BANDOPANT SITARAM BAPAT Vs. SANKAR SITARAM BAPAT

JUDGEMENT

(1.) THIS appeal is directed against the Judgment and decree dated 21st August, 1975 passed by the Civil Judge (Senior Divison), Sangli at Sangli in Special Civil Suit No. 39 of 1973 by which the suit filed by the appellants herein has been dismissed with costs.

(2.) THE suit giving rise to this appeal was filed by the appellants herein claiming partition of the properties owned by one Sitaram Sadashiv Bapat who expired at Audumber on 24th December, 1944. The parties to the suit are closely related to each other, the 1st appellant herein being the elder brother of respondents 1 and 2 and the appellants 2 to 6 and the 3rd respondent being the sons of the 1st appelllant. The deceased Sitaram Sadashiv Bapat (for short the deceased) during his life time was in possession of self-acquired properties. He had executed his last Will and Testament on 2nd December, 1944 (for short, the said Will ). Smt. Bhagirathibai was the wife of the deceased who died on 12th July, 1970. In Clause 2 of the said Will, it is recorded that the ornaments mentioned therein constituted Streedhan of the said - Bhagirathibai and as such, exclusively belonged to her and she could dispose off the same as per her wish. In Clause 5 of the said Will, it is recorded that the said Bhagirathibai should enjoy all the immovable properties, house and lands belonging to the deceased as the owner thereof and the 1st appellant as also the respondents 1 and 2 herein should enjoy the same on behalf of the said - Bhagirathibai by winning over her affection and after her death, the three should live together and if that is not feasible, then the 1st Respondent should be separately given the land R. S. No. 2013 having area admeasuring 1 Acre, 5-6 gunthas assessed at Rs. 23. 24 and situate at Satara, Sub-Division Ashte. It is this clause in the said Will which has been differently interpreted by the parties to the suit. According to the appellants, only life interest was created in favour of the said Bhagirathibai in respect of the immovable properties mentioned therein whereas according to the respondents 1 and 2, the absolute ownership was created in respect thereof in favour of the said Bhagirathibai. It may also be mentioned here that the said Bhagirathibai had also made her last Will and Testament on 8th May, 1970. It is the case of the appellants that the respondents 1 and 2 got the said Will dated 8th May, 1970 executed from the said Bhagirathibai by exercise of pressure upon her and it having been not voluntarily executed, is not valid. The right of the said Bhagirathibai to Will away the properties mentioned in the said Will of the deceased has also been challenged by the appellants on the ground that the said Bhagirathibai having been granted only the life interest had no legal authority to Will away the said properties as her limited interest therein was extinguishable on her death and in fact extinguished on her demise and whatever rights that accrued to the appellants under the said Will of the deceased got revived entitling the 1st appellant to seek partition thereof. Since the - 1st appellant had witnessed the execution of said Will by the deceased, considering that an objection might be raised as to right of the 1st appellant to challenge the same in view of the provisions contained in section 67 of The Indian Succession Act, the plaint filed in the said suit was amended to contend that right of the appellants 2 to 6 and the validity of the said Will of the deceased could not be denied.

(3.) THE respondents filed their written statement inter alia contending that the allegations of the appellants made in the plaint filed were incorrect and that the interpretation on the clauses contained in the said Will sought to be put by the appellants was not correct. The respondents further contended that the deceased had bequeathed his entire properties in favour of the said Bhagirathibai as absolute owner thereof and having done so, the deceased was not within his rights to make any arrangement for distribution thereof amongst his heirs after his death. It was also contended by the respondents that the Will dated 8th May, 1970 subsequently executed by the said Bhagirathibai was valid, legal and binding and the appellants could not claim any share in the said properties. The allegation of the appellants that the said Will dated 8th May, 1970 was got executed from the said Bhagirathibai by putting pressure on her was categorically denied by the respondents and it has in terms been stated by the respondents that on the day when the said Bhagirathibai made her Will, she was in a disposing state of mind and that she voluntarily made her Will. After the amendment of the plaint, supplemental written statement was filed and it was contended that neither of the appellants could claim any share in the said properties and that only the legatees under the Will of the said Bhagirathibai could possess the same.