IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 71 OF 2008 Baban Kashinath Lavange...... ...... ...... Appellant V/s Pandit Kashinath Lavange...... ...... ......Respondent. Ms.A.R.S.Baxi, Adv. For the appellant. Mr.A.B.Vagyani, Adv. For respondent No.1. Mr.Pramod Pawar, Adv. For respondent No.4. CORAM: R.V. MORE, J. 25th NOVEMBER, 2008. PC: Heard Ms.Baxi, learned advocate for the appellant, Mr.Vagyani, learned advocate for respondent No.1 and Mr.Pawar, learned advocate for respondent No.4. Admit on following substantial question of law: i) Whether lower appellate court committed an error of law in calculating the shares of the parties to the suit? 2. By consent of parties matter is taken up for final hearing as the controversy is about the shares of the parties in the suit property. Brief facts giving rise to the present second appeal are as follows: Respondent No.1 filed Regular Civil Suit No.281/2000 being old Special Civil Suit No.1394/92 for partition and separate possession. In this suit defendant No.1 was Kashinath, father of 1 present respondent No.1-plaintiff. Defendant No.5-Sou.Gitabai was the legally wedded wife of defendant No.1-Kashinath and defendant No.3-Tanhubai is admittedly second wife of Kashinath. Defendants 2 and 4 are son and daughter respectively begotten from second wife Tanhubai. During the pendency of the suit Gitabai-defendant No.5 died in the year 1995. Defendant No.1-Kasdhinath died in the year 2002 and defendant No.3-Tanhubai died in the year 2003. The suit properties are agricultural lands and house property and there is no dispute that both these properties are ancestral properties. The trial Court decreed respondent No.1-plaintiff's suit and he was granted 4/6th share in agricultural land and defendants 2 and 4 were granted 1/6th share each in agricultural land. The share in the house properties was denied to the respondent No.1 on the ground that inspite of several opportunities he failed to produce the gram panchayat's extract of the property. 3. The present appellant challenged the aforesaid decree of the trial Court and preferred Regular Civil Appeal No.766/04. It is worthwhile to mention here that respondent No.1-original plaintiff neither challenged the same nor filed cross objections in the lower appellate court. The lower appellate court disposed of the appeal by the impugned judgment and decree thereby granting 5/6th share to respondent No.1-plaintiff and 1/12th share each to the appellant and respondent No.4. This decree is now challenged in the present second appeal. 2 4. Having heard the learned counsel for respective parties, in my considered view, the lower appellate court committed an error of law in fixing 5/6th share of respondent No.1-plaintiff and 1/12th share of appellant and respondent No.4 each. The lower appellate court fixed the share on the basis of notional partition immediately before the death of father Kashinath-defendant No.1 and in this notional partition 1/3rd share was given each to Kashinath, respondent No.1- Pandit and defendant No.5-deceased Gitabai, the first wife and 1/3rd share of deceased Kashinath was again divided amongst respondent No.1-plaintiff, appellant-defendant No.2 and respondent No.4- defendant No.4. In my opinion, since Gitabai died in the year 1995 prior to the death of Kashinath she was not entitled for any share in the notional partition,. Therefore in notional partition Kashinath and respondent No.1-plaintiff each will get half share and half share of the deceased Kashinath will again be divided amongst respondent No.1- plaintiff, appellant-original defendant No.2 and respondent No.4- original defendant No.4. Thus the share of respondent No.1-plaintiff will be 1/2 + 1/6th share i.e. 4/6th share and share of the appellant and respondent No.4 will be 1/6th share each. The trial Court in this regard had correctly fixed the respective shares. The appellate court incorrectly modified the trial court's decree. 5. So far as submission of respondent No.1 that he ought to have been given share in the house property is concerned, I do not find any merit in the same,. The trial Court denied him the share in the house 3 property on the ground of his failure to produce gram panchayat's extract. The respondent No.1-plaintiff did not challenge this decree either by filing independent appeal or by filing cross objections. In the present second appeal also the plaintiff is respondent No.1. In that view of the matter, now respondent No.1-plaintiff cannot be allowed to claim partition in the house property. In the aforesaid facts and circumstances of the case I dispose of the second appeal by passing the following order : Second appeal is partly allowed. Judgment and decree dated 12.10.2007 passwed by the Ad-hoc District Judge-8, Pune in Regular Civil Appeal No.766/04 is quashed and set aside and the trial Court' s judgment and decree dated 2.9.2004 passed in Regular Civil Suit No.281/2000 being old Special Civil Suit No.1394/92 by the learned Civil Judge, J.D., Khed is restored. There shall be no order as to costs. 6. In view of disposal of second appeal civil application No.185 of 2008 does not survive. 25.11.08 (R.V. MORE, J.) 4