1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR Second Appeal No.320/2009 ( Bhojraj Meshram ..V/s.. Anandabai Mankar +1 ) =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Office Notes, Office Memorandum of Coram appearances, Court's orders of directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-== Mr. S.P. Bhandarkar, counsel for the appellant. Mr. Kakkar, counsel for the respondent nos.1 and 2. C ORAM : F.M. REIS, J. DATED : 13th January, 2010. Heard the learned counsel for the appellant and the respondents. Admit on the substantial question of law as follows - “Whether the finding recorded by the learned Appellate Court that the defendant did not prove that both the witnesses to the Will had expired can be said to be perverse and contrary to record, in view of the finding of fact by the learned trial Court that the death certificates of both the witnesses to the Will are duly proved and marked as exhibits on the record ? ” With the consent of the learned counsels taken up for final hearing forthwith. The learned counsel for the respondents waives service on behalf of respondents. 1. The short point for consideration in the present appeal is that the learned District Judge, Gondia while disposing of the Regular Civil Appeal No.14/2003 by judgment dated 10th of 2 February 2009 failed to consider that the appellants had established by evidence on record the fact that the attesting witnesses had expired. 2. On perusal of the impugned judgment, I find that the learned Judge at para 9 while dealing with the aspect as to whether the Will dated 11/2/1987 which is at Exh.51-A was duly proved or not by the appellants has given a finding that the appellants had not produced any authentic documentary evidence on record to show that the attesting witnesses Girdhari and Natthu had expired. On such assumption the learned District Judge came to the conclusion that as material to that effect was not brought forth by the appellants, the Will had not been proved by them. 3. But on perusal of the judgment of the learned trial Judge dated 5th of September 2002, while deciding the validity of the said Will, the learned trial Judge has relied upon the death certificates which are at Exhs.55 and 56 to the effect that the said two attesting witnesses had expired. This documentary evidence which was part of the record of the learned trial Judge has escaped the attention of the learned District Judge while passing the impugned judgment. In view of the said findings, the learned District Judge has erroneously appreciated the evidence on record and has drawn inferences on the assumption that the material which was part of the record was not produced by the appellant. Non-consideration of such vital documents go to the root of the dispute to ascertain as to whether the Will which is under challenge has been duly proved in accordance of law. The law is well settled that non-consideration of a vital document is a substantial question of law as such documents are material to decide the matter in controversy. In the facts and circumstances of the case, I find that the judgment passed by the learned District Judge cannot be sustained in view the fact that the said documents 3 have not been considered. As such in the interest of justice, it would be appropriate to direct the learned District Judge to decide the Regular Civil Appeal No.14/2003 afresh after giving the parties an opportunity of being heard and after considering the said documents. 4. In view of the above, the impugned judgment dated 10th of February 2002 is quashed and set aside. The learned District Judge is directed to decide the Regular Civil Appeal No.14/2003 afresh after giving an opportunity to both the parties of being heard in accordance with law. The parties to appear before the learned District Judge on 2nd of February 2010 at 11 a.m. There shall be no orders as to costs. The appeal stands disposed of accordingly. JUDGE. Tambaskar.