1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Second Appeal No.28/2006 [Parasram Balaji Choudhary .vrs. Smt. Janabai wd/o Seshrao Pal and another] ............................................................................................................................................................................................. Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ................................................................................................................................................................... Mr. A. Shelat, Advocate for the appellants, Mr. G.D. Vaidya, Advocate for the respondents. .......... Coram : B.P. Dharmadhikari, J. Dated : 9 th February, 2009. Heard the learned counsel for the parties. Advocate Shelat has contended that because of the provisions of Section 3 and 4 Benami Transactions (Prohibition) Act, 1988 the case as filed by respondent no.1 that the property purchased by Balaji in 1959 in the name of his wife and his minor son was a Benami purchase could not have been examined by the courts below. He wants to rely upon the said provisions and certain judgments to substantiate his contentions. According to Advocate Vaidya, it is not necessary for this court to consider it as the court has 2 given respondent no.1 - 1/3rd share in the mother's portion only. He points out that even if it is presumed that the purchase was Benami in the name of mother and her son, still the courts have found that the son (present appellant/original defendant no.1) had already sold his ½ portion. The mother expired in 1959 and the partition has been given only mother's portion. According to Advocate Shelat argument advanced by Advocate Vaidya are without any basis. He states that had there been a proper plea, in this respect, present appellant could have pointed out that the portion sold was not his portion. With the assistance of the learned counsel for the parties, I have perused the judgment. The perusal of judgment revealed that the courts below have not touched ½ portion sold by the present appellant in any way and only considered the remaining ½ share with the mother and the present appellant and two daughters being only legal heirs have been given 1/3 rd share in the said ½ portion of the mother. Advocate Vaidya has specifically stated that there is no question of reopening sale 3 effected by the appellant whereby he sold his 1/2 portion. In view of paragraph 10 of the judgment, I find that the courts below have only considered ½ share of mother and give 1/3rd share therein to respondent no.1. Advocate Shelat contended that the courts below have not gone into the question of limitation as the mother expired in 1959 and sell by the present appellant was also in 1959. He points out that in view of the observation in the judgment ouster of respondent no.1 in 1959 is established and hence cause of action accrued in 1959 and suit ought to have been filed by 1971 as required by Article 110 of the Constitution of India. The consideration of courts below does not show any ouster of the interest of respondent no.1. It is, no doubt, true that sale executed by present applicant was not objected to but suit relates to mother's remaining share in the property. No substantial question of law arises in the second appeal. The appeal is dismissed. JUDGE Gulande