JAMUNABAI BHALCHANDRA Vs. MORESHWAR MUKUND

JUDGEMENT

(1.) THE appeal is filed by the original defendant challenging the judgment and orde passed by the learned Joint District Judge, Thane in Civil Appeal No. 10 of 2004, whereby the said appeal was allowed, setting aside the dismissal of the regular civil suit no. 220 of 2000 by the learned Vth Joint Civil Judge, Junior Division, Thane.

(2.) TO stat e in brief, the plaintiff/respondent Moreshwar and the deceased defendant/appellant Jamunabai were the real brother and sister. Jamunabai died pending the second appeal and her legal representat ives were brought on record. One Mukundbhoir was their fat her and Grangabai was their mother. Suit property bearing Survey No. 658, Hissa No. 3 corresponding to new Survey No. 251. Hissa No. 3 situat ed at Village: Bhayander, Taluka & District: Thane was admittedly owned by Mukund, fat her of the parties. According to the plaintiff, their parents were married in or about 1928 and the defendant Jamunabai was bom sometimes in the year 1932. Plaintiff was born on20th June, 1935. Their fat her Mukund died intestat e sometimes in 1936 leaving behind his widow, daughter and son as the only legal heirs. In 1945 defendant married. At the time of deat h of their fat her, plaintiff was infant and was under the guardianshipof his mothergangabai. Under the Hindu Law as prevailing at that time. the plaintiff became exclusive owner of the property left behind by his fat her. Defendant had no legal right of inheritance. Their mother Gangabai was entitled only to maintenance out of the property of her husband. She had also no right of inheritance or share in the property. Their mother Gangabai died on 10 -10 -1990. According to the plaintiff, after deat h of the mother, the defendant approached the revenue authority and got her name entered as shareholder in the property. Plaintiff raised objection and also preferred appeal but without success. Therefore, the plaintiff filed suit for declarat ion of his exclusive title over the suit property and for perpetual injunction restraining the defendant from causing any interference in his possession over the suit property.

(3.) PLAINTIFF preferred regular civil appeal no. 10 of 2004. The learned Lower Appellat e Court noted that the learned counsel for the defendant had fairly conceded that the evidence on record could not come to her rescue to suggest that their fat her Mukund had died after 1937. The learned Appellat e Court also agreed with the findings of the trial Court that their fat her Mukund had died prior to 1937. Having come to this conclusion, the learned Appellat e Court found that even though their mother Gangabai was entitled to maintain from that property, she had never acquired nor possessed that property and, therefore, she could not claim to have become absolute owner of the property under Section 14 (1) of the Hindu Succession Act, 1956. The learned Appellat e Court came to conclusion that the plaintiff alone was exclusive owner of the suit property since the time of deat h of his fat her and the defendant does not get any right, title or interest in the suit property. In the result, appeal was allowed. Judgment and decree passed by the trial Court came to be set aside. The suit filed by the plaintiff was decreed. Being aggrieved by the said judgment of the Appellat e Court, the defendant has preferred the second appeal.