1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH: NAGPUR SECOND APPEAL NO.286 OF 2010 CHANDRABALI WASUDEO PANDE ..VS.. CHANDRAKANT WASUDEO PANDE & ORS Office Notes, Office Memoranda of Coram, Appearances, Court’s orders or directions and Registrar’s orders Court’s or judges Orders. CORAM: SMT. VASANTI A. NAIK, J. DATE: 27 /7/2010 Heard Shri Kilor, the learned counsel for the appellant. The appellant is the original plaintiff. The suit was filed by the plaintiff for a declaration that the gift deed executed by his father - Wasudeo in favour of defendant no.1 - brother of the plaintiff on 10.2.1993 was null and void and was not binding on the plaintiff. According to the plaintiff he had 1/9th share in the suit property. The plaintiff had joined the other brothers and sisters as party defendants to the suit. The defendant no.1 filed the written statement and denied the case of the plaintiff. According to the defendant no.1 his father had rightly executed a valid gift deed in his favour in the year 1993. Even otherwise according to the defendant no.1 if the gift deed was not found to be valid, the defendant no.1 2 would still be the owner of the property in view of the will executed by his father Wasudeo on 3.7.1985 making a bequest of the suit property in favour of the defendant no.1. The defendant no.1 sought for the dismissal of the suit. Some of the brothers and sisters of the plaintiff supported the claim of the plaintiff, whereas the others supported the claim of the defendant no.1. Both the courts on appreciation of the evidence on record came to a conclusion that the gift deed executed by Wasudeo on 10.2.1993 in favour of defendant no.1 was not valid as it was not a registered document. The courts then held that the plaintiff was not entitled for partition and separate possession of 1/9th share in the suit property as the suit properties were bequeathed to the defendant no.1 by will dated 3.7.1985. According to the courts the other brothers and sisters were also granted some other properties in terms of will dated 18.8.1986 in which the properties included in the will dated 3.7.1985 were not included. Hence, though both the courts held that the gift deed dated 10.2.1993 was null and void, the defendant has succeeded in proving that he became the owner of the suit property in terms of the will dated 3.7.1985. The courts relied on the oral evidence of the defendant no.1 and his witnesses, specially the evidence of the attesting witness and the scribe who deposed about 3 the validity of the will dated 3.7.1985. The courts therefore, dismissed the suit of the plaintiff. The finding recorded by both the courts are pure findings of facts based on a proper appreciation of the material evidence on record. The submission made on behalf of the appellant that there could not have been two wills executed by Wasudeo and both the wills could not have been relied upon, is liable to be rejected for the simple reason that the plaintiff had accepted the properties which fell to his share by the will of 1986 and had merely included the properties which were bequeathed to respondent no.1 by the will of the year 1985 and which were not included in the will of the year 1986 in the suit as suit properties. Since no substantial question of law arises for consideration in this second appeal, the same is dismissed with no order as to costs. JUDGE SMP.