6 SA 21.2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 21 OF 2009 Mohan S/o Motiram Kadam & Oths. .... APPELLANTS V E R S U S Kalyan S/o Ramkrishna Jadhav & Oths. ..... RESPONDENTS Mr.R.B.Deshmukh,Advocate for the appellant. Mr.S.S.Choudhari, Advocate for Resp.no. 1. CORAM : S.V. GANGAPURWALA, J. DATE : 10/03/2011 ORAL ORDER : 1. Heard the learned counsel for the respective counsel.. 2. This is Appeal by defendant no. 8 to 10. The present respondent no. 1 had filed Suit for partition and separate possession in respect of various properties. The trial Court dismissed the Suit. The plaintiff preferred an Appeal before the District Court. The appellate Court partly allowed the Appeal and decreed the Suit only in respect of G.No. 116 admeasuring 1 H. 39 R., so also, declared that the sale deeds in respect of said property are not binding on the plaintiff. Being aggrieved thereby, the 6 SA 21.2009 defendant nos. 8 to 10 have assailed the said Judgment in the present Second Appeal. 3. Mr. R.B.Deshmukh, the learned counsel for the appellant strenuously contends that the lower appellate Court has wrongly applied provisions of Article 109 of the Limitation Act. The sale was by the karta of the family and not by the father. As such, Article 109 of the Limitation Act would not be applicable. The learned counsel further contends that the Suit was barred by limitation. The Suit would be governed under Article 58 of the Limitation Act. The sale deeds are of the year 1984 and 1989. The plaintiff became major in the year 1990 and the Suit has been filed in the year 1994. As such, the Suit was barred by limitation. For the said purpose, the learned counsel relies on the Judgment of the learned Single Judge of this Court in the case of Gopichand Dagduba More & Others V/s Nivrutti Rambhau Mali & Others reported in 2010 (3) Bombay Cases Reporter – 541. 4. Mr. Deshmukh, the learned counsel further contends that the sale was for legal necessity as has been held by the trial Court. The lower appellate Court did not consider the aspect of legal necessity nor has discussed the evidence in this regard. Even no point for determination has 6 SA 21.2009 been framed. 5. Mr. Deshmukh, the learned counsel further contends that as per Section 38 of the Transfer of Property Act, when such transfer is made by the karta of the family, there would be presumption that the necessity existed. This aspect has also not been considered by the Courts below. 6. Per contra, Mr. S.S.Choudhari, the learned counsel for respondent no. 1 submits that the lower appellate Court has considered the aspect of legal necessity in para no. 24 of its Judgment. No error is committed by the District Court while allowing the Appeal. 7. With the assistance of the learned counsel, I have gone through the Judgments. 8. No doubt, the provisions of Article 109 of the Limitation Act would not be applicable in the present case. The Suit was for partition and separate possession. In such circumstances, the period of limitation would be of 12 years from the date the plaintiff is shown to have been ousted or excluded from the joint family property. The plaintiff became major in the year 1990 and the Suit is filed in the year 1994. In such circumstances, for the relief of partition and separate possession, the Suit would not be barred 6 SA 21.2009 by limitation. 9. The plaintiff has been granted share only in G.No. 116, which was allotted to the defendant no. 1 and the plaintiff in partition. Unless the legal necessity is established, the defendant no. 1 did not have the authority to sale the property. The trial Court has relied on the statement of defendant no. 2 that the sale deeds were executed for the marriage expenses of defendant no. 12. Parvatabai is from the branch of Madhavrao. The sale deeds were also executed by the persons from the branch of Madhavrao and for the said purpose, the evidence of Parvatabai was led. D.W. 4 has also stated about the sale of the property for the marriage expenses and the same was relied upon by the trial Court, whereas the purchasers in their deposition did not state anything about the factum of legal necessity as observed by the trial Court. The lower appellate Court has discussed this aspect. No details of the marriages of defendant nos. 11 to 13 are given as to when their marriages had taken place. The sale deeds in question have been executed in the year 1984 and 1989 at the gap of five ( 5 ) years. In such circumstances, at least the year of marriages of the daughters were relevant, but the same is also not forthcoming. The presumption under Section 38, as argued by Mr. Deshmukh, the learned counsel, would have arisen if the transferee would 6 SA 21.2009 have satisfied that after using reasonable care he has acted in good faith. The purchasers/transferee have not stated anything in their deposition about legal necessity. As such, the appellants would not be entitled for the benefit of Section 38. The lower appellate Court has discussed about the said legal necessity and has held legal necessity is not proved by preponderance of probabilities. The Judgment in the case of Gopichand referred supra would not be applicable in the present case in as much as in the present case the Suit was for substantive relief of partition and separate possession and it was held that the sale was not for legal necessity. In such circumstances, the plaintiff had a right to seek partition within the period within which ordinarily he would have sought relief of partition and separate possession. 10. In the light of above, no error is committed by the lower appellate Court in arriving at plausible conclusion. The Second Appeal can not be entertained only on the ground that some other view may also be possible. In the result, the Second Appeal is dismissed, however with no order as to costs. [ S.V. GANGAPURWALA,J. ] KNP/SA 21.2009 6 SA 21.2009