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PETITIONER: BALIRAM ATMARAM KELAPURE

       Vs.

RESPONDENT: SMT. INDIRABAI & ORS.

DATE OF JUDGMENT:       18/04/1996

BENCH: JEEVAN REDDY, B.P. (J) BENCH: JEEVAN REDDY, B.P. (J) MUKHERJEE M.K. (J)

CITATION:  1996 AIR 2024            JT 1996 (5)    18  1996 SCALE  (3)784

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      Leave granted.  Heard learned  counsel  for  booth  the parties.      Second defendant  is the appellant. Suit for partition, separate  possession   and  profits   instituted  by     the plaintiff_first  respondent    has  been  decreed    by  the appellate Court  with the  following shares  plaintiff 1/12, first defendant  5/12 and  second defendant  6/12. The  High Court has  modified the said shares in the following manner: plaintiff 1/12,  first defendant  7/12 and  second defendant 4/12. Since  fils share  has been reduced by the High Court, the present has been preferred by the second  defendant .      One Atmaram,  who died on January 13,1971,had two wives - Janki  Bai and  Rama Bai. Plaintiff Indira Bai and the 4th defendant latya  are the  children by  Janaki  Bai.  Whereas first defendant Krishna and second defendant Baliram are the sons through  Rama Bai. Rama Bai was alive when the suit was instituted and  she was  impleaded as  the third  defendant. Pending the  suit Rama  Bai died and defendants 1 and 2 -her sons -  have been  impleaded as  her legal  representatives. This  was   done  notwithstanding  the  plea  of  the  first defendant  Krishna   that  Rama  Bai  has  executed  a  will bequeathing her  entire interest   in  his favour  aline. In this appeal  we are  not concerned  with the  shares of  the plaintiff and defendants 1 and 2. Here again the plaintiff’s share at  1/12 is  not in  dispute. The  dispute  really  is between  defendants   1  and  2.  The  appellate  court  had determined the  shares  of  defendant  1  and  defendant  2, keeping aside  the will relied upon the first defendant . On the other hand, the High Court has accepted the will as true and accordingly  modified the shared of these two defendants as 7/12 and 4/12 respectively.      In our  opinion, the  High Court  was not  justified in modifying the  shares as  aforesaid . Firstly, the will said to have  been executed  by Rama  Bai in  favour of the first

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defendant was  not in  issue in  the suit  nor in  the  L.R. application and  no finding  with respect  to its  truth and validity has  been recorded.  Notwithstanding the said will, both the  brothers defendants  1 and 2 were impleaded as the L.Rs. of  Rama Bai  . Moreover, since the first defendant is seeking to  alter the  normal rule  of succession by putting forward the said will, the burden lies upon him to establish the truth and validity of the will.      For the  above reasons,  we set  aside the judgment and decree of the High Court and restore the judgment and decree of the  first Appellate  Court. It   is, however, made clear that it  shall be  open to  the first defendant to establish the truth  and validity  of the  said will in an appropriate suit/proceeding in  which event, it is obvious, the inter se shares as  between the  present defendants  1  and  2  shall depend the  finding of  competent court  regarding the truth validity of the will.      The second  appeal is  accordingly allowed in the above terms. No costs.