ARVIND BHAURAO Vs. INDIRABAI BALKRISHNA GANGASHETTIWAR

JUDGEMENT

(1.) By this second appeal, the original plaintiffs are challenging the reversing judgment delivered by Lower Appellate Court. The present appellants are in fact legal heirs of original plaintiff and their grand mother Smt. Rukhmabai instituted Regular Civil Suit bearing No. 140/1978. It is not in dispute that Rukhmabai died some time in the year 1986 and thereafter the names of present appellants (grandsons) are brought on record as her legal heirs because of Will exhibit 44 allegedly executed by her in their favour. The Suit filed was against widow of her deceased son Balkrishna & for recovery of possession of 4 hectares and 60 R portion of field Survey No. 60/2 of village Shelu, Tq. Wani, District Yavatmal. The description of suit property as also relationship is not in dispute between parties. Rukhmabai was widow and was having two sons namely Bhaurao and Balkrishna. It is admitted position that in 1951 there was partition of agricultural land between Rukhmabai, Balkrishna and Bhaurao. Plaintiff alleged that field Survey No. 60/2 was given to Rukhmabai for maintenance & she gave possession to her two sons namely deceased Balkrishna and Bhaurao. She divided field survey No.60/2 into two equal portion, each admeasuring 4.60 hectares and placed it in custody of respective sons. Balkrishna expired on 9/3/1978 and property of Balkrishna including portion of field Survey No. 60/2 was being managed and looked after by his widow i.e. original defendant. Rukhmabai by legal notice 17/4/1978 called upon defendant not to cultivate said filed and as defendant did not reply, she filed a suit.

(2.) The suit was opposed by Indirabai by pointing out that the field survey No. 60/2 was not given to Rukhmabai at all and it was divided between two brothers equally and Rukhmabai had no right in it. She further contended that Rukhmabai relinquished her ownership over the portion of field Survey No.60/2 given to Balkrishna. During the pendency of suit in 1986, Rukhmabai expired and after her expiry, the suit was amended by her legal heirs i.e. sons of her other son by name Bhaurao. They contended that Rukhmabai had left behind a Will executed by her 27/11/1978 vide exhibit 44 and as per the said Will, they have become the owners and therefore, are entitled to possession of entire field survey No. 60/2. In consequential amendment defendant Indirabai denied execution of any Will by Rukhmabai and contended that Will was fraud being played by the appellants. She further contended that her husband Balkrishna had executed Will and accordingly portion of field Survey No. 60/2 in her possession was given by Balkrishna to his legal heirs.

(3.) The trial Court framed 10 issued and 3 additional issued and it found that there was a partition in which field Survey No. 60/2 was given to Rukhmabai and her two sons were in possession thereof on her behalf. It further found that defendant was continuing in cultivation of portion of field Survey No. 60/2 admeasuring 4.60 hectares without her permission and therefore, plaintiffs were entitled to possession. It also found that the defendant could not establish any relinquishment by Rukhmabai and also could not establish Will dated 13/2/1978 executed by deceased Balkrishna bequeathing suit field to his wife(defendant). In view of these findings, the trial Court decreed the suit and directed defendant to hand over the possession to plaintiffs but it rejected enquiry into mesne profits.