1 S.A. 760.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No. 760 OF 2009 Subhadrabai W/o Damodar Pawar & others .. APPELLANTS VERSUS Chayyabai W/o Rameshwar Borwqade & others ...RESPONDENTS ... Shri S.S. CHoudhari, Advocate for the appellants Shri B.R. Sale, Advocate for respondent Nos. 1 & 2 CORAM : S.V. GANGAPURWALA, J. DATE : 24th November, 2010. PER COURT : This is defendants Second Appeal. The plaintiffs had filed suit for partition and separate possession in respect of land Gut No. 496, 162 and a well. The Trial Court partly decreed the suit, holding the properties to be ancestral properties, dismissed the suit to the extent of 2 Hector land out of Gut No. 162. The defendants preferred an appeal, plaintiffs preferred cross-objection to the extent of 2 2 S.A. 760.09 Hector land of Gut No. 162. The lower appellate Court dismissed the appeal and allowed the cross- objection filed by the plaintiff, thereby decreed the total suit. The defendants have assailed the said Judgment, in the present Second Appeal. 2. Shri S.S. Choudhari, learned Counsel for the appellants submits that the land was purchased as self acquired property of defendant Nos. 1 & 2, and from that defendant had sold 2 Hector of land out of Gut No. 162 to defendant No. 6. According to the learned Counsel the presumption would be in favour of the person in whose name the property stands. The learned Counsel further contended that the plaintiff NO. 2 had left the house, and the marriage of the defendant No. 1 with defendant No.2 was not objected, in that case the plaintiff No. 2 and defendant No. 2 together shall get one share. 3. Per contra, Shri Sable, learned Counsel for the plaintiffs submitted that both the Courts have held that the suit properties are the ancestral properties. The marriage of defendant 3 S.A. 760.09 No. 2 with defendant No. 1 is not legal and the same is void marriage i.e. during the subsistance of the marriage of defendant No. 1 with plaintiff No. 2. 4. With the assistance of learned Counsel, I have gone through the Judgments delivered by both the Courts below. It is not much disputed that plaintiff No. 2 is the first wife of defendant No. 1 and plaintiff No. 1 is the daughter born to defendant No. 1 from plaintiff No. 2. It is also not in dispute that divorce had not taken place between plaintiff No. 2 and defendant NO. 1. In the light of above, though plaintiff No. 2 may have deserted defendant No. 1., still the marriage subsisted, as such defendant No. 2 cannot be said to be the legally wedded wife of defendant No. 1. In the light of the said fact, the defendant No. 2 or sons born to defendant No. 2 from defendant No. 1 do not get any right in the suit properties. Both the Courts on appreciation of evidence have come to the conclusion that the suit properties are the ancestral properties and the property purchased 4 S.A. 760.09 in the name of defendant No. 2 by the defendant No. 1 was as a Karta of the family. 5. Both the courts on appreciation of evidence have taken a possible and plausible view. The Second Appeal is devoid of any substantial question of law, as such the Second Appeal is dismissed. However, there shall be no order as to costs. In view of the dismissal of Second Appeal, the Civil Application does not survive and same is also disposed of. [S.V. GANGAPURWALA] JUDGE SDM* 253.10 SA/241110