SA 33 of 2021 - Judgment.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR SECOND APPEAL NO.33/2021 APPELLANT : : Rajesh S/o Sheshrao Chore, Ori. Defendant aged about 57 years, Occu. business, No.7 (On RA) R/o Rahatekar Wadi, Plot No.56, Dasra Road, Mahal, Nagpur. ...VERSUS… RESPONDENTS : 1) Smt. Gautami @ Vijaya Vinod Narayane Ori. Plaintiff aged about 51 years, occu- household (On RA) R/o C/o Smt. Jyoti Vikas Meshram, Old Bagadganj, Near Budh Vihar, Nagpur. Ori. Defendants 2) Smt. Jyoti W/o Vikas Meshram, No.2 to 6 & 8 About 43 years, occu – household. R/o Old Bagadganj, Near Budh Vihar, Nagpur. 3) Ravi S/o Shivshankar Shambharkar, Aged about 46 years, occu – Private, R/o Opp. Bhujade Cycle Stores, Pardi, Nagpur. 4) Chandrakalabai W/o Marotrao Moon (dead) through her L.Rs. a) Milind S/o Marotrao Moon, aged about 36 years. b) Vaishali D/o Maroti Moon, aged about 31 years. c) Sharad S/o Maroti Moon, aged about 27 years. 2026:BHC-NAG:584 SA 33 of 2021 - Judgment.odt 2 All R/o Somwari Quarter No.32/2 Raghuji Nagar, Nagpur. 5) Ashok S/o Shivshankar Shambharkar (dead) through his L.R (a) Bhushan S/o Ashok Shambharkar aged about 36 years. 6) Manohar Shivshankar Shambharkar (Dead) through his L.Rs. a) Smt. Rajani Wd/o Manohar Shambharkar, aged 71 years. b) Navin Manohar Shambharkar aged about 36 years. c) Suraj S/o Manohar Shambharkar aged about 33 years. d) Komal D/o Manohar Shambharkar aged about 31 years. All R/o Dasra Road, Mahal, Nagpur. 7) Raj S/o Shivshankar Shambharkar Aged about 56 years, R/o C/o Gurudeo Ganar, Plot No.232, Untkhana, Nagpur. 8) Mrs. Arti W/o Pravin Moon, aged About 33 years, occupation private Service, R/o C/o Tulsidas Nagrare, New Rupblican Vasahat, Galli No.2, New Kailash Nagar, Nagpur. --------------------------------------------------------------------------------------------------- Smt. S.V. Chute, Advocate for appellant Mr. Raju Kadu, Advocate for respondent No.1 --------------------------------------------------------------------------------------------------- CORAM : ROHIT W. JOSHI, J. DATE : 08/01/2026 ORAL JUDGMENT : SA 33 of 2021 - Judgment.odt 3 1. The present appeal is filed by the original defendant No.7. The suit property is Nagpur Improvement Trust (NIT) leasehold plot. The defendant No.7 has purchased the suit property from the defendant No.6 vide sale-deed dated 28/02/2003. The suit property was earlier held in leasehold rights by late Shivshankar, father of plaintiff and defendant Nos.1 to 6, who expired on 24/07/2000. The defendant No.6 claimed exclusive right over the suit property on the basis of a Will, dated 14/12/1999, stated to be executed in his favour by Sheshrao. On the basis of the said Will the defendant No.6 got the lease with respect to suit plot executed in his favour after demise of Sheshrao. As stated above, defendant No.6 has sold the suit property to the defendant No.7. 2. In this backdrop, respondent No.1- the original plaintiff filed a suit being Regular Civil Suit No.3178/2012, seeking declaration that Will-deed dated 14/12/1999 and sale-deed dated dated 28/02/2003 are null and void and not binding on her. She claimed 1/4th share in the suit property by way of partition on the basis of Will dated 18/12/1995, allegedly executed by the father in her favour with defendant Nos.1 to 3. 3. The defendant Nos.6 and 7 did not examine any attesting witness to the Will. The Will is not proved. Since the defendant No.6 claims exclusive right over the suit property on the basis of Will which is not proved, it is obvious that defendant No.7, who has purchased the SA 33 of 2021 - Judgment.odt 4 suit property from defendant No.6 also cannot claim exclusive title over the suit property on the basis of said Will. 4. Both the learned Courts have held that since the Will dated 14/12/1999 is not proved, the defendant No.7/appellant cannot claim exclusive right over the suit property. Since the Will relied upon by the plaintiff is also not proved, the learned Trial Court has granted 1/7th share each to the plaintiff and defendant Nos.1, 5 and 7. The share of defendant No.6 is given to defendant No.7, in view of the sale-deed executed by defendant No.6 in favour of defendant No.7. 5. In view of the aforesaid, no fault can be found with the concurrent decrees, passed by the learned Courts, granting declaration that the Will dated 14/12/1999 is null and void and sale-deed dated 28/02/2003 is not binding on the plaintiff. The decree for partition also does not warrant any interference since the Will is not proved. 6. Learned Advocate for the appellant, however, contends that the suit itself was bad and not maintainable since NIT, which is the owner of the property was not arrayed as a defendant in the suit. 7. The contention cannot be accepted. NIT had granted long term lease with respect to suit property in favour of late Shivshankar. The dispute in the suit is pertaining to a sale-deed, executed by one of his sons i.e. defendant No.6 in favour of defendant No.7 on the basis of a Will allegedly executed by the original lessee Shivshankar in his SA 33 of 2021 - Judgment.odt 5 favour and in relation to partition of the leasehold plot. Rights of NIT as owner of the plot are not involved. The other prayer in the suit is for partition and separate possession, which prayer is also not adverse to the interest of NIT. Having regard to the controversy, which is a subject matter of the suit and the prayers in the suit, NIT is neither a necessary party nor proper party to the suit. 8. In view of the reasons recorded above, no substantial question of law arises for consideration in the second appeal. Second Appeal is, therefore, dismissed with no order as to costs. (ROHIT W. JOSHI, J.) Wadkar