This Writ Petition challenges the rejection of Defendant No.8's application by the Joint Civil Judge (Senior Division), Nashik, which sought to frame issues and modify shares in a partition suit based on a newly produced Will. The Court dismissed the Writ Petition, upholding the partition decree as final and binding.

Introduction

• Writ Petition: Challenges the order rejecting the framing of issues based on a newly surfaced Will.
• Executing Court: Joint Civil Judge (Senior Division), Nashik.
• Final Decree Application No.7 of 2019: Application filed by Defendant No.8 for modifying shares determined by the preliminary decree.

Brief Facts

• Suit Property: Non-agricultural land with a structure, located at M.G. Road, Old Lamp Road, Deolali, Shiwar, Nashik.
• Partition Suit: Filed by Respondent Nos.1 and 2 for partition and separate possession of the Suit property.
• Original Ownership: Tulshiram Ratanchandra Mantri, who died intestate in 1975, survived by two sons and six daughters.
• Initial Shares: Each of the eight siblings was entitled to a 1/8th share.
• Legal Proceedings: Multiple appeals by Defendant No.8 were dismissed, rendering the partition decree final.

Defendant No.8's Claims

• New Will: Produced a registered Will claiming a 43.75% share, necessitating a re-determination of shares.
• Application for Framing Issues: Filed to modify the shares based on the new Will.
• Court's Rejection: The Executing Court rejected this application.

Legal Arguments

• Petitioner's Advocate: Argued for considering the Will to frame new issues.
• Respondent's Advocate: Questioned the authenticity of the Will produced 50 years later, suggesting it was an attempt to delay execution proceedings.

Court's Findings

1. Changed Circumstances and the Will: The decree is final and absolute, with no provision for re-determination of shares based on the new Will.
2. Failure in Due Diligence: The Will was not mentioned in earlier pleadings, indicating a lack of due diligence.
3. Constructive Res Judicata: Prevents re-litigation of issues that could have been raised earlier.
4. Supreme Court Precedents: An executing court cannot question a decree's validity unless it is a nullity.
5. Historical Context: Consistent rejection of Defendant No.8's claims across judicial stages.
6. Execution Proceedings: The Executing Court's role is to enforce the decree as it stands.

Conclusion

• Dismissal of Writ Petition: The Petitioner's pleas were untimely and lacked due diligence.
• Cost and Compliance: Defendant No.8 directed to pay costs and remove obstructions from the suit property.
• Interim Application under Section 340 CrPC: Careful consideration needed; evidence suggests no false submissions by Respondents.

The court upheld the partition decree and directed timely execution proceedings.