1 sa297.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No. 297 OF 2010 Shakuntalabai W/o Girjaba Gaikwad .. APPELLANT -VERSUS- Nana S/o Manohar Tribhuwan and another ...RESPONDENT CORAM : S.V. GANGAPURWALA, J. DATE : 22nd December, 2010. PER COURT : This is plaintiff's Second Appeal. The plaintiff filed suit for partition and separate possession, which came to be dismissed. The plaintiff preferred appeal before the District Court. The District Court also dismissed the appeal. The plaintiff assailed the said judgment in the present Second Appeal. 2. Mr. P.F. Patni, the learned Advocate for the appellant contended that by preponderance of probability, the plaintiff has proved that she is born from Manohar. The plaintiff has proved by 2 sa297.10 oral evidence, the factum of marriage between her mother and Manohar and same was prior to 1986. Mr. Patni, the learned Advocate for appellant further contended that even assuming that the marriage was not legal and valid still illegitimate child has got share in the property of the father in view of Section 16 of the Hindu Marriage Act. According to the learned counsel, the Courts below have not properly appreciated the oral evidence. The long standing co- habitation of Manohar with the mother of the plaintiff, would give rise to presumption that the plaintiff is born from Manohar in view of Section 112 of the Indian Evidence Act. 3. Per-contra, Shri. U.D. Dalvi, learned Counsel holding for Shri. Mujtaba Gulam Mustafa, learned Advocate for respondent no.1 contended that both the Courts have concurrently held that paternity of the plaintiff can not be proved and the case is based on appreciation of evidence and no interference is called for. 4. With the assistance of the learned 3 sa297.10 Counsel, I have gone through the judgment. The plaintiff could not produce any documentary evidence to substantiate her claim. Even the transfer certificate produced on record did not inspire confidence, on the contrary was suspicious. The Courts below have discussed the anomalies in the said transfer certificate. The plaintiff could not prove her case by preponderance of probability. The oral evidence led also did not support the case of the plaintiff to prove her paternity. When the same itself is not proved, no question arises of the plaintiff getting any share in the property of Manohar. 5. In the light of above, Second Appeal does not involve any substantial question of law and as such, dismissed. However, no order as to costs. [S.V. GANGAPURWALA] JUDGE gas/sa297.10