1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR SECOND APPEAL NO. 302 OF 2008 (Arvind Bajirao Tembhurne vs. Sahadeo Bajirao Tembhurne & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. FEBRUARY 12, 2009. From the earlier order dated 12.12.2008, it appears that the Second Appeal is to be disposed of finally at the stage of admission itself. Paras 2, 3 & 4 of said order read as under : “2. It has transpired in the midst of hearing that application (Exh. 41) for production of sale- deeds as well as the Will, on which the defendants were relying in order to demonstrate that the property, subject-matter, is self-acquired, was rejected. 3. Prima facie, the point goes to the root of the case and unless otherwise is shown, the appeal would warrant not only admission, but remand to the Trial Court ultimately. 4. At this stage, learned Adv. Mr. V.M. Deshpande prays for time to examine the issue above referred, take instructions and make a statement as to whether the submission is 2 accedeable, or needs a contest.” In view of the rejection of application for permission to produce sale deed and Will on record, I have heard Shri Deopujari, learned counsel for the appellant and Shri Purohit, Advocate holding for Shri Deshpande, learned counsel for respondent No.1 in this background. Shri Purohit, learned counsel states that today only, he has received Vakalatnama on behalf of respondents No. 2 & 3 and he will be filing power on behalf of them during the course of the day. After hearing parties, I find that sale deed is sought to be produced to contend that suit property was self earned property of deceased Bajirao. However, in the written statement it has been pleaded that it was joint family property and before the death of Bajirao, the plaintiff/ present respondent No.1 had relinquished his share in the property and separated from the joint family. This has also been reiterated little later in the written statement. Thus, the present appellant/ original defendant has accepted that the property was joint family property of the deceased Bajirao. The lower appellate Court has acted upon this admission and hence the said consideration by the lower appellate Court cannot be said to be either erroneous or 3 perverse. Shri Deopujari, learned counsel has tried to urge before this Court that in the plaint, Respondent No.1 – plaintiff has pleaded that after the death of Bajirao, plaintiff and defendant No.1 became joint owners. According to him, this plea shows that the property was not joint family property. In view of specific assertion in written statement which has come on record and appreciation of evidence by Courts below, I find that the contention of Shri Deopujari, learned counsel cannot be accepted. The said plea in the plaint cannot be interpreted to mean that the property was self acquired property of Bajirao. It is to be noted that Bajirao had one more son apart from plaintiff and defendant and also a wife. Hence, after death of Bajirao, after the property is treated as self acquired property, all four persons would have become the owner. The plaint assertion, therefore, is not in any way relevant in present circumstances. In view of this, production of sale deed to show that the property was self earned or self acquired property of Bajirao is not necessary and cannot be permitted. However, it is also pointed out that Bajirao had executed a Will in favour of original defendant – Arvind. It is pointed out that Arvind 4 unfortunately developed brain tumor and could not pay any attention to litigation and could not adduce any evidence and Will could not be proved. The perusal of judgment of the Trial court particularly paras 14 & 15 show that Arvind had developed brain tumor and perhaps he was not in a position to see. Shri Deopujari, learned counsel mentions that Arvind died later on because of said melody only. In the circumstances, considering the fact that Will was already pleaded and it appears to be a registered document, the same is taken on record and matter is remanded to trial Court only for the purpose of enabling the present appellant to prove said Will of deceased Bajirao. If the Will is established, it is apparent that joint undivided share of Bajirao in relation to which Will is executed may pass on to legal heirs of deceased – Arvind. Thus, the rest of the findings recorded by the lower appellate Court are maintained and matter is remanded to the trial Court for considering devolution of interest of the deceased – Bajirao. If the Will is established, the share of Bajirao will devolve upon the legal heirs of original defendant No.1 – Arvind and if it is not established, the devolution as directed by lower appellate Court shall 5 stand good. Accordingly, Second Appeal is partly allowed. However, in the circumstances of the case, there shall be no order as to costs. As the matter is remanded to the trial Court and the suit is of the year 1999, the trial Court shall decide the suit as early as possible and in any case by 31st January 2010. R & P be sent back immediately. JUDGE *GS.