1 SA79/2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 79 OF 2011 Meerabai w/o Trimbak Patil, Age 60 years, Occupation Agriculture, Resident of village Bhongara, Taluka Shahada, District Nandurbar Appellant V E R S U S 1 Anusayabai w/o Trimbak Patil, Age 75 years, Occupation Agriculture, Resident of village Bhongara, Taluka Shahada, District Nandurbar Respondent 2 Dagdu s/o Trimbak Patil, Age 35 years, Occupation Agriculture, Resident of as above Shri C.R. Deshpande, Advocate for the appellant Shri M.H. Patil, Advocate for the respondents CORAM : A.V. NIRGUDE, J. DATED : 13th September, 2011 PER COURT : 1. Heard. 2. This appeal is challenging concurrent findings of the Courts below that the respondent No. 1 / plaintiff is entitled to 1/4th share in the suit property. 3. It is common ground that Trimbak was the owner of the suit property. Trimbak is not seen for last more than 30 years, and therefore, the parties presumed that he is dead and gone. The respondent No. 1 / plaintiff came with a case that she was married to Trimbak and said that during the subsistence of her marriage with Trimbak, he married the appellant Meerabai, who happens to be the original defendant No. 1 and the defendant No. 2 got born out of wedlock of Meerabai and Trimbak. She 2 SA79/2011 said that the property left behind by Trimbak should be partitioned and she should be given half share. 4. The appellant and respondent No. 2 took up a stand that Trimbak did not marry respondent No. 1 / plaintiff at all, but she proved sufficiently that she was married to Trimbak. 5. The Courts below believed the evidence that has come on record to hold that respondent No. 1 / plaintiff was married to Trimbak. Since the appellant and respondent No. 2 did not take alternate stand at trial stage that the marriage between respondent No. 1 Anusayabai and Trimbak was not valid etc, there was no question of proving particularly the validity of the marriage between respondent No. 1 Anusayabai and Trimbak. Accordingly, the trial Court held in favour of respondent No. 1 Anusayabai and held that she was entitled to 1/4th share being one of the co-widows. 6. The appellant / original defendant No. 1 came in appeal before the first appeal Court and made an application seeking amendment in the written statement. This was allowed, and this time, for the first time she took up a defence that the marriage between respondent No. 1 Anusayabai and Trimbak was not valid. After the amendment was allowed, she sought an order from the first appeal Court for framing of issues and referring the issue to the trial Court for recording evidence etc., but such an application was rejected. The matter came to this Court and yet the appellant could not succeed in getting the case remanded back for deciding a new issue that could have arisen in the light of amended written statement. Thus, the question as to whether respondent No. 1 Anusayabai was legally wedded wife never came before the Court for giving finding. In view of this, the learned counsel for the appellant contended that at least at this stage the appellant should be given an opportunity to lead further evidence on the 3 SA79/2011 relevant issue in respect of validity of marriage between respondent No. 1 Anusayabai and Trimbak. I am afraid, though this submission is plausible, it does not give rise to any substantial question of law. The question of fact between the parties initially was whether respondent No. 1 Anusayabai was married to Trimbak and that was decided in favour of respondent No. 1 Anusayabai. 7. The learned Advocate appearing for the appellant also insisted that he should be permitted to make submission on the validity of the marriage between respondent No. 1 Anusayabai and Trimbak. He was trying to make submission that in 1946 a law came into force by name Bombay Prevention of Hindu Bigamous Marriage Act. He said, in view of this Act, assuming there occurred a marriage between respondent No. 1 Anusayabai, it was illegal. I am afraid, this submission cannot be heard, because this question was never discussed before the Courts below, and, at second appeal stage a new point cannot be allowed. In view of this, there occurs no substantial question of law in this second appeal. The Second Appeal should therefore fail. Second Appeal stands dismissed. In view of dismissal of second appeal, Civil Application No. 2634 of 2011 stands disposed of. ( A.V. NIRGUDE, J. ) SRM/sa/79/11/13/9/11