RAMABAI PADMAKAR PATIL Vs. RUKMANIBAI VISHNU VEKHANDE

JUDGEMENT

(1.) This appeal by special leave has been preferred by the plaintiff against the judgment and decree dated 27-4-1995 of High Court of Bombay by which the second appeal preferred by her was dismissed and the judgment and decree dated 7-4-1993 passed by the District Judge, Thane was affirmed.

(2.) The appellant Smt. Ramabai filed a suit for a declaration that she had become owner and occupant of the suit property as per the Will dated 5-4-1976 and for injunction for restraining the defendants and their agents, etc. from interfering with her peaceful possession over the aforesaid property. The defendant Nos. 1 and 5 are the real sisters of the plaintiff and defendant Nos. 6 to 8 are the children of a deceased sister of the plaintiff, namely, Smt. Gajarubai. The suit was filed on the ground that the property in dispute, which is a house and agricultural land, belonged to Madhav who was father of the plaintiff and defendant Nos. 1 to 5 and after his death, the same was inherited by their mother Smt. Yamunabai and she became the owner thereof. Smt. Yamunabai executed a registered Will by which she bequeathed the entire property to the plaintiff. Smt. Yamunabai died on 11-1-1980 and thereafter the plaintiff came in possession over the property in dispute. However, the defendants got the names of all the heirs of Madhav mutated over the property in dispute and thereafter started interfering with the plaintiffs possession thereof. The suit was accordingly filed claiming a decree of declaration and injunction. The defendant Nos. 1 to 5 contested the suit on the ground, inter alia, that the property in dispute was ancestral property in the hands of Madhav and after his death Smt. Yamunabai did not become the exclusive owner thereof: that the tenancy rights were inherited by all the heirs of Madhav by succession : that the house was built by father of Madhav and it being ancestral in nature, the same was inherited by all the heirs, that Madhav died in the year 1957 and, therefore, the succession would be governed by Hindu Succession Act and that Smt. Yamunabai did not execute any Will in favour of the plaintiff on 5-4-1976 and the same was not binding upon the defendants. It was specifically pleaded that the share of the plaintiff was only 1/7 and therefore, no decree for injunction could be passed against the defendants.

(3.) The parties adduced oral and documentary evidence in support of their case. The learned Civil Judge (Jr. Divn.) Palghar, decreed the suit on 4-2-1988 declaring that the plaintiff had become exclusive owner of the property in dispute on the basis of the Will dated 5-4-1976. He further passed a decree for injunction restraining the defendants from causing any interference in the possession of the plaintiff over the property in dispute. Feeling aggrieved by the aforesaid judgment and decree, defendant Nos. 1 to 5 preferred an appeal before the District Judge, Thane, who allowed the same by the judgment and decree dated 7-4-1993 and dismissed the suit. The plaintiff preferred a second appeal which was dismissed by the High Court on 27-4-1995 and the decree passed by the learned District Judge dismissing the suit was affirmed.