1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 358/2009 1. SAHDEO S/O WAMANRAO MANKAR (DIED) THR LRs SMT SS MANKAR AND OTHERS R/O WADEGAON, TQ. BALAPUR DIST AKOLA 2. SUNANDA W/O MADHUKAR DHORE R/O CHATARI TQ. PATUR, DIST AKOLA 3. VILAS SAHDEO MANKAR R/O WADEGAON, TQ. BALAPUR DIST AKOLA 4. SUBHASH SAHDEO MANKAR R/O WADEGAON, TQ. BALAPUR DIST AKOLA 5. SANJAY S/O SAHDEO MANKAR (DIED) THR LRS SMT. RS MANKAR R/O WADEGAON, TQ. BALAPUR DIST AKOLA 6. KU. POOJA D/O SANJAY MANKAR R/O WADEGAON, TQ. BALAPUR DIST AKOLA 7. OM S/O SANJAY MANKAR R/O WADEGAON, TQ. BALAPUR DIST AKOLA 8. VILAS S/O SAHDEO MANKAR R/O WADEGAON, TQ. BALAPUR DIST AKOLA 9. SUBHASH S/O SAHDEO MANKAR R/O WADEGAON, TQ. BALAPUR DIST AKOLA .. PETITIONER/S VERSUS 1. VASUDEO WAMANRAO MANKAR SINCE DEAD BY LRs SMT. SV MANKAR AND OTHERS R/O WADEGAON, TQ. BALAPUR, DIST AKOLA 2 2. RAJENDRA S/O WASUDEO MANKAR R/O WADEGAON, TQ. BALAPUR DIST AKOLA 3. GAJANAN S/O WASUDEO MANKAR R/O WADEGAON, TQ. BALAPUR DIST AKOLA 4. EKNATH S/O WASUDEO MANKAR R/O WADEGAON, TQ. BALAPUR DIST AKOLA 5. ASHOK S/O WASUDEO MANKAR R/O ASSAM 6. VIJAY WASUDEO MANKAR R/O AKOLA 7. MABIGAR S/O WAMANRAO MANKAR R/O WADEGAON, TQ. BALAPUR DIST AKOLA 8. PRABHAKAR S/O WAMANRAO MANKAR R/O WADEGAON, TQ. BALAPUR DIST AKOLA 9. KESHAV S/O WAMANRAO MANKAR SINCE DECEASED BY LRS SMT SK MANKAR R/O WADEGAON, TQ. BALAPUR DIST AKOLA 10. ARCHANA D/O KESHAV MANKAR R/O WADEGAON, TQ. BALAPUR DIST AKOLA 11. ATUL S/O KESHAV MANKAR R/O WADEGAON, TQ. BALAPUR DIST AKOLA 12. CHETAN S/O KESHAV MANKAR R/O WADEGAON, TQ. BALAPUR DIST AKOLA 13. MAHADEO S/O WAMANRAO MANKAR R/O WADEGAON, TQ. BALAPUR DIST AKOLA 14. SMT. CHAMPABAI WD/O WAMANRAO MANKAR (DEAD) 15. SMT. DWARKABAI WD/O WAMANRAO MANKAR R/O WADEGAON, TQ. BALAPUR DIST AKOLA 16. SMT. PANCHAFULABAI W/O GULABRAO WAGH R/O TELHARA, DIST AKOLA 17. SMT. CHANDRAKALABAI W/O BHAGWANTRAO DHALKI R/O UKALI BAZAR, DIST AMRAVATI 18. SMT. INDUBAI WD/O WAMANRAO MANKAR R/O WADEGAON, TQ. BALAPUR DIST AKOLA 19. DAYARAM S/O WAMANRAO MANKAR R/O WADEGAON, TQ. BALAPUR DIST AKOLA .. RESPONDENT/S 3 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri A.S. Chandurkar, counsel for the appellants. CORAM : SMT. VASANTI A. NAIK, J. DATE : OCTOBER 5, 2009. Heard the learned counsel for the appellants. The appellants are the original defendants. A suit was filed by the respondents for partition and separate possession of the property, which comprised of suit fields and suit house. According to the plaintiffs, the suit properties were in possession of the father of the plaintiffs & the defendants, by name Wamanrao till his death. After the death of Wamanrao, the defendant no.1 claimed to be the exclusive owner of the suit properties, as according to him, a bequest of the suit properties was made by deceased Wamanrao by a will executed on 04.02.1991. The defendants-appellants have denied the case of the plaintiffs. They admitted the relationship between the parties and submitted that there was a partition between Wamanrao and his sons in the year 1975. It was pleaded by the defendants that the suit house and both the suit fields were received by Wamanrao in the partition of the year 1975. According to the defendant no.1, Wamanrao had executed a will on 04.02.1991 making a bequest of his properties in 4 favour of defendant no.1. The defendants sought for the dismissal of the suit. The trial Court, after appreciating the evidence on record, held that the plaintiffs had proved that they had a share in the suit properties and the defendant no.1 had failed to prove that his father Wamanrao had executed a will on 04.02.1991 and made a bequest of the properties in favour of defendant no.1. The Court held that the suit was filed within the prescribed period of limitation and the plaintiffs were entitled to the decree for grant of partition and separate possession. The findings recorded by the trial Court were confirmed by the first appellate Court in an appeal filed by the defendants-appellants. Both the judgments are challenged by the instant second appeal. The submission made on behalf of the appellants that the trial and the first appellate Court committed a mistake in comparing the signatures of Wamanrao on the will dated 04.02.1991 at Exh.102 with the other admitted signatures of Wamanrao on Exhs.123, 124, 125 & others, is liable to be rejected as the Courts were well within their powers to compare the admitted signatures with the signatures on the disputed documents. 5 The judgment reported in AIR 1996 SC 1140 cannot be made applicable to the facts of this case. Moreover in the instant case, apart from the fact that the signature of the testator on the alleged will did not tally with the other admitted signatures of the testator, there was also absence of cogent evidence on record to show that deceased Wamanrao had voluntarily signed the will after knowing and understanding the contents thereof. The Courts observed that the will was executed just a few hours before the death of the testator and it was hard to believe from the evidence on record that the testator was of sound mind at the time of the execution of the will. The Courts found that the attesting witnesses were not natural witnesses and the evidence of the attesting witnesses was also contradictory. Since the defendant no.1 had failed to prove the execution of a valid will, both the Courts held that the defendant no.1 had failed to prove that the properties were bequeathed to the defendant no.1 by the will dated 04.02.1991. The other submission made on behalf of the appellants is that there is hardly any challenge to the will executed by Wamanrao in favour of the defendant no.1 on 04.02.1001 in the plaint in spite of a plea to that effect in the written statement. It is necessary to note that by a 6 subsequent amendment to the plaint, the plaintiffs had challenged the will in the sense that it was pleaded that Wamanrao was not empowered to execute any will nor was the will duly executed by Wamanrao. It was the case of the plaintiffs that the defendant no.1 was falsely contending that the suit property was given to defendant no.1 by the will dated 04.02.1991. The judgment reported in AIR 1995 SC 1852 would, therefore, not be of any assistance to the case of the defendants. Since the findings recorded by both the Courts are pure findings of facts, based on a proper appreciation of the material evidence on record, and since they do not give rise to any substantial question of law, the second appeal is dismissed with no order as to costs. JUDGE APTE