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6. After demise of Rama, plaintiffs started to cultivate suit land. Plaintiff No. 1 Kewalram was looking after Gunabai, Baijabai and other family members. Though he acquired the title by way of testamentary document of Will, however he had not mutated his name to the Revenue Record of suit property. Latter on due to differences, Baijabai went to reside with her children begotten from her deceased husband Tukaram Khobragade and died there on 10.09.1995. Defendants who are children of Baijabai from Tukaram got mutated name of Baijabai to the Revenue Record of suit property. Thereafter on the strength of Will allegedly executed by Baijabai, defendants got mutated their name to the revenue record of suit property along with Gangubai. When Gunabai came to know about said mutation, she had approached to the Revenue Authorities. Thasildar had confirmed the mutation in the name of defendants. Gangubai challenged the same to the Sub Divisional Officer and then to the Additional Collector. Since Judgment 5 SA102.18.odt civil suit was pending, the Additional Collector has not interfered with the controversy but directed to resolve the dispute in Civil Court.

7. According to plaintiffs, they acquired ownership by way of Will executed by Rama and then by another Will executed by Gunabai. The plaintiffs were peacefully possessing suit property for a long period. However, defendants by virtue of false and bogus Will allegedly executed by Baijabai had altered revenue entries and tried to disturb plaintiffs' peaceful possession. Therefore, plaintiffs have filed suit for declaration of ownership and for injunction.

8. Defendants resisted suit claim by denying the plaintiffs exclusive ownership. It is denied that Rama had adopted plaintiff No. 1 Kewalram during his lifetime. Both testamentary documents executed by Rama as well by Gunabai were denied. Defendants came with a case that as Rama had no issue from Gunabai, he remarried with Baijabai somewhere in the year 1950. After demise of Rama, his two widows i.e. Gunabai and Baijabai became the joint owner of suit property as second marriage was preceding to the commencement of Hindu Marriage Act, 1955. According to defendants, revenue entries were carried about ownership of both Gunabai and Baijabai. Further, it is defendants' case that Baijabai Judgment 6 SA102.18.odt executed a Will dated 05.11.1993 in their favour and thus, they became owner to the extent of half of suit property. Defendants were cultivating half portion of suit property as absolute owner.

  Judgment                                  8                                SA102.18.odt




                   (2)     Whether the appellate court was justified in

holding that the appellants were entitled to only ½ share in some of the suit scheduled properties?"

12. The elaborate submissions were made by both sides on facts as well as on law. Defendants relied on some reported judgments to support their stand. Before entering in to the controversy, the placement of few admitted facts would be advantageous for quick appreciation of the issue involved. There is no dispute that Rama was the original owner of the suit property. Undisputedly Gunabai was legally wedded wife of Rama. Baijabai was residing with Rama during subsistence of his first marriage. Plaintiffs were the nephew of Rama. Defendants were children of Baijabai from her erstwhile husband Tukaram. Rama had no issue either from Gunabai or Baijabai. Rama died in the year 1981. Baijabai died in the year 1995 whilst Gunabai died in the year 1997. After demise of Rama, suit property was mutated in the name of Gunabai and Baijabai. The defendants names were mutated to the Revenue Record to the extent of half share on the strength of testamentary documents of Will executed by Baijabai. Plaintiffs had filed RTS appeal challenging the mutation carried in the name of defendants. Additional Collector instead of deciding appeal, directed plaintiffs to resolve the controversy through Civil Court.

18. It has come in the evidence that plaintiff No.1 Kewalram born in the year 1956 and Rama brought Baijabai when he was barely 6 to 7 years of age. It means that Baijabai came in the family somewhere in the year 1961 or in the year1962. Even if remarriage is assumed in between Rama and Baijabai of the year 1961-62 however, it Judgment 13 SA102.18.odt is void being in contravention of Clause (i) to Section 5 of the Hindu Marriage Act. Therefore, in absence of evidence, it is difficult to hold that Baijabai acquired any legal status in the family. In other words, Baijabai has not succeeded the property of Rama and therefore, her testamentary document of Will carries no substance.