1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION SECOND APPEAL NO.987 OF 2007 WITH CIVIL APPLICATION NO.1794 OF 2007 1 Karbhari Punja Thube Age: 63, Adult, Occ: Agriculture, 2 Raman Karbhari Thube Adult, Occ: Agriculture, Both residing at Hanuman Nagar, Tal: Niphad, Dist. Nashik ...Appellants. v. 1 Janardan Punja Thube (Deleted as per the leave granted on 25.9.09.) as died on 26.7.09. (Since deceased through his heirs and legal representatives 1A Indumati Janardan Thube 1B Pratibha w/o Dnyaneshwar Thube Both residing at Hanuman Nagar, Tal: Niphad, Dist. Nashik 2 Tirthraj Janardan Thube Occ; Agriculture, residing at Hanuman Nagar, Tal: Niphad, Dist. Nashik 3 Manager State Bank of India Branch: Lasalgaon, Tal: Niphad, Dist. Nashik ...Respondents. Mr.S.K.Shinde i/by Sagar Kasar, advs. For the Appellants. Mr.Suresh M. Sabrad, adv. For the Respondent Nos.1A and 2. CORAM : J.H. BHATIA, J. DATED : 25th September , 2009 ORAL JUDGMENT: 1 Appeal is admitted on following substantial question of law 2 “Whether the First Appellate Court was justified in holding that in view of the statements recorded in the memorandum of partition dated 3rd March, 1987, deceased Punja, father of the plaintiff no.1 and defendant no.1, was not competent to bequeath the suit property by executing a will in favour of the defendant no.2 ?” 2 Heard the learned counsel for the Parties. Admittedly the deceased Punja was the father of the plaintiff no.1 Janardan and defendant no.1 Karbhari. Plaintiff No.2 Tirthraj is son of the plaintiff no. 1 and defendant no.2 is son of the defendant no.1. Their family held ancestral coparcenary property. Partition had taken place among Punja and his two sons and about the partition, a document termed as Vatani Patra was executed on stamp paper on 3rd march, 1987. Admittedly, land gat no.163 was allotted to the defendant no.1 Karbhari and land gat nos. 47 and 58 was allotted to the share of the plaintiff no.1 Janardan. House property was also distributed but we are not concerned with that. Land gat no.165 was allotted to the share of their father Punja. It was recorded that Punja and wife Sonyabai would use the suit land gat no.165 during their life time and after death of Punja as well as death of his wife Sonyabai, suit land would be inherited by their grandsons. It was also recorded that after their death, Western half share would go to defendant no.2 Raman son of Karbhari, and Eastern half share would go to 3 plaintiff no.2 Tirthraj son of Janardhan. Admittedly, on 4.10.1990 Punja executed a will and bequeathed the suit land Gat No.165 to defendant no.2 Raman. During the life time of his father and mother, Plaintiffs had filed a suit challenging that will. However, later on, suit was withdrawn as it was found to be premature. On 16.9.96 Punja died and on 2.10.96 his wife Sonyabai also died. After their death, on the basis of the will, defendant no.2 claimed to be the owner of the suit property. Plaintiff filed Regular Civil Suit No.10/98 seeking declaration that the will is not binding on them and also they sought decree for partition and separate possession on the basis of partition deed dated 3.3.87. 3 Suit was contested by the defendant nos.1 and 2. According to them, Punja had executed the will and the will is binding. It was contended that right of Punja to bequeath the property of the will could not be taken away by the terms of the partition deed. The trial Court accepted the contention of the defendants and dismissed the suit. Therefore, plaintiffs preferred Regular Civil Appeal No.16/03. That appeal was allowed and the suit was decreed. First Appellate Court held that in view of the terms of the partition deed, the will is illegal and not binding on the plaintiffs. Hence, the Second Appeal by the original defendants. 4 4 As noted above, the only short question involved in the present matter is whether Punja was competent to bequeath the suit property by way of will and whether the will is legal and binding on the parties. 5 Heard the learned counsel for the Parties. There is no dispute that the suit land bearing gat no.165 and the other properties were ancestral properties in the hands of Punja. Property was held as coparcenary and joint family property by Punja and his sons. In March, 1987, Punja and his sons decided to effect the partition of the joint family property. In fact under the law, Sonyabai wife of Punja would also be entitled to equal share alongwith her husband and sons. However, it appears that no share was granted to her. Land Gat No.47 and 58 were allotted to the share of the plaintiff no.1 Janardhan while land gat no.163 was allotted to the defendant no.1 Karbhari. Land gat no.165 went to the share of their father Punja. Thus, property was partitioned and thereafter, none of these three properties would remain to be joint family property, as far as Punja and his two sons were concerned. As recorded in the partition deed, after death of Punja and his wife, land gat no.165 would be equally divided among his two grandsons, i.e., plaintiff no.2 and defendant no.2 by inheritance. Infact , as per the provisions of Section 8 5 read with Schedule I of Hindu Succession Act, 1956, plaintiff no.1 and defendant no.1, being the sons of the Punja, would be his legal heirs of the Class I and only they could succeed to the property of their father. During the lifetime of the plaintiff no.1 and defendant no.1, their sons could not inherit property of their grandfather Punja. Therefore, the statement in the partition deed that their grandsons Raman and Tirthraj would inherit Punja and get half share each in the land gat no.165 was not consistent with the provisions of law pertaining to inheritance. Therefore, it can be stated that the said statement that after the death of Punja, his property would devolve upon his two grandsons equally, was in the nature of a will in favour of the grandsons. The said document was signed by the parties and also by attesting witness. Thus, the said portion of the partition deed was infact a first will of Punja. Under the law, there is no prohibition to change the will or to make a fresh will at any time during the life time of a person and it is well settled position of law that last will takes effect and it supersedes the earlier will if the property bequeathed under the earlier will is bequeathed in a different manner by subsequent will. There appears no dispute that Punja executed his will on 4.10.1990, whereby he bequeathed suit land to the defendant no.2 Raman. In view of this, his first will, which was part of partition deed 6 dated 3.3.1987, would stand superseded and the last will would take effect. 6 The learned counsel for the plaintiffs/respondents contended that Punja was given only life estate in the suit land gat no.165 under the partition deed dated 3.3.87 and, therefore, he was not competent to bequeath property by will and it would go to the plaintiff no.2 and defendant no.2 as per the terms of the said partition deed. It is difficult to accept this contention. Firstly, suit property had come to the hands of Punja as ancestral property and he was himself head of the joint family consisting of himself, his sons, grandsons and other members of the family. In partition, he would be entitled to equal share in the property alongwith his sons. There was no question of putting any restriction on the use of that property nor the property allotted to him could be treated as life estate only. Infact, if it would be life estate, property would revert back to the other reversioners. In that case, property would have reverted back to his sons, plaintiff no.1 and defendant no.1. Infact, in the partition deed, there is no mention that Punja would have only life estate in the property and he would not be competent to transfer the same by sale, mortgage, gift or in any other manner. No such restriction was put on his right to dispose off the property. It only stated that after his death 7 property would devolve by inheritance on his grandsons. 7 The learned counsel for the plaintiff/respondents also contended that partition deed was already acted upon and the parties were also put in possession of the property on the basis of terms of the partition deed and, therefore, said terms are binding on the parties . According to him, in view of this also Punja could not bequeath suit land by executing a will. I am unable to accept this contention also. Under that partition, Punja and his two sons got their shares separated and they were in possession and use of their respective shares. Nobody has challenged said partition or possession of any of the parties on the basis of that partition deed. Power to bequeath his separated property, was independent of the partition. Contents of the partition deed could not put any prohibition on the right of Punja to bequeath his property by executing a will as he liked. 8 In view of the facts and circumstances and the legal position , it appears that the First Appellate Court committed serious error in holding that Punja was not competent to bequeath the property by executing a will in view of the terms of the partition deed. In my opinion the trial Court was right in holding that the will dated 4.10.90 executed by Punja bequeathing the suit land in favour of the defendant no.2 is 8 valid and binding on the parties. Therefore, plaintiffs could not get any right in the suit property. 9 For the aforesaid reasons, appeal is allowed and the judgment and decree passed by the First Appellate Court is hereby set aside. The judgment passed by the trial Court dismissing the suit is hereby restored. 10 No order as costs. As the appeal is finally disposed off, Civil Application No.1794/07 does not survive and stands disposed off accordingly. 11 At this stage, the learned counsel for the plaintiffs/respondents seeks stay to this judgment on the ground that execution proceedings have been already commenced on the basis of decree passed by the First Appellate Court. The learned counsel for the appellants makes a statement that decree has not been executed so far. In view of this and in view of the fact that suit filed by the plaintiffs has been dismissed, question of stay does not arise. (J.H. BHATIA,J.) 9 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION SECOND APPEAL NO.987 OF 2007 WITH CIVIL APPLICATION NO.1794 OF 2007 1 Karbhari Punja Thube Age: 63, Adult, Occ: Agriculture, 2 Raman Karbhari Thube Adult, Occ: Agriculture, Both residing at Hanuman Nagar, Tal: Niphad, Dist. Nashik ...Appellants. 10 v. 1 Janardan Punja Thube (Deleted as per the leave granted on 25.9.09.) as died on 26.7.09. (Since deceased through his heirs and legal representatives 1A Indumati Janardan Thube 1B Pratibha w/o Dnyaneshwar Thube Both residing at Hanuman Nagar, Tal: Niphad, Dist. Nashik 2 Tirthraj Janardan Thube Occ; Agriculture, residing at Hanuman Nagar, Tal: Niphad, Dist. Nashik 3 Manager State Bank of India Branch: Lasalgaon, Tal: Niphad, Dist. Nashik ...Respondents. Mr.S.K.Shinde i/by Sagar Kasar, advs. For the Appellants. Mr.Suresh M. Sabrad, adv. For the Respondent Nos.1A and 2. CORAM : J.H. BHATIA, J. DATED : 25th September , 2009 P.C. 1 The learned counsel for the respondents points out that respondent no.1A Indumati widow of the deceased respondent no.1 Janardan has expired on 26.9.2009. The learned counsel for the appellants points out that the respondent no.1B and the respondent no.2 are legal heirs of the original defendant/respondent no.1 as well as the legal heirs of the deceased respondent no.1A. Therefore, there is no need to bring any more legal heirs on the record and he seeks leave to delete the name of 11 the respondent no.1A. Leave granted. Amendment be effected immediately. (J.H.Bhatia, J.)