1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 859 OF 2008 Digambar Rava Patil & others .. APPELLANTS VERSUS Pandharinath Rava Patil & another .. RESPONDENTS Shri V.P. Dhorde, Advocate for the appellants. Shri V.B. Patil, Advocate for the respondents. ===== CORAM : R. M. BORDE, J. DATE : 14 th September, 2009 PER COURT : 1 This is an appeal by original defendant nos. 2 to 4 raising exception to the concurrent judgments recorded by the courts below. 2 Respondent nos. 1 and 2 / original plaintiffs instituted Regular Civil Suit no. 46/1992 claiming partition and separate possession of the suit property. According to plaintiffs one Ganpat was the original owner of the property. He had left behind his widow by name Dhanabai, defendant no. 5. Defendant no. 1 Rawa is the son of Ganpat whereas plaintiff no. 1 2 Pandharinath is the son of defendant no. 1. Plaintiff no. 2 Jijabai is the first wife of defendant no. 1 Rawa. Plaintiffs claim that Rawa had performed second marriage with one Nirmalabai during life time of plaintiff no. 2. As such, second marriage of defendant no. 1 Rawa is not legal and the sons and daughters born out of the wedlock have no entitlement to the ancestral property. Defendant nos. 6 and 7 Bhikubai and Suman are the daughters of Rawa. Plaintiffs contend that they have entitlement to the suit property and their share has been denied by defendant no. 1. 3 Defendants appeared and resisted the suit by filing written statement. According to defendant no. 1 his marriage with Nirmalabai is legal and proper and defendant nos. 2 to 4, according to defendant no. 1, are his legitimate sons. Defendant no. 1 also disputes the nature of the property and contends that it is self-acquired property and not ancestral one. Defendant no. 1 as such prays for dismissal of the suit. 4 Trial court after considering the rival contentions raised by the parties framed issues and after receiving evidence led by the parties recorded finding that the plaintiffs have established their case and as such granted decree in their favour. It is recorded by trial court that plaintiffs have proved 3 that the property in dispute is ancestral property. It has also been held by the trial court that gift deed executed in favour of other defendants is illegal. Trial court thus granted decree in favour of the plaintiffs. Judgment and decree passed by the trial court was subjected to appeal at the instance of defendant nos. 2 to 5 in Regular Civil Appeal no. 52/1997 which came to be heard and disposed of by Adhoc Additional District Judge, Amalner who was pleased to dismiss the same by judgment dt. 15-7-2006. 5 I have perused the judgments recorded by both the courts below. It is evident from the record that defendant no. 1 has solemnised second marriage during subsistence of first marriage and as such, defendant nos. 2 to 5 cannot have independent claim in the ancestral property during life time to Rawa. They can at the most claim share out of the property which can be allotted to defendant no. 1 Rawa. First appellate court has accordingly computed the shares which can be allotted to the plaintiffs and defendants. I do not find any error committed by the courts below in recording reasons or in computing the shares which can be allotted to the parties. No substantial question of law arises for consideration in the appeal. Appeal therefore stands dismissed summarily. 4 6 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa859.08.odt