1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Second Appeal No.588 Of 2009 With Civil Application No.8433 Of 2009 Udhav S/o Babarao Jadhav Since died through his legal representatives Sanjay S/o Udhav Jadhav And Others. ... Appellants. Versus Venkat S/o Tukaram Shinde. And Others. ... Respondents. -------- Shri. V.P. Golewar, Advocate for appellants. Shri. S.S. Choudhari, Advocate for respondent Nos.1 to 3. Shri. M.P. Kale & Shri. V.B. Deshmukh, Advocates for respondent Nos.4,5 and 7. -------- CORAM: R.M. BORDE, J. DATE: 24th FEBRUARY 2010 PER COURT : 1) This is an appeal by the original defendants raising exception to the concurrent judgments recorded by the Courts below. 2 2) The suit presented by the plaintiffs claiming partition and separate possession of the joint family property has been decreed by the trial Court. The respondents, original plaintiffs, instituted Regular Civil Suit No. 226 of 1972 claiming one-forth share in the suit property. One Dajiba was the original owner of the suit property. He had two sons, namely, Jotiba and Pandurang. Plaintiff Trivenabai and defendant No.4 – Ansabai are daughters of deceased Jotiba. Defendant No.1 Babarao is son of Pandurang whereas, defendant Nos.2 and 3 are sons of defendant No.1 Babarao. It is contended that Dajiba died prior to 1948 and was survived by two sons – Jotiba and Pandurang. It is contended that the property in dispute was possessed by Babarao, defendant No.1 and Kadubai and as such after coming into force the Hindu Succession Act, limited ownership of Kadubai is transformed 3 into full ownership. The plaintiffs are therefore entitled to have share in the joint family property. 3) The defendants resisted the claim contending that some of the property is not partable as defendant No.1 is in possession thereof in his capacity as tenant. Whereas the other properties in possession of defendant No.1 belong to him. It is contended that as Dajiba died prior to 1948, the plaintiff – Trivenabai, who is daughter of deceased Jotiba, is not entitled to have any share in the property. 4) The trial Court on consideration of the material placed on record recorded a finding that there was oral partition between Babarao and deceased Kadubai widow of Jotiba and in view of the partition she was entitled 4 to have share in joint family property. The revenue entries placed on record support the contention of the plaintiffs in respect of Kadubai's ownership over the suit property along with defendant No.1 Babarao which entitles the plaintiffs to claim partition of the property. The trial Court on consideration of the provisions of Section 14 of the Hindu Succession Act recorded finding that the plaintiffs are entitled to have share in the property. 5) The First Appellate Court while dealing with the appeal presented by the defendants has confirmed the findings recorded by the trial Court. 6) I have perused the judgments recorded by both the Courts below. It transpired from the material placed on record 5 that although Dajiba died prior to 1948 he was survived by Kadubai, widow of Jotiba, who was entitled to share joint family property along with Pandurang. The plaintiffs, as such will have an entitlement to the property which had fallen to the share of Kadubai. Kadubai died after coming into force of the Hindu Succession Act and as such the limited ownership bestowed upon her has been transformed into full ownership. The Courts below, therefore, in my view, have adopted correct approach and held that the plaintiffs are entitled to have share in the joint family property. 7) No substantial questions of law involved for consideration of the appeal. The second appeal is dismissed. Civil Application No.8433 of 2009 stands disposed of. (R.M. BORDE, J.) rsl/ sa.588.09