Judgment : 1. Heard the learned Counsel appearing on behalf of the appellant and the learned Counsel appearing on behalf of the Respondent. 2. Appellant is the original Defendant and Respondent is the original Plaintiff. For the sake of convenience, parties shall be referred to as “Plaintiff” and “Defendant”. 3. Plaintiff is the maternal uncle of the Defendant. Plaintiff’s father one Narayan Zantye died in 1946 leaving behind his widow and two sons Gurunath and Chandrakant and four daughters. One of the daughters Sumati had a son Shyamsundar who is the Defendant herein. Plaintiff filed suit against him for declaration that he is the owner of the property which is a residential house and for injunction, restraining the Defendant from obstructing enjoyment of the Plaintiff in respect of the dwelling house (hereinafter referred to as “suit property”). According to the Plaintiff, after death of his father, Plaintiff and his brother Gurunath executed a partition deed which was duly registered dated 7/7/1952 and in the said partition deed, Gurunath, brother of the Plaintiff relinquished his share in the suit property upon payment of Rs 500/- by the Plaintiff. According to Defendant, the said deed could not be termed as partition deed and, at the best, it could be treated as release deed. Secondly, it was contended that the Defendant’s mother had 1/3rd share in the suit property in view of section 3 of the Hindu Women’s Rights to Property Act, 1937 and, therefore the suit property could not have been partitioned. 4. Both the Courts below, however, held that the said document at Exhibit-36 dated 7/7/1952 was a partition deed and as the suit property was partitioned, Defendant’s mother did not have any right in the suit property since she had not challenged the partition and, secondly, though under the Hindu Women’s Right to Property Act, 1937, she had limited right of maintenance, that right came to end when she expired in 1985. 5. The second appeal came up for hearing before the learned Single Judge (Coram: S.A. Bobde, J.) and by judgment and order dated 02/02/2001, the said second appeal was allowed and the judgments and orders of the lower Courts were set aside. 5. The second appeal came up for hearing before the learned Single Judge (Coram: S.A. Bobde, J.) and by judgment and order dated 02/02/2001, the said second appeal was allowed and the judgments and orders of the lower Courts were set aside. Against this order, Plaintiff preferred SLP in the Apex Court and the Apex Court by its judgment and order dated 7/1/2002 observed as under:- “In view of the factum of non-framing of any substantial question of law, we are unable to record our concurrence with the views expressed by the High Court. As such, the order under challenge cannot be sustained and thus stands set aside. The matter, however is remanded back to the High Court for being dealt with appropriately. Incidentally, be it recorded that no third party rights should be created as regards the premises in question. The High Court would do well in disposing of the matter expeditiously and liberty is given to the parties to move the High Court for such expedition.” Thus, the matter was remanded back to the High Court. 6. The learned Counsel appearing on behalf of the appellant submitted that the substantial question of law which was framed at the time of admission of the second appeal is as under:- “Admit on the question of Widows interest being protected by Hindu Succession Act or whether she lost her right merely by partition effected between other coparceners to which she was not a party. 7. The learned Counsel for the Petitioner also submitted following questions as additional substantial questions of law:- 1. The substantial question of law is whether the courts below erred in accepting the so called release deed of 7/7/1952 (Exhibit-36) between the plaintiff and his brother Gurunath, who has admittedly died in the year 1988, when the grampanchayat records admittedly shows that, the suit property stood in the name of the deceased Gurunath till his death in 1988. Under these suspicious and doubtful circumstances it is wrong and impossible to believe that, the deceased Gurunath executed the alleged partition/release deed on 7/7/1952 (Exhibit-36) about 36 years prior to his death. The impugned decrees holding the so called partition/ release deed as valid and legal are perverse and full of legal infirmity or not. 2. Under these suspicious and doubtful circumstances it is wrong and impossible to believe that, the deceased Gurunath executed the alleged partition/release deed on 7/7/1952 (Exhibit-36) about 36 years prior to his death. The impugned decrees holding the so called partition/ release deed as valid and legal are perverse and full of legal infirmity or not. 2. The substantial question of law is whether the courts below committed serious error of law in the circumstances when, the alleged Partition deed / Release deed dated 7/7/1952 (Exhibit-36) is not duly proved by the plaintiff, it is clear that, if there was no partition, then the properties of the family must be treated as joint family properties and on the death of Sitabai in 1985, the share in the property would be liable to devolve according to law on all the heirs, i.e. all her children, the sons and daughters which include the mother of the defendant-appellant herein. If there is no partition in the joint family in the year 1952, the properties are required to be held as joint and consequently the succession would open in the year 1985 upon the death of Sitabai, who admittedly had her 1/3rd share from 1946 onwards, when her husband Narayan died, which has not been defeased nor has been extinguished. 3. The substantial question of law is whether the courts below have committed a serious error of law in their impugned judgments and decrees, in holding and accepting the so called Partition Deed / Release deed of 7/7/1952 (Exhibit-36), when the suit room stood in the joint name of the plaintiff and his deceased brother Gurunath until 1985, which creates a suspicion and doubt as regards the execution and existence of the so called release deed / partition deed of 7/7/1952 (Exhibit-36). On the contrary the courts below ought to have held that the so called partition by way of the alleged relinquish deed of 7/7/1952 (Exhibit-36) is void and unenforceable in law as all the co-sharers are not party to the same. 4. On the contrary the courts below ought to have held that the so called partition by way of the alleged relinquish deed of 7/7/1952 (Exhibit-36) is void and unenforceable in law as all the co-sharers are not party to the same. 4. The substantial question of law is whether the courts below in their impugned judgments and decrees have committed a serious error of law in not considering and appreciating the legal position and the fact that, widow Sitabai has absolute right to the extent of her 1/3rd share in ancestral property, after the death of her husband Narayan in 1946 as per the provisions of Section 3 of the Hindu Woman Rights of Property Act, 1937 and after her (Sitabai’s) death in 1985, her share will devolve upon her heirs including the appellant’s mother Sumati. 5. The other substantial question of law is whether the courts below, in their impugned judgments and decrees have committed a serious error of law in not properly considering and appreciating the legal position that, as per the provisions of Sec. 3 of the Hindu Woman Rights of Property Act, 1937 the widow Sitabai had legal right to the suit property after the death of her husband Narayan in the year 1946. The courts below erred in law in holding that, the widow Sitabai had not claimed partition and she was not given any share in the partition, when admittedly she was not a party to the alleged relinquish deed of 7/7/1952 (Exhibit-36). 6. The other substantial question of law is whether the courts below erred in law in holding that, the widow Sitabai who died in the year 1985 has no right to her husband’s property. It is pertinent to note that, widow Sitabai died in 1985, Gurunath died in 1988, and the suit is of 1990, the alleged relinquish / partition deed is of 7/7/1952 (Exhibit-36). In these circumstances the courts below committed serious error of law in applying the provisions of Hindu Law to decide the rights of the parties and thus the impugned decrees are perverse. 7. The other substantial question of law is whether the courts below committed further error of law as the so called Partition Deed / Relinquish deed is of 7/7/1952 (Exhibit-36), the executor of the same Gurunath died in the year 1988 and the suit is filed in the year 1990. 7. The other substantial question of law is whether the courts below committed further error of law as the so called Partition Deed / Relinquish deed is of 7/7/1952 (Exhibit-36), the executor of the same Gurunath died in the year 1988 and the suit is filed in the year 1990. The plaintiff for the first time after 36 years of the execution of the alleged relinquish deed has come forward with his case that, such a deed was executed by his brother Gurunath. The plaintiff has not brought any independent evidence on record to prove the execution of the alleged relinquish deed. The widow Sitabai and Sumati and other sisters are admittedly not party to the said deed. In these circumstances it is wrong, unjust and illegal to accept and hold that, widow Sitabai had not claimed her share / partition in the year 7/7/1952 (Exhibit-36). 8. Whether the courts below had valid & cogent basis and reasons in the legal evidence on record to pass the decree by ignoring the pleadings and the wholly insufficient documentary and oral evidence produced by the plaintiff on record in the trial court? 9. Whether the impugned judgments and decrees suffer by misreading of evidence and / or suffer from any legal infirmity, by not properly considering and appreciating the fact that, the Plaintiff has failed to prove his case, which is solely based on the alleged release deed of 7/7/1952 (Exhibit-36) between the plaintiff and his brother Gurunath which is projected as partition deed not duly proved by them as required by law and thus they are perverse? 10. The other substantial question of law is whether the courts below had any legal reason to decree the suit without properly and correctly considering the wholly insufficient evidence on record and the same stands vitiated on wrong test or not, are the substantial question of law i.e. the provisions of Section 23 of Hindu Succession Act and Section 14 of the Hindu Woman’s Right to Property Act, 1956 and Section 3 of Hindu Woman’s Right to Property Act, 1937? Whether the impugned judgment and order is based on his opinions, assumptions and conjectures and thus, there is an element of perversity in it? 11. Whether the impugned judgment and order is based on his opinions, assumptions and conjectures and thus, there is an element of perversity in it? 11. Whether the perversity in decreeing the suit by both the courts below based on wholly insufficient evidence of plaintiff by itself is a good and valid substantial question of law worth adjudication by this Honorbale Court. 12. Whether the suit was maintainable in law for non joinder of the three other sisters of the plaintiff or not and for and on the said ground the impugned decrees are perverse or not? 8. It is submitted that the alleged partition deed was not duly proved by the Plaintiff and, therefore, the suit property ought to have been treated as joint family property and after the death of Sitabai in 1985, her share in the property would devolve upon her children and, therefore, the Defendant had right to the said property. It is submitted that both the Courts below committed a serious error of law in holding that the said document was a partition deed particularly since the suit room stood in the joint name of the Plaintiff and his brother Gurunath in 1985 and this created doubt regarding execution and existence of the said deed. 9. The submission made by the learned Counsel appearing on behalf of the appellant cannot be accepted. Both the Courts below have recorded concurrent finding of fact that the said deed was a partition deed and it was duly registered. It will not be possible for this Court to substitute its own view to the view taken by the lower Courts and set aside the concurrent finding of fact. The Apex Court in recent judgment in KoppisettyVenkat Patnam (Dead) through Lrs. vs. Pamarti Venkayamma (2009) 4 SCC 244 has deprecated the practice of the High Courts in setting aside the concurrent finding of fact without formulating substantial question of law. The Apex Court in paras 17 and 18 of the said judgment has observed as under:- “17. It is a matter of common experience in this Court that despite clear enunciation of law in a catena of cases of this Court, a large number of cases are brought to our notice where the High Courts under Section 100 CPC are disturbing the concurrent findings of fact without formulating the substantial question of law.” “18. It is a matter of common experience in this Court that despite clear enunciation of law in a catena of cases of this Court, a large number of cases are brought to our notice where the High Courts under Section 100 CPC are disturbing the concurrent findings of fact without formulating the substantial question of law.” “18. We have cited only some cases and these cases can be easily multiplied further to demonstrate that this Court is compelled to interfere in a large number of cases decided by the High Courts under Section 100 CPC. Eventually this Court has to set aside these judgments of the High Courts and remit the cases to the respective High Courts for deciding them de novo after formulating substantial questions of law. Unfortunately, several years are lost in the process. Litigants find it both extremely expensive and time consuming. This is one of the main reasons of delay in the administration of justice in civil matters.” The ratio of the judgment in the said case squarely applies to the facts of this case. 10. In my view, no substantial question of law is raised in this second appeal. Once it is held that the said document was a partition deed which was executed on 7/7/1952, the Defendant’s mother, at that time, did not have any right. Secondly, in view of section 23 of the Hindu Succession Act, only unmarried daughters could claim a right of residence in the dwelling house. Both the Courts below have observed that the Defendant did not examine his mother Sumati. It was alleged that the Defendant’s mother was deserted by her husband and she was residing in the dwelling house alongwith other co-parceners. However, both the courts below have disbelieved this aspect since no evidence was brought on record. That being the position, the substantial question of law as framed by this Court will have to be answered accordingly that in view of the partition effected between the male co-parcenrs, married daughters did not have any right to claim partition of a dwelling house which was fully occupied. Section 3 of the said Act, therefore, would not come to the rescue of the Defendant. Section 3 of the said Act, therefore, would not come to the rescue of the Defendant. The other questions of law, as formulated by the Counsel for the appellant, cannot be said to be the substantial questions of law since by the said questions, the appellant is trying to challenge the finding of fact recorded by the lower courts. 11. Under these circumstances, no case is made out for interfering with the judgment and order passed by both the lower courts in this second appeal. The second appeal is, therefore, dismissed. Interim order, if any, stands vacated.