1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 179/2010 (Vanita Dilip Gayakwad VERSUS Shakuntala Gayakwad (Dead) thr. Lr's Lata Vasantrao Patil) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri A.C. Dharmadhikari, counsel for the appellant. CORAM : SMT. VASANTI A. NAIK, J. DATE : JUNE 21, 2010 . Heard. The appellant is the original defendant. A suit was filed by the plaintiff against her daughter-in-law Vanita for a declaration that the plaintiff had half share in the property mentioned in the schedule. The plaintiff sought separate possession of her half share in the property mentioned in the schedule by metes and bounds. The plaintiff pleaded that the deceased husband of the plaintiff, by name Shamrao, was the owner of the house and an open plot at Nagpur and certain agricultural land at Jayatapur. It was pleaded that the property was his self acquired property. According to the plaintiff, Shamrao had executed a will making a bequest of his immovable and movable properties 2 on 17.10.1998. By the said will, a bequest was made of the house property and the field property at Jayatapur in favour of his son Dilip. Dilip died intestate leaving behind the plaintiff and the defendant as his legal heirs. According to the plaintiff, since the plaintiff was the mother of deceased Dilip, she was entitled to half share in the properties left behind by Dilip. In the aforesaid set of facts, the civil suit was filed. The appellant/defendant filed the written statement and admitted that Shamrao had made a bequest of the properties by his will. It was pleaded that plot no.158 was, however, the self acquired property of her husband Dilip as he had purchased it from his funds. It was denied that the plaintiff, who is the mother of Dilip, had half share in the suit property. It was the case of the defendant that the plaintiff had filed the suit on the dictates of her son-in-law, who was working as a Patwari. The defendant sought for the dismissal of the suit. Both the Courts, on an appreciation of the evidence on record, held that plot no.158 was purchased by Shamrao and the plaintiff had half share in the property mentioned in the suit. The Courts considered the fact that Dilip, the husband of the defendant, had died intestate and, therefore, Dilip as well as his mother, the 3 plaintiff, had equal share in the properties left behind by him. The findings recorded by both the Courts are pure findings of facts based on a proper appreciation of the material on record. The submission made on behalf of the appellant that during the pendency of this proceedings, Shakuntala, the original plaintiff, had died and, therefore, the defendant/appellant is entitled to a share in the property left behind by Shakuntala, cannot be considered by this Court in these proceedings as it is brought to the notice of this Court by the learned counsel for the appellant that a separate suit challenging the will executed by Shakuntala/original plaintiff is pending before the trial Court. The submission that the appellant/defendant would at least have a share in the properties left behind by Shakuntala would, therefore, be decided in the other pending suit and cannot be a matter which can be resolved in the present proceedings as it is the case of some of the legal heirs of Shakuntala that she had executed a will making a bequest of the properties in favour of some of the parties. The sale of plot no.158 by the appellant-defendant to a third party would also have no bearing on the issues involved in this second appeal and would not be relevant for deciding the second appeal. 4 Since no substantial question of law arises for consideration in this second appeal, the same is dismissed with no order as to costs. JUDGE APTE 5 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 179/2010 (Vanita Dilip Gayakwad VERSUS Shakuntala Gayakwad (Dead) thr. Lr's Lata Vasantrao Patil) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri A.C. Dharmadhikari, counsel for the appellant. CORAM : SMT. VASANTI A. NAIK, J. DATE : JUNE 21, 2010 . C.A.S. NOS. 445/2010 AND 499/2010. For the reasons recorded in the order dated 21st of June, 2010 in Second Appeal No.179/2010 and also because the subsequent developments have no bearing on the issues involved in this second appeal, both the civil applications are dismissed. JUDGE APTE