1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 237 OF 2006 Baban s/o Himmatrao Korade & another .. APPELLANTS VERSUS Haribhau s/o Bhagwanrao Vaidya and another .. RESPONDENTS Smt. M.A. Kulkarni, Advocate for the appellants. Shri S.J. Chapalgaonkar, Advocate for respondent no. 1. ===== CORAM : R. M. BORDE, J. DATE : 31 st August, 2009. PER COURT : 1 Heard Smt. M.A. Kulkarni, learned counsel for the appellants. 2 Plaintiffs / appellants herein instituted Regular Civil Suit no. 290/1993 claiming partition and separate possession as well as for declaration that the sale – deed bearing registration n o. 1045/72 executed on 15-6-1972 by defendant no. 1 in favour of defendant no. 2 be declared as not binding on them. Plaintiffs have also prayed for declaration of ownership in respect of the suit property. According to the plaintiffs, suit property is ancestral one and was in the hands of the father of plaintiff no. 1 i.e. defendant no. 1. The property bears survey no. 120/3. According to plaintiffs brother of defendant 2 no. 1 Tatyarao was owner of the other part of the ancestral land which was having survey no. 120/2. Tatyarao died on 2-8-1957 leaving behind his wife Kashibai and two daughters. As wife of Tatyarao, Kashibai was not able to cultivate the land, on demise of Tatyarao the other part of the survey number was being cultivated by defendant no. 1. It is specifically contended by plaintiffs in paragraph no. 7 of the plaint to the effect that defendant no. 1 by mistake has mentioned in the sale-deed hissa no. 2 instead of mentioning hissa no. 3 and alienated the property in favour of defendant no. 2. According to them, alienation made by defendant no. 1 is without any consideration. The property has been alienated by defendant no. 1 in favour of defendant no. 2 for satisfying his bad vices. It is also mentioned in the said paragraph that hissa no. 3 belongs to defendant no. 1 whereas hissa no. 2 belongs to brother of defendant no. 1, Tatyarao. Plaintiffs within limitation as such claim that they have share in the property, defendant no. 1 has no legal entitlement to alienate the property and moreover, alienation made by defendant no. 1 in favour of defendant no. 2 is not for legal necessity. It is also specifically mentioned in the plaint that the suit is being presented by plaintiff after he attained majority. Plaintiff thus contends that taking advantage of the sale effected by defendant no. 1 in favour of defendant no. 2 they are asserting their possession in respect of the 3 property bearing survey no. 120/3. 3 Defendants appeared and controverted the contentions raised by plaintiffs by filing written statement. Defendant no. 2 apart from denying the adverse contentions raised by plaintiff has contended that the property has been alienated by defendant no. 1 in his favour for meeting the household expenses and alienation is for legal necessity. It is contended that the mistake has occurred while mentioning the survey number in sale deed, however, defendant no. 1 has alienated survey no. 120/3. It is also further contended that defendant no. 1 has executed sale-deeds of both the properties i.e. property belonging to his brother as well as property belonging to him. There are two sale-deeds placed on record by defendants which show that before presentation of the suit, defendant no. 1 was not having title in respect of any of the properties either survey no. 120/2 or 120/3. Defendants as such pray for dismissal of the suit. 4 Trial court after considering the evidence lead by the parties came to the conclusion that the plaintiffs have established their case and as such granted decree in their favour. Appellate court however has reversed the finding recorded by the trial court and directed dismissal of the suit. 4 5 I have perused the judgments recorded by both the courts below. While considering the issue in respect of limitation, trial court has recorded finding that the suit can be said to be within limitation. Plaintiffs are claiming partition in the ancestral property and as such, plaintiff no. 1 is entitled to present the suit within three years after he attains majority. Trial court also held that defendant no. 1 had no entitlement to alienate the other land belonging to his brother and, infact, he has not alienated the property bearing survey no. 120/3 in favour of defendant no. 2. It has also been observed by trial court that the defendants have failed to establish existence of legal necessity. Being aggrieved by the judgment and decree passed by the trial court, defendant no. 2 presented appeal being Regular Civil Appeal no. 1/2002 which came to be heard and disposed of by 5 th Adhoc Additional District Judge, Beed who was pleased to allow the same by judgment and order dt. 15-11-2003. First appellate court has adopted a view that defendant no. 1 has established existence of legal necessity and finding recorded by trial court in that behalf is erroneous. It has been observed by the first appellate court that the suit presented by plaintiff is beyond prescribed period of limitation. First appellate court has relied upon the provisions of Article 109 of the Limitation Act which prescribes the period of limitation as 12 years for presentation of the suit by a Hindu governed by 5 Mitakshara law to set aside his father’s alienation of ancestral property. The period of limitation commences from the date when alienation of the property takes place. According to the first appellate court, by application of section 8 of the Limitation Act, suit can be presented by plaintiff within a period of three years from the date he attains majority. Thus, according to the first appellate court, suit presented by plaintiff is beyond prescribed period of limitation. 6 Learned counsel for the appellants has contended that the plaintiffs are not seeking for setting aside alienation effected by their father however, they are claiming that their father had no entitlement to alienate the joint family property and are claiming their share in the property. Thus, according to the plaintiffs, the view adopted by the first appellate court is improper. Even if it is considered that Article 109 of Limitation Act has no application to the present case, still the view adopted by the first appellate court considering the merits of the contentions raised by appellant before the first appellate court, is not impeachable. Even accepting the contentions raised by the appellant that the view adopted by the first appellate court as regards suit being barred by limitation is incorrect, still considering the merits of the controversy involved in the matter, I am of the opinion that the appeal 6 is not entitled to succeed in the facts and circumstances of the case. It is the contention of the plaintiffs as appearing from the pleadings that the father of the plaintiffs i.e. defendant no 1 had no entitlement to alienate the property in which plaintiffs have share. As stated earlier in paragraph no. 7 of the plaint, plaintiffs have specifically mentioned that father has inadvertently mentioned hissa no.2 in the sale-deed. However, he was entitled to alienate hissa no. 3. Hissa no. 2 infact belonged to Tatyarao, brother of defendant no. 1. It has been pointed out correctly by the defendants that father of the plaintiffs i.e. defendant no. 1 has executed two sale-deeds and those are placed on record. Exh. 118/c is a sale-deed in respect of alienation of survey no. 120/2 whereas exh. 119/c is a sale-deed executed by defendant no. 1 in favour of defendant no. 3 on 16-5-1972 i.e. on the same date on which property was alienated in favour of defendant no. 2. Thus, it transpires from record that both the parts of survey no. 120 i.e. survey no. 120/2 and 120/3 have been alienated by defendant no. 1 on the same date i.e. on 15-6-1972. Apart from this aspect, in the plaint plaintiffs have categorically admitted that it was a mistake on the part of defendant no. 1 to execute the sale-deed in respect of survey no. 120/2. So far as contentions raised as regards existence of legal necessity is concerned, recitals in the sale-deed show that the property has been alienated by 7 defendant no. 1 for meeting the household expenses. It is the case of defendant no. 2 that during 1972, there was famine prevailing in the area and in order to meet the household expenses, the property has been alienated. These facts have been substantiated by defendants by leading oral evidence in that behalf. Plaintiffs come to the court with a contention that defendant no. 1 was addicted to bad vices. However, there is no evidence placed on record to substantiate the contention. The view adopted by the first appellate court on appreciation of evidence as regards existence of legal necessity for making alienation of the property by defendant no. 1 therefore cannot be disturbed. Taking into consideration all the aspects, I am of the view that no substantial question of law arises for consideration in the appeal. Appeal therefore stands dismissed summarily. 7 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa237.06.odt