1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 1619 OF 2005 Vithal s/o Bala Choudhary & others .. APPELLANTS VERSUS Changdeo s/o Bala Choudhary & others .. RESPONDENTS Shri D.R. Jayabhar, Advocate for the appellants. ===== CORAM : R. M. BORDE, J. DATE : 5 th August, 2009. PER COURT : 1 Heard Shri Jaybhar, learned counsel for the appellants. 2 This is an appeal by original plaintiff raising exception to the judgment and decree passed by the 1 st Adhoc Additional District Judge, Ahmednagar thereby modifying the judgment and decree passed by the 5 th Jt. Civil Judge, J.D., Ahmedngar in Regular Civil Suit no. 380/1988 decided on 31-7-1990. 2 3 Respondent / original plaintiff Changdeo instituted suit claiming partition and separate possession of the ancestral property in the hands of defendant no. 1. Plaintiff and defendant nos. 2 and 3 are the real brothers whereas defendant no. 1 was their father. It is the contention of the defendants that the suit property is not an ancestral property but is self acquired property of defendant no. 1. Trial court as well as the first appellate court on consideration of evidence has recorded finding that the property in question is an ancestral property and as such the plaintiff is entitled to have share in it. Trial court awarded 1/3 rd share to the plaintiff whereas the first appellate court reduced the share allottable to plaintiff to 1/4 th share. It is the contention of defendant nos. 2 and 3 that defendant no. 1 during his lifetime has executed will-deed in their favour and bequeathed the property to them. However, appellate court has recorded finding and rightly held that defendant no. 1 father has capacity to dispose of the property to the extent of his entitlement i.e. to the extent of 1/4 th share. As such, the first appellate court held defendant nos. 2 and 3 entitled to have 1/4 th share which could have been claimed by their father. The share which could be allotted to father i.e. defendant no. 1 has been allotted to defendant nos.2 and 3 on the basis of will deed allegedly executed by defendant no. 1 in favour of defendant nos. 2 and 3. The first appellate 3 court as such reduced the share allottable to plaintiff to 1/4 th share. The view adopted by the first appellate court appears to be proper. No substantial question of law arises for consideration in the appeal. Appeal therefore stands dismissed summarily. 3 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa1619.05.odt