SONUBAI BABURAO GAIKAWAD Vs. SHIVAJIRAO KRISHNARAO GAIKAWAD

JUDGEMENT

(1.) These are two applications by Sonubai, widow of Baburao, to set aside the orders made by this Court on the 28th February 1916 dismissing the appeal and rejecting the application under Extraordinary Jurisdiction filed on her behalf by her next friend for default under Order XLI, Rule 17. The circumstances under Which the applications are made are these : Sonubai s husband Baburao filed Suit No. 410 of 1911 in the Court of the First Class Subordinate Judge of Poona for a partition of the joint family property and to recover his half share against Krishnarao. One Limbaji had three sons, Balwantrao, Gopalrao and Gangaram. Balwantrao died leaving a son, Baburao. Gopalrao died leaving a son Krishnarao. Thus Baburao and Krishnarao were cousins. Gangaram was not joined as a party to the suit, as it was stated that he had already separated. The joint property was stated to be very valuable. Baburao valued his half share at Rs. 18,72,005. In 1912, Gangaram filed Suit No. 359 of 1912 in the same Court in his own right and on behalf of his minor son-Yadurao alias Baburao-for one-third share in the joint family property. He joined Baburao Balwantrao as a party to this suit. He valued his one-third share at about Rs. 9,79,000. Baburao died in June 1913 leaving a minor widow, Sonubai. An application was made on her behalf by her father, Keshav Sambhajirao, in August 1913, to bring her on the record as the legal representative of her husband and to allow her to continue the suit. The learned Subordinate Judge held that the right to sue did not survive and that the suit abated, and ordered accordingly, on the 10th of September 1913, It appears, however, that she was brought on the record in Gangaram s suit as the legal representative of her deceased husband in which Baburao was defendant No. 2. Sonubai s father filed Appeal No. 158 of 1914 in forma pauperis in this Court against the abatement, treating it as a decree, through Mr. Vidhvans, a Vakil of this Court. The claim was valued at about Rs. 18,72,00, He also filed application No. 288 of 1913 under the Extraordinary Jurisdiction of this Court against the same order, through the same Vakil. This was intended apparently to meet the possible objection that the order of abatement was not appealable as a decree or an order. Mr. Vidhvans died in May 1915. Thereafter a notice of his death was served upon the next friend of Sonubai. But he did not appear, and took no steps to prosecute the appeal or the application. On the 28th February 1916 my learned brother Batchelor and I dismissed the appeal for default under Order XLI, Rule 17. Neither party appeared at the time. The application also was rejected for default. Sonubai attained majority on the 21st February 1919, when she completed her 18th year. She made the present application (No. 302 of 1919), on the 11th March 1919, to discharge the order dismissing the appeal for default, and a similar application (No. 303 of 1919) to discharge the order rejecting the application under the Extraordinary Jurisdiction for default on the same day.

(2.) In support of these applications it is alleged by Sonubai that her father is an old man, who has been insane for nearly five years, that he was not in a position to act for her as her next friend or guardian on the record at the date of the order made by this Court or at the date when the notice of the death of Mr. Vidhvans was served upon him. Some affidavits have been filed in support of her applications. The applications are opposed by Krishnarao s minor son Shivajirao, Krishnarao having died during the interval. The minor son of Krishnarao is represented by his mother and guardian Banubai on the record. It is asserted on her behalf that Sonubai s father was competent to act and did act in Gangaram s suit as the guardian of Sonubai.

(3.) I have not referred to the allegation in Sonubai s petitions as to the interest and conduct of the alienees from Baburao with reference to the estate and the litigation relating to the estate. It is not necessary to do so for the purpose of these applications. It may be mentioned that Gangaram s suit, after certain proceedings, was finally decided only in April last. It is unnecessary in this application to go into the reasons of this delay. But the decree in the suit is now under appeal, preferred to this Court by Sonubai. The trial Court in that suit has held that Sonubai is debarred from claiming the share of her husband in consequence of the order of abatement in Baburao a suit.