(1) SA. 1405..2004 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 1405 OF 2004 WITH CIVIL APPLICATION NO. 10426 OF 2004 IN S.A. 1405 OF 2004 Bajrang Nana Modhave died through LRs. and others .. Appellants VERSUS Ashok Dattatraya Modhave and others .. Respondents Mr. V.S. Bedre, Advocate for the Appellants/Applicants Mr. N.V. Gaware, Advocate for respondent nos. 1 to 3 S.A. stands dismissed against Respondent nos. 4 and 5 as per Court's order dated 19.3.2010 ... CORAM : K.U. CHANDIWAL, J. DATED : 5TH MAY, 2010 PER COURT:- 1] Heard. The suit for partition was decreed by the learned Civil Judge Junior Division, Ahmednagar on 4.9.1999. The aggrieved defendant no.1 questioned the same before the first appellate Court in Regular Civil Appeal no. 397 of 1999. The learned Adhoc Additional District Judge, realising the legal position coupled with the heirs of deceased Nana ancestor, corrected the shares by causing modification in the order of the learned first instance, as is reflected in the order dated 14.3.2002. These orders, are questioned by defendant no.1. Nana was the ancestor of defendant no. 1 Bajrang is brother Dattatraya, another brothers (2) SA. 1405..2004 Digambar, Bhimraj and sister Subhadrabai. Son of Dattatraya, Ashok and Kishor filed suit for partition in respect of the immovable property-house. It is matter of record, in the suit by said Ashok, Digambar, Bhimraj and Subhadrabai were not made parties. It is in the cross-examination of the plaintiff Ashok, he accepted his relations with Digambar, Bhimraj and Subhadrabai. The case revolves to Nana executing the will deed in favour of Durgabai exhibit 62 dated 3.1.1960. The Courts on analysis of the evidence factually found that the will deed is null and void, could not be accelerated against the interest of the plaintiff and the defendant no.3. This finding of fact, having read with the judgment and the evidence, does not warrant any interference. 2] The other shade in the matter is, Durgabai widow of Nana, (mother of defendant no.1 Bajrang) allegedly executed a will deed dated 27.3.1990 bequeathing the entire property to the defendant no.1 Bajrang (appellant in the present Appeal). It is unfortunate for the present appellant that the Courts found that the will deed of Durgabai in original is not produced, it is so observed in paragraph 20 and paragraph 22 of the judgment. 3] Mr. Bedre learned counsel, having gone through the record confirmed that there is no original will deed dated 27.3.1990, produced in the Court. In the absence of any document of divested rights and title (3) SA. 1405..2004 by Durgabai, it is difficult to conceive that the defendant no.1 Bajrang could get the entire property divorced with the shares of Dattatraya or other sons of Nana. 4] Though, I find, the plaintiff did not implead other sons Digambar, Bhimraj and Subhdrabai and another daughter of Nana in the suit seeking partition and the mistake is corrected by the first appellate Court by converting the respective shares, it will not obliterate the effect of suit or it will not diminish the legal position. Non-impleadment of the parties, by itself having been taken care by the first appellate Court, the defendant no.1 as appellant can-not take benefit of the situation. It is not projected, nor any prejudice is caused to the defendant no.1 Bajrang by showing correct position of rights in favour of other son of Nana. The findings recorded by both the Courts, about the entitlement of other sons and daughters of Nana being in tune with the legal position, need not be questioned in the Second Appeal. 5] Second Appeal does not formulate any substantial question of law between the parties, dismissed. Civil Application no. 10426 of 2004 also stands dismissed. Sd/- (K.U. CHANDIWAL, J.) arp