1 SA 345/10 lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.345 OF 2010 WITH CIVIL APPLICATION NO.1369 OF 2010 Gopal Ramchandra (Rama) Tambve and ors. : Appellants. versus Sou Parvati Kallappa Nikam and ors. : Respondents. Ms. Nikita Trivedi i/by YKS Legal for the Appellants. Mr. N J Patil for the Respondent Nos. 1, 4B and 4D. CORAM:­ RAJESH G.KETKAR, J DATED :­ FEBRUARY 28, 2011. P.C. 1 Heard Ms.Nikita Trivedi, learned counsel appearing for the Appellants and Shri N J Patil, learned counsel appearing for Respondent Nos.1, 4B and 4D. 2 Original Defendant Nos.1, 3, 4(a) and 4(b) have preferred this Second Appeal challenging the judgment and decree dated 20th April 2010 passed by the learned District Judge, Ichalkaranji, Dist.Kolhapur in Regular Civil Appeal No.28 of 2007 and also the judgment and decree dated 16th February 2007 passed by the learned Civil Judge, Junior Division, Ichalkaranji, in Regular Civil Suit No.383 of 2002. The learned trial Judge partly decreed the suit instituted by the Respondent­original Plaintiff and declared that she had 1/5th 2 SA 345/10 share in the suit properties described in paras 1A and 1B and consequently she is entitled to get partition and separate possession of her 1/5th share in the suit property. The learned trial Judge further held that the original Defendant Nos. 1,2, 3 and 6 have 1/5 share in those suit properties. 3 Aggrieved by the decision of the learned trial Judge, the Appellant­ original Defendant Nos.1, 3, 4(a) and 4(b) have preferred an appeal before the learned District Judge who partly allowed the said appeal and set aside the decree of the trial Judge and substituted the decree. The learned District Judge held that the Plaintiff, Defendant No,1, Defendant No.2, Defendant No.3, heirs of Guna Raghu Chavan (Defendant No.4A and B) and the heirs of deceased Ratnabai Sawant (Defendant No.6A to 6C) each shall have 1/6th share in the property No.1A (Block No.439) and directed the Plaintiff be put in possession of her 1/6th share by effecting partition. 4 The learned counsel for the Appellants submitted that the Courts below have committed serious error in decreeing the suit instituted by the 1st Respondent­original Plaintiff in respect of property No.1A (Block No.439). She submitted that on account of partition effected/family arrangement, Block No. 439 was allotted to Defendant Nos.1 and 2 and consequently, the Courts below could not have ordered partition in respect of the said property or at any rate in view of the family arrangement in respect of Block No.439 it was not available for partition. In support of this submission, she relied upon the judgment of the 3 SA 345/10 Apex Court in the case of S Shanmugam Pillai and others v/s. K Shanmugam Pilla and others, AIR 1972 SC 2069. 5 On the other hand, Shri Patil, the learned counsel appearing for the Respondent Nos.1, 4B and 4D supported the impugned judgment and decree. 6 I have considered the rival submissions made by the learned counsel for the parties. In the first place, the Appellants original Defendant Nos. 1, 3, 4(a) and 4(b) did not come out with the case of family arrangement in the court below. On the contrary they specifically asserted that in view of the partition effected by Ramchandra Tambve in his life time, Block No.439 was not available for partition. Secondly, in the case of S Shanmugam Pillais case (supra) in para 27 of that judgment, the Apex Court recorded that Exhibit Exhibit B­2 and B­5 read together brought about a family settlement. Exhibit­B­2 was a registered instrument dated 29th September 1898 entered into between the widows of V Rm. Shanmugam Pillai and Vendor Shanmugam Pillai, his sister Irulammal and her husband Subramania Pillai and styled as “agreement of peaceful settlement”. In so far as Exhibit B­5 is concerned, the third Plaintiff entered into agreement with two widows on October 27, 1938. The Apex Court considered the effect of family arrangement in Paras 24 and 25 and in the light thereof came to a conclusion that Exhibit B­2 and B­5 read together brought about a family settlement. 4 SA 345/10 7 As indicated earlier, both the Courts below have concurrently held that Block No.439 was the self acquired property of Ramchandra Tambave The learned District Judge in paragraphs 16 and 17 of the judgment held that blck No.439 is the self acquired property of Ramchandra. Defendant Nos.1 and 2 who are the sons of Ramchandra had no share or interest in this property so long as Ramchandra was alive. There was no question of effcting partition of the said property during the life time of Ramchandra as Defendant Nos.1 and 2 had no undivided interest in the said property. The Defendant Nos.1 and 2 did not plead the theory of family arrangement. On the other hand it is specifically pleaded that the same property was not available in view of the previous partition effected during the life time of said Ramchandra Thambave. 8 The appellants can’t derive any benefit of the judgment of the Apex Court in the case S Shanmugam Pillai (Supra). No substantial question of law arises in the present Appeal and the same is dismissed. 9. In view of the dismissal of the second appeal the Civil Application No.1369 of 2010 does not survive and the same is accordingly disposed of. (RAJESH G.KETKAR, J)