1 S.A. No. 710.04 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No.710 OF 2004 Vimlabai W/o Laxman Devre & others .. APPELLANTS VERSUS Naryan S/o Gangaram Mairal & others ...RESPONDENTS ... Shri. P.R. Katneshwarkar, Advocate for the appellants CORAM : S.V. GANGAPURWALA, J. DATE : 6th December, 2010. PER COURT : This is Plaintiff’s Second Appeal. The plaintiff had filed a suit for declaration that the sale deed executed by defendant No. 4 in favour of other defendants is illegal, null and void, so also for possession and future measne profits. The Trial Court dismissed the suit on the ground that the sale was for legal necessity. The plaintiff preferred an appeal. The appellate 2 S.A. No. 710.04 Court also dismissed the suit and confirmed the finding of the Trial Court. The plaintiffs have assailed the said Judgment in the present Second Appeal. 2. Shri Katneshwarkar, the learned Counsel for the appellant submitted that both the courts have committed an error in coming to the conclusion that sale of the property was for legal necessity. The purchaser has failed to prove the legal necessity, as the plaintiffs 2 & 3 were admittedly minors. As such, the defendant NO. 4 was Karta of the family could not have sold the properties except for legal necessity. 3. With the assistance of learned Counsel for the respective parties I have gone through the judgments passed by both the Courts below. Both the Courts below on evaluation of evidence, particularly the evidence of plaintiff No. 1 who is the mother of plaintiff No. 2 & 3 have concurrently come to the conclusion that their financial condition was not good, they had shifted to Aurangabad because of the poor 3 S.A. No. 710.04 financial condition and the expenses was to be made for education of the children. On these ground it was held that the properties sold by defendant No. 4 were for legal necessity same is finding of fact. Moreover, there is other facet to the case. The suit property was originally owned by Mahadu i.e. the brother of defendant NO. 4, he died. Mahadu has died issue-less and without any heirs in class-I. The defendant No. 4 being the brother was Class-II heir, in entry No. 2. As per Section 9 of the Hindu Succession Act, the person in entry No. 2 would be preferred over a person in entry No. 4. The plaintiffs are included in entry No. 4. 4. In the light of the above, the Second Appeal being sans substantial question of law is dismissed. However, there shall be no order as to costs. [S.V. GANGAPURWALA] JUDGE SDM*758.10SA/61210.