1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 345 OF 2009 Shri Narhari alias Narendra Ganpat Jadhav & ors. ... Appellants v/s Shri Bharat Chandrakant Jadhav ... Respondent Mr.R.S.Bhalerao for the appellants. Mr.S.M.Kelkar for the respondent. CORAM: SMT.NISHITA MHATRE, J. DATED: 1ST SEPTEMBER, 2009 P.C.: 1. The second appeal has been filed by the defendants in the Special Civil Suit No. 698 of 2006. The suit has been filed for possession of the suit property which the plaintiff/respondent claimed, had devolved upon him on account of the will being left by his grandfather Ganpatrao Ramji Jadhav. Defendant No.1 is the uncle of the plaintiff and the son of Ganpatrao. Defendant No.2 2 is the wife of defendant No.1 and defendant No.3 is the son of defendant No.1. Admittedly, defendants did not appear before the Court nor did they file the written statement. It is contended that, it was because of the mistake or negligence of their advocate that the written statement was not filed. The suit which was filed in the year 2006 was decreed in the year 2007 during which time the appellants took no care to change the advocate or to appear before the Court and contend that their advocate has been negligent and, therefore, they should be permitted to file the written statement. In these circumstances, the suit has been decreed ex-parte. 2. The plaintiff had produced before the Court a partition deed which was executed between Ramji’s four sons i.e. including Ganpatrao. That partition deed was executed on 14.8.1947. Ganpatrao left behind the will, under which the plaintiff claims the property. The Trial Court has therefore accepted the partition deed as well as the will and held that the plaintiff had proved his case. The defendants filed Civil Appeal No.279 of 2008 in which it was contended that Ganpatrao had executed 3 the will in favour of the plaintiff under his undue influence and in view of his advanced age. It was also contended that Ganpatrao had no right to bequeath the ancestral property. One of the grounds raised in the appeal was that the defendants should not be penalized for the default or negligence of their advocate. The appellate Court after framing the points, has held that the defendants did not make out any sufficient cause for their non- appearance before the Trial Court. The appellate Court has observed that the advocate for the defendants had stated before the Trial Court that it was not possible for him to file the written statement in view of the fact that he did not have any instructions from the defendants. In these circumstances, the appellate Court found that the reason for the defendants’ non-appearance before the Trial Court was not genuine. 3. The Trial Court also accepted the will executed by Ganpatrao on 2.1.1998 and therefore decreed the suit. 4. In the present appeal, the learned advocate appearing for the appellant i.e. the defendants, 4 reiterates the submission that the defendants should not be penalized because of the negligence of their advocate. This, in my opinion, cannot be a substantial question of law. In any event the appellate Court has found that the defendants have not shown sufficient cause for their non- appearance before the Trial Court. This being a finding of fact, cannot be interfered with in the second appeal. 5. As regards the merits of the case, according to the defendants, the property which Ganpatrao had bequeathed was ancestral property and, therefore, he had no right to will out the same. However, the partition deed which was produced on record before the Trial Court indicates that the partition of the ancestral property was effected in the year 1947 itself and therefore, the property which came to the share of Ganpatrao became his self-acquired property. Therefore, he could then decide to dispose of that property which came to his share in any manner that he desired. Significantly, there is no material on record to indicate that the appellant No.1 was born prior to the partition of 1947. 5 6. No substantial question of law arise in the present second appeal. Therefore the appeal is dismissed. 7. In view of dismissal of the second appeal, Civil Application No. 1184 of 2009 also stands dismissed. ..... 6