KAUSHALYABAI BIHARILAL PATERIYA Vs. HIRALAL BHAGWANDAS GUPTA

JUDGEMENT

(1.) Being aggrieved by the judgment and decree dtd. 12/2/2002 passed by the Joint Civil Judge. Sr. Dn. , amravati in Special Civil Suit No. 176 of 1999, declaring that the plaintiffs would get only 1/30th share each in the suit fields bearing Survey nos. 2/5 and 3/4 of mouza Tarkheda, Pragane-Badnera, district Amravati, and 1/6th undivided share in suit house and consequent rejection of the rest of the claims made by the plaintiffs, the plaintiffs have preferred this appeal.

(2.) The Facts briefly stated, the appellants who are the original plaintiffs, filed a civil suit for partition and separate possession. The genealogical tree, which is undisputed, is reproduced below for convenience. <IMG>JUDGEMENT_679_ALLMR2_2007_1.jpg</IMG> The plaintiffs are the two daughters of bhagwandas Gupta. While Hiralal, Chhakilal, kunjilal and late Chhotelal are the four sons of deceased Bhagwandas. Since Chhotelal Gupta expired, his legal heirs were brought on record and they are now arrayed as defendants. Deokabai was the widow of Bhagwandas who expired on 7-7-1971. Bhagwandas expired on 5-5-1956. The Hindu Succession Act, 1956 (hereinafter called as the Act) came into force with effect from 18-6-1956. In other words. Bhagwandas expired prior to coming into force of Hindu Succession Act, 1956. Section 23 of the Act stood omitted by the Amending Act no. 39 of 2005. In view of this change in law, the appellants filed civil application for amendment of the memo of appeal to raise an additional ground to claim partition of the residential house. The amendment application was tendered at the Bar by the counsel for the appellants. Same was heard. The learned counsel for the respondents did not have serious objection to allow the said amendment application. We, therefore, allow the said application and permit the appellants to raise the said additional ground as ground No. 11 to be incorporated in the memo of appeal.

(3.) It is a common ground that bhagwandas having expired prior to coming into force of the Act, the trial Court in the wake of provisions of Section 23 of the Act held that the plaintiffs, who were the daughters of deceased Bhagwandas, had only a right of maintenance in accordance with the provisions of the Hindu Women's Right to Property Act, 1956 and in view of the fact that the plaintiffs were married even prior to the death of bhagwandas, there was no right of maintenance. Consequently, the appellants/plaintiffs had no right to claim share in the properties left by Bhagwandas Gupta.