-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.734 OF 2003 APPEAL NO.734 OF 2003 APPEAL NO.734 OF 2003 Ramgonda Adgonda Patil ...Appellant Vs. Jangonda Narasgonda Patil and others ...Respondents Mr.N.J.Patil for the Appellant Mr.Abhinandan Vagyani for the Respondent Nos.1 to 3. CORAM: CORAM: CORAM: A.S.OKA, J. A.S.OKA, J. A.S.OKA, J. DATED: DATED: DATED: AUGUST 1,2006. AUGUST 1,2006. AUGUST 1,2006. P.C.: P.C.: P.C.: 1. Heard Advocates for the parties. The Appellant is the original Applicant in an Application made for grant of probate under the Indian Succession Act, 1925. The Trial Court rejected the Application and the order of the Trial Court has been confirmed in the Appeal. 2. Shri Patil for the Appellant submitted that the Appellate Court has committed illegality by not framing the points for determination arising in the Appeal and only one point is framed which is not permissible in law. He submitted that the document of Will relied upon by the Appellant has been rejected only on the ground that the same was not on a stamp paper and the same was not a registered document. He submitted that the burden was on the Respondents to prove the existence of suspicious circumstances relating to the -2- execution of the will and in absence of the Respondents discharging the said burden, the case of the Appellant which was supported by the witnesses ought to have been accepted. 3. I have considered the submissions. It is true that the points for determination are not framed by the Appellate Court. However, perusal of the Judgment of the Appellate Court shows that the court was fully aware of all the issues involved in the Appeal. The Appellate Court has considered the entire evidence on record and has addressed itself to the main controversy regarding proof and genuineness of the Will in respect of which probate was sought. In my view, no prejudice has been caused to either parties on account of the failure of the first Appellate Court to frame the points for determination. 4. It is true that the Will could not have been discarded on the ground that it was not written on a stamp paper and that it was not registered. However, the case of the Appellant is not rejected only on the said grounds. The courts below have considered the various circumstances on record. The Appellate Court has held that the evidence of attesting witness does not inspire the confidence. The Courts below have noted that the will was executed on 20th October 1977 and the testator died within 10 days thereafter i.e. on 31st October 1977. The Courts below have also observed that -3- though from the year 1980 the property dispute was going on between the Appellant and his real brothers, the Will was relied upon for the first time by the Appellant in the year 1988. The explanation of the Appellant is that the Will was in the custody of P.W.No.3-Vasant Raghu Shinde who handed over the same to the Appellant in the year 1988. 5. The courts below and especially the Trial Court has considered the deposition of the P.W.NO.3-Vasant Shinde. Considering the entire oral evidence on record, the Trial court held that the Will was not proved. The Trial Court also observed that when the thumb impression of the testator on the Will was disputed by the Respondents, a finger print expert ought to have been examined. 6. The findings of both the Courts below regarding failure of the Appellant to prove the Will is based on appreciation of oral and documentary evidence on record. No substantial question of law arises. Appeal is dismissed with no order as to costs. Judge. Judge. Judge.