* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 428 OF 2009 W I T H CIVIL APPLICATION NO. 1334 OF 2009 IN SECOND APPEAL NO. 428 OF 2009 1. Smt.Balabai Shamrao Khilare 2. Sou.Aakkatai Subhash Yedke 3. Sou.Vatsala Dadasaheb Patil ......Appellants/Orig.Plffs (Decd. Thru.LRs) 3(a) Shri.Dadasaheb Ganpati Patil 3(b) Shri.Santosh Dadasaheb Patil 3(c) Kum.Avinash Dadasaheb Patil 3(d) Kum.Prajakta Dadasaheb Patil V/S. 1.Bapu Rama Khilare, decd LRS 1(a) Shevanta Bandu Dhulugade decd.thru.LRs (i) Tukaram Bandu Dhulugade (ii) Kisan Bandu Dhulugade (iii) Raju Bandu Dhulugade (iv) Ashok Bandu Dhulugade (v) Aaubai Bandu Dhulugade 1(b) Sou.Rajubai Ramu Bhise 1(c) Sou.Sajabai Sidram Salgare 1(d).Sou.Bebitai Vasant Mokashi 2. Sou.Sakharabai Bapu Khilare 3. Shri.Sitaram Bapu Khilare 4. Shri.Dattatraya Bapu Khilare,since decd thru.LRs 4(a) Smt.Subhadra Dattatraya Khilare 4(b) Sou.Vimal Aadinath Patil 4(c) Sou.Sunita Shantinath Sonavale 4(d) Sou.Mangal Ashok Devkate * 2 * 4(e) Rajendra Dattatraya Khilare 4(f) Pradeep Dattatraya Khilare 4(g) Kum.Jayashree Dattatraya Khilare 5. Shri.Pandurang Bapu Khilare ....Resps/Orig.Defds. ­­­­­­­­­­ Mr.Y.Sakhare i/by. YKS Legal, adv.for appellants. Respondents and advocate absent. CORAM : SMT.R.P.SONDURBALDOTA, J. DATED : 12TH NOVEMBER, 2009. P.C. :­ 1. Heard learned counsel for the appellants. 2. This Second Appeal is preferred against the concurrent findings of facts as regards the nature of the property sought to be partitioned by the appellants by filing Regular Civil Suit No.165 of 1998. The suit property included agricultural lands at Block No.1488, 266 and 268. The trial court decreed the suit in respect of the property at Block No.266 and 268 and rejected the appellants claim in respect of the property at Block No.1488. It has been held by the court s below that the property at Block No.1488 was the individual ’ property of the deceased father­in­law of the appellants. The property at Block No.1488 was bequeathed by original defendant no.1 father­in­law of appellant no.1 in favour of original defendants no.2 to 5 (present respondents no.2 to 5) by * 3 * executing a will. 3. Mr.Sakhare, the learned counsel for the appellants submits that this bequest is illegal since the property is a joint family property. He also submits referring to the oral evidence that the will of original defendant no.1 is a doubtful document since at the relevant time original defendant no.1 was not of sound health. The attesting witness, has admitted that at the time of execution of the will, original defendant no.1 was not in good health and was unable to hear or see. The courts below, instead of taking note of these facts have rejected the appellant s claim in respect of the third property. ’ 4. Firstly, there is concurrent finding of fact that the property at Block No. 1488 was individual property of original defendant no.1. There is no error or illegality in the finding. In that circumstance, the property could not have been partitioned. Secondly, in the plaint, there is no dispute raised whatsoever as regards the execution of the will. There is no challenge to the Will. What is challenged in the plaint is only the effect of the Will. Hence, no fault can be found with the impugned judgment and decree. There is also no question of law arising for consideration of the court. Hence the Second Appeal is dismissed. 5. With the dismissal of the Second Appeal, the Civil Application does not survive. The same is accordingly disposed off. [JUDGE]