1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.331 OF 2010 Madhusudan G. Bane through heirs and ors. ..Appellants Vs. Subhash Ganpat Bane and ors. ..Respondents ......... Mr.Shashank Mangle, for appellants. ......... CORAM: R.G.KETKAR, J. DATE : 28th JUNE, 2010. P.C. : This appeal is preferred by the original defendant Nos.1A, 1B, 2A to 2D challenging the judgment and decree dated 5 th September, 2009 passed by the learned District Judge­1, Ratnagiri in Civil Appeal No.106 of 2005. By that judgment and decree, learned District Judge partly allowed the appeal preferred by the respondent no.1/original plaintiff and declared that deceased Gangubai had 1/3 rd share in suit lands at Sr. Nos.1 to 29 in Schedule “A” of the plaint and sale­deed dated 3 rd June, 1987 (exhibit 266) executed by her in excess of her share to the extent of 1/6 th share in the entire land was not binding on Ganpat, original defendant No.1 and that share to revert to Ganpat, among other directions. 2] The respondent no.1 (hereinafter referred to as the plaintiff no.1) instituted 331­10.sxw 2 suit along with respondent nos.14, 15 and 16 herein for partition and separate possession of their share in the property described in Schedule “A” to ”C” of the plaint and for permanent injunction. By judgment and decree dated 5 th October, 2005, the learned trial Judge dismissed the suit. Against this judgment, the respondent no.1­Subhash preferred Civil Appeal No.106 of 2005. As set out earlier, the appeal came to be partly allowed. It is against this judgment and decree, present Second Appeal is preferred. 3] Heard Mr.Shashank Mangle, learned counsel for the appellants. He submitted that after the death of Ramchandra in the year 1934, the property devolved upon his sons Amrit, Shankar and Ganpat. Shankar died in the year 1946 and Amrit died in the year 1952. Having regard to Section 3(4) of the Hindu Women’s Rights to Property Act, 1937 (for short “the Act”) after death of Amrit, the property devolved on Ganpat being the single heir and, therefore, provisions of Section 3(2) and 3(3)of the Act will not apply. Secondly, Ganpat will not be entitled to claim 1/3 rd share as per Section 3(2) and 3(3) of the Act. He further submitted that, at any rate, the sale deed dated 3 rd June, 1987 is not proved. 4] In so far as the first contention based on the provision of the Act is concerned, it is not in dispute that Ramchandra died in the year 1934 and his property was devolved upon his three sons namely Amrit, Shankar and Ganpat. Thus, when Ramchandra died, Shankar was entitled to 1/3 rd share. When Shankar died in the year 1946, he has not left behind Ganpat as single heir as Amrit was alive. In my opinion, therefore, Section 3(4) of the Act is not applicable. Shankar died in the year 1946. Having regard to Sections 3(2) and 331­10.sxw 3 3(3) of the Act, his widow Gangubai will have the same interest in the property as her husband himself had. After coming into force the Hindu Succession Act, 1956, by virtue of Section 14 thereof, her limited interest became absolute interest. In view of this position, I do not find any error committed by the learned District Judge in holding that Gangubai was entitled to dispose of her 1/3 rd share in the joint family. Learned District Judge also held that, in fact, Gangubai had sold share more than her 1/3 share and, accordingly, issued declaration. In so far as the other contention that sale deed dated 3 rd June, 1987 exhibit 266 is not proved, the learned District Judge has considered this aspect in paragraph 40 to 42. In so far as the oral evidence of Digambar Shankar Jadhav is concerned, learned counsel for the appellants could not point out any infirmity in the evidence of said Digambar. He, however, attacked on the oral evidence of Ashok Mangle and pointed out that at one point of time, he has stated that the sale­deed was executed by woman who was of the age of 40 to 45 years. Then at other point he stated that the said woman might be of the age of 87 to 88 years and again corrected the statement by stating that the said woman might be of the age of 57 to 58 years. Learned District Judge in paragraph 45 recorded that the sale deed was executed in the year 1987 and the statement of said Ashok Mangle was recorded in the year 1996 i.e.after nine years of the execution of sale deed and it was again recorded in Regular Civil Suit No.7 of 1998 in the year 2005 i.e.after 18 years. Considering the recitals in the sale deed, learned District Judge observed that the endorsement at the end of the sale deed shows that Gangubai was identified before the Sub Registrar by other two witnesses and Ashok Mangle was not the identifying witness. It was further observed by the District Judge that barring his statement the age of the executant there does not appear to be any serious infirmity in the evidence of 331­10.sxw 4 this witness to reach to the conclusion that the sale deed exhibit 266 was not executed by Gangubai. I do not find that any error is committed by the courts below. No substantial question of law arises in this Second Appeal. 5] Second Appeal is, therefore, dismissed. In view of the dismissal of the Second Appeal, no orders are necessary in the Civil Application. The same stands disposed of with no order as to the costs. [R.G. KETKAR, J.] 331­10.sxw