1 S.A. 409 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 409 OF 2010 Anusayabai W/o Paraji @ Subhash Panchal & another Appellants V E R S U S Paraji @ Subhash S/o Manohar Panchar Respondent Mr. S.Y. Suryawanshi, Advocate for appellants CORAM : S.V. GANGAPURWALA, J. DATED : 7th April, 2011 PER COURT : 1. This is plaintiff’s Second Appeal. The plaintiff had filed a suit for partition and separate possession. The trial Court dismissed the suit. The plaintiff preferred an appeal, the appellate Court also dismissed the appeal, confirming the Judgment and Decree passed by the trial Court. The plaintiff has assailed the said Judgment in the present Second Appeal. 2. Shri Suryawanshi, learned counsel for the appellant vehemently submitted that, in fact, the Courts below have not arrived at a 2 S.A. 409 of 2010 concluded finding that the appellant No. 1 was a second wife. They have only arrived at a conclusion on preponderance of probabilities, and in fact, it is proved that the appellant No. 1 is the first wife. 3. The learned counsel further contends that even Sunita, who claimed to be first wife is not examined as such adverse inference is required to be drawn. The learned counsel further contends that even otherwise appellant No. 2 is the daughter born to the appellant from the defendant, and is entitled for the share. The learned counsel relies on the provisions of section 16 of the Hindu Marriage Act, so also the Judgment of the Apex Court in a case of “Smt. Parayankandiyal Eravath Kanapravan Kalliani Amma & others V. K. Devi and others, reported in AIR, 1996 S.C. 1963”. According to the learned counsel, the property was an ancestral property and was allotted to Paraji, and as such, at least the appellant No. 2 will have a right in the said property. The Judgment of the Apex Court in case of Smt. Parayankandiyal Eravath Kanapravan Kalliani Amma & others V. K. Devi and others” referred supra would be of no assistance to the appellants, as the Apex Court has succinctly, in para No. 79, held that the Section 16 of the Hindu Marriage Act, is limited to the property of the parents. Here in the present case, admittedly the properties are 3 S.A. 409 of 2010 ancestral properties. 4. With the assistance of learned counsel, I have gone through the Judgment. It is the cardinal and fundamental principle of civil jurisprudence that a particular fact is to be proved by preponderance of probabilities, and not beyond reasonable doubt. The Courts below have considered the oral, as well as documentary, evidence and have arrived at a conclusion that the appellant No. 1, in fact, was the second wife and the marriage of defendant with Sunita is still subsisting. As such, the appellant No. 1 is not entitled for any share. 5. If it is proved that appellant No. 2 is the daughter of appellant No. 1 born from the defendant, then in view of Section 16 of the Hindu Marriage Act, the appellant No. 2 would be entitled to the property of her parents but could not be entitled to his share in the ancestral property. Even the plaintiffs had contended in the plaint that the property is ancestral property and has been allotted to Paraji. When the nature of the property is ancestral, the appellant No. 2 would not be entitled for any share in the suit property at this stage. If the appellant No. 2 proves her status as a daughter born to appellant No. 1, from defendant then she will be entitled to the property that will be left behind by the defendant. 4 S.A. 409 of 2010 6. In the light of the same, Second Appeal, being sans substantial questions of law, is dismissed. However, there shall be no order as to costs. ( S.V. GANGAPURWALA, J ) SDM*473.10SA/160311