1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No. 364 of 2010 Rajabhau S/o Ganpatrao Dharmadhikari, Age 58 years, Occu. Agri. R/o Tandulja, Tq. & Dist. Latur. .. APPELLANT VERSUS 1] Sow. Laxmibai W/o vedpathak, Age 54 years, Occu. H.H., R/o Neknur, Tq. & Dist. Beed 2] Sow. Kusumbai W/o Gopalrao Dixit, Age 63 years, Occu. Household R/o Chorakhali, Tq. Kallam Dist. Osmanabad. .. RESPONDENTS ... Shri R.B.Deshmukh, Advocate for Appellant Shri R.S. Sarvadnya, Advocate for respondent Nos. 1 & 2 CORAM :- S.V. GANGAPURWALA, J. DATE : 24th AUGUST, 2010. ORAL JUDGMENT: 1. The appellant assails the concurrent findings of the fact of both the Courts below. The present respondents have filed suit for partition and separate possession, claiming 1/3rd share in Gut No. 294. It is not in dispute that 2 property is an ancestral property. The defence of the present appellant is that the plaintiff had relinquished their right, in the suit property at the time of marriage of the plaintiff. Both the Courts have negatived the theory of plaintiff. 2. Shri Deshmukh, learned counsel for the appellant, contended that this being relinquishment of the share in the joint family property. The oral relinquishment is permissible, for that purpose relied on the Judgment of this Court in the case of “Ramdas Chimna V/s. Pralhad Deorao and Others, reported in 1965 BCI (0) 24”. He further contended that findings of the Court below are perverse, as the evidence has not been appreciated. The pleadings regarding the relinquishment has been specifically averred in the written statement. So also in the evidence the same is substantiated by defendant and his witnesses. The Courts below have not considered the same. 3. Perusal of the Judgment of the Lower Appellate Court, it is manifest that the Court was conscious of the fact that the pleading 3 states about relinquishment of share by the plaintiff. But the Court was found that the said pleadings are vague, when the case is based on theory of relinquishment the details of the same are required to be given. Even, the witnesses have not been given the details of the said relinquishment in their depositions. There was no document of relinquishment, in absence of the same burden lies on the defendant who alleges the relinquishment to prove by preponderance factum of relinquishment. The Courts have found that there was no precise pleadings about the relinquishment with regard to the day, date and time. So also the oral evidence is not satisfactory in that regard. 4. In view of the above, the Second Appeal is dismissed. However, with order as to costs. [S.V.GANGAPURWALA,J] SDM* 364.10SA