-:1:- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.902 OF 2005 APPEAL NO.902 OF 2005 APPEAL NO.902 OF 2005 WITH WITH WITH CIVIL CIVIL CIVIL APPLICATION NO. 1316 OF 2007 APPLICATION NO. 1316 OF 2007 APPLICATION NO. 1316 OF 2007 WITH WITH WITH SECOND SECOND SECOND APPEAL NO. 905 OF 2005 APPEAL NO. 905 OF 2005 APPEAL NO. 905 OF 2005 WITH WITH WITH CIVIL CIVIL CIVIL APPLICATION NO. 1317 OF 2007 APPLICATION NO. 1317 OF 2007 APPLICATION NO. 1317 OF 2007 Shri Madhav Ramchandra Kulkarni. ... Appellant. V/s. Shri Janardan Ramchandra Kulkarni & Ors. ... Respondents. Mr. Ajay Joshi for the Appellant. Mr. Surel Shah for the Respondent No.2. CORAM CORAM CORAM : R.M. SAVANT, J. : R.M. SAVANT, J. : R.M. SAVANT, J. DATED DATED DATED : 27TH AUGUST, 2008. : 27TH AUGUST, 2008. : 27TH AUGUST, 2008. P.C. P.C. P.C. : : : . The above appeals arises out of the common Judgment and Decree dated 28.09.2004 passed by the learned Additional Sessions Judge, Pandharpur by which the decree passed by the Trial Court in Regular Civil Suit No.229 of 1991 and Regular Civil Suit No.239 of 1998 dated 22nd August 2000 came to be confirmed. 2. The Appellant is the original Plaintiff, who had filed Regular Civil Suit No.229 of 1991 for partition and possession of the suit property which according to him was the joint family/ancestral property of the family. The Defendant No.2 in the said suit Janardan who is the brother of the Appellant above-named had filed suit bearing Regular Civil Suit -:2:- No.239 of 1998 for recovery of possession of the suit premises in the said suit being two rooms and damages from the Plaintiff that is the Appellant above-named. Since the subject matter of both the suits being common, both the suits were tried together and decided by common judgment and order dated 22nd August 2000. 3. It was the case of the Appellant/Plaintiff in the Regular Civil Suit No.229 of 1991 that Ramchandra who is Defendant No.1 is the father of the Appellant and real brother of Defendant No.2 Janardan. Defendant No.3 was their relative and Defendant Nos. 4 to 6 were their sisters. It was further his case that the suit properties are joint family/ancestral properties and that the Plaintiffs and the Defendant Nos. 1 and 2 are possessing the properties in common. It was further the case of the Plaintiff that the Defendant No.1 was the ‘Karta’ of the joint family managing the said properties and recovering the income therefrom. It is out of the income of the said suit properties that Defendant No.1 Ramchandra purchased C.T.S.No.4228/2 at Pandharpur. The said property was purchased by Defendant No.1 on 22.12.1972 from one Kondiba Gyanba. The Plaintiff, therefore, claimed 1/3rd share in the suit property. On the Plaintiff being denied his share by the Defendant Nos. 1 and 2 by refusing to divide the properties that the Plaintiff had filed the said Regular Civil Suit No.229 of 1991. The Defendant No.1 filed his written -:3:- statement and denied the claim and contention of the Plaintiff as raised in the suit. The Defendant No.1 denied that the said property could not be disposed of by Will. In so far as C.T.S.No.4228/2 is concerned, it was contended by the Defendant No.1 that Defendant No.2 Janardan was working in the United Kingdom in the year 1967 to 1981 and out of the remittances made by the said Defendant No.2, the said C.T.S.No.4228/2 was purchased. It was the case of the Defendant No.1 that after its purchase, raised construction on the said land. It was, therefore, contended that the Plaintiff has no right and concern with C.T.S.No.4228/2 situated at Pandharpur nor with other properties which are located in the jurisdiction of Kolhapur. 4. In so far as Regular Civil Suit No.239 of 1998 is concerned which was filed by Janardan, it was the case of the Plaintiff Janardan that the said property was purchased by his father out of the amount remitted by him while he was working in the United Kingdom. It is his case that his father purchased C.T.S. No. 4228/2 from the previous owner Kondiba Gyanba on 22.12.1972 and since the date of the sale-deed, the property is in the possession of the Plaintiff. After retirement of Madhav, who is the real brother of the Plaintiff, their father had allowed Madhav to stay in the two rooms in the construction made on the said land out of love and affection. This was pursuant to the deed executed for a period of 4 months and which -:4:- period was expiring on 20.3.1995. After the expiry of the said period, Madhav refused to vacate the premises in question on being called upon to do so. Hence, the said suit was filed by him for recovery of possession and damages at the rate of Rs.100/- per month. The Defendant to the said suit Madhav filed his written statement and contended that the suit property C.T.S.No.4228/2 is the joint family property and he has his share in the property. He denied that the said property was leased to him. 5. The parties went to trial in both the suits. Since in Regular Civil Suit No.229 of 1991 the defence of the Defendants i.e. Ramchandra and Janardan was based on the Will executed by Ramchandra a issue was framed by the Trial Court in that regard. The Defendants examined Raghunath Patil, one of the attesting witnesses to the said Will who deposed that the testator Ramchandra had written the said Will in his presence and also deposed that Ramchandra has signed the said Will in presence of both of us. Meaning thereby himself and the other attesting witness. The Trial Court, on the basis of the said oral evidence as also on the basis of the admission of the Plaintiff Madhav, identifying the handwriting as the will was that of his father Ramchandra held that the said Will was duly proved as per the requirement of Section 68 of the Evidence Act. The Trial Court, therefore, passed a decree in terms of disposition of -:5:- the property in the said Will. In so far as Regular Civil Suit No.239 of 1998 filed by Janardan is concerned, the Trial Court on the basis of the evidence which was on record namely the evidence regarding the remittances made by Janardan while he was in the United Kingdom as also the documentary evidence in the form of the diary maintained by Ramchandra, the said sale-deed executed in favour of Janardan by the erstwhile owner Gyanba as also the evidence of Ramchandra that the said property was purchased out of the funds remitted by Janardan recorded a finding that the said property being C.T.S.No.4228/2 of Pandharpur is the self-acquired property of Janardan and the Plaintiff Madhav therefore could not have any right in the said property. Therefore, both the suits were decreed in so far as the suit filed by Madhav i.e. R.C.S.No.229 of 1991 is concerned, it was decreed to the extent of the share as bequeathed to him by the Will and in so far as the suit filed by Janardan being R.C.S.No. 239 of 1998 is concerned, declaration was issued that the said property i.e. C.T.S.No.4228/2 is the property of Janardan, and Madhav was directed to hand over possession of the rooms in his possession and to pay damages at the rate of Rs.40/- per month from the date of filing of the suit till the delivery of possession. 6. Being aggrieved by the decree passed by the Trial Court dated 22nd October 2000, in both the suits -:6:- Madhav filed two appeals being Regular Civil Appeal Nos.220 of 2000 and 221 of 2000. The lower Appellate Court, by its Judgment and Decree dated 28th September 2004 dismissed both the appeals and thereby confirmed the decree passed by the Trial Court. 7. It is sought to be contended on behalf of the Appellant relying on the Judgment of the Apex Court reported in 2003 SAR(Civil) 104 that the Will has not been proved by a process known to law inasmuch as that one attesting witness was examined. The said attesting witness has not deposed that the other attesting witness has attested the will in his presence. The evidence therefore falls short of the requirement as contemplated under Section 68 of the Evidence Act. It is further to be contended that the step sisters of the Plaintiff i.e. the daughter of Ramchandra from his second wife was not a party to the said suit so as to be granted 1/6th share in the house situated on C.T.S.No.484 D at Kolhapur. 8. As indicated above, the Will has been duly proved by the Defendants in the said Regular Civil Suit No.229 of 1991, the attesting witness Ragunath Patil was examined as Pw-4 who as in terms stated that the said document was signed by Ramchandra "in our presence" thereby meaning in the presence of both the attesting witnesses. Another aspect to be considered is that the Plaintiff Madhav has admitted the -:7:- handwriting of his father Ramchandra and therefore, no fault would be found with the said findings recorded by the Court below. 9. Since, the trial Court had decreed the suit on the basis of the Will which was held to be proved and under the said Will Shobhana Suresh Hershe has 1/6th share in the suit property, the allocation to her of the said share in the decree, therefore, cannot be said to be so abhorrent and unjustified, as is sought to be contended on behalf of the Appellant. 10. Both the Courts below having concurrently held as regards the said Will as also as regards the declaration issued in respect of C.T.S.No.4228/2 the above Appeals do not involve any substantial question of law which are accordingly dismissed. 11. In view of the dismissal of the Appeals, Civil Applications do not survive and are disposed of accordingly. (R.M. (R.M. (R.M. SAVANT,J.) SAVANT,J.) SAVANT,J.)