A Hindu widow acquiring property under a partition retains absolute ownership and can dispose of it, as per Section 14(1) of the Hindu Succession Act, 1956.

JUDGMENT :

1. This second appeal is preferred against the judgment and decree passed by the Adhoc District Judge-2, Khamgaon, District Buldhana in Regular Civil Appeal No.40/2010, dated 30.01.2018. The said appeal was preferred against the judgment and decree 4 passed by the Civil Judge, Junior Division, Shegaon, District Buldhana in Regular Civil Suit No.54/2004, dated 23.04.2010. The suit and appeal were dismissed.

2. Plaintiff’s case :

(i) The plaintiff filed a suit for partition and separate possession of his share in the properties bearing (i) Gat No.81, field Survey No.22/3B, admeasuring 1.21 HR., (ii) Gat No.83, Survey No.22/3A, admeasuring 1.21 HR., (iii) Gat No.26, Survey No.6/1A, admeasuring 3.96 HR., out of which 1.16 HR. (iv) Gat No.228, Survey No.64/1, admeasuring 1.07 HR., out of which 1H. (v) Gat No.129, Survey No.37/1B including a Well and Survey No.37/3, admeasuring 3.83 HR. along with house properties viz. House Nos.86, 89, 97, situated at village Gaulkhed, Tahsil Shegaon, District Buldhana, which are the subject matter of the suit.

(ii) The plaintiff contended that he had three brothers, Ramrao – defendant No.1, Shriram – defendant No.4 and Tribhuvan – defendant No.5. His father effected a partition of the joint family properties on 01.12.1969, by a registered Partition-deed. The suit properties were allotted to the share of his father Mahadev. His mother Dwarkabai was not given any share in that partition. In the partition-deed, it was mentioned that after the death of Mahadev, 5 Dwarkabai would possess the suit properties and she will have the right to enjoy the suit properties till her life but she could not dispose of it.

(iii) After the death of Dwarkabai, the suit properties will have to be divided between the plaintiff and his brothers equally. Late Dwarkabai died in the year 1993. Therefore, the plaintiff demanded a partition of his share in the suit properties from the defendant Nos.1 to 3 but, they refused to effect the partition. The plaintiff further contended that late Dwarkabai did not have the right to dispose of the suit properties. However, she executed a Will of the suit properties in favour of defendant No.1 and her daughter Mathurabai. It is contended that the said Will is not legal and binding on the plaintiff and defendant Nos.4 and 5, as the Dwarkabai did not have exclusive right over the suit properties. Therefore, the plaintiff filed suit for partition of his share in the suit properties.

3. Defence of the Defendants :

(i) The defendant Nos.1 to 3 resisted the suit. They admitted the earlier partition-deed dated 1.12.1969 and their relationship inter se. They came with the case of execution of a Will, registered in favour of defendant No.1 and Mathurabai. Accordingly, after the death of Dwarkabai, the mutation entries of the suit properties are 6 effected. It is lastly prayed that suit is not maintainable, as the plaintiff has no legal right to file it. The defendants further prayed for the dismissal of the suit. (ii) The defendant Nos.4 and 5 admitted their relationship, the execution of partition deed of the year 1969 and supported the plaintiff’s claim. They also prayed for their share in the suit properties.

4. The learned Trial Court held that, the plaintiff has no right in the suit properties. The defendants have proved a Will, executed in favour of defendant No.1 and Mathurabai. Consequently, the suit was dismissed. The learned First Appellate Court also held that judgment and decree passed by the Trial Court is legal and correct and no interference is warranted in it and dismissed the appeal.

5. The following substantial question of law is formed :

“Was the Trial Court as well as First Appellate Court illegal and incorrect in applying Section 14(1) instead of applying Section 14(2) of the Hindu Succession Act, 1956 to the case of the plaintiff?”

6. Heard learned Advocate for both sides.

7. The learned Senior Counsel Mr. Anil Mardikar, for the appellants submitted that Sub-section(2) of