Kiritbhai Chhaganbhai Raiyani vs Decd Savitaben Kurjibhai Patel ...
2021 Latest Caselaw 17033 Guj

     C/SA/232/2021                                  ORDER DATED: 28/10/2021




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/SECOND APPEAL NO. 232 of 2021

                                With
             CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
                 In R/SECOND APPEAL NO. 232 of 2021
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                  KIRITBHAI CHHAGANBHAI RAIYANI
                              Versus
               DECD SAVITABEN KURJIBHAI PATEL ABATED
=============================================
Appearance:
MR MRUNAL R DHOLARIA(11915) for the Appellant(s) No. 1,2,3
MR. BHAUMIK DHOLARIYA(7009) for the Appellant(s) No. 1,2,3
for the Respondent(s) No. 1,2,3
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 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                              Date : 28/10/2021

                                ORAL ORDER

ORDER IN SECOND APPEAL

1. Leave to amend paragraph 4(i) in the Appeal.

2. Heard Mr. Bhaumik Dholaria, the learned counsel appearing for the appellants.

3. The Second Appeal is Admitted considering the following substantial questions of law:

"(A) Whether in view of proviso to Section 6(1) of the Hindu Succession Act, 1955, the Plaintiff No.2 has any right in the suit property which was alienated in the year 1990?

(B) Whether in the facts and circumstances of the case, the lower Appellate Court has wrongly applied the Judgment of the Hon'ble Supreme Court in the case of

C/SA/232/2021 ORDER DATED: 28/10/2021

Vineeta Sharma vs. Rakesh Sharma, reported in 2020 (2) SCC 1 and rightly granted benefit to the Plaintiff No.2?

(C) Whether a divorced wife is entitled to any share in the ancestral property of her husband, more particularly when her husband was alive?

(D) Whether a daughter can file a suit for partition during the life-time of his father in absence of any other coparcener prior to commencement of Hindu Succession (Amendment) Act, 1955?

(E) Whether the suit of the Plaintiffs was barred by Order 2 Rule 2 of the Code of Civil Procedure, 1908?

(F) Whether the suit for partition is maintainable upon the death of Father- Defendant No.1 and a decree of partition can be passed against the third parties who are not the coparceners or member of Hindu Undivided Family?

(G) Whether the suit of the Plaintiffs was within the period of limitation, in view of amendment sought in the prayer on 02.04.2007, for setting aside the sale-deed dated 25.05.1990?

ORDER IN CIVIL APPLICATION

1. Issue Notice returnable on 16.12.2021.

2. In the meantime, parties are directed to maintain the status quo as regards the nature, character and possession of the suit property.

(VAIBHAVI D. NANAVATI,J)

NEHA