1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR SECOND APPEAL NO. 201 OF 2008 Pratibha Santosh Morey Vs. Motiram Pandurang Gorle Office Notes, Office Memoranda of Coram, appearances, Court orders or directions and Registrar's orders Court's or Judge's orders Smt. U. R. Patil Adv. for appellant. Shri A. J. Thakkar Adv. for respondents. CORAM: C. L. PANGARKAR J. Dated: 22 nd JULY, 2009. This Second Appeal is preferred against the judgment and decree passed by the Additional District Judge Akot whereby he confirmed the judgment and decree passed by the Civil Judge Junior Division Akot. 2. Plaintiff-appellant has instituted a suit for partition and separate possession of the property said to have been left behind by her father. It was her contention that the property in the hands of 2 original defendant Motiram was an ancestral property and since her father and mother now are dead she has a share in the said property. 3. Said suit was contested not only by the original defendant Motiram who died during the pendency of the suit but also contested by other heirs namely his wife, daughters and sons. They contend that suit property was self acquired property of Motiram and he had every right to dispose of the property. They also set up a will executed by Motiram in their favour. 4. Learned Judge of the trial Court framed issues, whether the property in the hands of the defendants was self acquired property of Motiram and whether suit was within limitation? Trial Court found that the property was the self acquired property of Motiram. Trial Court also found that the will was executed by Motiram bequeathing entire property to the defendants. Plaintiff therefore preferred an appeal before the Additional District Judge. Additional District Judge also found as a fact that this property of which partition was sought was a self acquired property of Motiram and Motiram had executed a will, holding so he dismissed the appeal. 5. I have heard the learned counsel for the appellants and the respondents. 3 6. Learned counsel for the appellant raised only one contention before me. According to her trial Court did not frame an issue as to the validity of the will and therefore the first appellate Court was bound to remand the matter to trial Court. She submits that due to the non framing of issue the parties were not made aware whether they should lead evidence or not on will. The contention does not appear to me to be sound. It appears that plaintiff herself had contended in the plaint that the will executed by the defendant was invalid and void. Defendants had set up a will. Burden of proof to prove the execution of will is always on the propounder of the will i. e. on the defendants. Defendants lead evidence in the matter. They examined the attesting witnesses. Plaintiff has also examined herself and has lead evidence. It cannot be said that she was not aware of the fact that validity of the will was the question before the trial Court. Plaintiff had herself contended in the plaint that the deceased had no right to execute the will and that it was not valid. As such it cannot lie in the mouth of the plaintiff that she was not aware that such issue was in question before the Court. After having gone through the judgments of the Courts below it is apparent that parties have lead evidence with regard to the validity of the will. Said evidence has been properly 4 appreciated. In any case no grievance was made with regard to the appreciation of the evidence on that count. In the circumstances I do not find that first appellate Court should have remanded the matter. First appellate Court is also a court of fact. It had framed a point for determination with regard to the validity of the will and it had as a fact found that the will was properly executed by Motiram and there was no suspicious circumstance surrounding the execution of the will. Since such a finding was not even challenged I do not find that it was necessary for the Court to remand the matter to the trial Court. No question of law is urged. There is no substance in the second appeal. It is dismissed in limine. JUDGE svk 5 6 7