MAHADEO SHANKAR SHINDE Vs. MARUTI SHANKAR SHINDE

JUDGEMENT

(1.) IN this appeal, the appellant challenges the judgment and order of remand dated 20th April, 1992 passed by the learned Additional District Judge, Sangli setting aside the judgment and order dated 7th December, 1984 passed by the Joint Civil Judge, Senior Division, Sangli in Miscellaneous Application No. 111 of 1981 granting letters of administration with the will annexed thereto in favour of the appellant in respect of the last Will and testament dated 16th November, 1975 executed by late Shankar Babaji Dhor (Shinde ).

(2.) SHANKAR Babaji Dhor (Shinde) (hereinafter referred to as the testator) died on 4th December, 1975 leaving behind his last will dated 16th November, 1975. The appellant being the grand son and a beneficiary under the Will, filed an application for letters of administration of the said will dated 16th November, 1975. Sons and daughters of the testator challenged the said Will and opposed the grant of letters of administration on the ground that the alleged Will was fradulent, executed in suspicious circumstances and that the thumb impression of the testator was obtained on the said will by undue influence and fraud. They also contended that the property which was bequeathed under the Will was not the self acquired or separate property of the testator but, was the property of the joint family of which the testator was only a karta and therefore, he had no right to execute the Will in respect of whole of the said property; at the most of the testator could have executed the Will in respect of his undivided share in the property.

(3.) THE trial Court framed the issues to consider whether the testator had made the Will on 16th November, 1975, and whether the Will was valid and legal and whether the appellant was entitled to the letters of administration. The trial Court did not frame an issue as to the power or authority of the testator to bequeath the whole of the property nor was an issue framed whether the property was self acquired or joint family property. After considering the evidence before him, the trial Court held that the testator had legally and validly executed the Will on 16th November, 1975 and in view thereof passed an order granting letters of administration in respect of the said Will to the appellant.