1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION SECOND APPEAL NO. 101 OF 2009 WITH CIVIL APPLICATION NO.1837 OF 2007 Sou. Krishnabai Laxman Kadam ...Appellant. v. Baburao Laxman Kadam & Ors ...Respondents. Mr.Purushottam G. Chavan, adv. For the Appellant. Mr.Ashok B. Tajane, adv. For the Respondent Nos.1 and 2. Ms.Priyanka Bodake i/by Shri Dilip Bodake, advs. for the Respondent Nos.3 to 5. CORAM : J.H. BHATIA, J. DATED : 11th September , 2009 ORAL JUDGMENT: 1 Heard. Following question of law arises in the appeal: “ Whether the first appellant Court was justified in modifying decree passed by the trial Court by which the trial Court had granted 1/7th share to the present appellant and in deleting the share of the appellant in the appeal without giving notice to her ? 2 Record reveals that the present appellant had filed regular civil suit no.32 of 1996 for and on behalf of her two minor children, who are respondent nos.1 and 2 in the present appeal. According to her, suit was for partition and separate possession in respect of properties shown at 1A and 1B in the plaint. The trial court held that the property shown in paragraph 1A was the joint family property but the property in paragraph 2 1B was not joint family property. The trial Court held that plaintiff nos.1 and 2, ie. sons of the present appellant as well as the present appellant and her daughter Jayshree and defendant nos.1 and 3 and one Savita daughter of defendant nos.1 and 2 were entitled to 1/7th share each. Judgment and decree were challenged by the plaintiffs/ respondent nos.1 and 2 by filing Regular Civil Appeal No.662/02. Challenge was restricted to the property shown in paragraph 1B of the plaint. The appellate Court dismissed the appeal but came to conclusion that only plaintiff nos.1 and 2 and defendant nos.1 to 3 are entitled to 1/5th share each in the property shown in paragraph 1A. Thus, the shares of the parties are modified and the share allotted by the trial Court to the present appellant and her daughter Jayshree was set aside. Defendant No.2 was held entitled to share. Grievance of the present appellant is that she was not a party in that appeal and without giving opportunity of hearing to her, share allotted to her by the trial Court was set aside. Their appears substance in this contention. It appears that the present appellant, who had filed the suit as guardian and next friend of her two sons, was not a plaintiff in the suit in her individual capacity nor she had claimed any share in the property for herself or for daughter Jayshree. However, the trial Court rightly or wrongly had granted share to them. If the 3 appellate Court felt that these two ladies were not entitled to share and decree was required to be modified, it was necessary to give opportunity of hearing to them as they were not parties to the suit. They were also not impleaded as parties in the appeal. The appellate Court could have directed to implead both of them as parties in the appeal and could have issued notice to them before modifying the order. In my considered opinion, mistake was committed by the First Appellate Court by modifying the decree without giving opportunity of hearing to the present appellant as well as her daughter Jayshree. The trial Court had granted share to the present appellant and her daughter as well as Savita daughter of the defendant nos.1 and 2. The First Appellate Court gave 1/5 share each to the plaintiffs, defendant nos.1,2 and 3 and refused share to the plaintiff , her daughter Jayshree and Savita, daughter of the defendant nos.1 and 2. It appears that defendant no.2, who was admittedly second wife of the defendant no.1, was granted share by the First Appellate Court. In view of this, in my considered opinion, impugned judgment and decree are liable to be set aside and the matter needs to be remanded back to the First Appellate Court. 3 For the aforesaid reasons, appeal is allowed. Regular Civil Appeal No.662/02 is hereby remanded back to the District Court Pune, 4 for hearing and disposal a afresh after impleading present appellant as well as her daughter Jayshree and after giving opportunity of being heard in the appeal. 4 As the appeal itself is disposed off finally, Civil Application No.1837/07 does not survive and stands disposed off. (J.H. BHATIA,J.)