1 S.A. No.600.2005 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No. 600 OF 2005 Gangaram S/o Maroti Shinde .. APPELLANT VERSUS Vishwanath S/o Kondiba Rangwal died his L.Rs. ..RESPONDENTS ... Shri. P.G. Rodge, Advocate for the appellant Shri R.B. Deshmukh, Advocate for the respondent Nos. 1-b to 1-i. CORAM : S.V. GANGAPURWALA, J. DATE : 20h December, 2010. PER COURT : This is defendant’s Second Appeal. The present respondent No. 1 had filed a suit for specific performance of contract. The trial Court held that the agreement of sale is proved and also held that plaintiff was ready and willing to perform his part of contract, but negatived the claim of plaintiff on the ground that 2 S.A. No.600.2005 deceased Padminibai who had executed agreement of sale died and has not left any legal heir. The plaintiff preferred an appeal. The appellate Court allowed the appeal holding that the present appellant would be legal heir and he shall execute the sale-deed. The original defendant No. 2 has assailed the said Judgment in the present Second Appeal. 2. Shri Rodge, the learned Counsel for the appellant contended that in fact it has come on record that there are heirs from the side of the husband of deceased. As such, the appellant could not have been directed to execute the sale-deed. The learned Counsel further contends that even the said agreement is not proved as is required under the law. Even the theory of relinquishment is not considered by the Courts below in their correct prospective. 3. Per contra, Shri Deshmukh, learned Counsel for the respondent submits that in fact the appellant being a class-2 heir, has been rightly directed to execute the sale-deed. Both 3 S.A. No.600.2005 the Courts have come to the conclusion about the right of the present plaintiff and that the plaintiff was ready and willing to perform his part of the contract. 4. The appellant is the son of real brother of the deceased, is not disputed fact. In such circumstances, he would be an heir as per entry No. 4 of class 2 as detailed in Hindu Succession Act. The relatives of husband would not be the heir. In view of Section 9 of Hindu Succession Act the heirs detailed in entry No. 1 are preferred over entry No. 2. 5. In the light of above, no error is committed by the Courts below in directing the present appellant to execute the sale-deed in favour of the plaintiff. The contentions about the agreement and relinquishment as has been tried to be canvassed, has been negatived by the Courts on appreciation of evidence. 6. In the light of above, Second Appeal being devoid of any substantial question of law 4 S.A. No.600.2005 is dismissed. However, there shall be no order as to costs. In view of the dismissal of the Second Appeal, the Civil Application is also disposed of. [S.V. GANGAPURWALA] JUDGE SDM*