VASANT NARAYAN KHAKHANIS Vs. PRABHAVATI BALCHANDRA HARJARNIS

JUDGEMENT

(1.) BY this judgment the second appeal filed by the original plaintiff and the cross objections filed by original defendant No. 1 are being disposed of.

(2.) THE suit property is the bungalow known as Laxmi Kunj built on City Survey No. 33/1b of Erandavane on the plot obtained on permanent lease from Deccan Gymkhana Co-op. Housing Society Ltd. in Pune. One Narayan Kashinath Karkhanis (for short Narayan) obtained the said plot on permanent lease. The bungalow thereon was constructed by him from his own earnings as well as from the funds of his wife Ramabai. He died on 16-4-1968 and his wife Ramabai died somewhere in the year 1977. The original plaintiff Sou. Prabhavati Bhalchandra Hajarnis, the original defendant No. 1 Vasant Narayan Kharkhanis, the original defendant No. 3 Gopal Narayan Karkhanis and the original defendant No. 2 Sou. Sumati Yeshwant Mathure are sons and daughters of Narayan and Ramabai. Narayan is alleged to have executed the Will bequeathing the aforesaid property in favour of his wife Ramabai on 21-1-1956. Later on the said Will is said to have been revoked by execution of the Will dated 17-1-1963 which was jointly executed by Narayan and his wife Ramabai. After death of Narayan on 16-4-1968, his wife Ramabai is said to have revoked the said Will (though according to original plaintiff Ramabai could not have revoked the said Will) and executed her last Will on 25-7-1974. By the Will dated 17-1-1963, according to the original plaintiff, on death of her parents, namely, Narayan and Ramabai, she claims to have acquired ?th share in the suit property and despite her efforts when the defendants who are brothers and sister refused to give her ?th share as per the Will dated 17-1-1963, she filed the suit claiming joint possession of ?th share in the suit property and in the alternative for the sale of the suit property and allotment of ?th price amount to her. The original defendant No. 1 contested the suit and denied that his father Narayan and Ramabai executed the last Will dated 17-1-1963 by giving joint ?th share each to the plaintiff and the defendants. He set forth the defence that the said Will dated 17-1-1963 was not the last Will but subsequent to that Will, after the death of Narayan, Smt. Ramabai became the absolute owner of the suit property and Smt. Ramabai by her Will dated 25-7-1974 bequeathed the suit property to the original defendant Nos. 1 and 2 by revoking the Joint Will dated 17-1-1963. The defendant No. 1 also set forth the defence that the said Will dated 17-1-63 was got executed under coercion and undue influence and, therefore, it was not valid Will. According to him, Narayan has executed the Will dated 21-1-1956 bequeathing the entire suit property in favour of his wife and after death of Narayan, his wife became absolute owner who bequeathed property in favour of original defendant Nos. 1 and 2 by her last Will dated 25-7-1974. The original defendant No. 2 filed separate written statement denied that his mother Ramabai contributed anything towards the cost of construction of the suit property. His defence was otherwise similar and identical to the defence set up by original defendant No. 1. On the basis of the pleadings of the parties, the trial Court framed various issues and after recording the evidence dismissed plaintiffs suit on 31-8-1984. The original plaintiff carried the matter in appeal and the Appellate Court after hearing the learned Counsel for the parties allowed the appeal in part, set aside the judgment and decree passed by the trial Court and declared that original plaintiff has joint 1/8th share in the suit property. The judgment and decree passed by the Appellate Court on 20-12-1986 is under challenge in second appeal at the instance of the original defendant No. 1 whereby 1/8th share in the suit property has been declared in favour of original plaintiff and is under attack in cross objections at the instance of the original plaintiff by contending that she has ?th share in the suit property and accordingly her share be declared to the extent of ?th share instead of 1/8th share in the suit property.

(3.) THE Appeal Court has recorded the findings that the suit property belonged to both Narayan and Smt. Ramabai and that they were tenants in common of the said property. The appeal Court also held that the will dated 27-1-1956 executed by Narayan in favour of his wife Ramabai was proved and that the said will was revoked by Narayan by executing Joint Will alongwith Smt. Ramabai on 17-1-1963. The appeal Court negatived the stand taken by original defendant Nos. 1 and 2 that the will dated 17-1-1963 executed jointly by Narayan and Ramabai was executed by Ramabai under coercion and undue influence. The appeal Court further held that the original defendant No. 1 has been able to prove the last will of Ramabai dated 25-7-1974 and that Joint Will dated 17-1-1963 stood revoked to the extent of joint half share of Ramabai on execution of will dated 25-7-1974 by Ramabai. With these findings, the Appeal Court held that the plaintiff has got 1/8th share in the suit property and if she desired she be put in possession of her joint 1/8th share of the suit property.