Bombay High Court
Shrikant S/O Vasant Mudholkar vs Smt. Anuradha Wd/O Ashok ... on 3 October, 2017
Bench: A.S. Chandurkar
SA146.17.odt 1/9
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.146 OF 2017
APPELLANT: Shrikant S/o Vasant Mudholkar, Aged
(Original about 42 years, Occupation:Service, R/o
Deft.No.4) Plot No.104, Abhyankar Nagar, Zenda
Chowk, Nagpur-440 010.
(On R.A.)
-VERSUS-
RESPONDENTS: 1. Smt. Anuradha Wd/o Ashok Mudholkar,
(Original Aged: 66 years, Occ: Service,
Plaintiffs No.1 to
4)
2. Sau. Kamini W/o Ashok Mudholkar,
Aged 29 years, Occu: Housewife,
3. Master Amit S/o Ashok Mudholkar,
Aged about 27 years, Occu: Service,
4. Master Rohit S/o Ashok Mudholkar,
Aged 22 years, Occu: Service, R/o
Akola.
Respondent Nos.1 to 4 Residing at
Mudholkar Wada, Opposite Panchayat
Samiti, Tajana Peth, Collectorate Road,
Akola, Tq. & District Akola.
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SA146.17.odt 2/9
(Original 5. Krishna S/o Shridhar Mudholkar (Died)
Defendants 1, 2
Aged about 70 years, R/o Green Park
and 3)
Housing Society, Civil Lines, Nagpur.
5-A LR of deceased Krishna Mudholkar
(Defendant No.1), Brigadier Ajitkumar
S/o Krishnarao Mudholkar, Aged 48
years, Occu: Service, R/i HQ-1, Armed
Briged, C/o 56, APO Faizpur, Dist.
Faizpur (Punjab).
6. Anand S/o Shridhar Mudholkar (Died),
Aged about 65 years, Occu: Nil, R/o
Mudholkar Wada, Opp. Panchayat
Samiti, Tajana Peth, Collectorate Road,
Akola, District Akola.
6-A LR of deceased Defendant No.2 Sudhir
S/o Anand Mudholkar, Aged 40 years,
Occu: Service, R/o Mudholkar Wada,
Opp. Panchayat Samiti, Tajana Peth,
Collectorate Road, Akola, District Akola.
7. Subhash S/o Vishwanath Mudholkar,
Aged 47 years, Occu: Business, R/o
Mudholkar Wada, Opp. Panchayat
Samiti, Tajana Peth, Collectorate Road,
Akola, District: Akola.
Shri M. Y. Wadodkar, Advocate for the appellant.
Shri V.R. Deshpande, Advocate for the respondents 1 to 4.
Shri N. R. Kanungo, Advocate for respondent no.6.
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SA146.17.odt 3/9
CORAM: A.S. CHANDURKAR, J.
DATE ON WHICH SUBMISSIONS WERE HEARD: 25-09-2017
DATE ON WHICH JUDGMENT IS PRONOUNCED: 03-10-2017
ORAL JUDGMENT :
1. The learned Counsel for the parties have been heard
on the following substantial questions of law:
(1) Whether both the Courts were right in granting share
to deceased Ashholkar, though had not succeeded to share
in view of his death on 11-10-1993 which was prior to the
death of the fourth son of testator i.e. Shri Anandrao
Shridhar Mudholkar?
(2) Whether both the Courts have rightly interpreted the recitals
in the Will dated 15-8-1963 more particularly the words
'failing whom'?
2. The appellant is the defendant no.4 in the suit for
partition and separate possession filed by the respondent nos.1 to
4 herein.
3. One Shridhar Mudholkar executed a will dated
15-8-1963 bequeathing his self-acquired property amongst his four
sons. Said Shridhar Mudholkar expired on 7-10-1963. As per the
said will, the property was bequeathed in favour of his four sons
who did not have any right to dispose of the same in any manner
and they were to enjoy the property in common. On the death of
SA146.17.odt 4/9
any of the four sons, the respective life estate was to thereafter
pass in the case of the eldest son to his youngest son failing whom
to the sons of the eldest son, the eldest excluding the rest. The
plaintiffs are the widow and children of Ashok Mudholkar who
was the youngest son of Manohar Shridhar Mudholkar. Said
Manohar Shridhar Mudholkar expired on 22-5-1973. He had three
sons namely Vasant, Sharad and Ashok. While Vasant expired in
1989, Ashok expired in the year 1993. The legal heirs of Ashok
filed suit for partition and separate possession after the death of
Ashok. This suit was filed on 25-9-1996. Two other sons of
Shridhar namely Krishna and Ananda died after the suit was filed.
The dispute pertains to the share of Manohar. The appellant is the
defendant no.4 - Shrikant who is the eldest son of Vasant.
4. According to the plaintiffs, in terms of the aforesaid
will Ashok being the youngest son of Manohar, he was entitled for
a share in the property in accordance with the will. According to
the defendant No.4, as Ashok did not execute his right to receive
his share during his life time, the eldest son of Vasant - the
defendant no.4 was entitled to receive the suit property.
5. The trial Court held that by virtue of the aforesaid will
the plaintiffs had got 1/4th share in the suit property which was the
share of Ashok. This judgment has been confirmed by the first
SA146.17.odt 5/9
appellate Court. Being aggrieved the defendant no.4 has filed the
present appeal.
6. Shri M. Y. Wadodkar, learned Counsel for the
appellant made twofold submissions. According to him, the
expression "failing whom" as used in the will was not properly
interpreted by both the Courts. According to him, Manohar had
expired on 22-5-1973 and though Ashok was his youngest son, he
did not claim his right to the share as given under the will for a
period of almost twenty years during his life time. Due to this, the
legal heirs of Ashok were not entitled to any share and as per
terms of the will, the sons of Vasant were entitled to the suit
property. It was urged that if this clause was correctly interpreted,
the suit was liable to fail as the legal heirs of Ashok were not
entitled to any share in the property.
The intention of Shridhar being that during the life
time of his sons the suit property should not be divided, the suit as
filed on 25-9-1996 was premature as on said date the defendant
no.1 - Krishna and defendant no.2 - Anand were alive. The suit as
filed was premature and it ought to have been filed only after the
death of the last son who expired on 23-12-1999. Hence, both the
Courts committed an error in entertaining the suit and granting
relief to the plaintiffs.
SA146.17.odt 6/9
7. Per contra, Shri R. R. Deshpande, learned Counsel for
the respondent Nos.1 to 4 supported the impugned judgments.
According to him, both the Courts rightly interpreted the clause
"failing whom". Said clause meant that only if Ashok predeceased
Manohar or if he suffered from some legal disability that the sons
of Vasant would get a share in the property. In the present case,
Ashok survived his father and for a period of almost twenty years
was collecting rent of the suit properties. There was no evidence to
indicate that Ashok had given up his share in the suit property so
as to disentitle his legal heirs from receiving any share. It was
then submitted that the defence that the suit was premature was
not taken either in the written statement nor was it urged before
the Courts below. According to him, the suit was not liable to be
defeated on this count. Moreover, the last son of Shridhar had
expired during pendency of the suit itself hence the suit was
rightly decreed. It was thus submitted that no interference was
called for in the second appeal.
Shri N. R. Kanungo, learned Counsel for the
respondent no.6 supported the submissions as made on behalf of
the appellant,
8. I have heard the learned Counsel for the parties at
length and have perused the will dated 15-8-1963 as well as the
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evidence led by the parties. As per said will the sons of Manohar
were to enjoy the suit properties during their life time. On the
death of any of the sons, their life estate would come to an end. In
so far as the share of Manohar is concerned, the will indicates that
after the death of Manohar his youngest son Ashok would be
entitled to receive his share "failing whom" the same would go to
the sons of Vasant, the eldest son of Manohar. The term "failing
whom" when read in the backdrop of the entire will indicates that
if for some reason the youngest son, Ashok does not survive his
father or suffers any legal disability then in that eventuality the
sons of Vasant would be entitled for the share. I find that this
clause has been rightly interpreted by both the Courts to mean that
after the death of Manohar on 22-5-1973, as Ashok was alive he
was entitled to receive the property as per the said will and there
was no question of expression "failing whom" coming into
operation. The term "failing whom" clearly indicates the intention
of the testator to take into consideration the contingency if Ashok
predeceased Manohar. Same has not happened and, therefore, the
legal heirs of Ashok are entitled for their share as per the will. The
evidence on record further indicates that Ashok during his life time
was looking after his share and was also residing in portion of the
suit property. The finding in this regard recorded in para 24 of the
SA146.17.odt 8/9
judgment of the first appellate Court, therefore, does not deserve
to be interfered with. Substantial question of law No.2 is answered
by holding that both the Courts have rightly interpreted the
recitals in the will.
9. As regards the ground that the suit was filed prior to
the death of two sons of Shridhar and hence, it was premature,
there is no specific defence raised in that regard by the defendant
no.4. In absence of such specific plea being raised as to the
maintainability of the suit, same is not liable to be urged by the
defendant no.4 at this stage. Moreover, the will indicates that on
the death of any of the sons of Shridhar, the life estate would come
to an end. The suit was filed in the year 1996 and during pendency
of the suit the defendant no.1 expired on 13-10-1997 and the
defendant no.2 expired on 23-12-1999. The trial Court decreed
the suit on 12-1-2006. Hence, I do not find this objection raised by
the defendant no.4 to be of such nature that would defeat the legal
rights of the plaintiffs to their claim to the suit property. The
substantial question of law No.1 is answered by holding that both
the Courts were right in granting share to the legal heirs of Ashok
though he had expired prior to the defendant no.2.
10. In view of aforesaid answers to the substantial
questions of law, the decree as passed does not call for any
SA146.17.odt 9/9
interference. The second appeal therefore stands dismissed with no
order as to costs.
JUDGE
/MULEY/
