1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No. 746 OF 2003 Narsappa S/o Nagappa Satamwar .. APPELLANT VERSUS Gangadhar S/o Nagorao Sonkamble & others ...RESPONDENTS ... Shri V.S. Badak, Advocate h/f Mrs. C.S. Deshmukh for the appellant Shri V.C. Misal, Advocate h/f for R.S. Deshmukh, respondent No. 1 CORAM : S.V. GANGAPURWALA, J. DATE : 20th October, 2010. PER COURT : Heard learned counsels for the respective parties. This is defendant No. 3’s Second Appeal. The plaintiff had filed a suit for declaration of ownership and recovery of possession. The Trial Court decreed the suit. The present appellant preferred an appeal assailing the said decree. In appeal the District Court modified the decree holding that the plaintiff has 1/3rd share. The present appellant has assailed the Judgment and Decree before this 2 Court. 2. Shri Deshmukh, learned Counsel for the appellant contended that in certain circumstances the mother can sale the property. As the property is not the absolute property of minors, no permission under Section 8 of the Hindu Minority and Guardianship Act, 1956 is required. He further contended that the suit is barred by limitation, as after attaining the majority the plaintiff has not instituted the suit within the prescribed period of limitation. The learned Counsel further submitted that legal necessity is proved. Moreover, the appellant being subsequent purchaser the law requiring him to prove legal necessity would not be stringent. 3. With the assistance of learned Counsel, I have gone through the Judgments delivered by both the Courts. 4. No doubt, the mother can alienate the property in certain circumstances, as per Section 38 of the Transfer of Property Act. As the 3 plaintiff only had a share in the property, and same is not absolute property of the minor, no permission under Section 8 of Hindu Minority and Guardianship Act would be necessary. But the right of the the mother to deal with said property is only in certain circumstances i.e. existence of legal necessity. The defendants have tried to contend that the property was sold for the marriage of defendant No. 4. Both the Courts have concurrently held that the appellant could not prove the legal necessity. The same is finding of fact. Unless and untill legal necessity is proved benefit of Section 38 of the Transfer of Property Act cannot be availed. In the light of the fact that legal necessity could not be proved, and though the appellant is subsequent purchaser still, as the plaintiff had established his right and the defendants have failed to establish the legal necessity, in such circumstance, the present appellant cannot seek protection. 5. In the light of the same, Second Appeal being sans substantial question of law, is 4 dismissed. However, there shall be no order as to costs. [S.V. GANGAPURWALA,J] SDM*746.03SA