1 (SA 103 of 2010) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 103 OF 2010 WITH CIVIL APPLICATION NO. 135 OF 2010 IN SECOND APPEAL NO. 103 OF 2010 WITH CIVIL APPLICATION NO. 136 OF 2010 IN SECOND APPEAL NO. 103 OF 2010 Smt. Leela Vasant Shewale since deceased through LRs. Sudhir Vasant Shewale and Ors ...Appellants (Lrs. of Org.Defendant) Vs. Vishal Shivaji Adhav ...Respondent (Org. Plaintiff) ----- Mr. Uday Warunjikar for Appellant Mr. P.S. Dani for Respondent ----- CORAM: V.M. KANADE J. DATED: 4TH FEBRUARY, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the Appellant and the learned counsel for the Respondent. 2. Shri Warunjikar, the learned counsel appearing on 2 (SA 103 of 2010) behalf of the Appellant has raised the following substantial questions of law. “(B) Whether the learned Judge of the Appellant Court committed serious error by holding that the will deed executed by deceased Laxmibai in favour of Shivajirao is proved by testimony of attesting witness Dinkar Karve in view of the fact that the testimony of the said attested witness does not fulfill ingredient of Section 63 (c) of Indian Succession Act, 1929. (C) Whether the observations of the learned Judge of Appellate Court that the succession opens on the date of death of Gopalrao and on his death, Laxmibai and father of plaintiff Shivajirao were only successors, in view of the fact that Gopalrao died prior to 1937 when father of Leelabai i.e. Krishnarao was alive and also inherited the property and therefore this observation which goes to the root of rights of the appellant is perverse. (D) Whether provisions of Hindu Succession Act, 1956 confers right on the daughter 3 (SA 103 of 2010) in respect of separate property of her father who died before commencement of said Act, in view of the fact that the property was continued to be hold as joint family property till 1989 and there was no severance and partition of said property. (E) Whether the learned Judge of the Appellate Court committed serious error by holding that the property CTS no. 481 was purchased by her out of the income of ancestral property in view of the fact that absolutely there is no iota of evidence to come to the conclusion that the joint family was fetching or deriving income from ancestral property as family nucleus. (G) Whether finding of the learned Judge of Appellate Court on the point of nucleus is neither supported by pleading of defendant nor by admissible evidence.” 2. Brief facts are that the Respondent No.1 filed Misc. Application No. 847 of 1998 for the Letters of Administration vide R.C.Suit No. 1737 of 2004 in respect of Will, which was executed by Laxmibai, who was the great grandmother of the Plaintiff which was executed on 4 (SA 103 of 2010) 22nd June, 1973. The said Laxmibai’s husband Gopalrao expired in the year 1947. Laxmibai had a son Krishnarao, who also expired in 1951. Krishnarao had one daughter Leela and one son Shivajirao. Leela got married in the year 1960 to one Vasant Shewale. Shivajirao had one son Vishal. Shivajirao also expired in 1996. Laxmibai expired on 29th January, 1989. The Defendant-Appellant herein challenged the said Will on various grounds. 3. It was the contention of the Appellant-Original Defendant in the said suit that Laxmibai was not competent to execute the Will in respect of the second property in view of averments which are made in paragraph 5 of the said Will. Secondly, it was submitted that the Will was executed under suspicious circumstances. It was submitted that though the Laxmibai was able to read and write, yet she had her put thumb impression and, therefore, it creates a doubt about genuineness of the Will. He submitted that execution of Will was not proved. He invited my attention to the column below the Witnesses column. It was submitted that it was not proved that Dinkar Maheshwar Karve had in fact, signed the said Will. My attention was invited to his evidence and more particularly, the statement made by the witness in the cross examination. 5 (SA 103 of 2010) It was submitted that in the cross examination, he has stated that he had put his name and address on the said Will. Perusal of the Will would indicate that there was no signature of the said witness Dinkar Maheshwar Karve. It was, therefore, submitted that the attestation of the Will by the witness, was not proved and, therefore, the execution of the Will also was not proved and there was non-compliance of provisions of section 63 of the Indian Succession Act and section 68 of the Indian Succession Act. Secondly, it was submitted that the other attesting witness viz. Gulab Bapu Sonawane was not examined by the Plaintiff. He submitted that the signature of Gulab Bapu Sonawane, after it was compared with the signature on the application for letters of administration, clearly revealed that the said signature was different. Thirdly, it was submitted that one Trimbak Sakharam Dighe also has not put his signature. It was submitted that both the Lower Courts, therefore had erred in holding that the execution and the attestation of the Will had been proved. It was then submitted that the said Laxmibai in paragraph 5 of the Will, had stated that the second house, survey No. 481 was purchased partly out of her own income, which she had earned out of her independent business and partly out of the money which was received from the joint family property. It was submitted that, therefore, 6 (SA 103 of 2010) Laxmibai was not competent to execute the said Will. It was then submitted that the Lower Appellate Court had not dealt with the submissions made by the Defendant before the Appellate Court. The learned counsel for the Appellant has invited my attention to the remarks on the papers, which is part of the paper book and submitted that this aspect has not been considered by the Appellate Court. Then it was submitted that of the Will and interpretation of the Will was a substantial question of law and on this ground, the Second Appellate Court can entertain the Second Appeal. It was then lastly submitted that one circumstance which was suspicious, was that the Will was lying in the custody of the son for about six years and it was produced by him and this created a doubt about the genuineness of the Will. He was also invited my attention to the finding recorded by the First Appellate Court. 4. In my view, the submissions made by the learned counsel appearing on behalf of the Appellant herein- original Defendant cannot be accepted. The Trial Court has considered the entire evidence in detail on all these aspects and recorded a finding that the Will has been properly proved and the Plaintiff has proved the execution as well as the attestation on the said document. So far as the objection raised by the 7 (SA 103 of 2010) Appellant regarding the signature of Dinkar Karve is concerned, it has to be noted that in his examination-in- chief, he has stated that he had gone to the Sub- Registrar's office along with the others and at that time, along with Laxmibai, Shri Dighe and Sonawane, one Dr. Paranjape, was also present. Shri Dighe was the Stamp Vendor and Dighe in their presence, first explained the contents of the Will to Laxmibai and, thereafter, put her thumb impression and Shri Dighe attested the said thumb impression and Dr. Paranjpe put his remark on the said Will and, thereafter took his signature and also the signature of Shri Sonawane. He has also stated the Original Will was shown to him and he has admitted his signature. He has also admitted thumb impression of Laxmibai and also the signature of Dr. Paranjpe. Both the Court below have held that this witness had signed the said Will as an attesting witness and have recorded a finding of fact. It will not possible to read answer given in the cross examination out of context. The Will, itself indicates that there is signature of this witness and from the said signature, his name is also evident. Once a concurrent finding of fact recorded by both the Courts, this Court is not expected to again re-appreciate the evidence and record a separate finding. The Lower Appellate Court has categorically held that the finding given by the Trial Court is proved. It is not necessary 8 (SA 103 of 2010) that the First Appellate Court should record its own reasons once it approves the finding of the Trial Court. The submissions made by the learned counsel for the Appellant, therefore, cannot be accepted. So far as the contention regarding non-examination of Gulab Bapu Sonawane is concerned, in my view, it is not necessary for the Plaintiff to examine both the attesting witnesses and at this stage, it is not possible to examine the signature of Gulab Bapu Sonawane appearing on the Will and on the application filed by him. So far as the attestation made by Shri Trimbak Dighe is concerned, it can be seen that on one place, he has put his initial and at another place, he has in his own handwriting, attested the thumb impression. 5. So far as the other suspicious circumstances are concerned, in view of the concurrent finding recorded by both the Courts below, it will not be possible to re- appreciate the evidence and come to a different conclusion. In the present case, admittedly, in the said Will, certain gold and gold ornaments were given to the Appellant herein, as it was the custom in those days of giving gold ornaments to a married daughter and to bear the matrimonial expenses. Viewed from angle, therefore finding recorded by both the Courts below cannot be said perverse. Therefore, no substantial question of law 9 (SA 103 of 2010) is raised in the Second Appeal. The Second Appeal is dismissed and disposed of. The Civil Applications do not survive and are also disposed of. (V.M. KANADE J.)