1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. Second Appeal No. 144 of 2009 [Smt. Kausalyabai A. Kokade Vs. Smt. Kalawati S. Kumare & another] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. Mr. R.D. Najbile and Mr. A.D. Vyawahare, Advs., for appellants. ----- CORAM : A.H. JOSHI, J. DATE : 21st April, 2009. 1. Heard learned Advs. Mr. R.D. Najbile and Mr. A.D. Vyawahare for appellant. Perused the impugned judgments, and even pleadings tendered for the perusal. 2. Substantial Questions of Law raised in appeal are:- 1. Whether the Will alleged to have been executed by the deceased Ashok Kokade, could be said to have been proved when it was not pleaded by the Defendants that the said Will was the last Will of deceased 2 Ashok and no evidence was adduced by them? 2. When the alleged Will does not bear the signature of the scribe and also there is no signature of the alleged advocate who is said to have been drafted the Will, whether the Will could be said to be a genuine one? 3. When it was not pleaded that the alleged Will was drafted by an advocate, whether the Will was proved? 4. Whether the evidence of the Power of Attorney can be accepted in the absence of the beneficiary under the Will, who has not entered into the witness box? 3. It was nobody s case that there were multiple Wills. Once it is seen to be a case of sole Will, the need on the part of the defendants to plead and prove that the Will, subject-matter, is last Will is based on a hypothesis, which has no foundation. 4. Ground Nos. 2 and 3 are based on a chance submission. 5. It was not a case of defendants that a Lawyer was involved in the process of drafting of the Will. It is seen that it has come in the evidence as a cursory mention that when the testator went to the Office of Sub-Registrar, there he happened to meet a Lawyer. This does 3 not mean and suggest that a Lawyer was consulted and involved in the process of drafting of the Will. On the other hand, what has come on record is that the testator instructed his wish to the scribe, who wrote down, read it over to the testator and the testament was executed. Ground Nos. 2 and 3 are, therefore, nothing beyond product of brain based on a stray version, and not the case of the defendants. 6. In so far as Ground No.4 is concerned, it would carry weight depending on the plea of the defendants. It is not a case where in a claim based on title, succession etc., the defendants have set up Will as a defence. 7. It is a case where the plaintiff comes with a positive plea and seeks a declaration that the Will, on he basis of which Defendant No.2 claimed her absolute right, was a sham and bogus document. 8. Even by virtue of succession, defendant no.2 was entitled to half share. Her right was improved to full title by virtue of the Will. It is a plaintiff who came with a case that no Will was at all executed. 9. It is also seen that it had come in evidence that plaintiff never co-habited, which circumstance appearing in the pleadings is a notice to the plaintiff which the plaintiff has 4 not tried to mitigate, and her evidence was found by the Appellate Court to be totally silent on this point. In the result, the Appellate Court discussed this aspect in para 11 of its judgment. 10. In the aforesaid premises, oral submission last advanced by Adv. Mr. Najbile that exclusion of wife from the Will should be regarded as a suspicious circumstance gets duly answered, and is unsustainable, since it is a case of a challenge to the Will, and not a case of setting up of a Will. This alleged suspicious circumstance, therefore, does not arise in the present case at all. 11. Learned Adv. Mr. Najbile has placed reliance on following two reported judgments:- [a] Kalyan Singh Vs. Smt. Chhoti & ors. [AIR 1990 SC 396], and [b] Sayyad Dagadu Karim Vs. R.C.Rodrigues [ 2003 A I HC 1719]. 12. The ratio in these judgments does not have a bearing on the case at hand. 13. In the circumstances, the appeal does not involve any Substantial Question of Law. In the garb of the questions framed as Substantial Questions of Law, the appellant is driving this Court to enter the debate on appreciation of 5 evidence, which is not permissible in the limited compass of jurisdiction under Section 100 of Civil Procedure Code. 14. The Appeal has no merit and is accordingly dismissed. Judge |Hedau| 6