1 SA 138.2011 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 138 OF 2011 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr.D.T.Kamble,Advocate for the appellant. .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 20/04/2011 PER COURT : 1. This is Appeal by the original plaintiffs, who had filed Suit for partition and separate possession in respect of the suit properties. The trial Court dismissed the Suit. The plaintiffs have preferred Appeal. The Appellate Court also dismissed the Appeal confirming the Judgment and decree passed by the trial Court. The plaintiffs have assailed the said Judgment and decree in the present Second Appeal. 2. Mr. D.T.Kamble, the learned counsel for the appellants vehemently contends that the present appellants are the grand sons of respondent no. 1 Ambadas. The suit properties are the ancestral 2 SA 138.2011 properties and they have shares in the properties. In the ancestral property they had got right to claim partition. For the said purpose, the learned counsel relies on the Judgment of the learned Single Judge of this Court in the case of Narayan Ramchanddra Kathar & others V/s Arjun Bhimrao Gore & others reported in 1985 (2) Bom. C.R. 247. The learned counsel further relies on the Judgment of the Apex Court in the case of Puttrangamma and others V/s M.S. Ranganna and others reported in AIR 1968 SC – 1018. 3. Mr. Kamble, the learned counsel further contends that as far as property G.No. 114 is concerned, the same was received by respondent no. 1 from his father and so the said property would partate the character of ancestral property giving right to the appellants to claim partition in respect of the said property. According to the learned counsel, this aspect has not been considered properly by the Courts below. The learned counsel states that even the 7/12 extract shows that the said property was possessed by the father of respondent no. 1 Mahadu as is evident from the other rights column of the said 7/12 extract. In such circumstances, it could not have been said that the said property is not the ancestral property, interalia the said property was 3 SA 138.2011 available for partition. 4. With the assistance of the learned counsel, I have gone through the Judgments. 5. As far as property bearing G.No. 44/A and 44/B are concerned, the said properties were originally owned by Parvatibai, who had executed Will deed in favour of Venubai, the mother of respondent no. 1 and the said properties i.e. G.No. 44/A and 44/B were received by respondent no. 1 from Venubai. So, the same could not have been said to be the ancestral property, interalia the plaintiffs did not get any right to claim partition. No doubt, the appellant nos. 1 and 2 are the grand sons of respondent no. 1. But, as far as property G.No. 114 is concerned, it has been observed by the Court below that the property has come to the defendant no. 1 in partition and when in partition the property is allotted to a person, the same becomes separate property, which would not be available for partition to the grand sons. The Judgment of the learned Single Judge in the case of Narayan V/s Arjun referred supra, is on altogether different premise. In that case, the father of the plaintiff was joint with his brother and was not consenting for partition. In that circumstance, the Court observed that the Suit 4 SA 138.2011 would be maintainable . The same was on the footing that the partition had not taken place. 6. The another Judgment of the Apex Court in the case of Puttrangamma V/s M.S.Ranganna referred supra is on altogether different line dealing with the time when a son would separate himself from family and enjoy his share in severalty, we are not concerned with the said issue in the present matter. 7. Both the Courts on appreciation of evidence, oral as well as documentary, have come to the conclusion that even G.No. 114 would not be available for partition at this stage i.e. during the life time of respondent no. 1. If respondent no. 1 dies intestate, then in that eventuality, the appellants could claim their right. As on today, they do not have any right and the Courts below have properly dealt with the same. 8. In the result, the Second Appeal being sans substantial question of law is dismissed, however with no order as to costs. [ S.V. GANGAPURWALA,J. ] KNP/SA 138.2011 5 SA 138.2011