1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR Second Appeal No. 646 of 2005 Deorao Mathankar Vs. Chindhabai Ladke Office Notes, Office Memoranda of Coram, appearances, Court orders or directions and Registrar's orders Court's or Judge's orders Shri A. H. Jamal Adv. for appellant. Shri V. K. Paliwal Adv. for respondent. CORAM: C. L. PANGARKAR J. Dated: 28 th February, 2008. Heard. This appeal has been preferred by the defendant against whom a decree has been passed by the Courts below. Plaintiff had instituted a suit claiming declaration and possession of the 2 property left behind by her mother Bhagabai. Defendant resisted the suit on the ground that Bhagabai had adopted him and had also executed a will in his favour and by virtue of the said will he was the sole owner of the suit property. The Courts below have considered the question of adoption as well as execution of the will. Firstly, it was found that no attesting witness was examined by the defendant to prove either adoption or will. It is stated by the learned counsel for the appellant that attesting witnesses were dead and therefore could not be examined. That apart the Courts below have found that appellant has not removed the suspicious circumstances surrounding the will and the person who has been examined to prove that will his evidence was not found to be 3 worthy by the Courts below. I have gone through the evidence of D. W. 4 Domaji. After having gone through his evidence it is found that he speaks of execution of only one document by Bhagabai when it is the case of defendant that two documents were executed by defendant before the Registrar. Obviously, this Domaji is not the attesting witness. It can, therefore, be said that he had not seen Bhagabai executing the document. Further it appears from his evidence that he was not aware that Bhagabai had executed a will inasmuch as he stated that Bhagabai had executed a gift deed in favour of defendant. This itself suggests that the witness does not know what kind of document was executed by Bhagabai. The plaintiff had challenged the 4 adoption of the defendant on the count that firstly Bhagabai had not adopted Deorao and there is no custom to adopt the child of 15 years of age among their community. Although the defendant had tendered evidence of two witnesses to prove that there is such custom the Courts below have found that even though persons who were allegedly given in adoption beyond the age of 15 years were alive and available they were not examined and the one who were examined have only heard of giving in adoption. Their evidence is rightly rejected by the trial Court as well as appellate Court. It was also found that alleged adoption deed executed and registered does not bear the signature of the natural parents at all. Courts below therefore further found that no presumption under Section 16 of the 5 Hindu Adoption And Maintenance Act therefore arose in such a case. There are two concurrent finding of facts on this point that adoption has not been proved and the will has also not been proved and the suspicious circumstances surrounding the will have not been removed. In view of this I do not find that there is any substance in the appeal. No substantial question of law is involved in the appeal. Appeal is, therefore, dismissed in limine. JUDGE svk