RAMAKANT SHIVGOPAL SHUKLA Vs. KRISHNA KUMAR SHIVGOPAL SHUKLA

JUDGEMENT

(1.) This is an appeal against the judgment dated January 31, 1985 delivered by Mr. Justice Bharucha granting the petition for probate filed by the respondent and dismissing the Caveat lodged by the appellant. Few facts which gave rise to the filing of the appeal are as follows :

(2.) One Shivgopal Bandedin Shukla died on October 20, 1978 leaving behind a Will executed on January 4, 1977. Shivgopal had four sons: Krishnakumar the respondent, Girjashankar, Devendrakumar, and Ramakant the appellant. The wife of Shivgopal had died on February 13, 1970. Shivgopal, along with his wife and the respondent had purchased an immoveable property bearing Survey No. 3, Hissa No. 1/1 (Part) admeasuring about 7968 square meters situated at Bandivli, Jogeshwari, Bombay. Each of the three joint owners had equal share in the suit property. The wife of Shivgopal had executed a Will bequeathing her 1/3rd share in the property in favour of Shivgopal, and after her death 2/3rd share in the property came to the interest of Shivgopal. The property was thereafter partitioned between Shivgopal and Krishnakumar the respondent, by metes and bounds and Shivgopal was separately holding the portion which came to his share, ate the time of his death.

(3.) Shivgopal executed his registered Will on January 4, 1977 and which was produced before the learned Judge and marked Ex. A. The Will inter alia, recites that the property was partitioned between Shivgopal and the respondent and the portion which came to the share of the respondent was marked as D on the plan annexed to the Will and marked as Ex. A. The portions which were allotted to Shivgopal in the partition were marked a A, B, and C on the sketch. By the Will, the portion marked as A on the plan annexed to the Will was bequeathed in favour of the appellant, while portions B and C were bequeathed in favour of Girjashankar and Devendrakumar respectively.