1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH: NAGPUR SECOND APPEAL NO.469/2010 SMT. SITABAI MESHRAM & ORS ..VS.. TATYAJI MESHRAM Office Notes, Office Memoranda of Coram, Appearances, Court’s orders or directions and Registrar’s orders Court’s or judges Orders. CORAM: SMT. VASANTI A. NAIK, J. DATE: 8 /12 / 2010 Heard Shri Anil Mardikar, the learned counsel for the appellants and Shri Khajanchi, the learned counsel for the respondent. The appellant is the original defendant. A suit was filed by plaintiff Tatyaji for a decree of possession of the suit property on the basis of title. According to the plaintiff, the property originally belonged to one Somaji – the husband of defendant Sitabai. Somaji had executed a will on 15.3.1979 making a bequest of the suit property in favour of the plaintiff. The plaintiff pleaded that on the death of Somaji, the plaintiff became the owner of the suit property. It was the case of the plaintiff that defendant Somaji had executed a will in favour of the plaintiff as Somaji was not in a position to take the plaintiff in adoption in vies of the provisions of Hindu Adoption & Maintenance Act. The defendant filed a written statement and denied the claim of the plaintiff. It was denied by the defendant that the plaintiff was the nephew of Somaji and was brought up by Somaji. It was denied by the defendant that Somaji was 2 intending to adopt the plaintiff and had executed a registered will making a bequest of the suit property in favour of the plaintiff. It was pleaded that Somaji was an alcoholic and Somaji was taken to the Registrar’s office and the will was got executed from Somaji by exercising coercion. The defendant pleaded that Somaji was mentally and physically weak at the time of execution of the will and the will was not valid. The defendant sought for the dismissal of the suit. The trial court dismissed the suit of the plaintiff on the ground that the will was shrouded with suspicious circumstances as a major share in the properties of Somaji was given to the plaintiff and a minor share in the same was bequeathed to the defendant. The trial court held that the plaintiff had failed to examine the scribe of the will and the will was not prepared in the presence of the attesting witnesses. The first appellate court on a re-appreciation of the evidence on record reversed the findings recorded by the trial court and held that the plaintiff had succeeded in proving the validity of the will. The first appellate court made a bequest of the suit property in favour of the plaintiff. The first appellate court considered the fact that the attesting witness to the will was examined by the plaintiff and the plaintiff and the attesting witness had proved the valid execution of the will. The findings recorded by the first appellate court are pure findings of facts based on a proper appreciation of the material evidence on record. The submission made on behalf of the appellant that it was necessary to examine the scribe is 3 not well founded as the plaintiff had examined the attesting witness to the will who had duly proved its execution. The submission made on behalf of the appellant that the execution of the will in favour of the plaintiff was doubtful as the same was not prepared in the presence of the attesting witnesses is also liable to be rejected as the will need not be prepared in presence of the attesting witnesses. There is also nothing wrong with the testator making a bequest of a larger share in his property in favour of his nephew, the plaintiff and a smaller share in favour of his widow Sitabai as Somaji and defendant Sitabai were issueless. It also cannot be said that Somaji was not in a fit state of mind at the time of execution of the will as Somaji was admittedly working as a Police Patil at the relevant time. The findings recorded by the first appellate court do not give rise to any substantial question of law. In the result the second appeal is dismissed with no order as to costs. JUDGE SMP.