HANMANTA LAXMAN THORAT Vs. DHONDAVVABAI HANMANTA THORAT

JUDGEMENT

(1.) This is defendants' appeal against an appellate decree of the Extra Assistant Judge, Sholapur, dismissing their appeal against the decree passed by the Civil Judge, Junior Division, Akkalkot, declaring that the respondents Nos. 1 and 2 and the appellant No. 1 have 1/3rd share each in the suit land and the sale effected by defendant No. 1 in favour of defendant No. 5 in respect of Survey No. 36/1 was not binding on the plaintiffs.

(2.) The respondent No. 2--original plaintiff No. 2 is a son of respondent No. 1 -- original plaintiff No. 1 and the appellant No. 1 Hanmanta. It is the case of the plaintiffs that this Hanmanta married appellant No. 2 -- original defendant No. 2 Nagawa while the marriage between him and respondent No. 1 Dhondavvabai was subsisting. The appellants Nos. 3 and 4 are the sons of appellants Nos. 1 and 2. Original defendant No. 5 was the purchaser of Survey No. 36/1. It is not disputed and both the Courts below have found that Survey No. 36/1 and Survey No. 145/1 of village Mal-kavathe, Taluka Sholapur, District Sholapur were ancestral property of the appellant No. ]'s family. It was also found as a fact by both the Court below and it is not disputed in the Second Appeal that this property was obtained by the appellant No. 1 in partition with his father and brothers in 1958. It was also not disputed that just prior to the filing of the suit, the appellant No. 1 and the respondents Nos. 1 and 2 formed a joint family. It appears that the appellant No. 1 took appellant No. 2 as a wife while the marriage between appellant No. .1 and respondent No. 1 was subsisting and that led to the disputes between the appellant No. 1 and respondent No. 1. She, therefore, instituted a suit on behalf of her minor son and herself claiming l/3rd share each in the two fields mentioned above. She has also stated in the plaint that Survey No. 26/1 was sold by appellant No. 1 to respondent No. 3 -- original defendant No. 5 without any legal necessity and that sale was not binding on their shares. The suit was resisted by the defendants on numerous grounds which it is not necessary to enumerate.

(3.) The learned trial Judge, on consideration of the evidence led by the parties, held that the property was ancestral property arid that the appellant No. 1 had got this property in partition with his father and brothers. The trial Judge also held that the plaintiffs and appellant No. 1 were entitled to l/3rd share each in the property. He also held that the sale effected by the appellant No. 1 in favour of the defendant No. 5 was effected without any legal necessity and was not binding on the plaintiffs. He, therefore, decreed the plaintiffs' suit. Aggrieved by that decree, the defendants filed an appeal which was heard by the Extra Assistant Judge, Sholapur. He affirmed the finding recorded by the trial Court and dismissed the appeal. It is against this judgment and decree that the present appeal has been filed by the appellants.