SA/260/2007 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 260 of 2007 With CIVIL APPLICATION No. 15393 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI : ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= KIRANBEN PREMATLAL PANDYA & 4 - Appellant(s) Versus KETANKUMAR VASANTLAL VYAS & 2 - Defendant(s) ========================================================= Appearance : MS. SANGITA PAHWA for M/S THAKKAR ASSOC. for Appellant(s) : 1 - 5. None for Defendant(s) : 1 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 23/07/2008 ORAL JUDGMENT Draft amendment granted. 1.0 This appeal is directed against the judgment and SA/260/2007 2/5 JUDGMENT order dated 28.02.2007 passed by the learned Jt. District Judge & Presiding Officer, Fast Track Court No. 5, Morbi in Regular Civil Appeal No. 5 of 2006 whereby, the said Appeal was dismissed and the order dated 21.12.2005 passed by the learned 2nd Sr. Civil Judge, Morbi in Civil Misc. Application No. 18 of 1999 was confirmed. 2.0 The facts in brief leading rise to the filing of the present Appeal are as under; 2.1 The appellants, original applicants, had filed Civil Misc. Application No. 18 of 1999, under the provisions of the Indian Succession Act, for the grant of Probate or the Letter of Administration or the Succession Certificate in respect of the properties of deceased – Bhudarlal Hirjibhai Thakar, who expired on 21.01.1999. In the said application, it was the case of the appellants that the deceased had executed a Will on 19.11.1996 and that as per the said Will, the appellants are the only heirs. 2.2 On the said application, the trial Court issued Notices to respondents no. 1 & 2, original opponents no. 1 & 2, who are the children of late Jyotsnaben [Daughter of deceased – Bhudarlal]. A Public Notice was also issued, in pursuance of which, respondent no. 3, original opponent no. 3, who is the brother of deceased – Bhudarlal, appeared before the trial Court and filed his objections vide Exhibit – 49. Respondents no. 1 & 2 filed their objections vide Exhibit SA/260/2007 3/5 JUDGMENT – 53. 2.3 The trial Court framed the issues. After hearing the parties and after considering the evidence on record, the trial Court dismissed the application of the appellants. 2.4 Being aggrieved by the said order, the appellants preferred an appeal before the District Court, Morbi. The lower appellate Court, after appreciating the evidence on record, dismissed the appeal of the appellants. Hence, this Second Appeal. 3.0 Heard learned Advocate for the appellants and perused the documents on record. The original Will was produced on record of the trial Court by the appellants vide Exhibits – 69 and 77 respectively. After appreciating the same, the trial Court has recorded a finding of fact that while the original Will vide Exhibit – 77 contained the signatures of the Attesting Witnesses, the same was not the case in respect of the Will produced vide Exhibit – 69. Moreover, from the evidence of one of the attesting Witnesses at Exhibit – 91, it has come out that the said Witness had neither seen the deceased signing the Will nor had he received any personal acknowledgment from the deceased about his signature on the Will. On the basis of the aforesaid findings, the trial Court has arrived at the conclusion that the appellants had failed to prove the Will beyond reasonable doubt. SA/260/2007 4/5 JUDGMENT 4.0 I have gone through the impugned orders passed by the Courts below. Considering the entire evidence on record, I do not find that any of the Courts below have committed any error warranting interference from this Court in this Appeal. Nothing has been shown from the record which may lead this Court to record a finding in favour of the appellants. On the contrary, an attempt has been made by the appellants that the Court may infer from the circumstances that the Will has been signed in presence of the two Witnesses. However, in my opinion, the requirement of law is otherwise and the Court cannot proceed on the basis of any inference. 5.0 In view of the above, I find no reasons to interfere in this Appeal. I am in complete agreement with the concurrent findings recorded by both the Courts below. No substantial questions of law arises within the meaning of Section 100 of the C.P.C.. Hence, the Appeal is summarily dismissed. No order as to costs. [K. S. JHAVERI, J.] ORDER IN CIVIL APPLICATION As the main matter has been disposed of, the civil application shall not survive. It also stands disposed of accordingly. SA/260/2007 5/5 JUDGMENT [K. S. JHAVERI, J.] Pravin/*