Smt. Pavitrabai Dagadu ... vs Shrimati Shushila Laximan ...
2023 Latest Caselaw 1048 Bom

                                                                                        7-sa-388-2020.doc
         Pallavi


           Digitally signed
                                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                    CIVIL APPELLATE JURISDICTION
           by PALLAVI
           MAHENDRA
PALLAVI    WARGAONKAR
MAHENDRA
WARGAONKAR Date:
           2023.02.04
           17:01:15
           +0530
                                                    SECOND APPEAL NO.388 OF 2020
                                                               WITH
                                                 INTERIM APPLICATION NO.930 OF 2021

                              Smt. Pavitrabai Dagadu Sonawane
                              (Since deceased through LR)                   ...Appellant/Applicant
                                   Versus
                              Shrimati Shushila Laximan Sonawane (Dhor) & Ors.    ...Respondents


                              Mr. Rahul S. Kate, for the Appellant/Applicant.
                              Mr. Shekhar Jagtap i/b. J. Shekhar & Co., for the Respondent Nos.1 to 6.

                                                              CORAM : MADHAV J. JAMDAR, J.

DATE : 1st FEBRUARY 2023

P.C. :

1. Heard Mr. Rahul Kate, learned counsel appearing for the

Appellant and Mr. Shekhar Jagtap, learned counsel appearing for the

Respondent Nos.1 to 6. Mr. Rahul Kate, learned counsel states that

although Respondent Nos.7 to 11 are served, none appears for them.

2. The Appellant has challenged by the present Second Appeal the

Judgment and Decree dated 16th January 2019 passed by the learned

District Judge - 2, Baramati, District - Pune in Regular Civil Appeal

No.214 of 2012.

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3. The following substantial question of law is raised in this

Appeal:-

Whether the learned First Appellate Court is right in holding

that the legal representative Manik Prakash Shinde has no

locus standi to continue the said Regular Civil Appeal No.214

of 2012?

4. Mr. Rahul Kate, learned counsel of the Appellant submitted

that the original Appellant - Pavitrabai D. Sonawane passed away on

8th March 2014. The deceased Appellant had bequeathed the suit

properties to her brother's son viz. Manik Shinde i.e. present

Appellant by her last Registered Will dated 2nd December 2010.

Therefore, application bearing Exh.16 has been filed in said Regular

Civil Appeal No.214 of 2012 and the said application was allowed by

the learned Ad-hoc District Judge-2, Baramati by passing order below

Exh.16 in Regular Civil Suit No.214 of 2012. Accordingly, the present

Appellant i.e. Manik Shinde is substituted as the legal representative

of original Appellant viz. Pavitrabai Dagadu Sonawane. However, at

the final hearing of the said Regular Civil Appeal No.214 of 2012, the

learned First Appellate Court dismissed the Appeal on the ground

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that Manik Shinde does not have locus standi to continue the said

Appeal.

5. The learned First Appellate Court has relied on provision of

section 15 of the Hindu Succession Act, 1956 and held that share of

Pavitrabai did not devolve upon Manik Shinde and therefore, he does

not have locus standi to continue the said Appeal. Mr. Rahul Kate,

learned counsel submitted that section 15 of the Hindu Succession

Act, 1956 has no application as the deceased has left last Will which

is registered on 2nd December 2010.

6. On the other hand, it is the contention of Mr. Shekhar Jagtap,

learned counsel of the Respondent Nos.1 to 6 that in view of section

15 of the Hindu Succession Act, 1956, the property does not devolve

upon said Manik Shinde. Therefore, he cannot be the legal

representative of deceased Pavitrabai D. Sonawane.

7. The factual position on record shows that the original

Appellant - Pavitrabai D. Sonawane filed said Appeal on 22 nd October

2012 bearing Regular Civil Appeal No.214 of 2012 challenging the

Judgment and Decree dated 11th September 2012 passed by the

learned Civil Judge, Junior Division, Baramati in Regular Civil Suit

No.205 of 2003. During the pendency of the said Appeal, the original

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Appellant - Pavitrabai passed away on 8th March 2014 and therefore,

Exh.16 application was filed in said Appeal. In the said Exh.16

application, prayer is sought to bring on record name of the present

Appellant - Manik P. Shinde as the legal representative of deceased

Appellant - Pavitrabai D. Sonawane. In the said application, reliance

is placed on Registered Will dated 2nd December 2010 executed by

said Pavitrabai by which suit properties were bequeathed in favour of

the Appellant. The said application was opposed by the Respondent

Nos.1 to 6 by filing say. The learned First Appellate Court by order

dated 14th June 2016 passed below Exh.16 in Regular Civil Appeal

No.214 of 2012 allowed the said application by considering the rival

contentions and by giving reasons. Pursuant to the said order dated

14th June 2016, name of said Manik Prakash Shinde was brought on

record as legal representative of deceased Appellant - Pavitrabai in

said Regular Civil Appeal No.214 of 2012. It is admitted position that

the said order dated 14th June 2016 passed below Exh.16 in Regular

Civil Suit No.214 of 2010 is not challenged by the present

Respondents.

8. It is settled legal position that the principles of res judicata are

applicable to the different stages of the same proceeding. The

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Supreme Court, in the matter between Erach Boman Khavar Vs.

Tukaram Shridhar Bhat and Another1, has held thus:

" ........ It is well settled in law that principle of res judicata is applicable between the two stages of the same litigation but the question or issue involved must have been decided at earlier stage of the same litigation."

9. Thus, once after hearing both the parties, the learned First

Appellate Court has allowed the application bearing Exh.16 by

passing reasoned order and brought on record the present Appellant -

Manik Shinde as legal representative of the original Appellant -

Pavitrabai, there is no question of again going into the said aspect

and dismissing the Appeal only on the ground that the said Manik

Shinde does not have locus standi to continue the Appeal.

10. Apart from the above, the impugned order of the learned First

Appellate Court is contrary to the provisions of law. The learned First

Appellate Court has relied on section 15 of the Hindu Succession Act,

1956. Section 15 of the Hindu Succession Act is regarding general

rules of succession in the case of female Hindus. Sub-section (1) of

section 15 provides that property of a female Hindu dying intestate

shall devolve upon according to the rules set out in section 16 on

1 (2013) 15 SCC 655

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various heirs as set out in said section. However, it is significant to

note that section 15 is applicable if female Hindu dies intestate. In

the present case, admittedly, the deceased Pavitrabai passed away by

leaving behind registered Will dated 2nd December 2010. Therefore,

section 15 has no application to the present case.

11. For the above reasons, the impugned Judgment and Decree

dated 16th January 2019 passed by the learned District Judge-2,

Baramati, Pune in Regular Civil Appeal No.214 of 2012 dismissing

the said Appeal only on the ground that Manik Shinde does not have

locus standi in the said Appeal is quashed and set aside. Said Regular

Civil Appeal No.214 of 2012 is restored to the file of the learned

District Judge, Baramati, District Pune. Both the Appellant and the

Respondents to attend concerned Court of learned District Judge,

Baramati, District Pune on 1st March 2023. The learned concerned

District Judge to take steps in accordance with law to serve the

Respondent Nos.7 to 11 of the notice of Regular Civil Appeal No.214

of 2012, if they fail to remain present before the Court on 1 st March

2023.

12. The learned concerned District Judge, Baramati, District Pune

to dispose of the Appeal expeditiously as the Appeal is of the year

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2012 and in any case, on or before 31st March 2023.

13. Second Appeal is disposed of in above terms with no order as

to costs. In view of the disposal of the Second Appeal, nothing

survives in the Interim Application and the same is also disposed of.

[MADHAV J. JAMDAR, J.]