1 sa 723.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 723 OF 2010 1. Angad S/o Harishchandra Kardile and another .. Appellants Versus 1. Harishchandra Kondiba Kardile and others .. Respondents Shri N. L. Jadhav, Advocate for Appellants. Shri D. R. Jaybhar, Advocate for the Respondent No. 1. CORAM : S. V. GANGAPURWALA, J. DATE : 13TH APRIL, 2011. PER COURT : . This is an appeal by the original plaintiff. The appellant No. 1 is the original plaintiff who had filed a suit for partition and separate possession. The Trial Court granted 1/3 rd share to the plaintiff in respect of the suit property. The defendants preferred an appeal. The Appellate Court partly allowed the appeal and granted 1/7 th share to each of the parties. Aggrieved thereby the original plaintiff and the original defendant No. 2 have preferred the present second appeal. 2 sa 723.10 2. Shri N. L. Jadhav, the learned counsel for appellants submits that Sunita was the second wife of Harishchandra. Being second wife was not entitled for any share. So also children born to Sunita from Harishchandra would not be entitled for any share in the ancestral property. As even as per section 16 of the Hindu Marriage Act the children begotten out of a void marriage would be entitled to the share only in the separate property of their parent and not in the ancestral property. Shri Jadhav, the learned counsel further submitted that the Court below did not appreciate the evidence properly while reversing the finding of the Trial Court. 3. Per contra, Shri Jaybhar, the learned counsel for the respondent No. 1 submits that the Lower Appellate Court has properly appreciated the evidence and has rightly held that the marriage of Sunita with Harishchandra was after the death of the first wife of the Harishchandra and this can be shown from the evidence of P.W. 2 himself. 4. With the assistance of the learned counsel I have gone through the judgment. The whole gamut of dispute is about the validity of the marriage of Sunita with Harishchandra. The relationship between the parties is not disputed. The fact that 3 sa 723.10 the present respondent Nos. 1 and 2 have married and present respondent Nos. 3 to 5 are the children begotten to them is also not disputed. The grievance of the plaintiff was the marriage of defendant No. 2 with defendant No. 1 was during the subsistence of the earlier marriage of defendant No. 1. The close relative of the plaintiff i. e. P.W. 2 Ashruba has in no uncertain words admitted that the first wife of respondent No. 1 died due to electrocution and after her death i. e. after lapse of one month after the death, the defendant No. 1 performed the marriage with the defendant No. 2. When plaintiff’s own witness has categorically admitted this fact, no other evidence would be required to prove that the marriage of the defendant No. 2 with the defendant No. 1 was after the death of the first wife of defendant No. 1. 5. In the light of above the lower Appellate Court has properly appreciated the evidence and has arrived at the just conclusion. The shares computed are also legal and proper. In the light of above, the second appeal being sans substantial question of law is dismissed, however, with no order as to costs. [ S. V. GANGAPURWALA, J. ] bsb/April 11