1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No.136/2010 (Sumitrabai Vinayakrao Dehankar (Dead) Thr. LR's Anil Vinayakrao Dehankar & others VERSUS Vithabai Manikrao Gotmare & others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri R.L. Khapre, counsel for the appellants. Shri R.M. Patwardhan, counsel for the R-1 & 2. CORAM : SMT. VASANTI A. NAIK, J. DATE : JUNE 29, 2010 . Heard. The appellant is the original plaintiff. A suit was filed by the plaintiff for partition and separate possession of her share in the suit properties. According to the plaintiff, the property was initially owned by Govind. Govind died leaving behind him his widow-Chandrabhagabai, and his daughters plaintiff-Sumitrabai and defendant no.1-Vithabai. Defendant no.2-Lomeshwar is the son of Vithabai. Defendant Vithabai and her son Lomeshwar denied the claim of the plaintiff and further denied that the plaintiff was entitled to half share in the suit properties. According to the defendants, there was an oral partition in the year 1976 between Chandrabhagabai, Sumitrabai and 2 Vithabai. It is the case of the defendants that Chandrabhagabai had made a bequest of her properties in favour of Lomeshwar by a will dated 29th of August, 1992. The defendants, therefore, pleaded that the plaintiff did not have any share in the property which was bequeathed to Lomeshwar by the will dated 29th of August, 1992. Both the Courts, on a proper appreciation of the material evidence on record, held that the defendants had succeeded in proving the validity of the will dated 29th of August, 1992 and had proved that Lomeshwar became the owner of the suit properties in view of the bequest of the properties owned by Chandrabhagabai in his favour. Both the Courts further held that the defendants had succeeded in proving that there was an oral partition between Chandrabhagabai, Sumitrabai and Vithabai. The Courts, therefore, held that the plaintiff was not entitled to partition and separate possession of the share in the property of which Chandrabhagabai was the owner and also the properties of which Vithabai was owner in view of the partition. The Courts, therefore, held that the plaintiff was the owner of the properties which fell to her share in the oral partition of the year 1976. 3 The findings recorded by both the Courts are pure findings of facts based on a proper appreciation of the evidence on record. The judgment reported in AIR 1990 SC 1742 and relied on by the counsel for the appellant cannot be made applicable to the facts of this case as in the reported decision, one of the daughters was excluded in the will but such is not the case here as Chandrabhagabai had made a bequest of her properties to one of her grandsons by excluding both her daughters. The decision reported in 2006(2) BCR 1970 (Damodar Jivan Mhatre Versus Bebibai Baburao Mhatre & others) would also not be applicable to the facts of this case as the oral evidence on record clearly shows that there was an oral partition between the parties in the year 1976 and each party was enjoying the property which fell to their share. Since no substantial question of law arises for consideration in the second appeal, the same is dismissed with no order as to costs. JUDGE APTE