SAROJANI CHANDRAKANT TIRHEKAR Vs. YAMUNABAI SOPAN ZOL

JUDGEMENT

(1.) This Second Appeal arises from the decree passed by the learned Civil Judge, Junior Division at Barshi in Regular Civil Suit No.365 of 1981 for partition and perpetual injunction and duly confirmed in Regular Civil Appeal No.625 of 1987 by the learned 3rd Addl. District Judge at Solapur. Though while admitting the appeal no substantial questions of law were framed, subsequently by written submissions placed on record sometimes in June 2000 the following substantial questions of law have been framed by the appellant - original defendant :

(2.) Rajaram Zol, a resident of Pangari had three sons viz. Ambadas, Shankar and Sopan. Sopan Zol was cultivating the suit agricultural land owned by Shri Ramchandra Kale and the said land admeasured 8 H. 35 Rs. and located in Gat No.357. He came in possession of the said land as a tenant sometimes in the year 1951-52 and was in cultivation as on 1/4/1957. Sopan, therefore, became a protected tenant and consequently a statutory purchaser of the said land under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948. He did not remit the purchase price and, therefore, ownership certificate under Section 32-M of the said Act was not issued in his favour. Sopan s wife and four sons filed Regular Civil Suit No.365 of 1981 against Sopan s only daughter for perpetual injunction and for partition of the suit property. The plaintiffs claimed that they were entitled for 35/36th share in the suit land. The defendant filed her Written Statement at Exhibit 79 and stated that her father Sopan had executed a Will on 11/2/1980 and the same was registered at Exh. 223. As per the said Will Sopan had bequeathed the entire suit property to the defendant as she had looked after him, paid for his medical treatment, acted as his power of attorney to fight the Court cases to restore possession of the suit land in favour of Sopan and lastly on account of love and affection. She further claimed that the suit land was self-acquired property of Sopan and, therefore, he had the legal right to bequeath it in its entirety as per his choice. She further claimed that the plaintiffs being the wife and sons of Sopan had no right to ask for any share in the self acquired suit property. The plaintiffs amended the plaint and challenged the legality and validity of the Will of Sopan on various grounds. On behalf of the plaintiffs, plaintiff no.1 Yamuna (PW 1), plaintiff no.3 Shivaji (PW 2), Arjun Godse (PW 3), Ramchandra Kadam (PW 4) and Vitthal Mase (PW 5) were examined. The defendant examined herself.

(3.) Admittedly Sopan Zol died on 29/5/1982 and the defendant was born on 1/6/1949 and was married in the year 1969 to Chandrakant Tirhekar, a resident of Barshi. She had completed her Diploma in Education. She is the third child amongst the five children born to plaintiff no.1 and Sopan. Plaintiff no.2 Ganpat and plaintiff no.3 Shivaji are the elder brothers of defendant whereas plaintiff no.4 Arvind and plaintiff no.5 Shankar are her younger brothers. She was residing with her husband upto 1972 and begot two children. It appears that her husband contracted second marriage and, therefore, she instituted proceedings for maintenance under Section 125 of Cr.P.C. and initially an amount of Rs.60 per month was granted to her by way of maintenance and it was subsequently revised to Rs.90 per month in M.A. No.27 of 1979 and thereafter it was revised to Rs.275/- per month. It is also admitted that plaintiff no.3 Shivaji was staying at Barshi since 1965 and had a job. In addition it is also not in dispute that Sopan had lost possession over the suit land in the year 1961 and he had initiated proceedings (Tenancy Case No.116 of 1975) for restoration of the same. Due to his old age he was not able to attend to these proceedings and, therefore, he had appointed the defendant as his power of attorney (Exh. 187 dated 10/4/1975) to prosecute the case and on the basis of the same she obtained possession of the suit property on 29/10/1976 as Sopan s power of attorney. The other plaintiffs were farm labourers or were cultivating the suit land. On the date Sopan executed Will in favour of the defendant (11/2/1980) plaintiff no.2 - Ganpat was about 35 years of age (born in 1945) i.e. four years elder to the defendant, plaintiff no.4 Arvind was about 29 years of age, and plaintiff no.5 Shankar about 24 years of age. It was the case of the plaintiffs that plaintiff nos.2 and 5 were cultivating the suit land and plaintiff no.4 was working as a farm labourer whereas plaintiff no.3 had a job at Barshi and from his earnings he was also contributing for investment in cultivating the suit land. In short the plaintiffs had contended that the suit land was a family property though it had come to the ownership of their father by operation of the Tenancy Act and, therefore, their father could not bequeath the said property as per his Will in favour of the defendant. They contended that at the most the defendant could have 1/6th share along with the five plaintiffs on the demise of their father Sopan.