Though substantial question of law has not been framed in respect of point raised under Order II Rule 2 of Code of Civil Procedure, it can be cursorily sated that, the earlier suit was restricted to movable property and that too it was withdrawn. Here the claim of the plaintiffs is that, even after death of Walibai the property would devolve on them as heir of Walibai. Walibai expired in 1979 and the suit has been filed on 23-11-1979. Therefore, it is neither hit by limitation nor under Order II Rule 2 of Code of Civil Procedure. A fresh cause of action can be said to have arisen for the plaintiffs after death of Walibai and since they are claiming to be the heir of Walibai under Section 15 of the Hindu Succession Act, 1956. The suit properties were devolved on Walibai through her husband. Though as per the contention of the defendant No. 1, Walibai had left Will but she herself had not pressed for that claim by pursis Exhibit 70 then definitely the said properties, of which Walibai had become full owner in view of Section 14 of the Hindu Succession Act, 1956, would revert back to the heirs left through husband. Therefore, when the cause of action is different, there is no question of bar under Order II Rule 2 of Code of Civil Procedure. Hence, the substantial question of law has been answered as.
IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)
Second Appeal No. 390 of 2005,
Decided On: 24.04.2019
Tejibai Vs. Mohanlal and Ors.
Hon'ble Judges/Coram:
Vibha Kankanwadi, J.
Citation: 2019(6) MHLJ 60
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