1 S.A.No.482.04 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 482 OF 2004 Chandrakant S/o Ganpati Gulve and others ... Appellants V E R S U S Kisan Pandhari Guvle and others ... Respondents ... Mr.P.S.Chavan,Advocate for Appellants Respondents though served remained absent. ... CORAM : A.V. NIRGUDE, J. DATED : 15th JANUARY, 2010 PER COURT 1] Facts leading to this second appeal are as under- The original respondent No.1 Kishan was father of the respondent Nos.2 and 3 and one Ganpati, the husband of appellant no.3. He asserted that the ancestral property was not partitioned amongst him and his son. He asserted further that arrangement that was made previously was not partition but was temporary arrangement in the family. The appellants who are wife and 2 S.A.No.482.04 children of pre-deceased son Ganpati and respondent nos 2 and 3 took up a stand that earlier the so called arrangement was in-fact the partition by meets and bounds and in which the original respondent No.1 the father (Plaintiff- Kishan) had relinquished his share. But the Courts below held against the appellants and respondent nos 2 and 3. During the pendancy of this appeal the original plaintiff (Respondent No.1 Kishan) died on 18th April, 2008. The appellants through their learned Advocate Mr. P.S.Chavan informed the Court that they would not press the appeal and would accept the the impugned judgment directing the partition of suit property. They only suggested that since original plaintiff Kishan died his share should be further divided amongst the respondent nos. 2 and 3 and the appellants. Mr. Chavan brought to my notice the judgment of our High Court in the case of Kusum Dashrath Kharmare Vs. Popat Madhav Gangarde and others reported in 2008(1) ALL M.R. 576. In that Judgment it was held that after passing of the preliminary decree of the partition change in the 3 S.A.No.482.04 share due to subsequent events like death of one of the sharers should be recognized so as to order variation of the shares in the final decree of partition. 2] Despite of service of notice of this appeal the respondent nos 2 and 3 remained absent. The preliminary decree of partition was not executed so far. In view of this the appeal is dismissed but the impugned decree is modified to enlarge the shares of each brother. Thus, the appellants would get 1/3rd share together and respondent nos.2 and 3 would get 1/3rd share each. Therefore, the present appeal stands disposed of. Sd/- (A.V. NIRGUDE, J.) MTK/