1 wp9640.10 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 9640 OF 2010 _____________________________________________________________________ Office Notes, Office | Memoranda of Coram, | appearances, Court's | Court’s or Judge’s orders orders or | directions and | Registrar's orders | _____________________________________________________________________ Mr. D.P. Deshpande, advocate for the petitioners. Mr. S.M.Vibhute, advocate for respondent no.1. 1. Heard Advocates Mr. Deshpande for petitioners and Mr. Vibhute for respondent no.1. The challenge is to order of appellate Court rejecting the prayer under Order 41 Rule 27 of the Civil Procedure Code. Application contains two prayers (i) to permit production of original will and (ii) to permit examination of attesting witness. 2. Advocate Mr. Deshpande for petitioners argues that here will was executed by deceased on one date and it was registered with competent authority on another date. Witnesses examined were witnesses before the registering authority and as certified copy of will was shown to them, they could not identify their signatures. He further contends that the learned counsel then representing the petitioners committed error in not 2 wp9640.10 examining the witnesses who actually attested the signature of deceased on the date of execution of will. He is relying upon the judgment of Division Bench reported at "(1949)51 BOMLR245" {Vishnu Ramkrishna Wani V/s Nathu Vithal Wani}, to urge that last wish of the deceased is of vital importance in such circumstances and utmost care should be taken to appropriately honour it. 3. Advocate Mr. Vibhute for respondent on the other hand argues that the certified copy of will was produced and on that basis secondary evidence has been adduced. The prejudice if any because of that certified copy was never pressed into service. He further contends that production of will at this stage is an attempt to fill in lacuna. He has also invited attention to application filed under Order 41 Rule 27 of the Civil Procedure Code to show that all these contentions do not figure in it. 4. I have perused the application, impugned order and judgment of the Hon'ble Division Bench (supra). The petitioner himself preferred to led evidence on the strength of certified copy. After receipt of original, he filed application for its production before appellate Court and also pointed out that the attesting witness had gone to some pilgrimages when the matter was taken up by the trial Court and hence he was not examined. The appellate Court has correctly appreciated situation. I do not see any 3 wp9640.10 jurisdictional error or perversity. Whether trial Court did not grant reasonable chance to petitioner to prove his case is an issue not relevant before me. 5. Law laid down by the Division Bench (cited supra) is well established. To ascertain wish of deceased and to implement it, the reasonable opportunity to parties to establish will also needs to be given. But then the grievance of learned Counsel for petitioners here pertains to merits of the appeal, and therefore, can be looked into by the appellate Court while deciding the appeal finally. It can not form part of application under Order 41 Rule 27 of the Civil Procedure Code. Petition is therefore rejected. No costs. (B.P. DHARMADHIKARI) JUDGE. 17.03.2011 gas/wp9640.10