RAMRAO S/O PANJABRAO RAHATE Vs. BHOJRAJ HARI RAHATE
HIGH COURT OF BOMBAY
Ramrao S/O Panjabrao Rahate
Bhojraj Hari Rahate
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A. S. Chandurkar, J. -
(1.) This appeal under Section 100 of the Code of Civil Procedure, 1908 is preferred by the original defendant No.3 who is aggrieved by the decree passed by the trial Court declaring a sale deed executed by defendant No.1 in favour of defendant No.3 dated 21/05/1999 to be void ab initio.
(2.) One Hari was the owner of property. He was married with one Radhubai and they had two sons Bhojraj and Vitthal. On 22/09/1986, said Hari executed a Will. Bhojraj was granted 81 R land from Khasra no.95 along with a farmhouse. The other son Vitthal was also granted 81 R land from Khasra No.37 along with another farmhouse. In a Will it was stated that after the death of Hari, his widow Radhubai would become the owner and after her death both the sons would become the owners. Said Hari expired on 03/05/1989. His widow Radhubai executed a sale deed in respect of 81 R land that was allotted to Bhojraj in the Will. This sale deed was executed on 21/05/1999. Bhojraj therefore filed suit on 23/06/1999 for a declaration that this sale deed was null and void as his mother had no right to alienate the same. Possession of the suit property was also sought.
(3.) The defendants viz. plaintiff's mother, his other brother and the subsequent purchaser filed their written statement at Exhibit12. Execution of the Will was admitted. According to them, the defendant No.1 had become absolute owner of the suit property by virtue of the said Will deed and hence she was competent to alienate the suit property. The parties led evidence before the trial Court. The Will was exhibited at Exhibit49 and the sale deed at Exhibit50. The trial Court held that as per said Will, the properties were given to defendant No.1 to provide a source of maintenance. However, as the defendant No.1 had limited interest in the suit property and she was to enjoy it only during her life time, she had no right to execute the sale deed. As such defendant No.1 was allowed the relief of possession however sale deed dated 21/05/1999 was declared to be void. The defendants were restrained from creating any third party rights in the suit field.;
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