NAROTAMBHAI GOVINDBHAI KACHHATIYA Vs. MULRAJ

JUDGEMENT

(1.) Being aggrieved by the judgment and decree passed by the 2 nd Additional District Judge, Devbhumi Dwarka @ Khambhalia in Regular Civil Appeal No.2 of 2007 whereby the Additional District Judge Devbhumi Dwarka @ Khambhalia dismissed the appeal filed by the appellant defendants and confirmed the judgment and decree dtd. 27/3/2017 passed by the Additional Civil Judge, District Devbhumi Dwarka @ Khambhalia in Regular Civil Suit No.68 of 2016, the present second appeal has been filed.

(2.) The brief facts arising in the present Second Appeal are that the plaintiff and defendants are close relatives. Defendant nos.1 and 3 are elder brothers of the plaintiff and defendant no.2 is mother of the plaintiff and defendant nos.1 to 3 and defendant no.4 is son of the defendant no.3. The entire dispute revolves around the property which belonged to the plaintiff's father viz. Late Satvara Govind Vashram who expired on 22/12/2010 and the property in dispute in the suit was purchased by late Satvara Govind Vashram Kachhatia by registered sale deed No.542 dtd.17/7/1973. The plaintiff has put forward his case stating that by way of registered Will having registration Number 2198 dtd. 11/8/2009, the father of the plaintiff has bequeathed the properties in his favour and as the defendants started construction on the suit premises and plaintiff being the owner of the property by registered Will, the plaintiff filed Regular Civil Suit No.68 of 2016. The defendants had appeared in the suit and taken contention that the suit property was purchased out of the joint family income of the father of the plaintiff Late Satvara Govind Vashram and defendant nos.1 and 3 and as the father of the defendants was the head of the family, registered sale-deed has been made in the name of the father of the plaintiff and, therefore, it is contended that the suit property is joint family property and the defendants have right, title and interest in the said property. The defendants have also taken contention that disputed property is purchased out of the joint family income and, therefore, late Satvara Govind Vashram could not have executed the Will with respect to the suit property and, therefore, it has been contended by the defendants, that the father of the plaintiff and the defendant nos.1 and 3 did not have any right to bequeath the suit property, which according to defendants is purchased from joint family income. Moreover, a contention has also been taken that as no probate certificate has been obtained by the plaintiff, the plaintiff can not have any legal right to claim by way of the said Will. After considering the documentary and oral evidence and after giving findings on all the issues that have been framed vide Exh.95, the trial Court, partly allowed the suit filed by the plaintiff and the trial Court held that the plaintiff is entitled to peaceful possession of the property mentioned in Annexure-A of the plaint and directed the defendants to handover peaceful possession to the plaintiff of the property mentioned in Annexure-A at serial no.1 and held that plaintiff is at liberty to remove additional construction made on the property mentioned in Annexure-A at serial no.1 of the plaint and prohibited the defendants from interfering with the possession of the plaintiff in regard to the property at serial no.1 at Annexure-A.

(3.) Learned advocate for the defendant has canvassed his argument on the ground that the suit property is joint property and by Will the father could not have bequeathed the property in favour of the plaintiff. It has also been argued that the trial Court has not rightly taken into consideration the oral evidence of the parties more particularly of plaintiff wherein plaintiff has stated that the suit property has been purchased from the joint income.