IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 602 OF 2008 Harish Jivandas Asar ...... ...... ...... Appellant V/s Smt.Radhaben Jivandas Bhate @ Asar & Ors. ..... ...... Respondents. Mr.Nagesh Chavan, Adv. For the appellant. Mr.Amit Borkar, Adv. For respondent Nos. 1 & 2. Mr.R.G.Ketkar, Adv. For respondent Nos. 9 & 10. CORAM: R.V. MORE, J. 19th NOVEMBER, 2008. PC: Heard Mr.Chavan, learned advocate for the appellant, Mr.Amit Borkar, learned advocate for respondent Nos.1 and 2 and Mr.R.G.Ketkar, learned advocate for respondents 9 and 10. 2. The appellant is the original defendant No.1 and respondent Nos.1 and 2 are the original plaintiffs in Regular Civil Suit No.621/02. The suit was filed for declaration to the effect that defendants have no right, title or interest in the suit property and consequential injunction that they should not alienate, transfer or create any third party interest in the suit property. The claim of plaintiff was based on the will dated 27.4.78 executed by one Santokbai. The trial Court decreed the suit by judgment and decree dated 10.2.2004 and declared that defendants have no right, title or interest in the suit property. They were also restrained from 1 alienating from or creating third party interest in the suit property. This decree of the trial Court was challenged by the original defendant No.1 in Regular Civil Appeal No.213/2004 before district Court, Kolhapur. Respondent Nos. 5 to 10 were added as party- respondents during pendency of the appeal. The lower appellate court after hearing both sides was pleased to confirm the trial court's decree and hence present second appeal has been filed. 3. Mr.Chavan, learned advocate appearing for the appellant made two fold submissions. Firstly, he contended that the will in question executed by deceased Santokbai on 27.4.78 is not attested by two witnesses and therefore it cannot be given effect and consequently the respondents 1 and 2, original plaintiffs cannot claim ownership to the suit property, on the basis of this will. Secondly, he submitted that even assuming that the will is valid and attested by two witnesses in that case also respondents 1 and 2-plaintiffs will not get ownership to the suit property in as much as under the said will only possession of suit property was given to these respondents and not the ownership. 4. Mr.Ketkar, learned advocate for respondents 9 and 10 per contra took me through the will deed as well as the deposition of plaintiff No.1 and P.W.2-Arvind and asserted that the will is attested by more than two witnesses. He also submitted that the entire reading of the will shows that the ownership of the suit property is bequeathed to the present respondent No.1-original plaintiff. 5. Having heard the learned counsel for respective parties and 2 having gone through the impugned judgment and decree so also the deposition of parties and will deed I am of the considered view that the appeal is devoid of any substance. The appellant' s submission that the will is not attested by two witnesses is not borne out by the record of the case. A perusal of the said will reveals that same is attested by Narottam Jamnadas Asar-plaintiff No.2, Jivandas Jamnadas Asar, Smt.Damyanti, Smt.Hansaben, Arvind, Harish and Prakash. In his evidence Arvind Jivandas Asar discloses that he was one of the attesting witness and long with him aforesaid persons have signed the will in the presence of the testator. In view of the aforesaid facts and circumstances I do not find merit in the first submission. 6. This takes me to consider second submission of the appellant that under the will in question only possession of the suit property was given to respondents 1 and 2-original plaintiffs and not the ownership. Clause 5 of the said will reads as under : “It is my will that partition and possession of the aforementioned property should be made as follows:” And thereafter so far as the suit property is concerned it is mentioned that each of the respondents 1 and 2 should be given possession of half portion of the suit property. A conjoint reading of these clauses, in my opinion, makes it clear that the ownership of the suit property was bequeathed and not only the possession. 7. Learned counsel for the appellant lastly contended that the 3 translation of the will in question in Marathi has not been correctly done. However Mr.Ketkar, learned advocate for respondents 9 and 10 submitted that the translator of the will one Sou.Parinita Shah was examined in the trial Court who has categorically stated that the translation is correct. The appellant-defendant No.1 however did not cross examine the said witness. In that view of the matter I do not find any merit in the contention that the translation is not correct. 8. The lower Courts below have concurrently held that the suit property was bequeathed by deceased Santokbai to respondents 1 and 2-original plaintiffs. I do not find any error in the findings recorded by the courts below. The appeal is devoid of any substance. Hence it is dismissed. In view of disposal second appeal civil application No.1528/08 does not survive and the same also stands disposed of. 19.11.08 (R.V. MORE, J.) 4