Fulabai Prabhu Gaikwad Died Lrs ... vs Vimalbai Vyankatrao Ekunde And ...
2017 Latest Caselaw 5076 Bom

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 drp
         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                    BENCH AT AURANGABAD

                     WRIT PETITION NO.9365 OF 2017

 1.       Fulabai w/o Prabhu Gaikwad                     PETITIONERS
          Since deceased through LRs.
          i.e. petitioner No. 2 who is already on record

 2.       Dattu s/o Prabhu Gaikwad
          Age - 58 years, Occ - Agriculture
          R/o Aashta (J), Taluka - Omerga
          District - Osmanabad

          VERSUS

 1.       Vimalbai w/o Vyankatrao Ekunde                    RESPONDENTS
          Age - 61 years, Occ - Household
          R/o Saraswadi, Taluka - Nilanga
          District - Latur

 2.       Hussain Maheboob Shaikh
          Age - 45 years, Occ - Agriculture
          R/o Aashta (J), Taluka - Omerga
          District - Osmanabad

                             .......

Mr.Amol S.Sawant h/f Mr.M.S.Sonawane, Advocate for petitioners .......

[CORAM : SUNIL P. DESHMUKH, J.]

DATE : 26th JULY, 2017

ORAL JUDGMENT :

1. Heard learned advocate for the petitioners.

2. Petition has been moved against order passed on Exhibit-

48 in Regular Civil Suit No. 199 of 2010 dated 29 th April, 2017,

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rejecting request of the petitioners to reject plaint pursuant to

Order VII, Rule 11 (1) (d) of the Civil Procedure Code.

3. It is the case of petitioners that plaintiff had executed

relinquishment deed after death of father of plaintiff and

defendant No. 2, in favour of defendant No. 1. Further, with

reference to decision of Hon'ble Single Judge of this court in the

case of "Shalini Sumant Raut and Others V/s Miling Sumant Raut and Others"

reported in 2013 (3) Mh.L.J. 364, it is contended that since father of

plaintiff and defendant No. 2 died in 2008, pursuant to said

decision, plaintiff would not have right to ancestral property,

having married in 1974.

4. While rejecting application Exhibit-48, trial court has

considered that defendants have admitted that provisions of

amended section 6 of the Hindu Succession Act would be

applicable and has also observed that legality of relinquishment

deed would have to be determined. It appears that plaintiff has

indeed referred to relinquishment deed having been brought

about by fraud.

5. In the circumstances, it cannot be said that any case has

been made out, which would fall under any of the categories

referred to under Order VII, Rule 11 of the Civil Procedure Code.

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6. Writ petition, as such, stands dismissed. It is however,

made clear that observations hereinabove made are for the

purpose of decision of writ petition and shall not have any

further efficacy.

[SUNIL P. DESHMUKH, J.]

drp/wp9365-17