1 FARAD CONTINUATION SHEET. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. SECOND APPEAL NO.436/2004. Smt.Kamalbai Harishchandra Bangar and ors. ..vs.. Smt.Draupadibai and ors. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, office Memoranda of Coram Court's or Judge's appearances, Court's orders or directions order and Registrar's order. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= CORAM: C.L.PANGARKAR,J. DATE : 15th February, 2008. 1. Heard Mr.Choube, Advocate for the appellants and Mr.Sudhir Malode and Mr.S.A.Gordey, Advocate for the respondents. 2. This appeal has been filed by the defendants against whom decree was passed by the Trial court, which is confirmed by the first appellate court. The decree relates to partition and separate possession of the property. It is not disputed that the suit property originally belonged to one Sitaram, who had left behind him two sons namely; Govindrao and Maroti. The plaintiffs are the heirs of Govindrao while the defendants are the heirs of Maroti. It is the case of the plaintiff that Govindrao 2 had married to one Laxmibai and Laxmibai was the original plaintiff in this suit along with her two daughters. The defendants are the wife and daughters of Harikrishna, who was son of Maroti. The plaintiffs sought partition of the suit property. 3. The defendants resisted the suit on three counts mainly. First; that Laxmibai was not the wife of Govindrao as alleged, secondly; on the ground that the suit for partition was barred by limitation and third ground was that Draupadabai and Parvatibai and other two plaintiffs were not the daughters of Laxmibai born from Govindrao. The trial court as well as the first appellate court found that Laxmibai was married wife of Govindrao and two other plaintiffs Draupadabai and Parvatibai were the daughters born to Laxmibai from Govindrao. It seems that both the courts below have not only relied on the oral evidence but had mainly relied on the Vyavastapatra said to have been executed by Maroti in favour of Mainibai and Laxmibai. Mr.Chaube, learned counsel for the appellant, submits that the court below have wrongly interpreted this document. The document does show that Mainibai and Laxmibai were widows of Govindrao. The submission has no force. The courts have rightly interpreted the document. I have also gone through the said document. The 3 document clearly mentions that deceased Govindrao was the husband of the two ladies. The fact that the word 'husband' is used in the document clearly suggests even Maroti recognised Mainibai and Laxmibai as widows of Govindrao. This document was executed as long back as in the year 1942. By this document, rights were given to Laxmibai and Mainibai to recover the rent of this premises so that they would be able to maintain themselves. It is also mentioned that the property was given to both the ladies in lieu of their maintenance. Laxmibai was very much alive after 1956 Act came into force, naturally her right matured into full ownership. The courts below have considered this aspect and have found that Laxmibai had become the owner of the suit property. 4. As far as the evidence of paternity of Draupadabai and Parvati is concerned, the plaintiffs have examined themselves and have stated that they are the daughters born to Laxmibai from Govindrao. There is no reason to dispute their statements. Laxmibai in fact died even before the evidence could be recorded therefore, her evidence could not have been recorded. The best evidence, therefore, that was available was of those two ladies themselves. Further more, it has to be borne in mind that once it is established that there was a 4 marriage between Laxmibai and Govindrao, any child born to Laxmibai has to be treated as having been born out of wed-lock. There is a presumption under Section 112 of the Evidence Act that the child born during the continuance of a valid marriage is a legitimate child. In view of this, I do not find that the courts below have committed any error nor do I find any perversity in appreciation of the evidence. No substantial question of law is involved in the appeal. The appeal is dismissed. JUDGE pzc