1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 696/2006 (Ranjana Haribhau Bichewar VERSUS Atish Taterao Kadam & others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Shri Amol S. Mardikar, counsel for the appellant. Mrs. M.M. Shesh, counsel for the R-1, 3, 4 & 5. CORAM : SMT. VASANTI A. NAIK, J. DATE : AUGUST 27, 2008. Heard the learned counsel for the parties. The appellant is the original defendant no.2. A suit was instituted by the respondent nos.1 to 5 against defendant no.1 Taterao for partition and separate possession of their share in the suit property. The plaintiff nos.1, 3, 4 and 5 were the minor children of Taterao and the plaintiff no.2 Godavaribai was the wife of Taterao. According to the plaintiff, the suit property was the ancestral property and since Taterao had many vices and was squandering the properties, the suit for partition was instituted. According to the plaintiff, Taterao was intending to dispose of the ancestral property for satisfying his vices. After the suit was instituted, Taterao executed the registered sale-deed in favour of the present appellant/defendant no.2 on 04.09.1993 2 transferring the property in favour of the defendant no.2. Defendant no.1 Taterao did not contest the suit. The defendant no.2, the appellant, who had purchased the suit property during the pendency of the suit, however, contested the suit by filing the written statement. It was the case of the defendant no.2 that the suit property was sold to her by Taterao during the pendency of the suit for legal necessity. The trial as well as the first appellate Court concurrently held that the suit property was the ancestral property of the plaintiffs and the defendant no.1. The Courts held that the plaintiffs were entitled to partition and separate possession of the suit property. The Courts held that the transaction effected by the defendant no.1 in favour of defendant no.2 on 04.09.1993, after the institution of the suit was not binding on the plaintiffs. The Courts held that the transaction dated 04.09.1993 was also hit by the doctrine of lis-pendens. Both the Courts also recorded a finding that the defendant no.2 failed to prove that the defendant no.1 had sold a part of the suit properties to her on 04.09.1993, for legal necessity. The judgments passed by the trial as well as the first appellate Court are challenged in the instant second appeal. 3 It is submitted on behalf of the appellant that the Courts were not justified in holding that the defendant no.1 had not sold the suit property to the defendant no.2/present appellant on 04.09.1993 for legal necessity. The counsel for the appellant submitted that the evidence in this regard was not properly appreciated by both the Courts. It is also submitted on behalf of the appellant that since the father is the natural guardian of a minor and since the suit was instituted by the minors through their mother, it was necessary for the mother/plaintiff no.2 to have obtained the permission of the Court for institution of the suit as she was not the natural guardian of the minors. The counsel for the appellant relied on the provisions of Section 6 of the Hindu Minority and Guardianship Act, 1956. The counsel for the respondent submitted that the findings recorded by both the Courts are pure findings of facts and cannot be interfered with, in this second appeal. The counsel for the respondent, therefore, sought for the dismissal of the appeal. I have perused both the judgments in detail. Both the Courts have considered all the relevant material on record so as to render a 4 finding that the suit property was not sold by the defendant no.1 to the present appellant on 04.09.1993, for legal necessity. Even otherwise, the question of the sale for legal necessity could not have arisen in this matter as the defendant no.2 had purchased the property during the pendency of the civil suit and the doctrine of lis- pendens clearly applied to the facts of the case. Both the Courts, therefore, rightly held, while observing that the transaction dated 04.09.1993 was not for legal necessity, that the suit was also hit by the doctrine of lis-pendens. The second submission made on behalf of the appellant is totally ill-founded. The counsel for the appellant has not pointed out any provision of law which prohibits the mother from instituting a suit on behalf of the minor children. The provisions of Section 6 of the Hindu Minority and Guardianship Act have no applicability whatsoever to the facts of this case. Even otherwise, it needs to be noted that the suit is not only instituted by the minor but, is also instituted by the plaintiff no.2, who is a major person and the relief is also claimed by the plaintiff no.2. Moreover, in view of the provisions of Order XXXII Rule 1 of the Code of Civil Procedure, a minor can sue through his next friend. Be that as 5 it may, these pleas are not available to the defendant no.2, who has purchased the suit property during the pendency of the suit and who has not pleaded that she is a bona fide purchaser for value without notice of the pendency of the suit. Since no substantial question of law arises for consideration in this second appeal, the same is dismissed with no order as to costs. JUDGE APTE