1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO.345 OF 2009 Shahaji Nimbalkar died LR’s Smt. Sushila Shahaji Nimbalkar and others. ..Appellant V/s Shivaji S/o Balbhim Nimbalkar died LR’s Jaiprakash S/o Shivaji Nimbalkar and others. ..Respondent ------------------------------------------------------ Mr.S.T.Ghute Advocate for Appellant. (CORAM : R.M.BORDE,J.) DATE : 26th February, 2010. PER COURT : 1. Heard. 2. This is an appeal filed by the original defendant against the judgment recorded by the first appellate Court. 3. The plaintiff instituted suit claiming partition and separate possession of ancestral properties left behind by his father and mother. 4. The defendants have opposed the claim raised 2 by the plaintiffs contending that mother of the defendant no.1(D)Shahaji by name Parvatabai had executed will deed in favour of defendant no.2. It is contended that disputed properties exclusively belong to deceased defendant no.1 Balbhim and his wife; Parvatibai and that she (Parvatibai) was entitled to dispose of the property as per her wish. The defendant has opposed claim contending that the plaintiff had no entitlement to claim partition and separate possession in shares. 5. The learned trial Court, after receiving the evidence of both parties, came to the conclusion that the disputed property is self acquired property of defendant no.1 which was purchased in the name of defendant no.2. It is further held that deceased Parvatibai had entitlement to dispose of the property as per her wish. However, the trial Court recorded the finding that defendant no.2 failed to prove the will deed alleged to have been executed by deceased Parvatibai. The trial Court on appreciation of evidence found that the will in question is shrouded with suspicious circumstances. The trial Court has 3 held that the plaintiff is entitled to hold 5/12th share out of the property left behind by Balbhim and Parvatibai. 6. The judgment delivered by the trial Court was subject matter of challenge in RCA No.88/02 filed at the instance of the defendants. The first appellate Court however, after considering the contentions raised by rival parties, dismissed the appeal by judgment and decree dated 24/01/2010. 7. I have perused the judgments recorded by the trial Court and the first appellate Court. I have heard the arguments advanced by Shri.Santosh Ghute, advocate for appellants. 8. On perusal of the judgment recorded by the trial Court, it transpires that the evidence led by defendant no.2 for proving the validity of the will deed is not satisfactory . The witnesses examined by the defendant have not categorically deposed in respect of the execution of will deed, which appears to be not free from suspicious circumstances. The 4 another circumstance is that although it is alleged that will deed was executed in 1990, the father of the defendant no.1, filed an application on 28/12/1992 for recording the names of the plaintiffs and defendant no.2 as legal heirs of Parvatibai alongwith him. If defendant no.1 Balbhim was aware of the execution of will deed, there was no necessity for him to tender the application to revenue authorities for mutating names of the plaintiff alongwith defendant no.1. The another surprising feature is that the defendant no.2 also claims his entitlement in the property on the basis of the gift deed, alleged to have been executed on 04/02/1993. The trial Court and first appellate Court have taken a reasonable view of the matter and came to proper conclusion. The reasons recorded by both the Courts below are logical and proper. No substantial question of law arises in the appeal. The appeal therefore, stands dismissed. 9. In view of the dismissal of appeal, pending civil application stands disposed of. Sd/- (R.M.BORDE) JUDGE DSP/SA345.09