1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR SECOND APPEAL NO.265 OF 2007. Harichand Upasya Dulbule (dead) through L.Rs. Shantabai Harichand Dulbule and others ..vs.. Balbirsingh Pritamsingh Sikh (Renu) =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mr.S.D.Deshpande, Adv. For the appellants. Mr.A.Gharote, Adv. for the respondent. C ORAM : C.L.PANGARKAR, J. DATED : 22nd September, 2009. 1. This second appeal is preferred by the plaintiffs, who were unsuccessful in both the courts below. 2. The plaintiffs/appellants had instituted a suit for declaration, possession and permanent injunction. It was the case of the plaintiffs that the suit property belonged to brothers Harichand and Ramchandra. According to them, there was no partition between them and Ramchandra had sold the property in which his son Ramesh, who was then minor had share in it. It was also alleged that Ramchandra was addicted to vices like drinking and 2 sale-deed executed by Ramchandra in favour of defendant Balbirsingh was void on account of the fact that it was brought about by fraud and coercion. The defendant had contended that there was a partition between two brothers i.e. Harichand and Ramchandra and suit property had fallen to the share of Ramchandra and Ramchandra had sold the suit property for legal necessity and as belonging to him, and suit was barred by limitation. 3. The learned Judge of the trial court found that the sale-deed of 17/9/1973 executed in favour of Balbirsingh was not brought about by fraud or coercion. The suit was not bad for non-joinder of such parties. Holding so, he dismissed the suit. 4. The plaintiffs felt aggrieved and preferred an appeal before the District Judge. The Additional District Judge, who heard the appeal found that the sale-deed executed in favour of the defendant was not void, illegal, bogus or sham. He also found that the suit was barred by limitation and the plaintiffs were never forcibly dispossessed. 5. The learned counsel for the appellants/plaintiffs submitted that the learned Judges of the courts below have wrongly held that there was a partition between 3 Harichahd and Ramchandra. He submitted that the said partition-deed which is filed on record (Exh.56) was not admissible in evidence because of the fact that it was not registered. He submits that since there was no partition, a specific share could not have been sold to defendant. 6. After having gone through the said partition- deed, it is apparent that the said partition deed is not in fact a partition-deed and appears to be merely a memorandum. If contents are read carefully, it is apparent that the said document recites that the partition had taken place ten years prior to the date of the execution of the memorandum. It is, therefore, clear that the partition had taken place ten years prior to 1972 and therefore Exh.56 could only be treated as a memorandum. The first appellate court has rightly held so. 7. The next ground that was raised by Shri Deshpande, learned counsel for the appellants, was that when the sale-deed was executed in favour of defendant – Balbirsingh, one of the sons of Ramchandra was minor and he was only fifteen years old. He submits that the property of the minor could not have been sold by Ramchandra without the permission of the District Judge. Indisputably, the suit 4 property was joint family property. The property was sold by Ramchandra as Karta of joint family. A permission of the District Judge is required only when a separate property of the minor is required to be sold and not in respect of a fluctuating interest of the minor in the joint family property. In view of this, the learned Judge of the first appellate court has rightly held that the permission of the District Judge was not required. 8. The learned counsel for the appellant then contended before me that Ramchandra was addicted to liquor and to meet the expenditure for drinking liquor, he sold the property. The courts below have considered the evidence in this regard and they have found that the plaintiffs have failed to show that Ramchandra was addicted to drinking and in order to satisfy his vices he had sold the property. That would be the question of fact. The question of fact has been decided by the courts below. I, therefore, can not interfere with that findings. In the circumstances, I do not find any substance in the second appeal. Same is dismissed in limine. JUDGE. chute