1 S.A. No.291.2000 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No.291 OF 2000 Pandhari S/o Kerba Wadjkar & others .. APPELLANTS VERSUS Bhausaheb S/o Mukundrao Hakke & others ...RESPONDENTS ... Smt. M.A. Kulkarni, Advocate for the appellants Shri S.S. Manale, Advocate for respondent Nos. 1 & 2 Shri S.N. Boiwar, Advocate for respondent No. 8 ... CORAM : S.V. GANGAPURWALA, J. DATE : 13th December, 2010. PER COURT : This is defendants Second Appeal. The present respondent / Original defendant had filed a suit for partition and separate possession contending that the suit properties are the ancestral properties. The defendant No. 1 without legal necessity has alienated the said 2 S.A. No.291.2000 properties. The trial Court on appreciation of the evidence decreed the suit of the plaintiff. The defendants preferred an appeal. The appellate Court also confirmed the Judgment and Decree of the trial Court and dismissed the appeal. The defendants have assailed the said Judgment in the present Second Appeal. 2. Mrs. M.A. Kulkarni, learned Counsel for the appellants with all her persuasive skill canvassed that the suit properties are received by the appellant from his uncle and in that case the same would be an obstructed heritage as such plaintiff would not any right in suit properties. The defendant No. 1 would be a absolute owner and shall have exclusive right to deal with the suit properties. The learned Counsel further contended that the documents relied by the Courts below i.e. Exh. 98 and 103 are produced after the evidence was over and as such the defendants did not get any opportunity to adduce evidence on the same. The learned Counsel further contended that the parties are from Latur region which is part of the erst-while State of Hyderabad and the 3 S.A. No.291.2000 principles of the Bombay School do not apply. As such, the wives would not get any right to file the suits for the said properties. To buttress her submission learned Counsel relied on Judgment of Andhara Pradesh High Court in case of “Aduumill seethnamahalakshmamma V/s Yerneni Chalamaiah and others, reported in AIR, 1974 Andhara Pradesh 130”. The learned Counsel further contended that the shares has not been properly calculated and 1/5th share has been given to each widow. 3. Per Contra, Shri Manale, learned Counsel for the respondents submit that both the Courts on appreciation of evidence have concurrently come to the conclusion that the suit properties are the ancestral properties. It has also been found that the sale was not for any legal necessity. According to the learned counsel appreciation of evidence does not suffer from any perversity and as such the same would be outside the realm of section 100 of Civil Procedure Code. 4. With the assistance of learned Counsel 4 S.A. No.291.2000 for the respective parties I have gone through the judgments delivered by both the Courts below. Exhibit 98 & 103 are the certified copies of public documents i.e. Pahani Patrak, which is admissible in evidence. The trial Court and the 1st appellate Court on perusal of the said documents so also the oral evidence have come to the conclusion that the property was in the name of the brother of the defendant No. 1 for the joint family of Laxmanrao and defendant No. 1. Vide Exh. 103 it is shown that the suit fields were partitioned in the year 1960 and one share was allotted from the field to the defendant No. 1. These are old documents which establish the fact, that the property is an ancestral property, as the documents were public documents the same were admissible in evidence. Even the lower appellate Court observed that the defendants who filed the appeal have not canvased about the nature of the property not being an ancestral property. The parties were aware about the nature of disputes and have lead the evidence regarding the same. The Courts have also held that sale was not for legal necessity. 5 S.A. No.291.2000 5. Regarding the claim that wives would not be entitled for partition during the life time of defendant No. 1 is concerned, and the reliance placed on full Bench Judgment of Andhra- Pardesh High Court referred supra is concerned, the same may not be relevant. The suit is filed in the year 1976 i.e. after enforcement of Hindu succession Act, 1956. It is trite law that when a partition is effected between father and the sons the mother also gets the share. The plaintiffs are the wives and also the sons of the defendant No. 1. Even otherwise sons have right to claim partition in respect of ancestral property. The Courts below have properly allotted the shares to the respective parties. 6. In the light of the above, the conclusion drawn by the courts below is possible conclusion. The Second Appeal cannot be entertained on the ground that some other conclusion could have been possible. In the light of above, Second Appeal is dismissed. However, there shall be no order as to cost. 6 S.A. No.291.2000 7. At this stage, Mrs. Kulkarni, learned Counsel states that this Court initially had grated stay to the possession. The said prayer be continued four weeks. The appeal is of the year 2000, as the matter is old one prayer for stay is rejected. In view of the disposal of the Second Appeal, the Civil Application is also disposed of. [S.V. GANGAPURWALA] JUDGE SDM*