1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 1206 OF 2005 Ganpati s/o Ramrao Dalwe, age: 50 years, Occ: Agril., R/o Karajgaon, Tq. Ausa, District Latur. Appellant Versus 1 Sundarabai w/o Ganpati Dalwe Respondents (abated as per Court’s order dated 17.04.2009). 2 Sou.Putlabai w/o Pandit Bhosle, age: 35 years, Occ: Agri., R/o Killari, Tq. Ausa, District Latur. 3 Sheshrao s/o Ganpati Dalwe, age: 45 years, Occ: Agri., R/o Karajgaon, Tq. Ausa, District Latur. 4 Govind s/o Ganpati Dalwe, age: 37 years, Occ: & R/o as above (deleted). 5 Parwatibai w/o Manik Dalwe, age: 30 years, Occ: Agril., R/o Karajgaon at present Labour Colony, Latur. 6 Dattatraya s/o Manik Dalwe, age: 10 years, minor u/g mother defendant no.5. 2 7 Ravindra s/o Manik Dalwe, age: 8 years, minor under the guardianship of natural mother defendant no.5. 8 Narayan Sudhakar Indole, age: 14 years, minor under guardianship of Sudhakar Nivarti Indole, age: 40 years, R/o Karajgaon, Tq. Ausa, District Latur. 9 Sudhakar s/o Nivarti Indole, age: 42 years, Occ: Agril., R/o Karajgaon, Tq. Ausa, District Latur. Respondents Mr.N.P.Patil (Jamalpurkar), advocate for the appellant. Mr.B.N.Patil, advocate for Respondents. CORAM: R.M.BORDE, J. DATE : 5th September, 2009. ORAL ORDER: 1 This is an appeal by original defendant no.7 raising challenge to the judgment and decree passed by Additional District Judge, Latur on 06.03.2003 in Regular Civil Appeal No.165/96. 2 Respondents No.1 and 2 are original plaintiffs, who presented Regular Civil Suit No.304/92 claiming decree of partition and separate possession of lands G.No.232 admeasuring 1 hectare 59 ares, G.No.277 admeasuirng 83 ares and Gram Panchayat House No.45 of 3 village Karajgaon, Tq.Ausa. 3 One Ganpati Babu Dawle was husband of plaintiff no.1 and father of plaintiff no.2 and defendants no.1 to 3. He had another son by name Manik, who died after demise of Ganpati. Defendants No.5 and 6 are sons of deceased Manik. Defendant no.4 is the wife of deceased Manik. Plaintiffs and defendants no.1 to 6 constitute Hindu joint family. The properties described in the plaint are ancestral properties of Hindu joint families consisting of the plaintiffs and defendants no.1 to 6. On demise of Ganpati, plaintiffs and defendants no.1 to 3, along with deceased Manik, succeeded to the property as legal heir. According to plaintiffs, no partition is effected in respect of joint family property, however, defendants no.1 to 3 managed to take mutation entry recording the property in their name. Plaintiffs contend that they have share in the ancestral property and defendants have refused them share, as such, they are entitled for decree of partition and separate possession. It is also contended that defendant no.4 had executed a sale deed in respect of 40 ares land out land G.No.232 in favour of defendant no.7 on 27.08.1992. The land of ownership of defendants no.5 and 6, who are minors, has been alienated by defendant no.4. In fact, defendant no.4 has no legal entitlement to dispose of the property belonging to the minors. It is contended that suit property is jointly possessed by plaintiffs and defendants no.1 to 6 and as such, defendant no.4 has no entitlement to alienate the joint family property. The sale deed executed in favour of defendant no.7 is bad and liable to be set aside. 4 Defendants no.1 to 3 did not contest the suit. Defendants 4 no.4 to 6 jointly filed written statement and controverted the contentions raised by plaintiffs. Defendant no.7 has also filed written statement and opposed the suit claim. So far as relationship of plaintiffs and defendants is concerned, same is admitted. According to defendants no.4 to 6, there was partition and separation of shares and in pursuant to the partition, mutation entry has been recorded. Land G.No.277 has been allotted to plaintiff no.1 and land to the extent of 40 ares out of G.No.232 was allotted to husband of defendant no.4 and accordingly mutation entries were recorded. With these contentions, defendants prayed for dismissal of the suit. 5 Defendant no.7 has contended that there was partition of family property and the property purchased by him has fallen to the share of defendant no.4. Defendant no.7 has contended that he is bona fide purchaser for value and has purchased the property after making proper inquiry. He, therefore, prayed for dismissal of the suit. 6 After recording evidence of the parties, trial Court has recorded a finding that the property in dispute is Hindu joint family property and there was no partition and separation of shares amongst plaintiffs and defendants. It is recorded by the trial Court that plaintiffs no. 1 and 2 are entitled to have 1/6 + 1/42; and 1/42 share respectively. It has also been directed by the trial Court that share of defendant no.7 be adjusted in view of the sale deed executed in his favour and land sold to said defendant be allotted to the share of defendant no.4 while effecting partition. 5 7 The judgment and decree passed by the trial Court was subjected to appeal at the instance of plaintiffs in Regular Civil Appeal No.165/96. The challenge to the decree was only on the ground of computation of shares admissible to plaintiffs no.1 and 2. It was contended by plaintiffs before the first appellate Court that one of the sons of Ganpati i.e. defendant no.3 Govind had died during pendency of the suit and as such, his share will have to be allotted to the plaintiffs. The computation of shares receivable by the plaintiffs, therefore, will have to be modified. The first appellate Court accepted the contention raised by appellant and directed modification of the decree passed by the trial Court. 8 By virtue of modification directed by the first appellate Court, interest of purchaser i.e. defendant no.7 is affected and as such, he has challenged the decree in the instant Second Appeal. 9 It is contended by learned Counsel for appellant (defendant no.7) that determination of shares by the first appellate Court is not correct and share of defendant no.3 shall have to be allotted to plaintiffs as well as defendants no.1 to 6. 10 The submissions made by appellant cannot be accepted as same would be contrary to provisions of Section 6 of the Hindu Succession Act. On demise of defendant no.3, who died issueless, his 8/42 nd share would be inherited exclusively by his mother plaintiff no.1, who is Class-I heir, whereas, his brothers would fall in Class-II category. The heirs included in Class-I will be preferred to heirs included in Class-II. Thus, the 6 appellate Court was justified in holding that plaintiff no.1 mother would be entitled to have share equal to widow and sons and her share would increase and she would be entitled to have 18/42 nd share. The view adopted by the first appellate Court is based on proper appreciation of law governing computation of shares amongst legal heirs of Hindu joint family. I do not find that the first appellate Court has committed any error in allowing the appeal presented by plaintiffs’ party. That, so far as interest of defendant no.7 is concerned, same has been safeguarded by issuing a direction that the property purchased by him i. e. appellant (defendant no.7) be adjusted in the share of defendant no.4 and defendant no.5. No substantial question of law arises for consideration in the appeal. 11 Appeal, therefore, stands dismissed. Civil Application No. 7614 of 2005 does not survive and stands disposed of accordingly. (R.M.BORDE) JUDGE ******* adb/sa1206.05