ARUNKUMAR Vs. SHRINIWAS

JUDGEMENT

(1.) The above appeals have been filed against the common judgment and decree passed by the Division Bench of the High Court of Bombay, Aurangabad Bench, on 20-9-1993 in FA Nos. 3 and 36 of 1986, whereby the learned Judges in affirming the decision of the trial Court, have chosen to reject the appeals including the cross-objections.

(2.) The only question that arose for consideration was as to the construction to be placed on the Will dated 28-1-1969, executed by late Sitabai wife of Ramachandra Ganesh Mudhalwadkar. Indisputably, she is the absolute owner of the property which was the subject-matter of the Will in question. As per the Will, a translated copy of which was furnished and placed on record, the testator made the bequest in the following terms :

(3.) The testator died on 20-5-1976. Her husband who came into possession of the property under the Will also died on 20-8-1976. It appears that the brother of Ramachandra deceased-husband of the testator, came with his children to perform the last rites of deceased-Ramachandra and from that time onwards he continued to stay in the property by dislodging the plaintiffs who were minors, at that time, followed by some criminal complaints etc. It appears that soon thereafter a Civil Suit No. 689/1976 against the appellant in F.A. No. 36 of 1986, then a minor and the father of the appellants was filed for an injunction restraining him from interfering with the possession of the properties and for a declaration that he is the absolute owner of the house. The said suit appears to have ended into a compromise, in the teeth of undue pressures and coercion due to some police complaints and that by virtue of the compromise decree passed in the said suit, the respondents continued to hold possession of the property. The appellants filed Special Civil Suit No. 76/1989 contending that as per the Will of the deceased-Sitabai, referred to above, they had become the owners of the property after the life time of her husband Ramachandra and the compromise decree obtained in the presence of the father of the appellants, was vitiated by undue influence, coercion and misrepresentation and, therefore, it does not affect the rights of the appellants to the property under the Will. Claiming that the defendants were in unlawful possession of the suit property the appellants-plaintiffs, claiming to be the real owners and entitled to get possession of the suit property, filed a suit for possession. The suit was hotly contested and the learned trial Judge after trial though sustained the claim that the compromise decree passed in RCS No. 689 of 1976 was vitiated by coercion and misrepresentation and will not stand in the way of the appellant-plaintiffs, construed the Will to mean that the disposition in favour of the plaintiffs was preceded and superseded by the disposition in favour of the deceased Ramachandra the husband of the testator, who according to the learned trial Judge in the light of S. 124, Illustration (i) of the Indian Succession Act, 1925, inherited the property as full owner and, therefore, the plaintiffs were not entitled to the relief as prayed for.