(1) SA. 28.1992 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 28 OF 1992 1] Harubai w/o Ramchandra Erba Dhoble, age 42 years, Occu.: Agriculturist, R/o Omerga, Dist. Osmanabad (abated vide Court’s order dated 6.2.2009) 2] Menyabai w/o Tulshiram Bhaosle, Age : 36 years, Occu.: Agri., R/o Village Ghonshi, Tq. Udgir, Dist. Latur 3] Kewalbai w/o Nivrutti Putale, Age : 32 years, Occu.: Agri., R/o village Gudsur, Tq. Udgir, Dist. Latur .. Appellants VERSUS 1] Indirabai w/o Ramchandra Mane, Age : 52 years, Occu.: Household work, R/o village Lohara, Taluka Udgir, Dist.Latur 2] Dnyanoba Ramchandra Mane, Age : 28 years, Occu.: Agril., R/o Lohara 3] Tukaram Ramchandra Mane, Age : 26 years, Occu.: Agril., R/o Village Lohara .. Respondents Mrs. C.S. Deshmukh, Advocate h/f. Mr. P.R. Deshmukh, Advocate for the appellants None present for the respondents though served (2) SA. 28.1992 CORAM : A.V. NIRGUDE, J. DATED : 24TH JULY, 2009 ORAL JUDGMENT.:- 1] The appellants challenge the concurrent findings recorded by the Courts below, holding that the will executed by their father in 1969 in favour of the respondent no.1, bequeathing all his property to her, was a genuine document. 2] The facts leading to the litigation can be narrated as under:- . The appellants and the respondent no.1 are sisters and daughters of one Narsing Biradar who lost his wife quite early and did not re-marry. The respondent no.1, was his eldest daughter and the plaintiffs were the younger ones. Narsing as well as the respondent no.1 stayed at village Lohara Tq. Udgir, Dist. Latur but the appellants after their marriage, left the village and went to stay at different places. Narsing died in 1980 and soon after his death, the appellants filed the suit claiming partition of the suit property against the respondents, their elder sister and her two sons. They stated that the suit land belonged to their father, who died intestate and so they should get equal share in it. As against this, the respondent no.1 took up a defence that way back in 1961 about 20 (3) SA. 28.1992 years before Narsing’s death, he had executed a will in her favour and so, after Narsing’s death she became the absolute owner of the suit property. In view of this, the burden to prove the will was squarely on the respondent no.1. She recorded depositions of attesting witnesses to prove the will. It is settled law that the propounder of the will has to prove such will beyond reasonable doubt. It is for him or her to prove due and valid execution of such will, and if any suspicious circumstance is seen in the context, the propounder has to remove such doubt. In view of this settled law burden to prove the will was rather onerous on the shoulder of the respondent no.1. 3] When this appeal was admitted, it was pointed out to the Court that the respondent no.1 in order to grab the property got the will prepared fraudulently. It was also suggested that Narsing was deaf and blind and was not in his senses at the time of execution of the will. In order to examine, this important aspect of the will and it’s proof, the second appeal was admitted. I carefully went through the depositions of the attesting witnesses of the will, as well as the depositions of the respondent no.1 who propounded the will and in whose exclusive benefit the will was executed. Despite of cross- examination, the depositions of both these witnesses have retained their credibility. In 1961, when the (4) SA. 28.1992 will was executed Narsing was about 60 years old. Thereafter he lived for about 20 years which would indicate that at the time when the will was executed, he was in good health. Though, it was not necessary but Narsing executed the will on a stamp paper and got it registered. This, clearly establishes that Narsing and the attesting witnesses along with the respondent no.1 had gone to Taluka town Udgir for the purpose of execution of the will. 4] The learned Advocate appearing for the appellants pointed out two circumstances which according to her created suspicion about the genuineness of the will. She pointed out that the other sisters of the respondent no.1, namely the appellants were absent when the will was executed and secondly, the will completely excluded the other three sisters. She said, both the lower Courts ignored the obvious anamoly in the will as to why Narsing would exclude his three daughters and bequeath his entire property to the respondent no.1. But, on perusal of the recitals of the will it is seen that Narsing in this will explained it quite cogently. He said in the will that the respondent no.1, his daughter had been taking his care and had been staying with him. He even mentioned that the respondent no.1’s husband was his “Gharjawai”. Narsing even in 1961 was aware of the fact that in future, he would depend on the respondent no.1 -his (5) SA. 28.1992 daughter- who resided at his own village and whose husband was also staying with him. It has come on record that after this document was registered in 1961, pursuant to it, the respondent no.1 and her husband hurriedly got Narsing’s property mutated in her name, during lifetime of Narsing. This was obviously unwarranted and illegal action showing rather unhealthy hast on the part of the the respondent no.1 and her husband. The appellants would have come to know about the execution of this will and the subsequent happenings. They would have also learnt about their exclusion in the will. This would have certainly sent an alarm to them. It was quite possible for them to bring to the notice of their father either that thier elder sister had got the will executed fraudulently and to persuade their father and to ask him to change his will, so that they would not be excluded. In between, 20 long years elapsed. It cannot be said and it is not the case of the appellants, that the respondent no.1 had control over the movements of their father Narsing since 1961 and that she managed to prevent meetings between the appellants and Narsing. In 1961, the appellants were quite young and they must have had occasions to visit and meet their father and the respondent no.1 on festivals etc. During those visits, they could have certainly persuaded their father to change the will or to verify whether he really wanted to exclude them from his will. But (6) SA. 28.1992 there is nothing on record to suggest that they made any attempt in this direction. The evidence on record, thus does not suggest even remotely that the execution of the will of Narsing, was a got up document or was created due to fraud etc. The appeal should, therefore fail. 5] The Second Appeal stands dismissed Sd/- (A.V. NIRGUDE, J.) arp