1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR SECOND APPEAL NO.311 OF 2009. Motiram Bhadaji Bhirad (dead) thr. Lrs. Smt.Saraswati Motiram Bhirad (deleted) Devidas Motiram Bhirad and ors. ..vs.. Shravan Bhadaji Bhirad and ors. =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- C ORAM : C.L.PANGARKAR, J. DATED : 12th October, 2009. 1. Heard Mr.A.S.Chandurkar, learned counsel for the appellants and Mr.C.A.Joshi, learned counsel for the respondents. 2. This is a second appeal by the original plaintiffs, who lost in both the courts below. 3. The plaintiffs had instituted a suit for partition and separate possession of the suit properties namely 2 Survey Nos.19 and 29. It was the case of the plaintiffs/appellants that the property belonged to one Bhadaji, who effected the partition between his sons from two wives namely; Sonabai and Kashibai. Ganpat was one of the sons from Sonabai while the present appellant and defendants are the sons from Kashibai. While effecting the partition in the year 1952, two properties were put to share of Bhadaji namely; Survey Nos.19 and 29. It was a registered partition-deed. In the said partition-deed, a condition was put that neither Bhadaji nor his wife Kashibai will have a right to dispose of the property and they shall maintain themselves only out of the income of this property. The plaintiff contends that Bhadaji died on 30/6/1974 while Kashibai predeceased on 27/11/1992. The appellant/plaintiff submitted that they came to know that Bhadaji executed a Will in favour of defendants in respect of the suit property in 1968 and subsequently he executed two gift deeds in favour of the defendants on 24/3/1974 in respect of fields S.No.19 and 29. Plaintiff submits that Bhadaji had no right at all to bequeath the property or to gift the said property to the defendants since he was not the full owner of the property. 4. The defendants resisted the suit and contended 3 that Bhadaji was the full owner of the property and he had executed the gift deed and Will in their favour and they are the owners of the property. 5. The learned judge of the trial court, after considering the evidence found that the suit property was self-acquired property of Bhadaji. There was a partition in 1952 and Kararnama putting the restrictions on the right of Bhadaji was void. The learned judge found that Bhadaji had a right to dispose of the suit property either by Will or by gift. Holding so, he dismissed the suit. 6. The appellate court also concurred with the findings recorded by the trial court. 7. The learned counsel for the appellant tried to submit before me that the plaintiffs were at least entitled to share in the property of Kashibai. He submits that charge of the maintenance of Kashibai was put on these two properties and after coming into force 1956 Act, Kashibai had become absolute owner of the suit property by virtue of Section 14 of the said Act. After having considered the submission of the learned counsel for the appellant, I find that there is no force in the contention. After having gone through the partition-deed (Exh.184) it is clear 4 that two properties i.e. survey Nos.29 and 19 were alloted to Bhadaji and they were never alloted to Kashibai as such. To my mind, therefore, Kashibai had not at all acquired any interest in either of these properties. Mr.Chandurkar, learned counsel for the appellants, relied on the decision of the Bombay High Court, reported in 1978 Mh.L.J. 418 (Ramchandra Vishwanath Karve ..vs.. Savitribai Bhikaji Karve). This decision has no bearing on the case at hand, because in the reported case the property was essentially allotted to the widow. In this case there is no allotment of the property to Kashibai at all. The property was positively allotted to share of Bhadaji and in any case there is concurrent findings of fact that the suit property was self-acquired property of Bhadaji and therefore, his wife did not have any interest whatsoever in the property of Bhadaji. In view of this, Bhadaji has had every right to dispose of the property either by Will or by gift or by any other mode. This court in Second Appeal No.169 of 2008 has held that any condition putting restriction on right of disposition of his interest in the property is void. In view of this fact, the condition that was put in partition-deed (Exh.184) was clearly void. No other point was, in fact ,urged by the learned counsel for the appellant. I do not see any substantial question of law involved 5 in the appeal. There is no substance in the appeal. The same is dismissed in limine. JUDGE. chute