1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SA/446/2010 with CA/9484/2010 YESHODABAI GANGADHAR SARPATE V/s GANGUBAI NAMDEO AATHWALE THROUGH LRS ... Advocate appearing for Appellant - Shri S.T.Ghute ... CORAM : S.V.GANGAPURWALA, J. Dated : 19th November 2010 PER COURT :- 1. This is defendant's Second Appeal. 2. Present respondents (original plaintiffs) had filed a suit for partition and separate possession in respect of the suit property on the ground that their father Maroti was the original owner of the said property. On his demise, plaintiffs, defendant and their mother inherited the said property. The trial Court decreed the suit. Defendant preferred an appeal. Learned District Judge dismissed the appeal and confirmed the judgment and decree passed by the trial Court. Defendant has assailed the said judgment and decree in the present Second Appeal. 3. Shri Ghute, learned Advocate for appellant has strenuously contended that the mother had executed a will in favour of appellant and by 2 virtue of the said will, appellant had become owner of the whole property. According to him, plaintiffs have signed the said will deed as a consenting party, wherein, they had received Rs.10,000/- as their share. According to Shri Ghute, learned Advocate, once they put their signatures as consenting party they are estopped by the Principle of Estoppel to contend otherwise. Learned counsel further submitted that the Courts below have not properly considered the issue of limitation also. 4. With the assistance of learned counsel for appellant, I have gone through the judgments of both the Courts below. On the death of Maroti, different parties had succeeded to his share. The mother had only 1/4th share in the suit property. By will she could not have bequeathed the total property. She had a right to bequeath the property only to the extent of her share. Both the Courts have considered this aspect. Thus, by signing as a consenting party, plaintiffs could not be relieved of their rights in the said property. Defendant is claiming right over the total property pursuant to the will deed only. As the mother was not empowered to execute the will in respect of the total property, defendant would not get any right, title or interest over the whole property. 5. As far as aspect of limitation is concerned, the suit was for partition and separate possession. Unless the ouster is pleaded and proved, bar of limitation would not arise. In the light of the same no error is committed by the Courts below. 3 6. Second Appeal sans substantial question of law. It stands dismissed. 7. In view of the disposal of the main appeal itself, Civil Application No. 9484 of 2010 does not survive and accordingly stands disposed of. 8. No order as to costs, both, in appeal and civil application. (S.V.GANGAPURWALA,J.) ... akl