1 (SA261.89) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.261 OF 1989 Mahadeo Yeshwant Kadam ) Since deceased by His Heirs:- ) Jaiprakash Mahadeo Kadam ) MSEB, Pandharpur Division, ) Near S.T. Stand, ) Kadam Building, Pandharpur ) District : Solapur ) ...Appellant. (Orig. Plaintiff) v/s 1.Changdeo Yeshwant Kadam ) Age: 51 years, Occ: Agriculturist ) ) 2.Sukhadeo Yeshwant Kadam ) Age: 44 years, Occ: Agriculturist ) ) 3.Sadashiv Narayan Kadam ) Age: 48 years, Occ;Agriculturist ) ) All R/O at:- ) Yeshwant Post: Tandulwadi ) Taluka: Malshiras, ) District: Solapur ) 2 (SA261.89) ) 4. Sundarabai Yeshwant Kadam ) Age: 70 years, Occu: Nil ) since deceased through heirs:- ) 4(a) Changdeo Yeshwant Kadam, ) age 48 years, occu. Agriculture ) 4(b) Sukhdeo Yeshwant Kadam ) age 41 yrs, Occu. Agriculture ) 4(c) Bakulabai Ghanshyam Chavan) age 65 yrs. Occ. Nil ) All residing at Tandulwadi, Tal. ) Malshiras, Dist. Solapur. ) 5.Sou. Nirmala Balasaheb Chavan ) Age – 25 years, Occ: Agriculture ) R/o Tandulwadi, Tal. Malshiras ) District: Solapur ) ...Respondents (Orig. Defendants) Mr. T.D. Deshmukh for the Appellant. Mr. Tanaji Mhatugade h/f Mr. S.B. Deshmukh for Respondent Nos. 1 to 3, 4(a) to 4(c) and 5. CORAM: V. M. KANADE, J. DATE : 1st July, 2011 3 (SA261.89) ORAL JUDGMENT: 1. Heard the learned Counsel appearing on behalf of the Appellant and the learned Counsel appearing on behalf of the Respondents. 2. Appellant is the original Plaintiff and the Respondents are original Defendants. For the sake of convenience parties shall be referred to as “Plaintiff” and “Defendants”. 3. Plaintiff filed a suit for declaration that Gift Deed executed by his father on 3/12/1969 and Will executed by him on 17/3/1970 is not binding upon his share and that he should be given 1/3rd share in the land Block No.413 and in house properties bearing Grampanchayat Nos. 71 and 59 situated at Tandulwadi. This suit was dismissed. Appeal which was preferred against this judgment and order was also dismissed. 4. Brief facts are as under:- 5. Plaintiff & Defendant Nos. 1 and 2 are real brothers and Defendant No.3 is their cousin. Plaintiff’s father effected partition between the brothers on 23/5/1966 and each son was given about 20 acres of land. In the said partition deed, however, share of the father was not determined and certain properties did not form part of the said partition deed. Thereafter, father, by Will, bequeathed the balance 4 (SA261.89) properties to his three sons and also executed a Will where properties were also distributed as stated in the Will. The contention of the Plaintiff was that two properties which were given to him in the said Will and Gift Deed actually belonged to him and, therefore, there was no question of his father bequeathing the said properties by a Will or Gift Deed to him. It was his contention that the properties which were not included in the partition deed of 23/5/1966 were ancestral properties and, therefore, Plaintiff had a right in the said properties and had a share in the said properties and the father could not have bequeathed the said properties by Will or Gift Deed. It was also contended that his father was not capable physically or mentally to understand the contents of the Will or Gift Deed and that Defendants had fraudulently taken undue advantage of his father’s physical and mental condition. 6. The learned Counsel appearing on behalf of the Appellant/Plaintiff submitted that Gift Deed was not properly proved. It is submitted that one of the attesting witnesses had stated in his evidence that the father of the Plaintiff was not in a proper mental and physical condition to execute the Will and Gift Deed. The learned Counsel invited my attention to the deposition of the said attesting witness and submitted that provisions of section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act were not complied with. 5 (SA261.89) 7. It is not possible to accept the submission made by the learned Counsel appearing on behalf of the Appellant/Plaintiff. Perusal of the evidence of Sadashiv Ganpat Bendre (D.W.1) clearly reveals that in his examination-in-chief he has stated that he had prepared the Gift Deed as per the instructions given by the executor. Thereafter, he read over the contents to him and the executor put his thumb impression and other witnesses also put their thumb impression and he, thereafter, signed the said Deed. In cross examination D.W.1 has stated as under:- “I can’t recollect whether the executors brought to me 15 days previous to this deed, but as the executor Yeshwant could not see and he was traimbling so they went back.” Reliance was placed by the learned Counsel appearing on behalf of the Appellant/Plaintiff on this statement of the witness. In my view, it cannot be said that witness has stated that the executor Yeshwant was not in a position to see and was trembling and, therefore, he was taken back. In fact, the answer has to be considered in its entirety. The said answer, obviously, is given to the suggestion put to the witness that the executor was brought 15 days prior to the execution of the deed but he was taken back since he was not in a position to see and was trembling. To this 6 (SA261.89) suggestion, the witness has given his reply that he cannot recollect. The contention of the learned Counsel for the Appellant/Plaintiff that there is no compliance with the provisions of section 63 of the Indian Succession Act and section 68 of the Indian Evidence Act, therefore, cannot be accepted. Both the courts below have given concurrent finding on this fact. 8. The learned Counsel for the Appellant/Plaintiff then submitted that the father of the Plaintiff could not have given the remaining property by a Will or Gift Deed since the said property was joint family property. This submission also cannot be accepted since both the Courts below, after taking into consideration the evidence on record, have not accepted the Plaintiff’s contention. 9. This Court, while exercising its jurisdiction under section 100 of the Civil Procedure Code cannot re-appreciate the evidence and come to a different conclusion. Hence, submissions made by the learned Counsel for the Appellant/Plaintiff cannot be accepted. No substantial question of law is raised in this second appeal. Second Appeal is, therefore, dismissed. (V.M. KANADE, J.) 7 (SA261.89)