1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.433 OF 2009 (with CA No.10379/2007) Smt.Mathurabai w/oRamu Chaudhary, Age 68 years, Occ: Agri., r/o village Ahirwadi, Taluka Raver, District Jalgaon. ...APPELLANT (Orig.Defendant No.1 ) VERSUS 1. Smt.Meerabai w/o Prakash Chaudhary, Age: 53 years, Occ: Household, c/o Kisan Mahajan, r/o. Village ainpur, Taluka Raver, District Jalgaon. 2. Smt.Bharatabai Manohar Mahajan, Age 33 years, Occ: Household, c/o Manohar Vishnu Mahajan, r/o. Village Boradi, Taluka Shirpur, District Dhule. 3. Shri Suresh s/o Ramu Chaudhary, Age 51 years, Occ: Agri. 4. Shri Vilas s/o Ramu Chaudhary, Age 30 years, Occ: Agri. 5. Shri Vikas s/o Ramu Chaudhary, Age 38 years, Occ: Service, Resp./No. 3 to 5 R/o village Ahirwadi, Taluka Raver, District Jalgaon. ...RESPONDENTS (Resp.No.1 and 2 are Orig.Plaintiff No.1 & 2 2 and Resp.No.3 to 5 are orig.Defendant nos. 2 to 4) ... Mr.Mahesh S.Deshmukh, Adv., for the appellant. Mr.A.B.Kale, Adv., for respondent nos. 1 & 2. Mr.S.S.Gangakhedkar, Adv., for respondent Nos. 3 to 5. ... CORAM: K.U. CHANDIWAL, J. DATE :19-3-2010 *** PER COURT : 1. In a suit for partition, decree in favour of the plaintiff was questioned before the learned District Judge (II), Jalgaon, in RCA No. 18/2004. The learned District Judge did not disturb the decree of partition and, consequently, defendant Smt.Mathurabai is in Second Appeal challenging the findings. 2. Mr. Deshmukh, Counsel, submits, the agricultural field, in particular land survey No. 76/1 was a self acquired property of Ramu Narayan Chaudhari, having purchased it from one Totaram Kautik and he, legally, by virtue of a will deed dt.24.8.1984, divested the same in favour of the defendants, for which mutations are effected and said property, according to him, could not have been subjected to be questioned. 3 3. Mr.Deshmukh submits, the substantial question of law, in the present appeal is, inspite of there being knowledge to the plaintiff about the will deed dt.24.8.1984, executed by Ramu Chaudhari, plaintiff did not challenge the same in a suit though there is an admission by plaintiff of such a will deed. 4. The other substantial question of law, according to the learned Counsel is, the two married daughters of Ramu Chaudhari are not arrayed in the proceedings, especially when it was a suit seeking partition. 5. On analysis of evidence, it is observed and found, purchase of property in 1971 by Ramu Narayan Chaudhari from Totaram Kautik, was not from his own earnings, it was after sale deed of land Gat No.163 - ancestral property by Ramu and its nucleus was certainly utilized for purchase of land survey No.96/1 and, consequently, the Courts rightly negated the contentions of the defendants that it was a self acquired property. 6. The question of will deed, having been executed by Ramu in favour of defendant on 24.8.1984, is accepted by the first appellate Court to be a genuine document, however, the fact 4 remains, Ramu Chaudhari, under the law, could not have divested/bequeathed the property beyond his share, to the defendants, from land Gat No.76/1, particularly when the purchase of Ramu Chaudhari was from the joint family property by selling ancestral property bearing land Gat No.163. 7. The plaintiffs being widow of Prakash, son of Ramu was residing separately on account of some skirmish in the family affairs, sought share by serving a notice dt.6.1.1998. This notice was replied to by the defendant, however, the defendant no.1 has set up a plea of execution of the will deed dt.28.8.1984. Even if this is so, it will not defuse and dilute the rights in existences to the plaintiffs being widow of Prakash s/o Ramu. Their share in the property could not have been curtailed, segregated, and avoided to in the manner it was tried to be done. There was no requirement under law to challenge the will deed. 8. The married daughters of Ramu are not made party in the proceedings. This has been raised for the first time in Second Appeal as a substantial question of law, which is without any base, translated by the defendants. Non adding the married daughters of Ramu will not change the status of shares as sought by the plaintiff in the property left over by Ramu 5 Chaudhari. 9. In the result, I do not find any substantial question of law could be formulated to admit the appeal. No illegality is surfaced in the orders of both the Courts. Second Appeal is rejected. No costs. Civil Application also disposed of. [K.U. CHANDIWAL, J.] agp/433-09sa