1 SA.No.425-10 mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.425 OF 2010 WITH CIVIL APPLICATION NO.1075 OF 2010 Dhondiram Jagannath Hiray (Since Deceased) Through L.R. Sundarabai Dhondiram Hiray ..Appellant Vs. Jankorbai Dodha Thoke (Since Deceased) Through L.R. Subhadra Dhansingh Pawar ..Respondent Mr. N.R.Bubna for the Appellant Coram: R.M.SAVANT, J Date: 30th July 2010 P.C. 1. This Second Appeal takes exception to the Judgment and Decree dated 26-2-2010 passed by the Learned District Judge-1, Malegaon by which the Judgment and decree dated 6-8-2002 of the Trial Court in Regular Civil Suit No. 319 of 1995 came to be confirmed. The Appellant is the original Defendant No.1 and the Respondent No.1 is the Original Plaintiff No.2. The Plaintiffs had filed a suit for declaration of their share in joint family property and further for a declaration that the alienation made by the Defendant No.2 was not binding on 2 SA.No.425-10 them to the extent of the share of the Plaintiffs. The Plaintiffs had also claimed possession. The said suit came to be decreed and the document i.e. Sale Deed dated 27-7-1981 executed by the Defendant No.2-Dhansing in favour of the Defendant No.1 was held to be void to the extent of the share of the Plaintiffs. It was further declared that the Plaintiff No.2 has undivided 1/6th share in the suit property. Aggrieved by the decree of the trial court, the Appellants herein filed an Appeal being Regular Civil Appeal No.81 of 2002, the lower Appellate Court on consideration of the material on record confirmed the said decree and dismissed the said Appeal No.81 of 2002. As indicated above, the dismissal of the Appeal and the confirmation of the decree of the trial court have given rise to the present Second Appeal. 2. It is the contention of the Learned Counsel for the Appellant that the suit itself is not maintainable as the Plaintiffs in fact were challenging the Sale Deed dated 27-1-1981, much after the period of limitation prescribed under Article 59 was over. The Learned Counsel for the Appellant further contended that the Defendant No.2 being a Karta of the family, the other members of the family were bound by the alienation made by him. A perusal of the impugned Judgment and Order of the Courts below disclose that the said issues have been dealt by both the Courts below and concurrent findings of fact have been recorded by the Courts below. 3 SA.No.425-10 3. In so far as the issue of limitation is concerned, both the Courts below have recorded a finding that the Plaintiffs came to know about the document dated 27-1-1981 sometime in the year 1984 and since the Plaintiffs were claiming their share in the joint family property and not the cancellation of the Sale Deed, but were seeking a declaration in respect of the Sale Deed to the effect that they are not bound by the said Sale Deed to the extent of the said shares; the limitation prescribed would be not as that mentioned in Article 59 but as that mentioned in Article 65 of the Limitation Act. 4. In so far as the alienation by the Karta of the Joint family is concerned, both the courts below have recorded a finding that no doubt the Karta can dispose of the property for legal necessity; however, the evidence on record in the instant suit indicates that the Defendant No.2 was addicted to liquor and that he had transferred the property without the consent of the Plaintiffs. It therefore, cannot be said that the said condition of legal necessity was satisfied. 5. Having considered the impugned Judgments of the courts below and considering the grounds of Appeal, in my view, no substantial question of law is involved in the present Second Appeal. The Second Appeal is accordingly dismissed. 4 SA.No.425-10 6. In view of the Second Appeal being dismissed, the Civil Application does not survive and is accordingly disposed of. (R.M.SAVANT, J.)