- (1.) The above appeals have been filed against the common judgment and decree passed by the Division Bench of the High Court of Bombay, Aurangabad Bench, on 20-9-1993 in FA Nos. 3 and 36 of 1986, whereby the learned Judges in affirming the decision of the trial Court, have chosen to reject the appeals including the cross-objections.
(2.) The only question that arose for consideration was as to the construction to be placed on the Will dated 28-1-1969, executed by late Sitabai wife of Ramachandra Ganesh Mudhalwadkar. Indisputably, she is the absolute owner of the property which was the subject-matter of the Will in question. As per the Will, a translated copy of which was furnished and placed on record, the testator made the bequest in the following terms : "After my death, my husband Shri Ramachandra Ganesh Mudhalwadkar shall be the heir and owner of my property as detailed below. In accordance with this Will (i) Master Anilkumar s/o Narhari aged 12 (ii) Master Arunkumar s/o Narhari aged 9 (iii) Master Shashikant s/o Narhari aged 6, shall be the owners of my property after the death of my husband. Narhar Shamrao Satarkar will be their guardian. My property, the details of which are given below shall be enjoyed by my husband Shri Ramchandra Ganesh Mudhalwadkar and the above named (i) Anilkumar (ii) Arunkumr (iii) Shashikant sons of Narhar Shamrao Satarkar in accordance with this Will. This Will is being made for the benefit and enjoyment of the property by my above named husband and minor boys. The said minor boys are the sons of my niece i.e. the sons of the daughter of my brother. I have no issues and there is no likelihood of any, now. These boys and their mother have stayed with me since their childhood. That is why I have the same affection for them as if they are my children. Since I am fond of them, I wish that my property should naturally go to them after my death and the death of my husband. The source of my property which is being given away by this testament is like this. This is my self-acquired property. At the time of my marriage, my mother has given me 15 tolas of gold. After my marriage my husband has given me ornaments weighing 20 tolas. Thus 35 tolas of gold is my Stridhan and out of the sale proceeds of gold the said property is purchased. The relations of my husband have no right to this estate nor there will be any in future."
(3.) The testator died on 20-5-1976. Her husband who came into possession of the property under the Will also died on 20-8-1976. It appears that the brother of Ramachandra deceased-husband of the testator, came with his children to perform the last rites of deceased-Ramachandra and from that time onwards he continued to stay in the property by dislodging the plaintiffs who were minors, at that time, followed by some criminal complaints etc. It appears that soon thereafter a Civil Suit No. 689/1976 against the appellant in F.A. No. 36 of 1986, then a minor and the father of the appellants was filed for an injunction restraining him from interfering with the possession of the properties and for a declaration that he is the absolute owner of the house. The said suit appears to have ended into a compromise, in the teeth of undue pressures and coercion due to some police complaints and that by virtue of the compromise decree passed in the said suit, the respondents continued to hold possession of the property. The appellants filed Special Civil Suit No. 76/1989 contending that as per the Will of the deceased-Sitabai, referred to above, they had become the owners of the property after the life time of her husband Ramachandra and the compromise decree obtained in the presence of the father of the appellants, was vitiated by undue influence, coercion and misrepresentation and, therefore, it does not affect the rights of the appellants to the property under the Will. Claiming that the defendants were in unlawful possession of the suit property the appellants-plaintiffs, claiming to be the real owners and entitled to get possession of the suit property, filed a suit for possession. The suit was hotly contested and the learned trial Judge after trial though sustained the claim that the compromise decree passed in RCS No. 689 of 1976 was vitiated by coercion and misrepresentation and will not stand in the way of the appellant-plaintiffs, construed the Will to mean that the disposition in favour of the plaintiffs was preceded and superseded by the disposition in favour of the deceased Ramachandra the husband of the testator, who according to the learned trial Judge in the light of S. 124, Illustration (i) of the Indian Succession Act, 1925, inherited the property as full owner and, therefore, the plaintiffs were not entitled to the relief as prayed for.;