1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.585 OF 2009 1/1 Ambikabai w/o Rangnath Gadave, age: 65 years, Occ: Household, R/o Pargaon, Tq. Washi, District Osmanabad. 1/2 Sambhaji s/o Nivarti Chate, age: 20 years, Occ: Agri., R/o as above. 1/3 Nivarti s/o Kisan Chate, age: 55 years, Occ: and R/o as above. 1/4 Kantabai w/o Bapu Chate, age: 50 year, Occ: Household, R/o as above. 1/5 Janabai w/o Bhaskar Pawar, age: 48 years, Occ: Household, R/o Mirkheda, Tq. Paithan, District Aurangabad. 1/6 Latabai Dashrath Pawar, age: 30 years, Occ: and R/o as above. 1/7 Parubai w/o Zumber Kokne, age: 45 years, Occ: Household, R/o Jankapur, Tq. Bhoom, District Osmanabad. 1/8 Hirabai w/o Dhanaji Wayase, age: 40 years, Occ: Household, R/o Rangan Chicholi, Tq.Karjat, District Ahmednagar. 1/9 Sunderabai Shivaji Wayase, age: 38 years, Occ: and R/o as above. 2 1/10 Shobha Arjun Dhumal, age: 35 years, Occ: Household, R/o Dhakalgaon, Tq.Ambad, District Jalna. 2 Namdeo Rangnath Gadave, age: 40 years, Occ: Nil, R/o Pargaon, Tq.Washi, District Osmanabad. 3 Asaram Rangnath Gadave, age: 35 years, Occ: Agriculture, R/o as above. Appellants Versus 1 Tukaram s/o Vithal Gadave, age: 35 years, Occ: Agriculture, and Labourer, R/o Gawadewadi, Tq. Karjat, Dist. Ahmednagar. 2 Nanibai w/o Vithal Gadave, age: 60 years, Occ: Labour, R/o as above. Respondents Mr.V.D.Salunke, advocate for appellants. Mr.D.E.Gawade & Mr.A.H.Koralkar, advocates for Respondents. CORAM: R.M.BORDE, J. DATE : 14 th January, 2010. P.C.: 1 This is an appeal by original defendants raising exception to the concurrent judgments recorded by both the Courts below. 2 Respondents-plaintiffs instituted suit claiming half share in the ancestral property in the hands of defendants. Plaintiff No.1 is son of one Vithal, whereas, plaintiff no.2 is wife of said Vithal.. Deceased Vithal was brother of 3 original defendant. It is the contention of plaintiffs that they have been excluded from the share in ancestral property and their demand for partition was not accepted by defendants. As such, they have approached the Court. 3 Defendants resisted claim of plaintiffs by filing written statement. According to defendants, plaintiff no.2 is neither wife of deceased Vithal nor plaintiff no.1 is Vithal’s son. It is contended that deceased brother of defendant no.1 Vithal was not at all married with plaintiff no.2. It is also further contended that property in question has been alienated in favour of defendants no.2 and 3 for meeting their legal necessity and as the same is not called in question, plaintiffs are not entitled to claim partition and separate possession. 4 I have perused judgments delivered by both the Courts below. The trial Court, after considering evidence led by parties, decreed suit in favour of plaintiffs and decree passed by the trial Court is confirmed in Regular Civil Appeal No.49 of 2000 by District Judge-3, Osmanabad on 08.07.2009. 5 So far as legitimacy of plaintiff no.1 and factum of marriage of plaintiff no.2 with deceased Vithal is concerned, plaintiffs have led evidence of themselves and a witness is examined on their behalf. Plaintiff no.2, who claims to be widow of Vithal, has stepped into witness box and stated about her relationship. The contention raised by plaintiffs is corroborated by the statement in the cross examination of witness no.2 of defendants – Ram Katwate. He is signatory to the sale in question and has categorically admitted that plaintiff no.2 is wife of deceased Vithal, whereas, plaintiff no.1 is his son born out of the wedlock to plaintiff no.2 with deceased Vithal. It is urged that no documentary evidence is produced to prove paternity of plaintiff no.1 and marriage of plaintiff no.2 with deceased Vithal. The 4 oral evidence of plaintiffs coupled with admissions given by defendant no.1 is sufficient to reach the conclusion as regards legitimacy of plaintiff no.1 and marital relationship of plaintiff no.2 with deceased Vithal. 6 That, so far as objection in relation to challenge to the disputed sale is concerned, it is to be noted that defendant no.1 has, by virtue of impugned sale, has transferred the property to his sons i.e. defendants no.2 and 3. The sale in question of ancestral property by defendant no.1 in favour of his sons need not bind right and entitlement of plaintiffs. There is no need to seek a declaration in that regard. The share of plaintiffs in the ancestral property cannot be denied and they are entitled to receive same. 7 In these premises, I am of the opinion that reasons recorded by the Courts below appear to be proper and at any rate, cannot be termed as perverse. No substantial question of law arises for consideration in the appeal. 8 Appeal, therefore, stands dismissed. In view of dismissal of appeal, pending Civil Applications do not survive and stand disposed of accordingly. (R.M.BORDE) JUDGE ******* adb/sa58509