1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR Second Appeal No. 214 of 2004 Yamunabai Govinda Dukare & Ano. Vs. Tarachand Kisan Sarve & Ors. Office Notes, Office Memoranda of Coram, appearances, Court orders or directions and Registrar's orders Court's or Judge's orders Shri P. A. Markandeywar Adv. for appellant. CORAM: C. L. PANGARKAR J. Dated: 22 nd April, 2008. Heard counsel for the appellant. This is an appeal by the unsuccessful plaintiffs. Plaintiffs had instituted a suit for partition and separate possession of the property. Further she claimed that the suit property belongs to her 2 father Bhadu. Bhadu according to plaintiffs had left behind him two sons, Nathu and Kisan and the plaintiff. She claims that she has 1/3rd share in the suit property being heir of Bhadu. Defendants have resisted the suit on various grounds. Learned Judge of the trial Court found that plaintiff has 1/9th share in the suit property and holding so he decreed the suit. Defendant therefore preferred an appeal before the District judge. Additional District Judge who heard the appeal found that the suit was bad for non joinder of necessary party and also for failure to bring in the common hotchpotch the entire property. He also found that Bhadu did not leave behind him any property at all and therefore plaintiff was not entitled to any share as such. Holding so he allowed the appeal and 3 dismissed the suit. This second appeal is therefore preferred by the original plaintiffs. Shri Markandeywar the learned counsel for the appellants contends before me that finding of first appellate Court is wrong. According to him the suit could not be said to be bad for non joinder of parties as well as non inclusion of the entire property in the suit for partition. It appears from the judgment of the first appellate Court that Nathu defendant No.1 had sold the property to one Bawne. Plaintiff has not made said Bawne party to the suit and has not challenged the alienation made by Nathu. If at all plaintiff wanted the partition of the joint family property upon death of the father, it was necessary for her to have made Bawne party to the suit who is in cultivating possession over the suit property. 4 Suit for partition is not maintainable without inclusion of the entire property in the suit . It appears that the learned Judge of the first appellate Court has considered the evidence with regard to the partition of the property amongst Bhadu and his sons Nathu and Kisan. It appears that he found that Nathu and Kisan had partitioned the entire property while Bhadu was alive in the year 1969-70 and they were cultivating the said property separately. No share was taken by Bhadu. Therefore when Bhadu died he did not leave behind him any property. The daughter has a share in the father's property, since Bhadu did not leave behind any property as such either ancestral property or any self acquired, the daughter does not get any right to claim anything from brothers. In view of this the learned Judge of the first appellate Court has rightly considered 5 the provisions of law and evidence on record. There is no substantial question of law involved in the appeal. Appeal is dismissed in limine. JUDGE svk