1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 509 OF 2003 Gangaram Sakharam Navale (deceased through LRs) .. APPELLANTS VERSUS Rambhau Mahadu alias Ramnath Sakharama Navale & others .. RESPONDENTS Shri S.T. Shelke, Advocate for the appellants. Shri S.K. Shinde, Advocate for respondent no. 1. ===== CORAM : R. M. BORDE, J. DATE : 28 th July, 2009 PER COURT : 1 Original plaintiff is assailing the concurrent judgments recorded by the courts below. 2 Suit came to be presented by the plaintiff / appellant against the respondents claiming declaration that decree passed in Regular Civil Suit no. 1/1967 and confirmed in Second Appeal no. 836/1971 is void and further declaration that he is the exclusive owner of the suit property on the basis of the will-deed dt. 8-6-1972. Alternatively, it is the case of the plaintiff that he may be given his share if it is held that he is not entitled to claim whole 2 property and the amount which has been received by defendant no. 1. Plaintiff also claims future mesne profit. 3 Plaintiff claims that he is the adopted son of Sakharam and the adoption deed has been executed on 1-6-1955. Ramnath defendant no. 1 claims to be the son of deceased Sakharam born to his wife Tanubai. Defendant Ramnath presented a suit bearing Regular Civil Suit no. 1/1961 claiming his 1/3rd share in the ancestral property and the plaintiff herein as well as his adopted father Sakharam were arrayed as defendants in the suit. It was the defence of the defendant that there was divorce between Tanubai and Sakharam and thereafter she started residing with Mahadu Savaleram Varpe r/o village Chikani as his wife. Defendant no. 1 Ramnath is born to Tanubai out of relations with Mahadu Savaleram. Paternity of Ramnath in relation to Sakharam was disputed in the said suit. Suit presented by defendant no. 1 bearing Regular Civil Suit no. 1/67 was decreed by the trial court and it was declared that he is entitled to have 1/3rd share in the property. Appeal presented by the plaintiff herein bearing Regular Civil Appeal no. 391/70 came to be dismissed whereas the second appeal no. 836/73 also came to be dismissed. It is the contention of the plaintiff / appellant herein that decree has been obtained in Regular Civil 3 Suit no 1/67 by practising fraud. It is also contended by the plaintiff that deceased Sakharam has executed will -deed in his favour on 8-6-1972 and bequeathed his property. As such, he became owner of the property. Plaintiff as such claims declaration as well as possession of the property. 4 Defendant Ramnath appeared and resisted the suit by filing written statement. He has controverted the adverse contentions raised in the plaint. According to him, relief claimed by plaintiff cannot be granted. So far as the will-deed is concerned, it has been contended by the defendants that the will-deed appears to be suspicious and does not entitle plaintiff to have all the property left behind by deceased Sakharam. 5 Trial court after recording evidence of the parties came to the conclusion that the suit presented by plaintiff is barred by the principle of res- judicata. Trial court has also recorded finding that the plaintiff has failed to establish the validity of the will-deed and further that deceased Sakharam was not in a position to dispose of the property by executing the will-deed. Trial court has recorded finding that there exists suspicious circumstances and, as such, the will-deed cannot be relied upon. Trial court as such dismissed the suit. Appeal presented by original defendants being Regular 4 Civil Appeal no. 337/87 came to be heard and disposed of by the learned 2nd Additional District Judge Shrirampur who was pleased to dismiss the same by judgment and decree dt. 31-3-2000. The first appellate court has, referring to the finding that the suit presented by the plaintiff reached at conclusion that suit cannot be said to have been barred by the constructive res-judicata. However, so far as the validity of the will-deed is concerned, the appellate court has confirmed the finding recorded by the trial court. 6 I have heard arguments advanced by learned counsel for the respective parties. It is vehemently contended that after recording finding that the suit is not barred by constructive res-judicata, it was not open for the appellate court to dismiss the suit in its entirety. According to learned counsel for the appellant, the will-deed does not raise any suspicious circumstances and as such, even if assuming that the decree passed in Regular Civil Suit no. 1/67 has binding effect on the plaintiff, still the plaintiff would be entitled to have share in the property left behind by Sakharam in accordance with the disposition made by virtue of will-deed executed on 8-6-1972. I have perused the judgments recorded by the courts below. Both the courts below have recorded finding that there exist surrounding circumstances which create doubt as regards the authenticity of will-deed. 5 It was found that the daughters of Sakharam have not been allotted any share and as such the natural course of succession has been deviated. It was for the plaintiff to explain as to why the natural course of succession has been deviated. Another aspect that raises doubt is that deceased Sakharam met with death only after 18 days of execution of the will-deed. Defence raised by the defendant as regards disposition state of the testator is also required to be taken into account with all seriousness. Another most important aspect that creates doubt as regards the authenticity of the will- deed is that although the litigation initiated by defendant in the shape of Regular Civil Suit no. 1/67 was pending at appellate stage, the will deed has not seen the light of the day and was not presented in any of the proceedings. Keeping the will-deed away and not presenting the same in pending proceeding, raises serious doubt as regards the validity of the said document. Had plaintiff presented the will-deed at the appellate stage in the earlier proceedings, it would have a effect on the allotment of shares and it would not have necessitated the another round of litigation. Taking into consideration all these aspects, the courts below did not find it prudent to place reliance on the will-deed as plaintiff has failed to remove doubt as regards existence of suspicious circumstances. Arguments advanced are essentially matters relating to appreciation of evidence. No substantial 6 question of law arises for consideration of the appeal. Appeal therefore stands rejected summarily. 7 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa509.03.odt