PRABHAVATI NARAYAN MOKAL Vs. BALIRAM RAMBHAU PATIL

JUDGEMENT

(1.) THE Appellant and the Respondent are siblings; the Appellant is the sister of the Respondent. The respondent instituted a suit for partition against his father in 1984 in the Court of the Civil Judge, junior Division, Alibag. The father of the appellant and the Respondent died during the pendency of the suit. Thereupon, the Appellant was brought on the record as one of the legal heirs of the deceased defendant. The suit was decreed by the Trial Court on 30th September, 1987. The Trial court issued a declaration that the Respondent was entitled to a 3/4th share in respect of the properties which form the subject matter of the suit, whereas the Appellant would be entitled to 1/4th share in respect of the suit property. Since the Respondent had constructed a house bearing survey No. 34/1 of Chinchavali village, the Trial court directed that the aforesaid portion should be allotted to the share of the Respondent. The appellant filed an appeal before the Additional district Judge, Raigad which was dismissed by the impugned judgment and order dated 9th July, 1996.

(2.) BOTH the Courts below have held that the properties which form the subject matter of the suit for partition were the joint family properties of the Respondent and his deceased father Rama. On the aforesaid finding, the Trial Court held that the Respondent was entitled to a 3/4th share in the suit properties (comprising of his own 1/2 share and 1/2 out of the remaining 1/2 share of the deceased father ). The Appellant was held entitled to a 1/4th share. The Appellant on her part had set up a case that she was entitled to a share of 1/2 in respect of the suit properties on the basis of a registered will alleged to have been executed by her deceased father on 9th December, 1981. The courts below have come to the conclusion that the will has not been duly proved.

(3.) THE substantial question of law that arises in this Second Appeal is in the circumstances formulated thus :