MADHAV VITHAI CHITALE Vs. BHADHTI VASUDEO RANADE

JUDGEMENT

(1.) APPEAL No. 141 of 1998 is a First Appeal by original Defendants seeking to challenge the judgment and decree dated 3rd October 1997 passed by Civil Judge, Senior Division, Pune, in Special civil. Suit No. 776 of 1990 granting a decree as prayed for. The said Suit was a Suit for partition and separate possession filed by the respondent (original Plaintiff) herein claiming 1/2 share in the suit property. Appellant No. 1 and the respondent are a brother and his married sister respectively, the Respondent being elder to appellant No. 1. Appellant Nos. 2 and 3 are the wife and son of Appellant No. 1.

(2.) THE property involved in the litigation is a house property situated at 1222 Shivajinagar. Pune, wherein the Appellants reside. There are a few tenants who also reside in a part of this house property. The property belonged exclusively to the deceased father of Appellant No. 1 and the respondent, one Shri Vitthal Krishnaji Chitale who died on 20th August 1967 at the aye of 67 leaving behind him the Appellant No. 1 and the Respondent as his nears and legal representatives. The wife of said shri vital Krishna Chattel had pre deceased him on 4th April 1965 and it was the defence of the Appellants in the Suit that after the death of his wife and long before his death, vitthal Krishnaji Chitale had executed his last. Will on 19th April 1965 in his own handwriting and by that Will, he had bequeathed the said property to Appellant No. 1 in its entirety to the exclusion oi the Respondent. The learned Trial judge held that the Will was not proved. He, therefore, decreed the Suit as prayed. This Appeal is filed to challenge the said judgment and decree.

(3.) AS stated above, to Appellants had pleaded that the suit property had been bequeathed exclusively to Appellant No. 1 by late Shri Vitthal krishnaji Chitale by a Will. in view of this plea raised by the Appellants in their Written statement, the Respondent amended he Plaint and prayed for a declaration that the Will be declared as bogus and of no value in tile eyes of law. Issue No. 3 framed by the learned trial Judge on this plea whereon he gave a finding that the will was not proved and decreed the Suit for partition. The judgment and decree, however. does not contain a deceleration that the Will was bogus and not effective in the eyes of law. Hence, in view absebsence of this finding. the Respondent has filed the connected First Appeal No. 188 of 1998, which is limited only to this aspect. Inasmuch as tills is a cross Appeal to First Appeal No. 141 of 1998, both of them have been directed to be heard together and the same have been heard and are being disposed of together. The status quo with respect to the suit property has been directed to be maintained daring the tendency of these Appeals by an order passed on First Appeal No. 188 of 1998 and that has been running during the tendency of these appeals.