Whether plaintiff is entitled to get enhancement of share if there is death of one co-sharer of property?

The   trial   Court   took   into   consideration   the
enhancement in the share of the plaintiff from 1/15th  to 4/15th
because of the death of defendant No. 3 – Smt. Kamal, oneof the co­sharers in the suit properties.   The appellate Court
has rejected the contention of the plaintiff that the defendant
No.3­Smt.   Kamal   was   insane   on   the   ground   of   lack   of
pleadings and evidence on record. Smt. Kamal was residing
with   defendant   No.   7­Avinash,   who   claims   the   share   of
Smt.Kamal in the suit property on the basis of Will dated
02.11.1997 at Exh. 117, though the Will was registered.  With
the   assistance   of   the   learned   counsels   appearing   for   the
parties,  I have gone through the evidence of defendant no.7
and the attesting witness over the Will i.e. DW­2 Omprakash
Chandulal Soni and I find that the findings recorded by the
lower appellate Court accepting the said Will are based upon
the evidence available on record.  The Will has been proved
and there is no perversity in recording such finding.   As a

result, the plaintiff would not be entitled to enhancement of
share from 1/5th to 4/15th   as was granted by the trial Court.
Hence, the decree passed by the trial Court will have to be

modified to that extent. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 567 OF 2004 
Pandurang Sitaram Pande,

V
 Avinash Ramkrishna Pande,

CORAM: R. K. DESHPANDE, J.

Dated:   04.08.2016
Citation:2016(6) ALLMR 273

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