1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Second Appeal No.128 of 2009. Smt. Baina wd/o Bhagwanji Bhange & one another Vs. Smt. Nmarmada wd/o Kundalilk Mahalle & others. ---------------------------------------------------------------- Office Notes, Office Memoranda of Coram,appearances,Court's orders Court's or Judge's orders or directions and Registrar's orders. Shri M. N. Motghare, Advocate for the appellant. Coram: A. H. JOSHI , J. Dated: 6th APRIL 2009. 1. This is an appeal against the concurrent decrees. 2. The plaintiff's suit was for partition and separate possession. 3. Heard Learned Advocate Shri N. M. Motghare, for the appellant. 4 Learned Trial Court had raised the issue 2 as follows: 1. Does plaintiffs prove that the suit land suit house are the ancestral properties? If yes what would be the share of the plaintiff in the suit property? [Quoted from page 34 of the Second Appeal Paper Book] 5. Learned trial Court has answered said issue holding that the property was ancestral, but the plaintiffs are not entitled to any share. 6. The question as to dis-entitlement of plaintiffs is dealt with in para 9. The relevant finding reads as follows : 9................................. The plaintiff do not mentioned nor adduced any documentary evidence which shows that, when did Gopala died. Now when it is not clear from any documentary evidence that when Gopala died and when the succession was opened. The Court should consider any admission given by any party. The plaintiff in her cross examination admitted that, when she was of the age six years, her father Gopala died. As per the plaintiff, present age of plaintiff Bainabai is 70 years. It means her father died prior to 64 years i.e. in the year 1943. Hence, from the admission of the plaintiff its clear that deceased Gopala died prior to the 3 commencement of Hindu Succession Act 1956. And according to uncodified Hindu Law, which is applicable to our mitakshara school of law, prior to 1956. [Quoted from page 36 of the Second Appeal paper Book] 7. The grounds and substantial questions of law as urged are :- 1. What is the effect on rights of female copaseeners after coming in to force of Hindu Succession (Amendment) Act 2005? 2. Whether in the absence of issue Lower Courts below were justified to hold death of deceased Gopala prior to 18-06-1956? 3. Whether stray admission of an illiterate person as to her age, against her own interest, in the light of pleading is legally sustainable in law? [Quoted from page 10-A of Second Appeal Paper Book] 8. While dealing with the questions, this Court finds as hereinafter. 4 9. In so far as the first question is concerned, fate of this question depends upon the fact finding on point No.2 & 3 as quoted in the para No.7. OF DATE OF DEATH OF GOPALA. 10. In so far as the second point relating to date of death is concerned, it is seen from the plaint tendered for perusal by learned Advocate Mr. Motghare, that the plaintiffs did not plead a specific date of death of the father Gopala. It was also not pleaded that the date of death of father is after 18-6-1956. 11. In the background of absence of pleading in the plaint about the date of death occasion and opportunity the defendants did not to deny or explain about said fact. 12. Due to absence of the pleadings about the date of death of Gopala, even the plaintiffs had no occasion to rely on a deemed admission due to 5 failure to deny crucial pleading about date of death. 13. The question no.2 framed by the appellant, therefore, does not arise for consideration in this second appeal. Fact in issue would arise or be there when a fact crucial to a right is pleaded and admitted or denied. This eventuality is totally absent in present case. The plea that Gopala died after 18-6-1956 is, therefore, afterthought, and carries no weight what soever. 14. As regards the third ground that Judgment ought not be based on stray admission, the admission relied upon by Courts cannot be regarded as stray admission, adverse to the interest of the party making it. This ground really does not arise, particularly, when it is found that plea of death of Gopala itself is an after thought. Therefore, the said grievance about admission being stray admission carries no 6 weight what soever. The said question no.3 as well, therefore, does not arise. 15. In view of what this Court has found on points No.2 & 3, the point no.1 does not survive. 16. The Second appeal has no merit. It does not involve any substantial question of law and appeal is dismissed. JUDGE Sbm