1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR SECOND APPEAL NO.367 OF 2009 Smt.Pramilabai wd/o Nana @ Balkrishna Nimbalkr (dead) through Balkrishna Nimbalkar an others. ..vs.. Manohar Champtrao Yawalkar =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mrs.S.W.Deshpade,Adv.for the appellants Mr.S.D.Deshpande Adv. for the resp. C ORAM : C.L.Pangarkar, J. DATED : 8th April, 2010. 1. Heard the learned counsel for the appellants and the respondent. 2. This second appeal is preferred by the heir of the original plaintiff. 3. Pramilabai/original plaintiff had instituted a suit for declaration and possession of the suit property. Pramilabai had claimed that the suit property was given to her husband Nana by his mother Rukhamabai under a gift-deed. It is her case that before his death Nana had executed a gift-deed in favour of Pramilabai/ori.plaintiff. She, therefore, claimed to be the owner of the 2 suit house. It is her contention that for some years she had gone to reside at Bhandara and after she came back the defendant, who has no concern with the property, did not allow her to reside in the suit property. On the other hand, he was himself living there and recovering the rent from the tenants. She, therefore, instituted a suit for possession. During the pendency of the suit Pramilabai died and in her place Vasant Kathalkar was substituted as a legal representative on the basis of the Will said to have been executed by Pramilabai. 4. The defendant had resisted the suit and had denied the Will executed by Pramilabai. On the other hand, it was contended that the suit property had come to the mother of defendant by name Laxmibai, who had received it from Rukhamabai. 5. The learned Judge of the trial court recorded the evidence. He found that the plaintiff had failed to prove that Pramilabai had executed a Will in favour of Vasant and holding so, he dismissed the suit. 6. Feeling aggrieved thereby, an appeal was preferred before the District Judge. The District Judge found that there were many suspicious circumstances and the deceased could not be said 3 to be in a sound and disposing state of mind at the time of execution of the Will. He concurred with the findings of the trial court and dismissed the appeal. 7. The learned counsel for the appellant had taken me through the evidence recorded by the trial court. She submits that the evidence would go to show that the deceased had executed a Will and simply because the legatee was present at the time of the execution of the Will that could not be sufficient to show that the Will is outcome of undue influence exercised by the legatee or could be treated as a suspicious circumstance. 8. She relied on a decision of the Supreme Court reported in 2007(2) Mh.L.J. 863 (Gurdev Kaur and ors. ..vs.. Kaki and ors.). There is no doubt that simply because the legatee is present at the time of execution of the Will, that itself may not be a suspicious circumstances but this fact has to be taken into consideration along with rest of the things which the learned judges have found to be suspicious. The first suspicious circumstance as found is that the Will is said to be executed on 16/7/1994 while the attesting witness has put two dates i.e. 15/7/1994 and 17/7/1994. The propounder i.e. the legatee under the Will himself states that the Will was 4 executed on 17/7/1994 when actually the date that is mentioned on the Will (Exh.69) is 16/7/1994. The fact that there is a discrepancy in the dates with reference to the execution and the attesting witness's signing the will on the different dates is itself sufficient circumstance to reject the Will. Further, the evidence of the propounder i.e. legatee of the Will would go to show that he had taken a prominent part in execution of the Will, in as much as, in the examination-in-chief itself he says that; because Pramilabai was ill he brought a lawyer and got the Will drafted and got it executed. It is, therefore, further clear that the propounder of the Will had taken prominent part in execution of the Will. The deceased was admittedly in the hospital. She was suffering from paralysis. She died within two days of the execution of the Will. It is, therefore, obvious that a conclusion can be drawn that it is very likely that she was not in a sound and disposing state of mind. It was not difficult for the propounder of the Will to have obtained from the doctor a certificate about her fitness. That was not done, for the reasons best known to the propounder. All these factors have been rightly considered by the courts below. What was urged before me are all questions of 5 fact. This court cannot go into the question of fact. No substantial question of law is urged and involved in the appeal. There is no substance in the appeal. The same is dismissed in limine. JUDGE. chute