1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. S.A.NO.207 OF 2009 Pushpa Bhivaji Rewtkar and anr.. .. vs.. Zibal Bhivaji Rewatkar and ors.. ---------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's directions and Registrar's order. orders. -------------------------------------------------------------------------------------------------------------------------- Coram : C.L.PANGARKAR, J. Dated : 12th August 2009. 1. Heard Mr.M.I.Dhatrak, learned counsel for the appellants. 2. This second appeal is preferred against the two concurrent findings recorded by the courts below. 3. The appellants/plaintiffs had instituted a suit for partition and separate possession as well as for declaration that the decree in Civil Suit No.142 of 1991 was obtained by fraud. It is the contention of the plaintiffs/appellants that plaintiff no.1 is the wife of defendant no.3 and plaintiff no.2 is her son. Further, it is the contention of the plaintiffs that defendant no.2 is the first wife of defendant no.3 and 2 defendant no.1 is the son from defendant no.2. 4. It is her contention that defendant no.2 had entered into an agreement of sale of the suit property with one Gulab – defendant no.4. Since defendant no.3 did not execute the sale deed in favour of defendant no.4, defendant no.4 filed a suit for specific performance of contract. The said suit being Civil Suit No.142 of 1991 came to be decreed and a sale deed has been executed in favour of defendant no.4. The plaintiffs submit that plaintiff no.1 being the wife and defendant no.2 being son have share in that property and defendant no.3 has no right to execute sale-deed. It was her contention that the decree in favour of defendant no.4 was obtained by practicing fraud on the court. 5. Defendant nos.2 and 3 did not contest the suit. Defendant no.4 only contested the suit. The trial court found that the plaintiffs had failed to show that the decree in Civil Suit No.142 of 1991 is not binding on plaintiff no.2. The plaintiffs had no share in the suit property and they are not entitled for any injunction. An appeal was, therefore, preferred by the plaintiffs before the district judge. The district judge also, upon consideration of the evidence found that the suit was rightly dismissed by the trial court. 3 6. I have heard the learned counsel for the appellants. He submits before me that at least plaintiff no.2 had share in the suit property being son of defendant no.3. He submits that, therefore, decree should have been passed for partition and separate possession and alienation should have been set aside. The submission is not correct. The averements in the plaint go to show that plaintiff no.1 is the second wife of defendant no.3 and his first wife is very much alive and there is no divorce between defendant nos.2 and 3. Plaintiff no.1, therefore, cannot be said to be legitimate wife of defendant no.3. Plaintiff no.2 could be said to be illegitimate child of defendant no.3. Further, under Section 16 of the Hindu Marriage Act, an legitimate child is entitled to share in self acquired property of the father alone and illegitimate child has no right to claim interest in the ancestral property. It is not in dispute that the suit property was an ancestral property in the hands of defendant no.3. Therefore, neither of the plaintiffs have had any share in the suit property. The courts below have rightly considered the law and the evidence. There is, therefore, no substance in the appeal. It is dismissed in limine. JUDGE. chute