TANUBAI GUNDA DESAI Vs. SHANKAR PANDURANG NAIKWADI

JUDGEMENT

(1.) TWO questions are involved in this Appeal i.e. 1) whether the sale deed dated 21-9-1973 executed by Gunda Desai (deceased) in favour of original defendant no.1 Shankar Pandurang Naikwadi in respect of one land mentioned at Sr. No.1A of the plaint is valid or not ? 2) whether the will executed by Gunda Desai dated 21-9-1973 in respect of 9 small pieces of land mentioned at Sr. No.1B of the plaint, and one house at village Bhurbhushi and one tenanted room at Bombay mentioned in para 1C of the plaint in favour of defendant no.2 Tanaji Pandurang Naikwadi is valid or not?

(2.) THE original Appellant no.1 Tanubai was the wife of Gunda Desai. She died during pendency of this appeal. Appellant no.2 Housabai is the daughter of Gunda Desai. Gunda Desai used to visit for a long time one woman by name Janabai Karpe. Defendant no.1 (Respondent no.1) Shankar and also defendant no.2 (Respondent no.2) Tanaji were the brothers. THE said Gunda Desai died on 18-3-1974 due to Asthma. Sale deed in favour of Shankar was challenged on the ground that the land was Class III Ramoshi Vatan land and hence there could not have been any sale deed and it was without consideration. However, Shankar died during the pendency of the appeal in the Court below and purshis was given by he Advocate that the plaintiffs did not want to proceed against him. His heirs or legal representatives were not brought on record. Considering this position the learned District Judge, Satara did not consider the same on merits. Though the trial Court held that there is no substance in any of the contentions raised regarding the challenge to the sale deed date. It was found that the sale deed was executed after receiving the consideration and for legal necessity. Hence the Appellants gave up challenge to the sale deed in Appellate Court and indirectly admitted the validity thereof. For the first time in this Court heirs of defendant no.1 (Respondent no.1) are sought to be impleaded. This cannot cure the defect of failure to bring on record the heirs in the Court below by going back upon the purshis given of no prosecution of the suit against defendant no.1 and challenge the sale deed. I find no reason to entertain this challenge.