(1) SA. 654.2005 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 654 OF 2005 Sheshrao S/o Rangnath Pawar and others .. Appellants VERSUS Soni D/o Sheshrao Pawar (minor) U/g. of Grandfather Manikrao Nagorao Shinde and others .. Respondents Mr. Mahesh P. Kale, Advocate for the Appellants Mr. Sachin S. Bhise, Advocate h/f. Mr. C.G. Patil, Advocate for respondent nos. 1 and 2 S.A. stands dismissed against respondent nos. 4 and 5 as per Court's order ... CORAM : K.U. CHANDIWAL, J. DATED : 26TH APRIL, 2010 PER COURT:- 1] Heard. The concurrent findings against the defendants are subject of challenge in the Second Appeal. 2] Mr. Kale would submit, the suit being filed by the maternal grand-father of the minor is not maintainable as the father (defendant no.1) of the minor is alive. 3] Without adverting to other details about the nature of the properties held by the family, the fact remains in terms of Order 32 Rule 4 of the Code of Civil Procedure the claim is carved out as under the (2) SA. 654.2005 title "Who may act as next friend or be appointed guardian for the suit". The basic requirement in the situation is the interest of such guardian shall not be adverse to that of the minor. The record sufficiently demonstrate that the grand-father is associated with the well being of the child as the child has been neglected by the father. The grand- father has certainly no adverse interest against the minor. 4] The guardian Manikrao is examined at exhibit 48 proved that plaintiff is his grand-daughter and plaintiff no.2 is daughter's son while defendant no.1 is the father of the minor plaintiff. The theory of inter-se partition coined by the defendants amongst themselves by itself will not disqualify the rights in existence to the minors in the property of their father-the defendant no.1. The learned Judge has rightly dealt with the earlier proceedings being R.C.S. no. 160 of 1997, to be not binding on the rights of the plaintiff to the extent of their 26 paise share in the suit properties. 5] No substantial question of law could be formulated. Second Appeal sans merit, dismissed. No costs. Sd/- (K.U. CHANDIWAL, J.) arp