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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.