1 sa273.09 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.273 OF 2009 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Coram: Shrihari P. Davare, J. Date : 18.01.2011. 1. Heard Shri P.G. Gunale learned Advocate for the appellant and Shri Hemant Surve, learned Advocate for Respondent No.1. Shri I.D. Maniyar, learned Advocate for Respondent Nos. 2 and 3 is absent. 2. Unsuccessful plaintiff has preferred present second appeal, challenging the judgment and order of dismissal of Regular Civil Appeal 1 of 2008, rendered on 21.11.2008 by Adhoc District Judge-1, Jalna, which was filed by the present appellant-plaintiff assailing the judgment and order of dismissal of his suit bearing R.C.S. No.71 of 2002 by learned Civil 2 sa273.09 Judge, Junior Division, Bhokardan, on 22.12.2006. Parties hereinafter are referred to as per their original status i.e. Plaintiff and Defendants. 3. At the outset, it may be noted that there are concurrent findings recorded against the plaintiff. The Plaintiff filed suit bearing R.C.S. No.71/2002 for declaration and perpetual injunction and came with the case that the suit land Survey No.49 (1) (i.e. Gat No.36) admeasuring 1 hectare 1 R. situated at village Takli (Dawatpur), Taluka Bhokardan was owned and possessed by father of the plaintiff and Defendant Nos. 2 and 3. However, since the father of the plaintiff was in doldrum, financially, he mortgaged the suit land with defendant No.1, by oral agreement in presence of the witnesses for Rs.600/= and on 29.12.1969, he handed over possession of suit land to defendant No.1 for 30 years. However, it is the case of the plaintiff, in the meantime, it was decided between the plaintiff and defendant that after repayment of Rs.600/=, defendant would return the 3 sa273.09 suit land in favour of the plaintiff . However, thereafter, in spite of repeated requests by plaintiff, defendant avoided to give possession of suit land in favour of the plaintiff. It is also the case of the plaintiff that after expiry of 30 years period of mortgage on 29.12.1999, the plaintiff issued notice to Defendant, but he did not reply the same and hence the plaintiff was constrained to file the suit. 4. It is also the case of the plaintiff that his father had executed a Will in his favour in respect of the suit land and in the said Will, there was mention in respect of mortgage agreement with the defendant. It is, therefore, case of the plaintiff that he is owner of the suit land by virtue of testamentary document. Accordingly, plaintiff filed suit for declaration of his ownership and redemption of oral mortgage. 5. Defendant No.1 resisted the suit claim of the plaintiff, by filing written statement and contended 4 sa273.09 that the father of the plaintiff, namely, Budhakha sold the suit land to him on 29.4.1971 by executing an agreement to sell. It is the contention of the defendant that he is the owner and possessor of the suit land and mutation entry was recorded in his name, in respect of the suit land on the basis of the said agreement to sell. It is the contention of the defendant that the plaintiff filed present suit on the basis of false Will and incorrect facts and hence, prayed for dismissal of the suit. 6. After considering the evidence adduced and produced by the parties and the rival submissions advanced by learned counsel for the parties, the trial court dismissed the suit on 22.12.2006. Being aggrieved and dissatisfied by the said dismissal of the suit, the plaintiff preferred R.C.A. No.1 of 2008 before the District Court, Jalna, but the same also came to be dismissed by learned Adhoc Dist. Judge, 5 sa273.09 on 21.11.2008. Both the said judgments and orders of dismissal have been assailed in the present appeal. 07. As regards the contention of the plaintiff in respect of the Will, it is apparent that entire property cannot be permitted to be bequeathed under the Mohammedan Law and there is restriction to the extent of 1/3rd share in the property of the bequeather. Besides that, it is also observed by the learned trial court that as per Mohammedan law, a mohammedan person cannot execute Will of his property in favour of his own heirs and there is also restriction on such permission to execute the will deed that he can execute the Will in favour of his heirs, but with the consent of his all legal heirs. However, apparently, such consent was not shown by the plaintiff. It is further observed by the trial court that the plaintiff has shown by way of will deed that his father had given entire suit land in favour of the plaintiff, which is against the provisions of the Mohammedan Law and the plaintiff has failed to 6 sa273.09 show that other legal heirs of his father had given consent for transfer of entire suit land in his favour. Hence, the contention of the plaintiff based based on illegal Will cannot be accepted. The said observation and finding was confirmed by the first appellate court and there is substance therein. 8. As regards another plea of the plaintiff that his father had orally mortgaged the suit land with Defendant no.1 for thirty years in presence of the witnesses, it may be stated that the plaintiff has not given names of the witnesses in whose presence his father had mortgaged the suit land with defendant No.1, as alleged by him, nor any such witness was examined and hence, the said contention of the plaintiff in respect of oral mortgage bears no substance. 9. In the circumstances, no substantial question of law could be formulated and, therefore, present second appeal bears no substance and same is devoid 7 sa273.09 of any merits. 10. In the result, present second appeal, which is sans merits, stands dismissed. (SHRIHARI P. DAVARE, J.) pnd/sa273.09