1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 307 OF 2007 Lalita w/o Govind Mukde & another Appellants Versus Govind s/o Mahadeo Mukde Respondent Shri S.V.Chandole, Advocate for the appellants.. Shri V.R. Kulkarni, Advocate for the respondent. CORAM: R.M.BORDE, J. DATE : 13th August, 2009. PER COURT : 1 This is an appeal by original plaintiffs raising exception to the judgment and decree passed by the first appellate court in Regular Civil Appeal no. 82/1984 decided by the Principal District Judge, Latur on 27-9-2006 whereby the first appellate court while allowing the appeal has set aside the judgment and decree passed by the trial court. 2 Plaintiff no. 1 is the mother of plaintiff no. 2. Plaintiff no. 2 is minor daughter of defendant no. 1 and plaintiff no. 1. Suit bearing Regular Civil Suit no. 266/1998 came to be presented by the plaintiff seeking partition and separate possession of the agricultural property situate at village 2 Ujani Dist. Latur. According to plaintiff no. 1, her marriage was solemnised with defendant no. 1 and plaintiff no. 2 is a daughter born out of the wedlock. Plaintiffs were not treated well by defendant no. 1 and were driven out of the house. Plaintiff no. 2 being daughter of defendant no. 1 is entitled to have separate share in the ancestral property. Plaintiffs demanded share in the property of the defendant no. 1, however, defendant no. 1 did not agree for the same and as such, plaintiffs were required to approach the civil court seeking relief of partition and separate possession. 3 Defendant appeared and resisted the suit by filing written statement. According to defendant, partition has already taken place between his father and other brothers. Property shown in the suit is given by the grand father to his grand son. Grand father has made certain arrangements in respect of residence of plaintiff no. 1 and has also allotted share to the extent of 4 acres and 27 gunthas in the land gat no. 124. So far as plaintiff no. 2 is concerned, an amount of Rs.50,000/- has been deposited in the fixed deposit in the name of minor and plaintiff no. 1 is shown as guardian of the person and property of plaintiff no. 2. In view of the previous partition and separation of shares, it is contended by 3 defendant that plaintiffs are not entitled to get separate share. 4 Trial court however held in favour of the plaintiff and was pleased to allot share to the extent of 1/3 rd to plaintiff no. 2. So far as claim raised by plaintiff no. 1 is concerned that has been rejected by the trial court. Defendant approached the first appellate court by presenting Regular Civil Appeal no. 82/2004 which came to be heard and disposed of by District Judge, Latur who was pleased to allow the same by judgment and decree dt. 27-9-2006. Appellate court recorded finding that the mother has already been given separate share in the agricultural property to the extent of 4 acres and 27 gunthas. She has also been allotted residential premises for her residence. Plaintiff no. 1 is acting as natural guardian of the plaintiff no. 2 and in order to secure interest of plaintiff no. 2 in lieu of share in he property an amount of Rs.50,000/- has been earmarked and kept in fixed deposit in her name in the Nationalised bank. Considering the arrangements reached between the parties, the first appellate court did not find it appropriate to confirm the decree passed by the trial court. As such, while allowing the appeal, the first appellate court has quashed and set aside the judgment and decree passed by the trial court. 4 5 I have perused the judgments recorded by both the courts below. Interest of the minor plaintiff has been looked after by plaintiff no. 1. Separate share has been earmarked and allotted to plaintiff no. 1 in the agricultural property as well as provision for her residence has also been made by the defendant. In order to safe-guard interest of the minor plaintiff no. 2, an amount of Rs.50,000/- has been kept aside in lieu of share in the ancestral property. These arrangements appear to have been made while determining separate shares. In this view of the matter, it cannot be said that plaintiff no. 1 can claim separate share for minor plaintiff no. 2. Shr Chandole, learned counsel for the appellants has contended that the interest of the minor has not been properly looked after and it was responsibility of the District Judge to safeguard the interest of the minor and pass necessary order. Suit is presented by minor plaintiff through her mother, natural guardian. If the minor, after attaining majority thinks it appropriate to contend contrary, it would be the choice of the minor to adopt proper course in that regard. So far as the present appeal is concerned, the same does not give rise to substantial question of law. Appeal therefore stands dismissed summarily. (R.M.BORDE) JUDGE dyb/sa307.07.odt