1 S.A.No.270/10 with S.A.No.352/10. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.270 OF 2010. Tarabai W/o Bankat Undre and others ... Appellants. Versus Madhukar S/o Bankatrao Undre and others ... Respondents. ... WITH SECOND APPEAL NO.352 OF 2010. Tarabai W/o Bankat Undre and others ... Appellants. Versus Bhimrao S/o Pandharinath Humbe and others ... Respondents. Mr.S.Y.Mahajan, advocate for the appellants. Mrs.M.A.Kulkarni, advocate for the Respondent Nos.1,2 and 4. 2 S.A.No.270/10 with S.A.No.352/10. ... CORAM : S.V.GANGAPURWALA,J. Date : 14.12.2010. PER COURT 1. Second Appeal No.270/2010, is filed by the original plaintiffs, whereas Second Appeal No.352/2010 is filed by the original defendant Nos.2 to 5. The present appellants had filed a suit for possession of property bearing S.No.25/C whereas Respondents in S.A.No.352/2010, had filed a suit for partition in respect of the property bearing S.No.21/C and S.No.69/E. The trial Court decreed the suit filed by the present Respondents and dismissed the suit filed by the present appellants. The purchaser of the property from Tarabai had preferred appeal before the District Court and the present appellants preferred an appeal against the judgment in a suit filed by the Respondents. 2. The District Court dismissed both the appeals. The appellants aggrieved by the same 3 S.A.No.270/10 with S.A.No.352/10. has filed the present Second Appeals. Mr.Mahajan, learned counsel for the appellants submitted that the document relied by the Court below i.e. the partition deed could not have been read in evidence as the same was not registered. The said document is not a Memorandum of partition but a deed of partition which requires compulsory registration within the meaning of Section 17 of the Indian Registration Act. As such pursuant to the said document, the Respondents can not claim any right, title or interest in respect of the property bearing S.No.25/C and as such the decree should have been passed in favour of the present appellants. 3. Mr.Mahajan, learned counsel further contended in respect of other properties, the defendants could not have claimed any right. The same was an ancestral property. The present Respondents are not the legitimate sons and so they will not have any share in the ancestral property of Bankat. According to learned counsel, the Courts have misread the evidence. 4 S.A.No.270/10 with S.A.No.352/10. 4. Mrs.Kulkarni, learned counsel for the Respondents submits that the document by virtue of which S.No.25/C was allotted to the present Respondents was a Memorandum of partition and the same does not require registration. The same has rightly been relied by the Courts below. On death of Bankat, the present Respondents would also have a share in the property which was allotted to Bankat. The Courts have rightly considered the said aspect. According to the learned counsel, the present appellants could not have contended that Sudhakar and Madhukar are not the legitimate sons as the appellant No.1 has categorically admitted in her deposition that Shahbai was married wife of Bankat. According to learned counsel, both the Courts have rightly come to the said conclusion. 5. With the assistance of the learned counsels, I have gone through the judgments. Tarabai herself has given a statement on oath accepting the fact that Bankat had married with Shahbai and Sudhakar and Madhukar are sons born to Shahbai from Bankat. The said statement on 5 S.A.No.270/10 with S.A.No.352/10. oath is an admission Proprio vigore and can be relied upon as is held by the Apex Court in case of "Thiru John (In C.A.Nos.1895-1896 of 1974) V. Subramhamanyan (In C.A.No.1907 of 1974) Vs. The Returning Officer and others" AIR 1977 Supreme Court 1724. 6. A debate as to whether the said document is a Memorandum of partition or a partition deed is not germane as has been held by the Apex Court and this Court in a catena of judgments that if there is a partition amongst the co-sharers within the family, the said document would be outside the realm of Section 17 of the Registration Act. In that light of the matter, it can not be said that Sudhakar and Madhukar have not got S.No.25/C in partition. The other properties were kept by Bankat. After his death all his legal heirs will have share in the property. 7. In light of the above, no error in the judgments passed by the Courts below. The Second Appeals being sans substantial questions of law, 6 S.A.No.270/10 with S.A.No.352/10. are dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) asp/office/sa270.10