1 sa663-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.663 OF 2010 WITH CIVIL APPLICATION NO.1786 OF 2010 Sitabai Kisan Gadhave and others ..Appellants Vs Rahibai Mhatarba Gadhave and others ..Respondents -- Mr.S.P.Thorat i/b.Mr.S.V.Parkhe, for appellants. Mr.U.B.Nighot, for respondent nos.1 and 2. -- CORAM : R.G.KETKAR, J. DATE : 15 th APRIL, 2011 P.C: Heard Mr.S.P.Thorat, learned counsel for the appellants and Mr.U.B.Nighot, learned counsel for the respondents. 2] The original defendants have preferred this Second Appeal challenging the judgment and decree dated 29 th March, 2005 passed by the learned Civil Judge Junior Division, Junnar, District Pune in R.C.S. No.5 of 2004 as also judgment and decree dated 28 th October, 2 sa663-10.sxw 2010 passed by the learned District Judge-2, Pune in Civil Appeal No. 250 of 2007. By these judgments, the Courts below decreed the suit instituted by the respondents for partition and separate possession. 3] On 13 th December, 1945 Mhatarba purchased suit properties from one Krishna Genu Gadhave. Mhatarba died on 19 th May, 1967 leaving behind widow Rahibai (plaintiff no.1), son – Kisan and daughter Shantabai (plaintiff no.2). Kisan died leaving behind appellants/ original defendants. The respondents instituted suit for partition and separate possession of the suit properties. The appellants/defendants were duly served with suit summons and they appeared before the Court. The appellants, however, failed to file written statement and by oder dated 24 th March, 2004, the suit was proceeded further without written statement. The respondents examined Anandrao Tukaram Hule, Power of Attorney Holder who filed affidavit of examination-in- chief under Order 18 Rule 4 of the Code of Civil Procedure, 1908. Documents were also produced by the plaintiffs in support of their case. Despite giving ample opportunity to the appellants/defendants, they failed to cross-examine plaintiffs’ witness. The learned trial Judge, therefore, held that the evidence led by the respondents plaintiffs remained unchallenged. Considering the relationship between the parties as also the fact that the properties purchased by Mhatarba are self acquired properties, the learned trial Judge declared 3 sa663-10.sxw that the plaintiff nos.1 and 2 each are entitled to 1/3 rd share and defendants are entitled to 1/3 rd share in the suit properties. Being aggrieved by this judgment, the defendants preferred appeal which was dismissed by the learned District Judge on 28 th October, 2010. Aggrieved by these two judgments, the defendants have preferred present Second Appeal. 4] Mr.Thorat submitted that the evidence of plaintiffs cannot be taken into account as a Power of Attorney holder was examined by the plaintiffs as their witness. He submitted that a Power of Attorney holder does not have personal knowledge of the matter and therefore, he can neither depose on his personal knowledge nor can he be cross- examined on those facts which are to the personal knowledge of the respondents. In support of this submission, he relied upon the judgment in the case of Janki Vashdeo Bhojwani and anr. Vs. Indusind Bank Ltd and ors, AIR 2005 SC 439 He also relied upon Sections 6 and 29-A of the Hindu Succession Act, 1956 (for short “the Act”) to contend that defendant no.2 will have no share in the co-parcener properties left by Mhatarba. In support of this submission, he relied upon the judgment in the case of R. Kantha Vs. Union of India, AIR 2010 Karnataka 27. 5] On the other hand, Mr.Nighot supported the impugned 4 sa663-10.sxw judgments. He submitted that the reliance placed by learned counsel for the appellants on Sections 6 and 29-A of the Act is misconceived as, in the present case, we are concerned with the self acquired properties left by Mhatarba and not of joint family/ancestral properties. 6] I have considered rival submissions of the parties. In the instant case, it is not in dispute that the properties were purchased by Mhatarba on 13 th December, 1945 from one Krishna Genu Gadhave. Both the courts below recorded finding of fact that the suit properties are self acquired properties of Mhatarba. The appellants cannot derive any benefit from the judgment of Karnataka High Court in the case of R.Kantha (supra). It is also not in dispute that Mhatarba died intestate. Relationship between the parties is also not in dispute and the only question is about the share of the parties in the present case. I do not find any substance in the submissions advanced by Mr.Thorat that the evidence adduced by the plaintiffs’ Power of Attorney holder cannot be accepted. Having regard to the fact that plaintiff no.1 is widow and plaintiff no.2 is daughter of Mhatarba, they succeed the properties purchased by Mhatarba under Section 8 read with Schedule I of the Act as they fall in the category of Class – I in the schedule. Likewise, defendants being the heirs and legal representatives of Kisan are also entitled to get share in the share of Kisan. In view of this position, I do not find that the Courts below committed any error in decreeing the suit 5 sa663-10.sxw filed by the the respondents/original plaintiffs in the aforesaid terms. No substantial question of law arises in this Second Appeal. Second Appeal is dismissed. In view of dismissal of Second Appeal, Civil Application No.1786 of 2010 does not survive and the same stands dismissed. [R.G.KETKAR, J.]