1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.93 OF 2010 1 Ramchandra s/o Baburao Deokate, age: 43 years, occ: Agri., 2 Manik s/o Prabhu Mote, age: 26 years, minor, under guardianship of father Prabhu s/o Paraji Mote. 3 Sugriv s/o Baburao Deokate, age: 48 years, Occ: Agri., 4 Vinayak s/o Baburao Deokate, age: 45 years, Occ: Agri., 5 Prabhu Paraji Mote, (Deleted) 6 Tukaram s/o Prabhu Mote, age: 24 years, Occ: Agriculture, 7 Babu s/o Ram Deokate, age: 70 years, Occ: Agri., All R/o Gopalpur, Tq.Parli Vaijnath, District Beed. Applicants Versus 1 Sau.Kantabai w/o Namdeo Deokate (Deleted) 2 Sau.Ushabai w/o Bandu Gadade, age: 34 years, Occ: Household, R/o Ganga Masla, Tq. Majalgaon, District Beed. 3 Ramkishan s/o Masnaji Deokate, age: 48 years, Occ: Agri., R/o Gopalpur, Tq. Parli Vaijnath, District Beed. 2 4 Sundar s/o Hulaji Deokate, age: 42 years, Occ: Agriculture, R/o as above. 5 Narayan s/o Hulaji Deokate, age: 45 years, Occ: Agriculture, R/o as above. 6 Namdeo s/o Ram Deokate, age: 65 years, Occ: Agriculture, R/o as above. 7 Sau.Kalabai w/o Namdeo Deokate, age: 58 years, Occ: Agri., R/o as above. Respondents Mr.V.C.Patil, advocate for appellants. Mr.Shrikant Kulkarni, advocate for Respondents No.1 & 2. CORAM: R.M.BORDE, J. DATE : 18 th February, 2010. P.C.: 1 Original defendants, who are purchasers of the property, have approached this Court by presenting instant Second Appeal raising challenge to the concurrent judgments delivered by the Courts below. 2 Plaintiffs – Respondents No.1 & 2 herein claimed that they are respectively wife and daughter of defendant no.10 Namdeo – Respondent No.6 herein. Original defendant no.11 is second wife of defendant no.10 Namdeo. It is contended that defendant no.10, without there being any legal necessity, has alienated suit property in favour of other defendants. The property, being ancestral one, plaintiffs are entitled to have share to the extent of two-third and thus, they claimed recovery of possession of suit property to that extent. Plaintiffs also contend that sale effected by defendant no.10 in favour of other 3 defendants does not bind their right, title or entitlement. 3 Defendant no.10 did not file his written statement, however, other defendants presented written statement and controverted contentions raised by plaintiffs. Defendants denied status of plaintiff no.1 as legally wedded wife of defendant no.10 as well as plaintiff no.2 being legitimate daughter of defendant no.10. They further contend that the property has been alienated by defendant no.10 in favour of other defendants for legal necessity. 4 The trial Court, after considering pleadings and evidence led by concerned parties, was pleased to grant decree in favour of plaintiffs, as asked for. Appeal presented by defendants, being Regular Civil Appeal No.6/2003, came to be heard and disposed of by District Judge-1, Ambajogai, who was pleased to dismiss same by judgment and decree dated 02.11.2009. 5 I have perused judgments recorded by both the Courts below and heard arguments advanced by learned Counsel appearing for respective parties. 6 Plaintiffs approached the Court contending that they are respectively wife and daughter of defendant no.10 Namdeo. Other defendants questioned legitimacy of plaintiffs and as such, burden rests on them to establish their contention. The presumption is always in favour of legitimacy, unless contrary is established. In the instant case, apart from oral evidence, plaintiffs have also placed on record copies of school record of plaintiff no.2, which shows that her name is recorded in school record as daughter of defendant no.10. Other defendants although disputed the relationship, however, nothing has been brought on record to disprove the contention raised by plaintiffs. In these circumstances, finding recorded by the Courts below, based on appreciation of 4 evidence, cannot be disturbed while exercising jurisdiction under Section 100 of the Code of Civil Procedure. 7 Another objection to the decree passed by the Courts below is raised by defendants on the ground that their existed legal necessity for alienating the property by defendant no.10. It is contended that defendant no. 10 was suffering from Tuberculosis about ten years back and as such, he was required to alienate the property. However, nothing has been brought on record to substantiate the contention that really defendant no.10 was suffering from tuberculosis and in order to meet expenses for medical treatment, the property has been alienated. The burden to prove legal necessity rests on defendants. As they have not led sufficient evidence to discharge the burden, finding of fact has been recorded by the Courts below that defendants have failed to establish existence of legal necessity in making alienation of suit property by defendant no. 10. In these circumstances, findings, based on appreciation of evidence by the Courts below, need not be interfered. No substantial question of law arises for consideration in the appeal. 8 Appeal, therefore, stands dismissed. Civil Application No.1519 of 2010 does not survive and stand disposed of accordingly. (R.M.BORDE) JUDGE ******* adb/sa9310