IN THE HIGH COURT OF JUDICATURE AT BOMBAY VPH CIVIL APPELLATE JURISDICTION FIRST APPEAL No. 2404 OF 2008 WITH CIVIL APPLICATION No. 6284 of 2008 Ujwala J. Dudwadkar ... Appellant Vs Narendra Ramkrishna Survey & Anr. ... Respondents Mr. Rakesh Bhatkar, for the Appellant. None for the Respondent. CORAM: A. P. DESHPANDE, J. DATED: JANUARY 30, 2009. P.C.: ---- . This appeal is directed against the judment and decree passed by the Civil Judge, Senior Division, Ratnagiri. The appeal is filed by the original plaintiff, whose suit has been dismissed. The parties have not disputed execution of the will by their father. The appellant/plaintiff is the daughter whereas the defendant/respondent is the son. By filing the suit, the plaintiff claimed the declaration of title in regard to the suit property, in view of the admitted position of execution of will by the father. The issue lies within the narrow factual campass and the same is, as to what is bequeathed in favour of the defendant and what is bequeathed in favour of the plaintiff. - 2 - 2. The relevant portion of the will comprising Clause (4) if free translated reads thus- "Municipal House No. 611, situate at Shivaji Nagar was purchased by me under a registered sale-deed. I am bequeathing the said land together with bungalow in favour of my son Narendera under this modified registered will deed, and no one else shall have any right against the said bungalow or the land. At the time of the purchase of bungalow, I had taken Rs.15,000/- from my daughter Mrs. Ujwala Jaiprakash Dudhwadkar (maiden name - Chi. Sarojbala). In consideration of the said sum, I am bequeathing the open land in front of the bungalow, meaning thereby, the plot over which she has raised house construction. No one shall claim any right over the said portion of the land." 3. It is thus, clear that the entire land together with Mun. House No. 611 has been bequeathed in favour of the son Narendra, who is respondent herein; whereas the appellant/plaintiff has been given the plot of land, situate in front of the bungalow, meaning thereby plot over which she has - 3 - constructed the house. Hence, what has been bequeathed in favour of the daughter is the plot underneath the construction of her house. 4. The submission made by the learned counsel for the appellant is that under the Municipal Building Rules, 2/3rd portion of the land has to be left open/ kept vacant, hence not only land underneath structure of the house is bequeathed but 3 times the said plot of land which is covered by the building has been bequeathed. It is undisputed that the building/house constructed by the appellant is over an area of 94.04 Sq.mtrs; whereas the plaintiff has claimed ownership of land 3 times the said plot area viz 300 Sq. mtrs. The testament cannot be construed in the light of the Building Byelaws. It is interesting to note that the plaintiff is claiming ownership over the shop premises which fall within the area of 300 Sq. mtrs., for which claims is made in the Suit. Had the father of the plaintiff desired to bequeath the other structures standing nearby the Municipal house to the plaintiff, the same would have been so described in the will. The property bequeathed in favour of the Appellant is precisely described in the will. After referring to the same vaguely, it has been clarified by stating so as to mean the house structure, standing on the plot in front of house No. 611 meaning thereby the house - 4 - structure and plot of land admeasuring 95.04 Sq. mtrs. The trial Court has rightly decreed the suit of the plainiff to the extent of the property bequethed in favour of the plaintiff/appellant and has rightly rejected the claim in relation to the other properties. Perusal of the judgment reveals that the Court below has taken correct view of the matter and requires no interference. In the result, there being no merit in the appeal, the same is dismissed. 5. In view of dismissal of appeal, Civil Application No. 6284 of 2008 stands dismissed, being rendered infructuous. Sd/- [ A. P. DESHPANDE, J.]