Minakshi Baburao Jadhav vs Muktabai Wamanrao Somwanshi And ...
2021 Latest Caselaw 16671 Bom

                                           (1)


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                      SECOND APPEAL NO.402 OF 2019
                                   WITH
                     CIVIL APPLICATION NO.8433/2019
                     CIVIL APPLICATION NO.8434/2019

 1.       Babu s/o Jyotiram Jadhav
          and Ors.                                          = APPELLANTS
                                                       (Orig.Deft.Nos.1, 4
                                                        and 5)

          VERSUS

 Muktabai w/o Wamanrao Somwanshi                               = RESPONDENT
                                                             (orig.Plaintiff)
                                          -----
 Mr.Mukul S.Kulkarni, Advocate h/for                                     Mr.       Kiran
 T.Jamdar, Advocate for Appellants;

 Mr.GR Syed, Advocate for Respondent No.1;

 Mr.VD Godbharale, Advocate for Intervenor.
                        -----

                                   CORAM :       SMT.VIBHA KANKANWADI,J.

RESERVED ON : 03/09/2021 PRONOUNCED ON : 02/12/2021 PER COURT :-

1. The second appeal has been filed by

original defendant Nos.1, 4 and 5 to challenge

concurrent judgment and decree. Present Respondent

No.1 is original plaintiff, who had filed Regular

Civil Suit No.472/2005 before Civil Judge, Junior

Division, Udgir, District Latur for partition and

separate possession. The learned Trial Judge

decreed the suit on 15.1.2014 and held that, the

plaintiff has 1/6th share in Survey No.70/1/1/,

admeasuring 4 hectares and 75 Ares, situated at

village Madalapur, Tq. Udgir, District Latur.

Original defendant No.1 alone, filed Regular Civil

Appeal No.9/2014 to challenge the said judgment and

decree. The said appeal came to be dismissed by

learned District Judge-1, Udgir District Latur on

20.12.2018. Hence, the present Second Appeal.

2. Heard learned Advocates appearing for the

respective parties.

3. It has been vehemently submitted on

behalf of the appellants that both the Courts below

have not considered the evidence and the law points

involved properly. The relationship between the

parties has not been denied. The plaintiff and

defendant No.3 are sisters and defendant No.1 is

their brother, inter se. Original defendant No.2

was their mother. Their father - Jyotiram Gunda

Jadhav expired on 14.12.1998, who has left behind

the suit property. According to the plaintiff,

deceased Jyotiram had given 2 hectares and 42 R.

land in the name of defendant No.1 just to take

benefit of some Government Schemes. However, there

was no actual partition of the property because no

share was given to defendant No.2. The said

property was divided into plots and, therefore, its

price has gone up. The plaintiff contended that

defendant Nos.1 to 3 intended to oust the plaintiff

from inheritance and, therefore, she demanded her

share from the suit property, however, it was

refused and, therefore, she had filed the suit.

Defendant Nos.1 and 2 had filed their Written

Statement. However, later on, defendant No.2

expired. They had contended that the suit property

was partitioned by deceased Jyotiram in the year

1982. They denied the fact that the plaintiff and

defendants are members of joint family. Two

hectares and 42 R land was given to defendant No.1

and rest of the property was kept by Jyotiram in

the name of himself and defendant No.2 in the year

1982. Mutation entry to that effect was effected

and, therefore, now the plaintiff has no right to

claim share in the property. Even defendant No.3 -

another sister, has supported the defendant Nos. 1

and 2. According to her, the said partition was

effected with the consent of the plaintiff and

defendant Nos. 1 and 2. It was then contended that

after the said property came to the share of

defendant No.1 in the partition of 1982, wife of

defendant No.1 had lodged partition suit bearing

RCS No.101/2003 on behalf of her minor sons, i.e.

present appellant Nos.2 and 3 (original defendant

Nos.4 and 5) in which there was compromise and half

share each was given to them, thereby now defendant

Nos.4 and 5 have become exclusive owners of part of

the property. Defendant Nos.4 and 5 have also filed

similar Written Statement.

. It has been further contended by the

learned Advocate for the appellants that in spite

of leading cogent and conclusive evidence, both the

Courts have wrongly held that the suit property was

ancestral and joint Hindu family property of the

plaintiff and the defendants. It was wrongly held

that defendant No.1 and deceased deft.no.2 failed

to prove that there was previous partition effected

by Jyotiram in the year 1982. Under those

circumstances, it was held that the plaintiff is

having 1/6th share. In fact, after the partition,

half of the same became exclusive property of

deft.No.1 and rest of the property went to

deft.No.2. Therefore, on the date of the suit, no

property was left, which can be said to be either

ancestral or joint family property. Both the

Courts below have wrongly held that the deft.Nos. 1

and 2 have not proved that partition of suit land

was effected in the year 1982 during life time of

father of deft.No.1.,in spite of the fact that even

defendant No.3 was supporting defendant Nos.1, 4

and 5 and specifically contended that it was the

partition with the consent of all the persons. It

has been further contended that the evidence would

show that previous partition was proved and,

therefore, the suit ought to have been dismissed in

toto.

4. It has been further submitted on behalf

of appellants that both the Courts below have not

properly considered the law point involved in the

case and went on to observe that the case is

governed by amended Section 6 of the Hindu

Succession Act (as amended in 2005). Both the

Courts failed to consider that plaintiff got

married in the year 1966 and defendant No.3 got

married in 1965. Therefore, even now, those

daughters cannot get benefit of the Amendment to

the Hindu Succession Act, in view of amended

Section 6 of the said Act, as admittedly, plaintiff

Nos.1, and deft.Nos. 2 and 3 were married even

prior to 1994. Section 29-A of the Hindu Succession

Act, which was Maharashtra Amendment, made a

specific provision and gave right to unmarried

daughter/s after the said Act came into force

w.e.f. 22nd June, 1994. Though now all the

daughters have been made co-parceners; yet we are

required to see that Section 29-A of the Hindu

Succession Act, i.e. Maharashtra Amendment, had

received assent of Hon'ble President of India in

view of Article 254(2) of Constitution of India.

After Section 6 of the Hindu Succession Act was

amended by the Central enactment, the Centre has

not repealed Section 29-A of the Hindu Succession

Act. Further, the learned Advocate has also taken

support to Section 6 of the General Clauses Act in

order to support his contention to canvass that

Section 29-A of the Hindu Succession Act is still

in force and would prevail as it is, thereby it

will not give equal share to the daughters, who

were married prior to 1994.

. Learned Advocate appearing for the

appellants has taken this Court through Seventh

Report on The Hindu Succession (Amendment) Bill,

2004, which appears to be a copy downloaded through

the internet, in order to bring to the notice of

this Court as to what was the amendment proposed

and what were the objections received etc. However,

it can be said that since the Act is implemented

now, we need not go into the aspect as to what were

the objections etc. before Parliament. He has then

relied on a decision in the case of Prakash and

Ors. Vs. Phulwati and Ors. (2016) 2 SCC 36, wherein

at that time, the Hon'ble Supreme Court had taken a

view that Section 6 of the Hindu Succession Act, as

substituted by Hindu Succession (Amendment) Act 39

of 2005, has no retrospective effect, but it

applies only when both co-parcener and his daughter

were alive on date of commencement of Amendment

Act, i.e. 9.9.2005, irrespective of date of birth

of daughter and coparcener who died thereafter. It

was further submitted that Section 29-A of The

Hindu Succession Act, as inserted by Maharashtra

Amendment Act, 1994, was pari materia with Section

29-A,(as inserted by Hindu Succession (Tamil Nadu

Amendment)Act, 1989 w.e.f. 25.3.1989.

5. There is direct decision of the Hon'ble

Apex Court in respect of the said provision under

the Tamil Nadu Amendment Act, 1989 in the case of

Mangammal alias Thulasi and Anr. Vs. T.B.Raju and

Ors. - (2018) 15 SCC 662, wherein, it was held

thus, -

"Under Section 29-A of the Hindu Succession Act, 1956 (as inserted by the Hindu Succession (Tamil Nadu Amendment) Act, 1989), the legislature has used the word "the daughter of a coparcener". Here the implication of such wordings mean both the coparcener as well as the daughter should be alive to reap the benefits of this provision at the time of commencement of the amendment of 1989. A similar issue has been dealt with by the Supreme Court in Prakash Vs. Phulwati -

(2016) 2 SCC 36.Thus, only living daughters of living coparceners would be entitled to claim a share in the ancestral property. In the present case, the father of the appellant daughters had already died on 29.12.1979, i.e. before the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989 with effect from 25.3.1989. Hence, the appellant daughters were not the coparceners in the Hindu joint family property in view of the 1989 amendment. Consequently, they were not entitled to claim partition and separate possession at the very first instance. At the most,

they could claim maintenance and marriage expenses if situation warranted.

However, on the death of their father and mother, the appellants would get their property through succession in the manner as prescribed in paras 18 and 19 of the judgment herein."

6. He further submits that in Vineeta Sharma

Vs. Rakesh Sharma and Ors., (AIR 2020 SC 3717)

three-Judges Bench of the Hon'ble Apex Court has

only partly overruled the decision in the case of

Mangammal (supra). However, the fact remains that

in the present situation, after Section 6 of the

Hindu Succession Act, 1956 was amended in 2005; yet

the Centre has not notified or declared that

Section 29-A of The Maharashtra Amendment to Hindu

Succession Act, as repealed and, therefore, the

daughters, who were married prior to 1994, will not

get any share in the property left by their father.

In view of this legal position canvassed,

substantial questions of law are arising in this

case, requiring admission of the Second Appeal.

7. Per contra, learned Advocate appearing

for Respondent No.1, i.e. original plaintiff,

supported the reasons given by both the Courts

below and submitted that since the Trial Court has

held that the suit properties are ancestral and

joint family properties, the plaintiffs and

defendants have share in the same. It was

submitted that in view of the pronouncement on the

point in the case of Vineeta Sharma (supra), the

daughters have been given equal share and thee-

Judges Bench of the Hon'ble Supreme Court had not

accepted the view taken by the Bench deciding

Mangammal's case. Therefore, Section 6 (as

substituted by Hindu Succession (Amendment)Act,

2005, w.e.f. 9.9.2005, would be applicable and, the

decision by both the Courts below cannot be said to

be perverse or illegal. No substantial questions of

law are arising in this case.

8. First of all, it is to be seen as to

whether the defendants, who had come with a case

that there was partition effected by Jyotiram in

the year 1982, was proved by them or not ? In

order to support that contention, the only

document, which is on record, is mutation entry

dated 17.8.1982, Prior to that, in fact, none of

the parties, especially the defendants, have

produced any document on record to show that

Jyotiram had purchased the said property from his

own income or joint family income. The plaintiff

had come with a case that it was ancestral

property. When the defendants have not produced

any such evidence to show that it was self-acquired

property of Jyotiram, the plaintiff's contention

will have to be accepted. Jyotiram being Karta of

the family could have effected partition. But it

is to be noted that he could not have done it in

un-equal manner. By the alleged partition, he is

said to have given half of the share to defendant

No.1. If we consider the position in the year

1982, then though the daughters may not be getting

any share in that property directly as coparcener,

but when there would be partition between father

and the son, then definitely, mother would get

equal share. Therefore, there ought to have been

three equal shares of 4 hectares and 75 Ares land.

In that event, defendant No.1 could not have got

half of the share. Further, it is to be noted that

it was only oral partition that is pleaded. No

doubt, the plaintiff has taken a plea that, that

partition appears to have been effected to get

benefit of certain Government schemes; but she was

not aware about the same. At the same time, the

defendants have not pleaded nor proved as to what

reason arisen for Jyotiram to effect the said

partition. It is not a case of the defendants that

defendant No.1 was not looking after the parents or

defendant No. 1 himself had demanded partition.

Under such circumstance, when the said alleged

partition is unequal, it cannot be accepted as

partition effected and can be protected under law.

The oral evidence to prove the oral partition led

by defendants has been discarded by both the Courts

and it can not be gone into in Second Appeal. Both

the Courts have rightly held that merely because

the plaintiff had never challenged the said

mutation entry, it cannot be taken that she had

accepted that partition. Interesting point to be

noted is that the defendants appear to have also

come with the defence, which could be found only in

the judgment of the first Appellate Court that

submission was made on behalf of original defendant

No.1 that when the partition was effected in the

year 1982 between defendant Nos.1, 2 and Jyotiram,

an amount of Rs.10,000/- was given to the plaintiff

as well as defendant No.3 each in lieu of their

share. No evidence to that effect has been

produced as it appears from the judgment of the

Trial Court and in fact, it was beyond the

pleadings, those submissions were made. If we

consider that submission then, in a way, defendant

No.1 was accepting that the plaintiff and defendant

no.3 had share in the suit property. Thus,

defendant Nos.1, 4 and 5 cannot blow hot and cold

at the same time.

9. As aforesaid, the alleged partition said

to have been effected orally and then mutation

entry No.134 (Exh.9) dated 17.8.1982, was taken;

then such oral partition could not have been

protected under Section 6 of the Amendment to Hindu

Succession Act, 2005 w.e.f. 9.9.2005 as proviso to

sub-section (4) to the said Section protects only

written partition. Both the Courts below have,

therefore, properly appreciated the evidence and

concluded that the defendants have failed to prove

previous partition allegedly effected in the year

1982.

10. The main point, that has been now tried

to be contended, is that Section 29-A of the Hindu

Succession Act is still in operation and,

therefore, the married daughters, i.e. those

daughters, who were married prior to 1994, will not

get any share either in the ancestral or joint

family property. There is no doubt, the said

provision, i.e. Section 29-A of the Hindu

Succession Act, had received the assent from the

Hon'ble the President of India and definitely, it

would be in view of Article 254(2) of the

Constitution of India. A limited right was given

to the daughter earlier and, therefore, in order to

widen the scope and the rights, along with and

after certain States made amendment; the

Maharashtra State amended the law and gave right to

the daughter equivalent to sons by making her co-

parcener. However, it was limited to those

daughters, who were unmarried at the time of coming

into force of the said provision. It can be seen

that that provision, i.e. Section 29-A of the Hindu

Succession Act, was repugnant to the earlier Act or

old Hindu Law then prevailing and, therefore, it

can be said that the assent of the Hon'ble

President of India was necessary in view of the

clause (2) of the said provision.

11. In Kaiser-I-Hind Pvt. Ltd. And Ors. Etc.

Vs National Textile Corporation Ltd. And Ors. -

AIR 2002 SC 3404 (Full Bench) , following are the

observations made by the Hon'ble Apex Court, -

"..........For the State law to prevail, following requirements must be satisfied

-

(1) law made by the legislature of a State should be with respect to one of the matters enumerated in the Concurrent List;

(2) it contains any provision repugnant to the provision of an earlier law made by the Parliament or an existing law with respect to that matter;

(3) the law so made by the Legislature of the State has been reserved for the consideration of the President; and (4) it has received 'his assent'. . In view of aforesaid requirements, before obtaining the assent of the President, the State Government has to point out that the law made by the State legislature is in respect of one of the matters enumerated in the Concurrent List by mentioning entry/entries of Concurrent List and that it contains provision or provisions repugnant to the law made by the Parliament or existing law. Further, the words "reserved for consideration" would definitely indicate that there should be active application of mind by

the President to the repugnancy pointed out between the proposed State law and the earlier law made by the Parliament and the necessity of having such a law, in facts and circumstances of the matter, which is repugnant to a law enacted by the Parliament prevailing in a State. The word 'consideration' would manifest that after careful thinking over and due application of mind regarding the necessity of having State law which is repugnant to the law made by the Parliament, the President may grant assent. This aspect is further reaffirmed by use of word "assent" in Clause (2) which implies knowledge of the President to the repugnancy between the State law and the earlier law made by the Parliament on the same subject matter and the reasons for grant of such assent. The word "assent" would mean in the context as an expressed agreement of mind to what is proposed by the State."

12. It can be, therefore, presumed that the

aforesaid position of law would have been

considered by the Hon'ble President of India when

assent was given to Section 29-A of the Hindu

Succession Act (Maharashtra Amendment).

13. At the same time, another Full bench

decision of the Hon'ble Apex Court in the case of

M.Karunanidhi Vs. Union of India -AIR 1979 SC 898,

is worth considering, wherein, it has been observed

thus, -

"Repugnancy between a law made by a State and by the Parliament may result from the following circumstances :

                  (1)      Where  the   provisions    of   a
                  Central   Act  and  a   State    Act   the

Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy.

(2) Where however if law passed by the State comes into collision with a law passed by Parliament on an Entry in the Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with cl.(2) of Art. 254.

                  (3)      Where a law passed by the State
                  legislature   while    being    substantially

within the scope of the entries in the State List entrenches upon any of the Entries in the Central List the constitutionality of the law may be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it appears that by and large the law falls within the four corners of the State List an entrenchment, if any, being purely incidental or inconsequential.

(4) Where, however, a law made by the State Legislature on a subject covered by the Concurrent List is inconsistent with or repugnant to a

previous law made by Parliament, then such a law can be protected by obtaining the assent of the President under Art 254(2) of the Constitution. The result of obtaining the assent of the President would be that so far as the State Act is concerned, it will prevail in the State and overrule the provisions of the Central Act in their applicability to the State only. Such a state of affairs will exist only until Parliament may at any time make a law adding to, or amending, varying or repealing the law made by the State Legislature under the proviso to Article 254". (stress supplied)

14. Further, we can also take note of T.Barai

Vs. Henri Ah Hoe and Anr - AIR 1983 SC 150,

wherein, it has been observed, -

"Article 254(1) enunciates the normal rule that in the event of a conflict between a Union and a State law in the concurrent field, the former prevails over the latter. To the general rule laid down in clause (1), clause (2) of Article 254 engrafts an exception. The result of obtaining the assent of the President to a State Act which is inconsistent with a previous Union law relating to a Concurrent subject would be that the State Act will prevail in that State and override the provisions of the Central Act in their applicability to that State only. The predominance of the State law may however be taken away if Parliament legislates under the Proviso to clause (2) of Article 254. Parliament may repeal or amend the repugnant State law, either directly, or by itself enacting a law

repugnant to the State law with respect to the 'same matter'. Even though the subsequent law made by Parliament does not expressly repeal a State law, even then, the State law will become void as soon as the subsequent law of Parliament creating repugnancy is made. A State law would be repugnant to the Union law when there is direct conflict between the two laws. Such repugnancy may also arise where both laws operate in the same field and the two cannot possibly stand together e.g., where both prescribe punishment for the same offence but the punishment differs in degree or kind or in the procedure prescribed. In all such cases, the law made by Parliament shall prevail over the State law under Article 254(1)". (stress supplied)

15. It can be seen that the law on the point

of Succession is at Entry No.5 of the Concurrent

List, i.e. List No.III in the Seventh Schedule.

Article 254 of the Constitution gets attracted only

when both Central and State legislations have been

enacted on any of the matters in the said List and

there is conflict between two legislations. The

basic principle is that the Central legislation

will prevail as Article 254(1) of the Constitution

gives supremacy to the law made by the Parliament.

We have considered earlier as to how Section 29-A

of the Hindu Succession Act, as amended in the

Maharashtra, was repugnant to the old Hindu Law. As

stated in T.Barai's case (supra), the general rule,

laid down in clause 1 of Article 254; clause 2

engrafts an exception viz., if the President

assents to a State Law, which has been reserved for

his consideration, it will prevail notwithstanding

its repugnancy to earlier law of the Union.

However, the Constitution itself makes a proviso to

clause 2 and provides that, nothing in clause 2 of

Article 254 shall prevent the Parliament from

enacting at any time any law with respect to the

same matter including a law adding to, amending,

varying or repealing the law so made by the

Legislature of the State. Now, it is to be seen

that in the year 2005, the Union Government brought

an amendment to Section 6 of the Hindu Succession

Act and made the daughters as coparceners and this

has been done with a view to give equal rights to

the daughters in comparison to sons. When the

Maharashtra State Amendment was restricted to un-

married daughters (excluding the daughters, who

were married prior to 1994), no such distinction

has been made in Section 6 of the amended provision

by the Union Government and, therefore, the

repugnancy existed. In view of the proviso, when

Parliament exercised its power to bring a new

legislation, the said enactment will prevail. In

view of the law laid down in the aforesaid three

pronouncements, it was not necessary for the

Parliament to repeal Section 29-A of the Hindu

Succession (Maharashtra Amendment) Act. Taking

into consideration both the enactments, i.e.

Section 29-A and Section 6, as amended in 2005,

they cannot stand together and, therefore, the law

made by the Parliament would prevail over the State

Law in view of Article 254(1) of the Constitution

of India.

16. In view of the decision in the case of

Vineeta Sharma (cited supra) even father need not

be alive and the earlier law on this point in the

case of Prakash and Ors. Vs. Phulwati and Ors.

(2016) 2 SCC 36, stood overruled.

17. One more aspect has been tried to be

submitted on the basis of the decisions in the

cases of Mangammal and Vineeta Sharma (cited

supra), is that the decision in the case of

Mangammal has been partly overruled. In this

connection, discussion made in para Nos.81 and 82

in the decision in the case of Vineeta Sharma,

would make it crystal clear that, the same point

now tried to be agitated by the present appellants,

by taking help of the decision in the case of

Mangammal, has been overruled by the three-Judges

Bench of the Hon'ble Apex court in Vineeta

Sharma's case.

18. Further, it is also to be noted that in

the decision of Mangammal, reliance was placed on

the decision in the case of Prakash Vs. Phulwati

(cited supra) and in Vineeta Sharma's case,

observations made in para No.139 would be very much

important, wherein it has been held, -

"In view of the aforesaid discussion and answer, we overrule the views to the contrary expressed in Prakash v. Phulavati and Mangammal v. T.B. Raju & Ors. The opinion expressed in Danamma @ Suman Surpur & Anr. V Amar is partly overruled to the extent it is contrary to this decision."

19. Under such circumstance, the Central

enactment, i.e. Section 6 (as substituted by the

Hindu Succession (Amendment) Act, 2005, w.e.f.

9.9.2005, would be applicable to this case and in

view thereof, the plaintiff has share in the suit

property, which has been rightly adjudicated by

both the Courts below.

20. No substantial question of law, as

contemplated under Section 100 of CPC is arising in

this case, requiring admission of the Second

Appeal. Therefore, for the aforesaid reasons and

in view of the decision in the case of Kirpa Ram

(deceased) through Lrs. and others Vs. Surendra

Deo Gaur and others, [2021 (3) Mh.L.J. 250]., the

Second Appeal deserves to be dismissed at the

threshold. It deserves to be dismissed.

21. Civil Application No.8434/2019 is moved

by the applicant - Minakshi Baburao Jadhav, seeking

leave to file Second Appeal against the judgment

and decree passed by the first Appellate Court.

The applicant is wife of original defendant No.1

and mother of original defendant Nos.4 and 5. She

has come with a case that during life time of

original defendant No.2, i.e. her mother-in-law,

she had executed a will in favour of the applicant

on 14.10.2006 and, therefore, she has become owner

of other half share of the property. She has tried

to produce the will.

22. At the outset, it is to be noted that the

Trial Court decided the matter on 15.1.2014. That

means, the matter was before the Trial Court itself

for about eight years. There was no attempt by

defendant No.1 or deft.Nos. 4 and 5 to disclose it

to the Court that any such will has been left by

deft.No.2. Further, it can also be seen from the

documents, which have been attached to this civil

application, that the present applicant had filed

M.A.No.12/2003 before Civil Judge, Senior Division,

Udgir for issuance of Probate. However, it appears

that she never disclosed in that application that

already a suit is pending in spite of the property

allegedly bequeathed in her favour. It is also

stated in the impugned order that citation and

public notice was issued in Daily newspaper viz.

"Yeshwant", which appears to be a local newspaper.

In spite of having knowledge that the present

plaintiff is contesting the said suit, the

applicant had not made the plaintiff as party to

the application and, therefore, her application to

allow her to file appeal, at this stage, cannot be

allowed.

23. From another angle also the fact can be

noted that in view of detailed order, that has been

passed in the Second Appeal, observing as to how

the plaintiff has share in the property, it can

also be said that deft.No.2 had no authority to

execute the will in favour of the applicant.

24. One more aspect to be noted is that

though the husband and sons had every knowledge

about the suit, it is hard to believe that the

applicant, who is residing with them, had no

knowledge about the suit that was filed; the decree

that was passed and the appeal was filed by the

husband. There was no attempt on the part of the

applicant to contest or get herself added as

respondent in Regular Civil Appeal No.9/2014. The

order in Probate proceeding has been passed on

7.1.2014. Regular Civil Appeal No.9/2014 was filed

by the original deft.No.1 on 24.2.2014 and it can

be seen that he had also never disclosed it to the

Appellate Court that any such will has been left by

his mother in favour of his wife and probate has

been granted in favour of his wife. The first

Appellate Court decided the matter on 20.12.2018.

That means for about four (4) years, nine (9)

months and Twenty-six (26) days, the matter was

before the first Appellate Court; yet once again no

attempt was made by the present applicant to get

herself added as party to the proceeding or

challenge the decree passed by the Trial Court

independently in her own capacity. In view of

this, the present application does not deserve to

be allowed.

25. For all the reasons above stated, the

Second Appeal stands dismissed. The civil

applications also stand rejected.

(SMT. VIBHA KANKANWADI) JUDGE

BDV

Later on :

. Learned Advocate appearing for the

appellants, after pronouncement of the judgment,

prays for continuation of the interim relief. It

is to be noted that all the three Courts including

this Court have not accepted the defence that has

been taken by the present appellants. The suit

was filed in the year 2005 and the fruits of the

decree are yet to be enjoyed by the original

plaintiff. Under such circumstance, oral request

stands rejected.

(SMT. VIBHA KANKANWADI) JUDGE

BDV