1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.837 OF 2003 Sadanand Pandurang Thakekar .. Appellant V/s. Shankar Pandurang Thakekar (Since deceased through his LR's) Smt.Indira Shankar Thakekar & Ors. ..Respondents Mr.Jaydeep Deo for the Appellant/Applicant. Ms.Gauri Godes for Respondent Nos.1/1 to 1/9 and 2. CORAM : R.M.SAVANT, J. DATED : 22ND SEPTEMBER, 2008. P.C. This Second Appeal takes exception to the Judgment and decree dated 3rd December, 2002 passed by the learned 2nd Additional District Judge, Kalyan by which the Judgment and decree passed by the 2 Trial Court came to be confirmed with a slight modification. 2. The Appellant who is the original Plaintiff filed Regular Civil Suit No.71 of 1984 for partition and separate possession of his share in the joint family property mentioned in plaint schedule “A” and the house property mentioned in Schedule “B”. Both the Courts below have held that a partition of the property has already taken place pursuant to the partition deed dated 12th February, 1958 and the joint family property was partitioned between the father Pandurang and his sons i.e. the Plaintiff and his brothers. The Trial Court on the basis of the said partition therefore decreed the suit only in so far as the suit land mentioned at Schedule “A” Khata No.68 at Serial No.5 of the Schedule of property mentioned in plaint and dismissed the Plaintiffs suit in so far as the other properties are concerned. 3 3. The Plaintiff carried the matter in Appeal by filing Regular Civil Appeal No.451 of 1993. The Lower Appellate Court confirmed the findings of the Trial court in so far as the partition on account of the partition deed 1958 is concerned, however modified the decree passed by the Trial Court and held that the Plaintiffs and the Defendants would be entitled to 1/10th share in the property which was inherited by Rakhamabai i.e. the wife of the Pandurang. The Lower Appellate Court also held that the Respondent Nos.5 to 9 who are the sisters of the Plaintiff, would have a share in the property which is inherited by the said Rakhamabai from Pandurang. In so far as the suit house at village Vashind is concerned, the Lower Appellate Court has held that the Plaintiff has no right to claim partition in the said suit house on account of the gift deed dated 1968 executed by Madhukar and Ratnakar. In so far as 4 the share of his sisters i.e. Defendant Nos. 5 to 9 is concerned, the Lower Appellate Court held that the Plaintiffs case that the said Defendant Nos. 5 to 9 had relinquished their shares could not be accepted merely on account of the Mutation entry No.577, 578 and 579. The Lower Appellate Court held that merely because the said Defendant Nos. 5 to 9 had given their consent to record the agricultural land coming to the share of Pandurang by the said partition deed and which was inherited by their mother Rakhamabai after the death of their father Pandurang, it could not be said that they had relinquished their share in the suit property. The Lower Appellate Court as indicated above, therefore modified the decree passed by the Trial Court and held that the Plaintiff and the Defendants are entitled to 1/10th share in the suit lands mentioned in the operative part of the impugned Judgment and order. 5 4. It is sought to be contended on behalf of the Appellant that the said partition deed of 1958 was not acted upon and that the properties continued to be joint family properties. It was further contended that by the said partition the distribution was unequal. The said partition is of the year 1958 though the Plaintiff was a minor at the said time, immediately on attaining majority he should have challenged the said partition if it was so one sided as is sought to be now contended. Both the Courts having concurrently held against the Plaintiff in respect of the said partition deed, in my view, it is too late in the day for the Plaintiff to assail the partition effected pursuant to the said partition deed. The challenge raised in the Second Appeal therefore does not involve any substantial question of law. The Appeal is, accordingly, dismissed. 5. In view of the dismissal of the Appeal, 6 the Civil Application No.1361 of 2003 does not survive and is disposed of as such. [R.M.SAVANT, J.]