1 S.A. 448.2010 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 448 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders Court's or Judge's Orders Mr. R.R.Mantri, Advocate for the appellant. ......................... CORAM : S.V.GANGAPURWALA, J. DATE : 08/12/2010 PER COURT : 1. This is defendant no. 1’s Second Appeal. 2. The present respondent nos. 1 to 4 had filed Suit for partition and separate possession. The trial Court decreed the Suit. Defendant no. 1 preferred Appeal. The lower appellate Court also dismissed Appeal confirming the Judgment and decree passed by the trial Court. The defendant has assailed the said Judgment in the present Appeal. 3. Mr. R.R.Mantri, learned counsel for the appellant strenuously contended that the Courts below have not properly interpreted 2 S.A. 448.2010 Section 29-A of the Hindu Succession (Maharashtra Amendment), Act, 1994 [ For short, ‘ said Act ’ ]. According to the learned counsel, the daughter does not have right to claim partition in the life time of father. It is only if the partition takes place in the joint hindu family, then the daughter is allotted the same share as that of a son. To butress the submission, he relies on Clause (ii) of Section 29-A of the said Act. Mr. Mantri, learned counsel further contends that the Court below has erroneously disbelieved the memo of partition produced on record. The defendant had stepped into the witness box. He even examined the witness to the said memo of partition. There was no reason to disbelieve them. The learned counsel has contended that dehors the said partition, the oral partition is also proved. That ought to have been considered by the Courts below. The learned counsel has further contended that the Suit was filed through guardian, the mother. No appointment of guardian was made and the Suit itself was not tenable. The learned counsel further states that the matter should have been remanded back to the lower Court and the lower appellate Court did not consider the said request to prove the document. 4. With the assistance of the learned 3 S.A. 448.2010 counsel, I have gone through the Judgments delivered by both the Courts. . 5. Regarding the first submission that the daughter does not have right to claim partition when the father is alive, the same would not be tenable, for the reason that the daughter has been given a status of coparcenor by virtue of clause (i) Section 29-A of the said Act. She is deemed to be the coparcenor by birth in her owner right in the same manner as the son. When the statute has given the status of a coparcenor to the daughter, then every coparcenor would have the right to claim partition in an ancestral property. Clause (ii) of Section 29-A can not be interpreted in a narrow compass. There is nothing in clause (ii), which precludes a daughter from instituting the Suit for partition. If clause (ii) is interpreted in the manner, as is sought to be interpreted by Mr. R.R.Mantri, learned counsel, the same would be against the object of the amendment itself. 6. The memo of partition has not been accepted by the Court and rightly so. Defendant no. 1 and his witness even could not identify their signatures on the said memo of partition. They also could not depose anything about the correctness of the contents. In light 4 S.A. 448.2010 of the same, the said document can not be said to have been proved and interalia even no oral partition was proved. 7. Regarding the objection that no appointment of guardian was made of the minors while instituting the Suit is concerned, the same would not be relevant for the reason that no such objection was raised earlier nor there is anything on record to show that the said guardian representing the minor had an interest adverse to that of the minor. 8. In that light of the above, the Second Appeal being sans substantial question of law, is dismissed, however with no order as to costs. 9. In view of dismissal of Second Appeal, the Civil Application does not survive and is disposed of. [ S.V.GANGAPURWALA ] JUDGE knp/SA 448.2010