-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.760 OF 2006 Ganesh Shankar Bhosale : Appellant v/s Dnyanu Krishna Bhosale since dec. through L.Rs. 1. Vithal Dnyanu Bhosale & ors : Respondents K.B. Sonwalkar for appellant Umesh Mankapure for respondents Coram :R.M. Savant, J Date:15.7.2008 P.C. 1. The Second appeal arises out of the judgment and decree dt. 19.11.2005 passed by the learned District Judge Sangli. 2. The appellant is the original defendant no.7 in Regular Civil Suit no. 154/77 filed by the respondent herein for partition and separate possession of 1/11 share in the suit property bearing S.No. 763 admeasuring 25 yards, S.No.110 admeasuring 30 yards, S.No. 11 admeasuring 2 yards, S.No. 759 admeasuring 6 yards. The appellants herein and the respondents trace their lineage to one Shekhuji Bhosle. The plaintiffs are the heirs of Laxman the son of Shekhuji whereas defendant no.7 is the heir of Lalasaheb who is also the son of Shekhuji. In the said suit filed by the respondent the defendant no.7 -2- took a plea that the property in question which came to the share of Shamrao Bhosle the son of Shekuji were bequeathed to him by the said Shamrao by will dt. 30.6.1976 and therefore he has become exclusive owner of the property. The trial court by its judgment and order dt. 26.11.1990 decreed the suit and held the plaintiffs entitled to 6/11 share in the suit property and each plaintiff being entitled to 1/11 share in the said properties. In so far as the defendants are concerned the trial court held that the defendants 1,3,4,5 and 6 are also entitled to 1/11 share. The trial court on the basis of the evidence recorded before it came to the conclusion that the genuineness of the will was doubtful. The defendant no.7 carried the matter in Appeal by filing Regular Civil Appeal no. 560/90. The said Regular Civil Appeal came to be dismissed by the impugned judgment and order dt. 19.11.2005. 3. Since the claim of the defendant no.7 is based on the said will dt. 30.6.1976 both the courts below considered the evidence adduced as regards the said will dt. 30.6.1976 and on the basis of the following circumstances came to a conclusion that the said will was not genuine and trustworthy. -3- (i) That the property in question was bequeathed entirely by Shamrao to the defendant no.7 to the exclusion of the other nephews and nieces. (ii) That Shamrao was around 88 years at the time of the execution of the will and therefore whether he was in a fit and proper condition to execute the will was not proved. (iii) That the said will was allegedly executed at Ramananad Nagar whereas the place of residence of Shamrao was Dudhondi. There was no evidence as to who had brought said Shamrao to Dudhondi. (iv) The evidence of only one attesting witness Kadam was led and for the reason best known to the defendant no.7 the other attesting witness Sawant was not examined. (v) That the person who scribed the will was the patient of the legatee defendant no.7. The courts below therefore held that he was an interested witness. (vi) That though the written statement was filed on 26.4.1978 the will in question was produced for the -4- first time only on 7.3.1984. (vii) That 15 days prior to his death the said Shamrao had filed the application before the revenue authorities for entering the name of the parents of legatee in the revenue record notwithstanding the will executed by him. (viii) That it was unbelievable that an old person like Shamrao was able to give dictation of a document which ran into 3 pages and which included almost all minor details of the properties. That since the property in question was bequeathed to defendant no.7 alone, the other persons i.e.plaintiffs were kept in dark regarding the said document and that was probably done at the behest of defendant no.1 who is the father of defendant no.7. 4. The courts below therefore have recorded findings of fact as regards the genuineness and truthfulness of the will. Since the said document goes to the root of the matter and since the court has expressed its doubt about the genuineness and truthfulness of the said document the suit of the plaintiff was decreed, which decree has been confirmed -5- by the lower appellate court. In my view the challenge raised in the appeal does not involve any substantial question of law. The appeal is accordingly dismissed. 5. In view of the dismissal of the Second Appeal the civil application does not survive and is disposed of as such. (R.M.Savant,J)