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sa77.14

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

SECOND APPEAL NO. 77 OF 2014

WITH

CIVIL APPLICATION NO. 827 OF 2014

Kantilal Bhimraj Fefale & Ors.

..

Appellants

Versus

Smt. Shantabai w/o.Govind Dukre & Ors.

..

Respondents

Mr. Sarman G. Lal, Advocate for the appellants.

Mr. Amol S. Gandhi, Advocate for respondent No.1.

CORAM : A.V. NIRGUDE,J.

DATED :

05.02.2014

P.C. :-

1.

Heard. A very peculiar question arose in this

appeal. But in my view this would not be a substantial

question of law. This appeal challenges the concurrent

findings of the Courts below.

2.

The facts of the case are as under :-

Sonubai was allotted the suit land in 1977 under

the provisions of the Maharashtra Agricultural Lands

(Ceiling on Holdings) Act, 1961 (for short “the Act”).

The allotment was specifically made heritable. It is

specifically mentioned in the allotment letter that

Sonubai would hold the property and after her death her

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legal heirs would also hold it. In a way, the land

become Sonubai’s exclusive property. During her lifetime

Sonubai made a will and bequeathed the land to her

daughter–Shantabai. She excluded her other three children

from the will. Shantabai claimed the property on the

basis of the will.

3.

The appellants opposed the proceedings mainly on

the ground that Sonubai was not competent to make will

because the land was allotted under the provisions of the

Act. The second objection that was raised was based on

the allegation that the will was not valid or was a

suspicious document. On facts, the Courts below held that

the will was valid and beyond suspicion. In view of this

concurrent finding, there is no reason for me to go into

that question.

4.

The only question that is relevant is whether

the Sonubai was competent to make the will in respect of

the suit land. Sonubai was allotted this land because

originally the land was belonging to her father and by

operation of law, the land was reallotted to her. The

Courts below held that in view of this the land became

exclusive property of Sonubai and therefore her children

did not have any share in it. In view of this Sonubai

became competent to make the will and bequeathed the

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property to one of her heirs. Learned Counsel for the

appellant tried to submit that when the land was allotted

to Sonubai, there is specific mention in the allotment

letter that she would become owner of the land along with

other legal heirs. In my view, this reading of the

document is incorrect. This document only makes it clear

that the allotment is heritable right given to Sonubai.

Her legal representatives would come in picture only

after Sonubai dies. Other condition imposed on Sonubai

was, she cannot transfer, mortgage, sale, exchange etc.

land without written permission of the Collector. The

question arises as to whether making a will is similar to

the transactions mentioned above. The answer is in the

negative.

5.

Sonubai, during her lifetime did not transfer

her land in any manner. She simply indicated her wish

that her property should go to Shantabai–her daughter.

The expression of such wish through the will did not

amount to transfer. It only amounted to exclusion of

other heirs from the suit property. Had there been any

no will, all the legal heirs would have taken property

jointly. This is indicated in the mutation entry. So,

the mutation entry did not give any right to legal heirs

of Sonubai during her lifetime. The submissions made at

bar thus cannot be accepted. The judgments of the Courts

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below, specially the judgment of the District Judge, is

quite sound and does not require any interference.

6.

The Second Appeal stands dismissed.

7.

In view of dismissal of the Second Appeal,

connected Civil Applic