1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 132 OF 2003 Vishwanath Shankarrao and another ..Appellants Versus Sulochana Madhavrao and others ..Respondents ... Advocates appearing for : Appellants: Shri P.G.Godhamgaonkar, Respondent 1 : Shri A.S.Deshmukh, Respondents 2 to 4 : Served. ... CORAM : R.M.BORDE, J. Dated : 23.7.2009 PER COURT :- 1. Heard Shri Godhamgaonkar, learned Advocate for appellants. 2. The appellants are raising an exception to the concurrent judgments and decrees of the court below. 3. The appellants are the original defendants 4 and 5. They were purchasers of the property from defendants 1 and 2. Respondents 1 to 3 (original plaintiffs) instituted RCS No.341 of 1993 claiming partition and separate possession of the properties left behind by Rama, father of defendants 1 and 2 and husband of defendant 3 Parvatibai. Rama had two sons, namely; Datta and Ganpati and two daughters, namely; Sulochana and Shakuntala. Ganpati died, survived by widow Laxmibai and daughter Shivkanta (original defendants 2 and 3.) 2 It is contended by plaintiffs that deceased Rama left behind two properties and plaintiffs are entitled to claim 1/5th share therein. It is contended that deceased Ganpati got the properties recorded in his name in the revenue record without knowledge of the plaintiffs and has denied to allot share to them. As such, the plaintiffs were constrained to file the suit for partition and separate possession. Defendants have also sold some portion of the properties behind back of Rama. 4. Defendant 1 appeared in the suit but failed to file the written statement and as such the suit proceeded ex-parte against him. Defendants 2 and 3 filed written statement and contended that after death of father in law of defendant No.2, the partition was effected between her husband Ganpati and defendant No.1 Datta. During partition, the plaintiffs have surrendered their rights in the suit properties and therefore, the properties were got divided between the brothers i.e. Datta and Ganpati. Deceased Ganpati was suffering from an incurable disease and later on succumbed to it. In order to meet the medical expenses, defendants 2 and 3 sold certain properties in favour of other defendants. Defendant No.5 has set up a defence that after demise of Rama, partition was effected between Datta and Ganpati and before purchase of the property, he verified the entries in 7/12 extract and other revenue record and thereafter, purchased the same. According to him, the relief claimed by the plaintiffs, in respect of cancellation of sale deed cannot be granted. 5. The trial Court frames issues on the basis of rival pleadings of the parties and after recording evidence of the respective parties, reached a 3 conclusion that the plaintiffs have proved the case and as such granted decree in their favour. Said judgment and decree was subjected to Regular Civil Appeal No. 35 of 1995 before the learned Additional District Judge, Biloli, District Nanded. The lower appellate Court, after considering the evidence, documents, rival pleadings and submissions of the parties, dismissed the same. 6. Shri Godhamgaonkar, learned Advocate for the appellants has strenuously contended that the properties in dispute are the ancestral properties of Rama and Ganpati and that the properties have been alienated for meeting out the legal necessity and therefore, the transactions cannot be said to be bogus and frivolous. It is further contended by him that the plaintiffs, during the partition effected earlier, had relinquished their rights and as such they are not entitled to claim partition in respect of the suit properties. 7. I have perused the judgments recorded by both the courts below. So far as relinquishment of the property rights by the plaintiffs is concerned, admittedly, there is no document of surrender of rights executed by the plaintiffs in that respect. Surrender of Rights in the immovable property is compulsorily required to be registered under Section 17 of the Indian Registration Act. In absence of a registered document, it cannot be said that the defendant has substantiated the contention in respect of relinquishment of the property rights by the plaintiffs. Apart from the ocular version of defence, there is nothing on record to derive a conclusion that the plaintiffs have relinquished their share. 4 8. So far as ancestral nature of the property and purchase of the property by defendants 4 and 5 for meeting out the legal necessity is concerned, it is to be noted that in the plaint itself, the plaintiffs have contended that the properties belonged to Rama and on his demise, the rights were crystallized in favour of the plaintiffs. The contentions raised by the plaintiffs in that regard have not been controverted by defendants in the written statements. In absence of any specific defence to that effect and in absence of evidence controverting the said contention, it cannot be held and recorded that the properties in dispute are not the ancestral properties. 9. Apart from this aspect, the courts below have considered the defence of legal necessity raised by defendants and on appreciation of evidence placed on record, the Courts below have recorded a concurrent finding that defendants have failed to establish that there existed any legal necessity on the part of their predecessor in title in alienating the properties. 10. In this view of the matter, the appeal does not require consideration. The submissions made by Shri Godhamgaonkar, learned Advocate for the appellants are essentially the matter of appreciation of evidence. No substantial question of law has found to have been involved in the present appeal. 11. In the result, Second Appeal stands dismissed. No order as to costs. (R.M.BORDE, J.) ... 5 akl