RAOJI BHIKAJI KONDKAR Vs. ANANT LAXMAN KONDKAR

JUDGEMENT

(1.) At some time before 1900 one Bhikaji died, leaving a widow Yeshodabai, the 2nd defendant in the suit. Bhikaji left also two sons, Kaoji, the 1st defendant, and Laxman, who died in 1900. Laxman s son Anant was the plaintiff". The suit was brought for partition and possession of the plaintiff s one-half share in the estate of Bhikaji. The properties involved are partly moveable and partly immoveable. Of the various defences raised, we are concerned only with that which was embodied in the fifth issue in the Court of trial. That issue raised the question whether the second defendant, that is, the widow Yeshodabai, was entitled to a third share in the family property. The learned trial Judge answered that question in the affirmative, and accordingly he decreed to the plaintiff a one-third share only, and not a half. That decree was a preliminary decree, and was made, on the 27th October 1913. Before any final decree could be passed, that is to say, on the 7th of June 1914, the second defendant Yeshodabai died. On the 19th January 1915, the plaintiff applied to the Court praying that, owing to the removal of Yeshodabai by death, his share should be held to have increased to one moiety, and the decree should be amended. By an order, dated the 27th July 1915, this application was granted by the learned Subordinate Judge, who amended the decree accordingly.

(2.) From this amended decree the present appeal is brought by the first defendant, and the object of It is to obtain from this Court a declaration that the plaintiff is not entitled to so much as a half share. We have had from the learned counsel engaged an interesting argument upon the question whether the share, which Yeshodabai is supposed to have taken in the circumstances of this litigation, should or should not be regarded as her technical stridhan, and it has been much debated whether this question is covered by the authority of the Privy Council decision in Debi Mangal Prasad Singh v. Mahadeo Prasad Singh (1911) I.L.R. 34 All. 234 P.C.. Upon this question, however, it is not necessary for us now to pronounce any opinion, and we consequently refrain from doing so.

(3.) With regard to the second point urged by Mr. Jayakar, namely, that the remedy which the plaintiff sought to get by his application of the 19th January 1915, could only be obtained by the institution of a separate suit, it appears to me that this contention ought not to prevail. It is clear that when Yeshodabai died, the cause of action survived, and her heirs would have to be brought on the record; the Court would, I think, be bound under Order XXII, Rule 5 to make inquiry as to who those heirs were in case any dispute arose upon the subject.