MANGUBEN RAJABHAI BAMBHANIA Vs CHHAGANBHAI RAJABHAI BAMBHANIA .
Bench: H.L. GOKHALE,J. CHELAMESWAR
Case number: C.A. No.-009226-009226 / 2013
Diary number: 16345 / 2012
Advocates: V. K. MONGA Vs
SUMITA RAY
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9226 OF 2013
(Arising out of SLP(C) No.19444/2012)
MANGUBEN RAJABHAI BAMBHANIA Appellant(s)
:VERSUS:
MACHHAGANBHAI RAJABHAI BAMBHANIA & ORS. Respondent(s)
O R D E R
Heard Mr. Ritin Rai, learned counsel in
support of this special leave petition and Mr. D.N.
Ray, learned counsel appearing for the respondents.
2. Delay condoned. Leave granted.
3. This appeal seeks to challenge the order
dated 3.2.2011 passed by a learned Single Judge of
the Gujarat High Court whereby the Special Civil
Application No.9031 of 2010 filed by the appellant
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herein was dismissed. The appellant had sought to
challenge the order dated 19.7.2010 passed by the 6th
Additional Senior Civil Judge, Bhavnagar, below
Exhibit 73 in Regular Civil Case No.701 of 2004.
The appellant had sought her share in the family
property by filing a suit for partition. Initially
the appellant sought her share in the property of
her father. Respondents are her brothers.
Subsequently, she sought to amend the plaint by
filing an application for including the property of
her deceased brother Ratibhai Rajabhai. The property
sought to be included was Plot No.1401 Ghogha Road,
Bhavnagar. The learned Trial Judge rejected that
application and so also the learned Single Judge of
the High Court.
4. Learned counsel appearing for the appellant
submits that in any case, the partition has not
taken place and as far as the share of her deceased
brother Ratibhai Rajabhai is concerned, the
appellant as well as the respondents would have
their shares in that and it is better that their
shares are decided by the Trial Court.
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5. Mr. D.N. Ray, learned counsel appearing for
the respondents on the other hand, submits that the
appellant ought to have filed a better application
and the share in the brother's property ought to
have been sought at the outset. In our view, the
property of the deceased brother of the appellant is
one wherein the appellant would have a share and it
is desirable that the said aspect is also decided in
the pending suit. In the circumstances, we allow
this appeal and set aside the order dated 3.2.2011
passed by the learned Single Judge of the High Court
as well as the order dated 19.7.2010 passed by the
Trial Court. The Application for amendment Exhibit
73 will stand allowed.
6. The appellant will amend the plaint within
four weeks from today to include the above referred
property at Bhavnagar. The respondents will be at
liberty to file their written statement within four
weeks thereafter. All contentions with respect to
the nature and share in the added property will be
available to both the parties at the time of trial.
Inasmuch as this is a suit filed in the year 2004,
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we request the concerned Court to hear and decide
the same at the earliest.
..........................J (H.L. GOKHALE)
.........................J (J. CHELAMESWAR)
New Delhi; October 08, 2013.