1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 70 of 2007 1. Shri Prakash Maruti Morbale ) Age 40 years, Occ: Business ) 2. Shri Uttam Maruti Morbale ) Age 38 years, Occ: Business. ) Both residents of 16/1201 ) Ichalkaranji, Taluka ) Hatkanangale, Dist. Kolhapur. ).. Appelants (Org.Defts.Nos.3 & 4) Vs. 1. Shri Akaram Bhauao Naik ) Age 59 years, Occ: Agriculture ) R/o. Ardal, Tal. Alara. ) Dist. Kolhapur. ) 2. Smt.Darubai Bhaurao Naik ) Age 80 years, Occ: Nil ) 3. Shri Maruti Rama Morbale ) Age 63 years,Occ: Business ) R/o 16/1203, Ichalkaranji. ) Dist. Kolhapur. ) 4. Shri Dattatraya Rama Morbale ) Deceased by legal heirs: ) 4a. Vachala Maruti Patil ) Age Major, Occ: household ) R/o. Kole, Tal. Kagal, ) Dist. Kolhapur. ) 4b. Shakuntala Jyotiram Medsinde ) Dist. Kolhapur Age Major. ) 2 Occ. Household, R/o. Mangaon ) Tal. Hatkanangale, Dist.Kolhapur. ) 4c. Sou. Chanda Ananda Bondre, ) Age Major, Occ: Household. ) R/o. Haripur, Tal. Miraj. ) Dist. Sangli. 5. Shantabai Vasant Kambale ) Age Majr, Occ: Household. ) R/o. 16/1204, Ichalkaranji. ) Dist. Kolhapur. ) 6. Lata Vishwas Jadhav ) Age Major, Occ: Household, ) R/o. 16/1205 Ichalkaranji. ) Dist.Kolhapur. )..Respondents Mr.N.J.Patil,Advocate, for the appellant. Mr.Suyog Conthe, i/b. N.R.Bubna Advocate, for the respondent No.1. CORAM: J.H.BHATIA,J. DATE: 30th July, 2009. JUDGMENT : 1. Heard the learned Counsel for the parties. 2. Admitted facts are that one Ramaji Subhana Naik and Bhau Ramchandra Morbale had purchased the suit property under a registered sale deed dated 30.3.1960. Ramaji Naik and Bhau Morbale had half share each in the property. Ramaji died leaving behind his son Bhaurao, daughter-in-law 3 Darubai wife of Bhaurao and grandson Akaram and on his death, half share in the suit property came to Bhaurao. The plaintiffs, who are the respondent nos. 1 and 2 before this Court, are the son and widow of said Bhaurao Naik. Said Bhaurao Naik executed a sale deed on 12.10.1983 in respect of his half share in the suit property in favour of the defendant Nos. 3 and 4. Defendant nos. 2 and 3 are the brothers of Bhau Morbade, who had jointly purchased the suit land along with Ramaji Naik. According to the plaintiffs, Bhaurao Naik had executed the sale deed in favour of the defendants Nos. 3 and 4 without any legal necessity and therefore, the sale deed is null and void, ab initio. They sought a declaration to that effect and also a decree for partition of the suit property claiming half share in the same by filing Regular Civil Suit no.56 of 1988. 3. The suit was contested by the defendants. They denied that the suit property was a joint family property of the plaintiffs and Bhaurao Naik. They also denied that the sale deed was executed without any legal necessity by said Bhaurao. According to them, half share in the suit property was purchased by Bhaurao himself, but due to certain technical difficulties and love and affection for his father, in the sale deed of 1960, his father Ramaji was shown to be purchaser of half share. As such, the suit property was self-acquired property of 4 Bhaurao and he had sold the same. Therefore, the plaintiffs cannot seek any declaration nor they can seek partition and separate share in the property. 4. The learned trial Court framed certain issues and came to conclusion that the suit property was ancestral property in the hands of Bhaurao and the plaintiff and Bhaurao had equal share in the same. As the said property is only half share in the total suit property, the trial Court held that the plaintiff Nos. 1 and 2 are entitled to 1/6th share each in the complete property. It was held that the sale deed executed by Bhaurao was without any legal necessity and therefore, though the sale deed was binding to the extent of share of Bhaurao, it was not binding to the extent of shares of the plaintiff Nos. 1 and 2. In the result, the trial Court refused to declare that the sale deed is null and void. However, the trial Court passed he decree of partition and separate possession in favour of the plaintiffs to the extent of their shares. The defendants preferred Regular Civil Appeal No.155 of 2005 (old No.RCA 98/2004). The appellate court concurred with the trial Court in all respects and dismissed the appeal. Hence,this Second Appeal at the instance of the original defendant Nos. 3 and 4. 5. The learned Counsel for the appellant could not point out anything 5 from the record to show that the concurrent findings of the Courts below are perverse or against the evidence on record. He also could not point out anything from the record to show that there was any legal necessity for Bhaurao to dispose of the suit property. The learned Counsel for the appellant tried to contend that a partition had already taken place between Bhaurao Naik and Bhau Morbale, who was one of the joint purchasers. Admittedly, no such plea was taken in the written statement. Even though an attempt was made during oral evidence that such partition had taken place no details of the same were placed on record. There is no record about that partition. Therefore, I find no substance in this contention. 6. In view of the facts and circumstances, there is nothing to show that the concurrent finding of facts given by the both the Courts below suffer from any perversity or illegality. I do not find any substantial question of law in the present appeal. Therefore, the Appeal stands dismissed. 7. As the Appeal is dismissed, C.A.No.124 of 2007 for injunction and stay does not survive and stands disposed of accordingly. (J.H.BHATIA,J.)