1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTIION SECOND APPEAL NO. 190 OF 1991 SECOND APPEAL NO. 190 OF 1991 SECOND APPEAL NO. 190 OF 1991 1) Shri Lahoo Vithal Narvekar, ) aged about 41 years, residing ) at Chandrakant Dhuru Wadi, Agar ) Bazar, Kashinath Dhuru Road, ) Patra Chawl, Dadar, Bmbay-28. ) 2) Ankush Vithal Narvekar, ) aged 36 years, residing at ) Chandrakant Dhuru Wadi, ) Agar Bazar, Kashinath Dhuru ) Road, Patra Chawl, Dadar, ) Bombay 400 028. ) 3) Dilip Vithal Narvekar ) aged about 34 years, residing ) at &post: Shirgaon, Taluka and ) District Ratnagiri. ) 4) Mrs. Shubhangi Sudhakar Murkur ) 2 aged about 40 years, (Maiden ) name Bhimabai Vithal Narvekar), ) residing at Anthony Miranda ) Chawl, Vakila Pipe Line, ) Datta Mandir Road, Vakola ) Church, Santacruz (East), ) Bombay 400 055. ) 5) Mrs. Shraddha Chandrahas Patil ) aged about 35 years, ) (maiden name Vijayabai Vithal ) Narvekar). ) residing at Chandrakantbhai ) Dhuru Wadi, College Lane, ) Veer Savarkar Marg,Boombay400 028) 6) Smt. Rukminibai w/o Vithal ) Narvekar, aged about 66 years ) residing at & Post Shirgaon, ) Taluka & Dist Ratbnairi. ) The heirs and legal representatives of late Shri Vithal Dattatraya ) Narvekar who died at Shirgaon, ) Ratnagiri on 21.3.86 while ) residing at Shirgaon, Taluka & ) 3 District Ratnaigiri, usually ) residing at Chandrakantbhai ) Dhru Wadi, Kashinath Dhuru Road,) Agar Bazar Bombay 400 028. ) (Heirs of original Defendant ) No.1). )..Appellants Versus 1) Shri Datto Sakharam Narvekar, ) aged about 85 years, Occupation ) Agriculturist, residing at ) Shirgaon Taluka & District ) Ratnagiri, since deceased by ) heirs and legal representatives ) A) Smt. Savitribai w/o Dattatraya ) Narvekar, Occupation Household ) Residig at & Post: Shirgaon, ) Taluka & District Ratnagiri ) B) Mrs. Vaijayanti Ramchandra ) Shirdhankar, Occu: Household, ) (previously Champabai ) Dattatraya Narvekar), residing ) at Bhandari Hsg. Society, ) Ganesh Kripa Bldg, No.5, ) 4 Block No.5, First floor, ) Opp. State Bank, Kanjur Village ) Bombay 400 078. ) C) Mrs. Sumitra Keshav Amre, ) (previously Meerabai Dattatraya ) Narvekar), residig at Bhaloti, ) Bldg. No.7), Ground floor, J.J. ) Hospital Compound, ) Bombay 400 008. ) D) Mrs. Anandibai Manohar Keer, ) Married Daughter,Occu: Household) (previously Kusumbai Dattatraya ) Narvekar), residing at Janki ) Bhuvan, Hatiskar Wadi, Sonapure ) Lane, Prabhadevi,Bombay 400 025.) E) Mrs. Taramaqti Harishchandra ) Birje, Married, Occu: Household ) (previously) Nalinibai Dattatraya) Narvekar), residing at Satya ) Wadi, Hatiskar Marg, Prabhadevi ) Bombay 400 028. ) F) Mrs. Prerna Prakash Todankar ) 5 married daughter, Occu:Household) (previously Shalinibai ) Dattatraya Narvekar), ) residing at Kotwadi Patrra Chawl) Bal Govinddas Road, Opp. Bombay ) Glass Co., Mahim, Bombay 400 016) G) Prakash Dattatraya Narvekar, ) son, occu: Service oringinal ) Respondent No.2 residing at ) C/o. Datto Krishna More, ) Manaji Rajuchi Chawl No.4, ) Room No.3, Near Standard Mills, ) Prabhadevi, Bombay 400 025. ) H) Vithal Dattatraya Narvekar, son ) original appellant since ) deceased by his heirs and ) legal representatives: ) H-1) Lahoo Vithal Narvekar, ) H-2) Ankush Vithal Narvekar, ) H-3) Dilip Vithal Narvekar ) H-4) Mrs. Shubhangi Sudharkar Murkur ) H-5) Mrs. Shraddha Chandrahas Patil ) H-6) Rukminibai wd/o Vithal Narvekar ) 6 Aged about 33, Occupation Service) C/o. Datto Krishna More, Manaji ) Rajuchi Chawl No.4, Room No.3, ) Near Standard Mill Prabhadevi ) Bombay 400 025. ) died by legal heirs: ) h-6A) Lahoo Vithal Narvekar ) h-6B) Ankush Vithal Narvekar age 36 years, ) h-6C) Dilip Vithal Narvekar ) age 35 years, ) h-6D) Mrs. Shubhangi Sudhakar Murkar, ) h-6E) Mrs. Sharadda Chandrahas Patil, ) who are already on record as ) appellant Nos. 1 to 5. ) All R/o. Manaji Rajuchi Chawl ) No.4 Near Stand Mill, ) Prabhadevi Bombay - 25. ) 2) Prakash Dattatraya Narvekar, ) aged about 33 years, Occu: ) Service, C/o. Datto Krishna More) Manaji Rajuchi Chawl No.4, ) Room No.3, Near standard Mill, ) Prabhadevi, Bombay 400 025. ) since deeased by his heirs & ) 7 Legal representatrives: ) 2A) Shri Sanjay Prakash Narvekar ) House No. 763, Adarsha Vasahat ) Karvachi Wadi, (Pomedi Budruk) ) Ratnaigir 415 612. ) 2B) Sou. Manali Ichandra Narvekar ) Room No.1 Bhashta Chawl ) Udayam Nagar Road, Ratnagiri ) 4156113. ) 2C) Shri Ajay Prakash Narvekar ) Room No.1 Bhashte Chawl Udayam ) Nagar Road, Ratnagiri 415 512. ) (Heirs of original plaintiff) )..Respondents Mr. G.R.Rege, Advocate for the appellants. Mr. Madhav Jamdar, Advocate, for the respondents. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 11th September,2008 DATE: 11th September,2008 DATE: 11th September,2008 8 JUDGMENT JUDGMENT JUDGMENT 1. The present appellants are the legal representatives of original defendant No. 1 Vithal Dattatraya Narvekar and the present respondents 1A to 1H are the legal representatives of the original plaintiff and the respondent No.2 is the original defendant No.2. 2. Admittedly, the defendant No.1 was the son of original plaintiff Datto Sakharam Narvekar. The plaintiff filed Regular Civil Suit No.78 of 1979 for declaration of his title and possession of the suit land Survey No.148A Hissa No.3 situate at Village Shirgaon, Taluka & District Ratnagiri to the extent of 34-1/2 gunthas.The land also consists of a house, several trees etc. According to the plaintiff, it was a self-acquired property and his sons, who are defendants, have no legal right, title and interest in the suit property. The suit was contested by both the defendants. According to them, the joint family of the plaintiff and the defendants was holding some ancestral property. In the year 1943, the plaintiff had purchased some property out of the nucleus of the joint 9 family but in his own name. Therefore, the suit property was joint. The defendants claimed to be in joint possession of the suit property. 3. Several issues were framed. The trial court came to conclusion that it was self acquired property of the plaintiff, but he was not in exclusive possession of the same. The contention of the defendants was rejected. In view of the findings, the trial Court passed the decree for possession in favour of the plaintiff. That decree was passed on 31.8.1985. Being aggrieved by the said judgment and decree, the original defendant No.1 field Regular Civil appeal No.227 of 1985 and defendant no.2 filed Regular Civil Appeal No.236 of 1985. Both these appeals were heard together and came to be dismissed on 10.1.1991. Pending the said appeals, the original plaintiff as well as the original defendant No.1 expired and their L.Rs were brought on record. The Second Appeal is filed only by the legal representatives of the defendant No.1. According to them, the widow of the plaintiff had executed the decree and taken possession of the suit property. By this appeal, they challenged the findings of the courts below and also they contended that respondent No.1A, being the widow of the original defendant, had no right to execute the decree and to 10 take possession of the property exclusively, because after death of the original plaintiff, the defendants were also his legal representatives and therefore they are entitled to be in joint possession along with other L.Rs. of the plaintiff. 4. The Second Appeal was admitted only on ground (L). It reads as follows : "L) The Lower Appellate Court erred in law, resulting in total failure of justice in not taking into consideration the important fact that during the pendency of the appeal both original defendant no.1 as also the original plaintiff had died and that the heirs of the original Defendant No.1 had also been brought on record as heirs of original plaintif through original Defendant No.1 and that they have been entitled in any event to have a share in the entire property even if the property was held to be of the absolute ownership of original plaintiff by reason of inheritance and that it was absolutely necessary for the lower Appellate Court to allow the appeal even on the said ground and to see that the decree as passed by the Trial Court was set aside as also the Judgment." 11 5. Heard the learned Counsel for the parties. 6. Admittedly, there is a concurrent finding of facts rendered by both the courts below that the suit property was a self-acquired property of the deceased plaintiff and was not the joint family property as claimed by the defendants. There is no material on record to show that these findings were perverse or illegal in the face of the record or evidence. The learned Counsel for the appellant also fairly concluded that he is not in a position to point out any material on the basis of which this concurrent finding can be called perverse or illegal. In view of this position, it is impossible to find any fault with the decree passed by the trial court as well as the judgment rendered by the lower appellate Court. The problem may be only with the execution of the decree and not with the findings of the Courts below. 7. It is true that both the defendants were the sons of the plaintiff. The learned Counsel for the parties make a statement and from the number of L.rs on record, also it is clear that deceased plaintiff had more than one wife and had also children from the different wives. If it was the self acquired property of the 12 plaintiff as held by the both the Courts below,his widows as well as all the children would be entitled to claim the property left behind by him under the provisions of the Hindu Succession Act provided he had died intestate. Mr. Jamdar, the learned Counsel for the legal representatives of respondent No.1 makes a statement that the deceased plaintiff had executed a Will dated 7.2.1981 and had bequeathed the suit property in favour of his widow Savitribai, who is respondent NO.1A. If he had bequeathed his property by Will, on his death his self acquired property or his exclusive property would be dealt with as per the testamentary disposition but if the Will is not proved and if it is found that he had died intestate, the property of the deceased plaintiff would devolve upon his legal heirs as per the provisions of Hindu Succession Act. These questions cannot be dealt with in the second Appeal before this Court. For for that purpose, a separate proceeding may be filed by the concerned parties and claim the property. Whether the suit property received by the respondent No.1A in execution of the decree was received by her as exclusive owner of the same or as one of the legal representatives and/or on behalf of all the legal heirs, can also be looked into in that litigation and not in the present appeal. 13 8 In view of the above circumstances, I find no substance in the Appeal. The Appeal stands dismissed accordingly. 9. In case the present appellant or any other party to this litigation files any proceeding in respect of the property of the deceased plaintiff, the concerned Court shall dispose of the same as early as possible. 10. As the Appeal itself is dismissed, Civil Application Nos.1082/2005,1710 of 2005, 1996/2005 and 1487/2006 do not survive and stand disposed of accordingly. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)