangs death and the relied upon Mr. Kirpal Kuar v. Bachan sing. AIR 1958 SC 204. As to the agricultural land, he relied upon S. 151 of the Madhya Pradesh Land Revenue Code, 1954 and the decision sitabai v. Kothulal, AIR 1959 Bom 78.