1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.234 OF 2008 1 Dashrath s/o Wamanrao Sakhare, age: 4 years, Occ: Agri., R/o Dhangar Takli, Tq.Purna, District Parbhani. 2 Dattatrao s/o Wamanrao Sakhare, age: 66 years, Occ: Agri., R/o Dhangar-Takli, Tq.Purna, District Parbhani. 3 Eknath s/o Wamanrao Sakhare, age: 59 years, Occ: Agri., R/o as above. 4 Shravan s/o Wamanrao Sakhare, age: 51 years, Occupation and R/o as above. 5 Anusayabai w/o Wamanrao Sakhare, age: 86 years, Occ: Household, R/o Dhangar-Takli, Tq. Purna, District Parbhani. 6 Kausalyabai w/o Haribhau Ravandale, age: 56 years, Occ: Household, R/o Dhangar Takli, Tq. Purna, District Parbhani. Appellants Versus Vatsalabai w/o Nagorao Pisal, age: 54 years, Occ: Agri and Household, R/o Kawalgaon, Tq.Purna, District Parbhani. Respondent 2 Mr.A.J.Dalal, advocate holding for Mr.V.D.Salunke, advocate for appellants. Mr.A.M.Gaikwad, advocate for the Respondent. CORAM: R.M.BORDE, J. DATE : 20 th January, 2010. ORAL JUDGMENT: 1 Heard Shri Dalal, learned Counsel holding for Shri V.D.Salunke, advocate for appellants and Shri A.M.Gaikwad, learned Counsel for the Respondent. 2 Admit. By consent of learned Counsel for parties, matter is taken up for final hearing forthwith. 3 The only substantial question of law, that arises for consideration in the appeal is: (1) When plaintiff – Respondent herein herself has given away her share in respect of properties, which are admittedly self acquired properties of defendants, whether first appellate Court was justified in granting decree of partition so far as it relates to all the properties including self acquired properties; and (2) Whether first appellate Court ought to have granted decree directing partition of ancestral properties, namely G.Nos.256 and 462 only. 4 Plaintiff is sister of defendants no.1 to 4, whereas, defendant no. 5 is mother of plaintiff and defendants no.1 to 4. Defendant no.6 is another sister of plaintiff and defendants no.1 to 4. Suit is filed by plaintiff claiming partition and separate possession of five properties belonging to the family. It 3 is not necessary to go into factual details of the matter as plaintiff has admitted in her evidence that all the properties, except G.Nos.256 and 462, are self acquired properties of defendants. The trial Court refused to grant decree in favour of plaintiff and dismissed suit in its entirety. Whereas, first appellate Court has granted decree and held plaintiff and defendant no.6 entitled to have 1/42 share each in all the properties and defendants no.1 to 5 are held entitled to 4/21 share each. 5 Appellants raised a dispute in the instant appeal in relation to ancestral properties, in respect of which first appellate Court has granted decree of partition. It is the contention of appellants that plaintiff herself, in her evidence, has admitted that in the year 1980, there was partition between brothers in presence of father and since then they are residing separately. It is the contention of appellants that in view of clearcut admission given by plaintiff in her deposition, she is not entitled to claim partition in respect of ancestral properties also. It is further contended that suit is not presented within prescribed period after her exclusion from partition was made known to the plaintiff. 6 The first appellate Court has considered all these aspects and arrived at a finding that it cannot be said that there was partition in the year 1980 between late Wamanrao i.e. father of plaintiff and defendants no.1 to 4. The admission appearing in the deposition of plaintiff is in respect of separation of share amongst brothers themselves and they having decided to reside separately. It is not controverted that there was no share allotted either to father or mother during the partition. Although it is suggested to the plaintiff that one of the properties, which is not subject matter of dispute, was kept by father for himself and as such, he did not claim share in two ancestral 4 properties, however, such pleading is not raised by defendants in the written statement and, therefore, case put up by defendants, in that behalf, has been rightly turned down by the first appellate Court. In these circumstances, it cannot be concluded that there was partition by mets and bounds amongst father and four brothers as well as mother in relation to ancestral properties. The statement appearing in the deposition of plaintiff cannot be construed to mean that there was partition amongst father, mother and four brothers and such inference is not permissible in view of the circumstance that admittedly it has not been established that father and mother have been allotted any separate share. The first appellate Court, therefore, has rightly concluded that ancestral property was not put to partition and plaintiff is entitled to secure separate share. 7 Some error is crept in while passing order by the first appellate Court. In paragraph 4 of operative portion of the order, first appellate Court has held plaintiff and defendant no.6 entitled to have 1/42 share each. It has not been specified that allotment of share in favour of plaintiff and defendant no.6 is restricted to ancestral properties only. Although discussion in the body of the judgment leads to the conclusion that plaintiff and defendant no.6 are held entitled to have share only in the ancestral properties, however, it has not been clarified while passing final order. The error appearing in decree of the first appellate Court, therefore, needs to be corrected. It is clarified that plaintiff and defendant no.6 are entitled to have 1/42 share each in ancestral properties bearing G.Nos.256 and 462 only. So far as entitlement of defendants no.1 to 5 in relation to the properties is concerned, it is clarified that by virtue of decree passed by first appellate Court, they would be entitled to have 4/21 share each in the ancestral properties only. 5 8 Except the modification referred to above, decree passed by first appellate Court stands confirmed. Appeal is partly allowed in above terms. In the facts and circumstances of this case, there shall be no order as to costs. In view of disposal of appeal, pending Civil Application does not survive and stand disposed of accordingly. (R.M.BORDE) JUDGE ******* adb/sa23408