ASHOK DWARKANATH GHURYE Vs. NARAYAN VASUDEO DHOND

JUDGEMENT

(1.) Three quite interesting questions fall for the determination of this Court in this petition, which arise from the provisions of the Bombay Tenancy & Agricultural Land Act, 1948 (hereafter, the Tenancy Act). To formulate the questions, it is necessary to give a few facts, about which there exists no dispute.

(2.) The suit property consists of Survey No. 42/2, admeasuring 24 Acres and 24 Gunthas. It belonged originally to one Vishram Ghurye. He parttitioned the property during his life time into 3 parts, one for himself the other for his Sumatibai and the 3rd for Dawarkanath, who was his son from his earlier wife. In 1957 Vishram filed Civil Suit No. 70 of 1957 against Vishram Vithoba Maharao and one Rukmini for possession of the suit lands in the Court of the Civil Judge, at Vengurle. On 2-7-1957 Vishram Ghurye also executed Will, by which Will he bequeathed his own 1/3rd share in the suit property upon Sumatibai alongwith his 1/3rd in the other property. But it needs to be mentioned specifically that although before the making of the Will, the suit lands were partitioned by Vishram, giving 1/3rd share to each of them, the actual partition by metes & bounds has never taken place. The result was that what Vishram bequeathed upon Sumatibai by the Will was only 1/3rd undivided share in the suit land. It would thus follows that Sumatibai started having 2/3rd un-divided share in the suit land whereas the remaining 1/3rd un-divided share becams of the ownership of Dwarkanath.

(3.) Vishram Ghurye died on 18-01-1985 and hence in Reg. Civil suit No. 70/57 filed by Vishram against Maharo and Rukmini, his two heirs, Dwarkanath and Sumati were brought on record. It is not disputed that a dispute arose between Dwarakanath and his step-mother Sumatibai, the bone of contention being the validity of the Will executed by Vishram bequeathing his share upon Sumatibai. An application was therefore filed by Sumatibai in the District Court, at Ratnagiri, for the grant of letters of Administration and on 7-2-1963 the letters of Administration were granted to her by the District Court. The necessary implication was that the Will was held by the Court to be a valid Will. It follows that Sumatibais contention that she got 2/3rd undivide share in the suit property stood vindicated. It is not disputed that various applications were made by Sumatibai for entering the names of both of them, herself and Dwarkanath, in the Revenue Record as the owners of the undivided share in the proportion of 2/3rd and 1/3rd. Initially, the mutation entry that was made and certified by the Revenue Authoritues excluded the suit land as being of the ownership of Sumatibai and Dwarkanath in the proportion of 2/3rd and 1/3rd. But it is common ground before me that as at present the record of right shos that Sumatibai is having 2/3rd un-divided share in the suit land and Dwarkanath continues to have 1/3rd un-divided share therein. On 1-12-1967 Civil Suit No. 70/57 filed originally by Vishram and continued thereafter by both Dwarkanath and Sumatibai against Vishram Vithoba Maharao and Rukmini was decreed by the trial Court and both of them even got possession of the suit pursuance of the Darkhast filed by them. The possession was recieved by them on 28-2-1968.