This Second Appeal takes exception to the judgment and decree dated 28th January, 1994 by which the decree passed by the Trial Court in Regular Civil Suit No.533/1985 dated 30/11/1986 came to be set aside.

2. The above Second Appeal admitted on 7.12.1999, however, no substantial question of law was framed whilst admitting the Appeal.

3. The facts involved in the above Second Appeal can be stated thus:

The common ancestor of the plaintiffs and the defendants is one Baliram, who died on 3.2.1959. The said Baliram left his widow Thakabai, and a son namely Amrut. Amrut had two sons namely Bhaurao and Deorao. Thakabai died on 16.7.1993 and Bhaurao died on 26.7.1973 leaving behind widow namely Savitribai and minor daughter namely Rekha alias Malti. Wife and daughter of Bhaurao has filed Regular Civil Suit No. 533/1985 for partition and separate possession. Deorao was the defendant no.1 to the said suit and Amrut was the defendant no.2. It was the case of the plaintiffs that there was a joint family property of Bhaurao and Deorao and their father Amrut and said joint family held property Survey no.33/1A admeasuring 12 acres at village Kohole Jateshwar. Survey no.16/2, admeasuring 5 acres, 11 gunthas, Survey no.21/1 admeasuring 2 acres of village Sakhare, and survey no.19 admeasuring 1 acres, 35 gunthas of village Nimswala. The joint family also had a residential house on a plot admeasuring 70' x 60'. The plaintiffs claim 5/12th share in the said property. It was the case of the plaintiffs that after the death of Bhaurao, defendant no. 1 was in possession of the entire joint family property. It was further her case that she was driven out of the house after death of her husband and though she issued notice dated 3.9.1983 claiming partition, she was not given her share resulting in the filing of Regular Civil Suit No.533 of 1985.

4. The defendants contested the said suit by filing their written statement. They denied that there was any, joint family of Bhaurao and Deorao. It was their case that during the life time of Amrut. Bhaurao had separated from the joint family and he did not have share in the suit property after partition. It was stated that the said Bhaurao died while living separately. From the point of view of the present Second Appeal, it is relevant to note that the defendants contended that the son of Bhaurao was a necessary party to the said suit and the since he was not party, the suit was liable to be dismissed on the said ground. The Trial Court framed relevant issues. Insofar as the issue, whether the property was a joint family property, the Trial Court recorded an affirmative finding in that respect. However, insofar as the maintainability of the suit on account of non-joinder of the son of Bhaurao as a party to the said suit, the Trial Court held that since the whereabouts of the said son was not known to the plaintiffs as well as the defendants and since it was the case of plaintiff no. 1 who was mother, that her son was given in a missionary, the Trial Court was of the view that the son of Bhaurao was not a necessary party to the said suit. The Trial Court, therefore, decreed the said suit and granted 5/12th share to the plaintiffs.

5. Aggrieved by the decree passed by the Trial Court, the defendants Deorao and Chandrabhaga had filed Regular Civil Appeal NO.161/1987. The First Appellate Court confirmed the finding of the Trial Court insofar as the issue regarding property bring a joint family propel1y is concerned, however, insofar as the maintainability of the suit was concerned, the First Appellate Court was of the view that in the light of the case of the plaintiff no.1 and in the light of the statement made by defendant no.1 Deorao, it could not be said that there was a civil death of the son of Bhaurao. The First Appellate Court was of the view that it was not the case of plaintiff no. 1 i.e. the mother that she was not aware about the whereabouts of her son. The First Appellate Court was of the view tha