1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. Second Appeal No. 443 of 2007 (Smt. Shewantabai w/o Govindrao Dhembre through L.Rs. Vs. The Ramabai Ambedkar Mahila Mandal & ors.) Appeal District : Application No. of 200 Writ petition - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's Orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CORAM : Smt. Vasanti A. Naik, J. DATE : 19 th June, 2008 Heard Shri Ukey for the appellants, and Shri Mundra for the respondents. The appellants are the legal heirs of the original plaintiff- Smt. Shewantabai. Shewantabai had filed a suit against the respondents i.e. a registered trust and trustees, for a declaration that she was the owner of the suit property. The plaintiff also sought possession of the suit property from the defendants on the ground that the defendants did not have any right or title to occupy the same. According to plaintiff- Shewantabai, she had two sisters Bhimabai and Panchfulabai. Bhimabai was the original owner of the suit property. It is the case of the plaintiff that Bhimabai purchased the property on 5/2/1951 2 and her marriage with her husband Kashinath was dissolved by a customary divorce deed dated 13/1/1964. Bhimabai did not remarry and died issueless on 8/6/1993. According to Shewantabai, since she was the legal heir of Bhimabai, she was entitled to succeed to the suit property as an owner thereof. According to the plaintiff, names of the defendants were shown in the revenue records as the owners of the suit property on the basis of the gift deed made by Bhimabai. The defendant no.1-Trust filed written statement and denied the claim of the plaintiff. All the other defendants adopted the same written statement. It was pleaded by the defendant that the plaintiff was not the legal heir of deceased Bhimabai. According to them, the suit property was the self-acquired property of Bhimabai and during her life time, she gifted the same to the defendant no.1 by executing a gift deed. It was the case of the defendants that Panchfulabai, the other sister of Shewantabai, had a son and, therefore, the suit was liable to be dismissed for non-joinder of necessary party. The defendants also denied that there was a divorce between Bhimabai and her husband Kashinath. The defendants prayed for the dismissal of the suit. 3 The trial Court, after considering the evidence of the parties, held that the suit was bad for non-joinder of necessary party. According to the trial Court, the plaintiff did not prove that the suit property was the self-acquired property of her father. The Court held that the defendants had proved the execution of a valid gift in favour of the defendant no.1. The suit of the plaintiff was dismissed. In an appeal filed by the plaintiff, the first appellate Court reversed some of the findings recorded by the trial Court. The first appellate Court held that the suit was not bad for non- joinder of necessary parties and the property also did not pass to the defendant no.1 in view of the gift deed dated 6/3/1992. The Court held that deceased Bhimabai had not gifted the suit property to the defendant no.1. While rejecting the evidence, the first appellate Court laid heavy reliance on the fact that the gift deed was not a registered document though it was compulsorily registrable under the Registration Act and the Transfer of Property Act. The first appellate Court also held that plaintiff Shewantabai is not the legal heir of her sister Bhimabai as the plaintiff had failed in proving that there was a customary 4 divorce between Kashinath and Bhimabai effected in the year 1964. The first appellate Court, therefore, dismissed the suit of the plaintiff on the grounds other than those on which the trial Court had dismissed the same. The judgments are challenged in the instant appeal. It is submitted on behalf of the appellants that the first appellate Court was not justified in reversing the finding on the issue of divorce of Kashinath and Bhimabai, specially when the defendant no.1-Trust had not filed any appeal or cross-objection challenging the finding recorded by the trial Court. According to the counsel for the appellant, there was a Legal Heir Certificate issued in favour of the plaintiff and, therefore, the Court ought to have held that the plaintiff was the legal heir of deceased Bhimabai. The counsel for the respondents supported the judgments passed by the Courts and submitted that the second appeal is liable to be dismissed as no substantial question of law arise for consideration. According to the counsel for the respondents, the appellate Court had considered all the relevant material on record to hold that there was no divorce between Bhimabai and Kashinath and the marriage between them was not 5 dissolved by the deed dated 13/1/1964. In the absence of any divorce between Bhimabai and Kashinath, the plaintiff could not have succeeded in her claim as she, in any case, was not the legal heir of Bhimabai. I have considered the submissions made on behalf of the parties and have also perused both the judgments. The first appellate Court had rightly considered the issue about the alleged dissolution of marriage between Kashinath and Bhimabai as the right or entitlement of the plaintiff depended upon the aforesaid issue. In case it was held that there was no divorce, then Kashinath would be the legal heir of Bhimabai and it was only in case of a valid divorce that the plaintiff could be said to be one of the legal heirs of deceased Bhimabai. The first appellate Court decided this issue after considering the entire oral and documentary evidence produced by the parties in that regard. The findings recorded by the first appellate Court are pure findings of fact which do not give rise to any substantial question of law. It is necessary to note that there was no finding of the trial Court as such in favour of the plaintiff pertaining to the divorce between Bhimabai and Kashinath. 6 In this view of the matter, first appellate Court was clearly justified in holding that the plaintiff's suit was liable to be dismissed. For the reasons aforesaid, second appeal is dismissed with no orders as to costs. JUDGE RMP