1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 1050/2005 Late Balwant Tukaram Lagad, Since expired – represented by Shri Shivaji Rambhau Lagad, Age : 68 years, Occu. Agri. R/o Kolgaon Tq. Shrigonda, Dist. Ahmednagar. ...Appellant. (Orig. plaintiff). Versus 1 Sau. Vithabai Kisan Lagad, Age : 67 years, Occu. Agri. and household, 2 Shri Bapu Laxman Bandal, Age : 70 years, Occu. Agriculture, 3 Shri Eknath Laxman Bandal, Age : 62 years, Occupation : Agriculture. 4 Shri Khanderao Laxman Bandal, Age : 56 years, Occu. Agril. 5 Shri Shivaji Laxman Bandal, Age : 50 years, Occu. Agril. All r/o Ghargaon, Tq. Shrigonda Dist. Ahmednagar. ...Respondents. ........ Shri S.B. Bhapkar, Advocate for appellant. Shri S.C. Havelikar h/f Mr. S.S. Jadhavar, Advocate for respondents no.1 to 5. 2 CORAM : A.V. NIRGUDE, J. Date : 08th June, 2010 ORAL JUDGMENT:- 1 Heard. 2 This appeal is filed against mainly the finding recorded by the first appeal Court. Though even at trial stage, the judgment went against the appellant. Initially, the original plaintiff Balwant filed this suit seeking declaration that certain properties which stood ostensibly in the name of his wife, was his property and that his wife was only a benami with further declaration that the sale deeds executed by his wife and his adopted son of the same property in favour of the other respondents – purchasers, were void and not binding. At the trial stage, it was held that the transaction between Balwant or his wife was not benami one and so mainly on this ground, the suit was dismissed. During the pendency of the suit, Balwant died. When he had filed the suit, he was 95 years old and for prosecuting the suit, he had appointed one Shivaji as his attorney. After Balwant’s death, Shivaji set up claim to be only legal representative of Balwant because Balwant had executed Will in his favour in respect of the suit property. The contesting defendants – respondents no. 1 to 5 challenged the locus of Shivaji to continue the suit as legal representatives of Balwant. They even challenged the validity of the Will and the Court below framed a issue as to whether 3 Shivaji could prove his locus. Shivaji led evidence to prove the Will but the learned trial court erroneously opined that it would not be proper for him to decide the validity of the Will because such question did not arise in the suit. This finding however was corrected by the learned judge of the first appellate court. She examined the evidence and held that the Will was not proved beyond reasonable doubt. In view of this finding, it is obvious that Shivaji lost his locus to continue with this litigation. The question as to whether the suit transaction of 1942 was benami or otherwise, would fade into significance. The appeal should fail. It does not give rise to any substantial question of law. ORDER The appeal stands dismissed. [A.V. NIRGUDE, J.] tsk/