1 S.A.No.22.03 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 22 OF 2003 Phatu S/o Kasim Ghorwade ... Appellant V E R S U S Chandrakabai Since deceased. Through Legal Representative and others ... Respondents WITH CIVIL APPLICATION NO.182 OF 2003 IN SECOND APPEAL NO. 22 OF 2003 Phatu S/o Kasim Ghorwade ... Applicant V E R S U S Chandrakabai Since deceased. Through Legal Representative and others ... Respondents Mr.S.V.Chandole,Advocate holding for Mr.V.G.Sakolar,Advocate for Appellant-Applicant Mr.S.S.Mandale,Advocate for respondent nos 1,2, 3/2 and 4 Respondent No.3/1 Served CORAM : A.V. NIRGUDE, J. DATED : 11TH MARCH, 2010 ORAL ORDER : 1] This second Appeal by consent is taken up for final hearing and disposal. 2] This Second Appeal is challenging the Judgment and decree passed by the learned Additional District Nilanga in Regular Civil 2 S.A.No.22.03 Appeal No. 118 of 1995, which arose from dismissal of suit (Regular Civil Suit No.227 of 1989). 3] The facts leading to the litigation that are narrated by the respondents/plaintiffs are as under- . The respondent Nos. 1 and 2 are the daughters of respondent No.4 Bharatbai, whereas original respondent No.3 Laxmibai was paternal grand-mother of the respondent Nos.1 and 2. It is case of the respondents that, at the time of the suit transaction of 1987, they were only the members of the joint family, which owned inter-alia land Survey No.182 having area of 2 Acres and 2 Guntha. The respondent Nos. 1 and 2 said that they were minors and they had 1/4th share in the land each, alongwith their mother and paternal grand-mother. They said that, in 1987 the appellant purchased the entire suit land from their mother Bharatbai. They stated that, Bharatbai could not have sold their share in the land without taking permission of the Court under the provisions of Hindu Minority and Guardianship Act. They said that the transaction was not binding on them. Therefore, they filed a suit for recovery of possession of 3/4th share in the suit land. Both the Courts below held that the transaction was bad for want of permission. But learned Judge of the First Appellate Court took upon himself a task of effecting partition of suit land. He took into account the events that had taken place before the 3 S.A.No.22.03 transaction. He observed that Narhari, the father of respondent Nos. 1 and 2 died in 1984, prior to his father, who probably died soon after Narhari's death, prior to the suit transaction. He then want on to discuss in his judgment the fact unnecessarily as to what would be the shares of the members of joint family and came to conclusion that the respondents joint would have 31/36 share in the suit property. He thereby indicated that the appellant's vendor had 5/36 th share in it and appellants would retained it. . The respondent No.3 asserted that she had not authorised her daughter-in-law Bharatbai to sell her undivided share in the suit land. 4] After hearing submissions of both the parties and after taking into account the pleadings of respondents-plaintiffs, which I have narrated above, it is clear that they did not come to the Court for partition and that they came to the Court with assumption that they had 3/4th share. The learned Judge of the first Appellate Court, in my view, erred in giving details of the partition etc. Since the Courts below held that the transaction was bad for want of permission of the Court and authority to sale 1/4th share of Laxmibai, respondent No.3. They are certainly entitled to get 3/4th share of the suit land back from the appellant. But obviously and since equity demands that the appellant would be able to retain 4 S.A.No.22.03 1/4th share of the suit land which fell to his vendor Bharatbai. Thus, the Appeal is partly allowed. The operative part of the impugned Judgment of the First Appellate Court is set aside and it is substituted by following order- ORDER 1] Respondent Nos. 1, 2 and original respondent No.3, through their legal representative shall be entitled to 3/4th share of the suit land and same shall be delivered to them by effecting equitable partition of the land. 2] The partition shall be effected by the Collector. 3] Separate enquiry regarding mesne profit shall be undertaken. 4] There shall be no order as to costs. 5] The Civil application No. 182 of 2003 in second Appeal No. 22 of 2003 stands dismissed. Sd/- (A.V. NIRGUDE, J.) MTK/ok