1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 859 OF 2009 Malhari s/o Vishwanath Zagade .. APPELLANT VERSUS Asrabai w/o Shivram Vidhate & others .. RESPONDENTS Mr. A.K. Tiwari, Advocate for the appellant. Mr. Dhananjay Deshpande, Advocate for the respondent. ===== CORAM : R. M. BORDE, J. DATE : 28 th January, 2010 PER COURT : 1 This is an appeal by original defendant no. 3 raising exception to the concurrent judgments recoded by the courts below. 2 Respondent no. 1 / original plaintiff instituted suit claiming partition and separate possession of the ancestral property as well as sought declaration to the effect that the will deed and sale deed executed by her father in favour of defendant no. 3 be declared as null and void and not binding on her. Admittedly, the property belongs to father of plaintiff and 2 defendant nos. 1 and 2. Defendant no. 3 is the husband of one of the daughters i.e. defendant no. 1. it is also admitted that father of plaintiff and defendant nos. 1 and 2 during the last days of his life was residing with defendant nos. 1 and 2. It is also a matter of record that on the same day i.e. on 14-2-2001, defendant no. 3 got executed the sale deed as well as the will deed in his favour. Father of plaintiff died after about two months from the date of execution of the sale deed and will deed in question. Plaintiff claims her entitlement to the extent of 1/3 rd share in the property left behind by her father. Defendants appeared and resisted the suit by filing written statement. Defendant nos. 1 and 3 have controverted the contentions in respect of fictitious nature of the will deed and sale deed alleged to have been executed by deceased Lahanu in favour of defendant no. 3. After considering the evidence led by the respective parties, trial court found favour with the case put up by plaintiff and decreed the suit by judgment and decree dt. 2-4-2007. Judgment and decree passed by the trial court was subject matter of challenge before the first appellate court in Regular Civil Appeal no. 93/2007 which came to be heard and disposed of by the District Judge -1, Beed who was pleased to dismiss the same by judgment and decree dt. 11-9-2009. 3 3 I have perused the judgments recorded by both the courts below. There are suspicious circumstances shrouding execution of the documents. Firstly, the will deed is alleged to have been executed by father in law in favour of the son in law during his last days of life. The will deed and sale deed are alleged to have been executed on one and the same day. There is absolutely no evidence of passing of consideration amount in pursuance to the sale. There is also no reason forthcomingas to what was the necessity to get executed both the documents i.e. will deed and sale deed. It is also admitted by defendant in his deposition that he has taken undue interest in securing execution of the sale deed and will deed in his favour. He has also in terms admitted in his deposition that in order to deprive the plaintiff of her entitlement / share in the ancestral property, both the documents are got executed. In these circumstances, the courts below were justified in discarding the evidence in the nature of will deed and sale deed placed on record by defendant nos. 1 and 3. Entitlement of the plaintiff to the ancestral property on the basis of inheritance is undisputed. The reasons recorded by the courts below can not be said to be unreasonable or erroneous. No substantial question of law arises for consideration in the appeal. Appeal therefore stands dismissed summarily. 4 4 In view of dismissal of appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa859.09.odt