1 IN TH HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 83 OF 2007 WITH SECOND APPEAL NO. 84 OF 2007 Kum.Rupali Balaso Ugare, Minor, hence next friend and acquainance and legal guadian Sou. Suman Shivaji Takale. ... Appellant (Org.Plaintiff) Versus Shri Eknath Rafbanna Ugare & Ors. ... Respondents (Org.Defendants) Ms. Archana B.Kologi, Advocate, for the appellant. Mr. P.D.Pise, Advocate, for the respondent Nos. 1 & 2a. Mr. Nitin Muley i/b. Mr. G.S.Godbole, Advocates for respondent No.4. CORAM: J.H.BHATIA,J. DATE: 14th August, 2009. P.C. 1. Heard the learned Counsel for the parties. 2. The present appellant is the original plaintiff. She had filed Regular Civil Suit No.93 of 2000 for partition and separate possession to the extent of her 1/3rd share in the suit property.The plaintiff, a minor also claimed certain 2 maintenance from the joint family property till partition is effected. According to her, the suit property was purchased in the name of her grandfather Eknath – defendant No.1 out of income of the joint family property. Defendant No.2 is the son of defendant No.1 Eknath. Father of the plaintiff had died. It was contended that the defendant no.1 had sold 3 Ares of land out of the suit land Survey No. 301 admeasuring 32 Ares to defendant No.3 without any legal necessity or for the benefit of the joint family. Defendant Nos. 1 and 2 did not appear and the matter proceeded exparte. Defendant No.3 alone contested the suit. According to him, the suit property was required to be sold to clear the dues of the Co-operative Bank was taken for the family necessity. After hearing the parties, the trial Court decreed the suit rejecting the contentions of the defendant no.3. Decree for partition to the extent of 1/3rd share of the appellant/plaintiff was directed. The sale deed in favour of defendant n.3 was declared to be void. Defendant Nos. 1 and 2 were also directed to pay the maintenance till partition of the family property or till she married. The decree was challenged by the defendant No.3 in Regular Civil Appeal No.147 of 2004. Pending the litigation, defendant No.3 had sold the property to Laxman Babu Ugare. Therefore, with permission of the Court, he has also filed a separate Regular Civil Appeal No.148 of 2004. Both the appeals were decided by the common impugned order dated 2.12.2006. The appellate Court came to conclusion that the sale deed dated 29.10.1998 executed 3 by defendant Nos. 1 and 2 in favour of the defendant No.3 was valid being for legal necessity. It was also found that the defendant No.3 is a bonafide purchaser without notice. However, the appellate Court found that the defendant No.1 – Eknath has five daughters, who are also entitled to share in the property in case of partition in view of the amendment in the Hindu Succession Act. It was held that in view of this, the plaintiff may be entitled to get not more than 1/8th share and not 1/3rd share as claimed by her. In the result, the decree passed by the trial Court was set aside. The said judgment is challenged in the present two Appeals by the original plaintiff. 3. It is material to note that the suit for partition was filed in the year 2000. The amendment to the Hindu Succession Act came into force in 2005. Naturally, at the time of filing the suit in the year 2000, the plaintiff could not have imagined about the future amendment and as at the relevant time the daughters of the defendant No.1 could not be entitled to get share in the joint family property in case of partition but could claim share only in the share of their father after his death. Therefore, they were not necessary parties at that time. They became necessary parties because of the amendment in Hindu Succession Act pending the First Appeal. Therefore, in my considered opinion, the first Appellate Court should have remanded the matter to the trial Court with a 4 direction to implead the daughters of the defendant No.1, as defendants in the matter. However, instead of doing that, the appeals were allowed and the suit was dismissed on the ground that necessary parties were not impleaded. 4. In view of the above circumstances, it will be in the interest of justice to set aside the judgments of both the Courts below and to remand the matter back to the trial Court. 5. For the aforesaid reasons, both the Appeals are allowed. The judgments passed by both the Courts below are hereby set aside. Regular Civil Suit no.93 of 2000 is hereby remanded back to the trial Court with liberty to the plaintiff to implead the daughters of the defendant No.1 as parties in the suit and thereafter the trial Court shall proceed with the matter afresh as per law. In case, after the fresh trial it is found that the sale deed in favour of defendant No.3 executed by defendant Nos. 1 and 2 was not for legal necessity, the trial Court shall direct that at the time of effecting partition, as far as possible, the land sold to the defendant No.3 and later on to the defendant No.4, shall be allotted to the share of defendant No.1 or defendant Nos. 1 and 2 so that the interest of defendant no.3 as well as the interest of plaintiff and other defendants, who are to be joined, may be protected. Laxman Babu Ugare,who had purchased from the 5 defendant No.3 during the pendency of the litigation shall be impleaded as defendant no.4. Pending the final decision in the suit, the defendant no.3 and now defendant no.4 shall not create any third party interest and shall not change the nature of the property. The parties shall bear their own costs throughout. 6. As both the Appeals are disposed of, Civil Application Nos. 178/2007, 179/2007, 180/2007 and 181/2007 do not survive and stand disposed of. (J.H.BHATIA,J.)