1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD APPEAL FROM ORDER NO.56 OF 2005 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders CORAM: P.R.BORKAR, J. Date : June 8, 2010 1. Heard Shri V.D. Patnoorkar, learned Advocate for the appellants. 2. This appeal from order is directed against the order passed by the learned Adhoc Additional District Judge, Nanded, on 4.12.2004 in Regular Civil Appeal No.19 of 2002 whereby he set aside the judgment and decree passed by the learned Civil Judge, Junior Division, Nanded in R.C.S. No.58 of 1988 decided on 19.8.1999 and remanded the matter directing that defendant's mother Chandrabai be made party to the suit and then the matter be decided afresh. 3. Briefly stated, the facts are that present appellants were original plaintiffs who had filed suit for partition and separate possession in respect of property 2 of deceased Ramji, who is their father. It is not disputed that defendant-respondent Sakharam is their step brother. Original Plaintiffs Dharmabai (now represented by her legal heirs) and Girjabai were daughters of Ramji. There is first wife of Ramji, namely, Gangabai. Ramji married Chandrabai in or about 1949 and out of their wedlock Respondent Sakharam is born. 4. The trial court dismissed the suit holding that Chandrabai was necessary party and in her absence effective decree cannot be passed, discussion to which effect is to be found in paragraph 14 of the judgment of the trial court. The first appellate court held that Chandrabai ought to have been made party and that the dismissal of suit on that count was wrong and on that count, it set aside the decree of dismissal and remanded the matter with directions to add Chadrabai as party to the suit and decide the same afresh. 5. It is not disputed that Chandrabai was legally wedded wife of Ramji and Sakharam was born out of the said wedlock. In the circumstances, both the courts have concurrently held that Chandrabai would necessary party. 3 6. Shri Patnoorkar, learned counsel for the appellant, argued that Chandrabai had remarried before Hindu Succession Act came into force and therefore her right in the property of Ramji had not become absolute. However, so far as this aspect is concerned, it is necessary to hear Chandrabai and also to have necessary pleadings and evidence in that respect. There is no admission on the part of defendant regarding the year in which Chandrabai remarried, though there is admission by defendant Sakharam that Chandrabai had remarried. 7. In the circumstances, the order passed by the District Court cannot be faulted with. Hence, this appeal from order is dismissed. Appeal from Order disposed of. pnd/ao56.05 (P.R.BORKAR, J.)