1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 229 OF 2010 Tulsabai w/o. Dhondu Patil died LRs. .. petitioners Versus Padharinath Goma Pachpande died LRs .. Respondent. --- Mr. L.V. Sangit, Advocate for petitioner. CORAM : K.U. CHANDIWAL J. DATE : 9th April, 2010 ORAL ORDER :- 1] The concurrent finging against the appellants dismissing the suit and the appeal, is impugned in the second appeal. Tulsabai since deceased was the daughter of Tukaram and the defendants are the nephews of Tukaram. The grievance is, the will deed executed by Tukaram is shrouded with doubts as Tukaram though had the practice of signing surreptitiously, put the allegedly thumb impression on the document. Tukaram expired on 22/10/1989. 2 2] The parameters for considering the testator's capacity to execute a document of testament needs to be evaluated. Tukaram was certainly maintained by his nephews, the respondent Nos. 1 to 5 and based on such feeling of love on 28/1/1987, executed a will deed. In normal circumstances, if somebody is deprived of his rights in the immovable property then such document excites attention. Now, testing to the document of will, the evidence illustrate that attesting witnesses depose in tune with the execution of the document by Tukaram. Indeed, the courts found that Tulsabai, the plaintiff did not produce any document to show that her father Tukaram normally used to sign. Such receipts are placed by Pitambar at Exhibit 87, to show that it was the signature of Tukaram. It is on record establishing that after execution of the will deed, Tukaram was mentally well and fit and survived for virtually 2 years. There was no challenge at any time to his mental capabilities to execute the will deed. 3] A propounder of will naturally gets benefit from the will and court's conscious, as is required to be satisfied. In the fact situation, it is definitely established before both the courts. The will deed at Exhibit 84, though bears thumb impression of Tukaram. However, it was so impressed even before the Sub-Registrar and Vitthal Atole identified, that it was thumb of executant Tukaram Pachpande. 3 4] It is curious that the plaintiff was cultivating her restricted field Gat No. 1175 since death of her father Tukaram, she did not agitage the same in the shortest possible time. The overall survey of evidence illustrate that the will deed dated 28/1/1987 was genuinely consciously executed by Tukaram, bequeathing rights to some extent in the immovable property to the original defendants/respondents, keeping the share of Tulsabai also intact. Second appeal dismissed. No costs. [K.U. CHANDIWALJ.] Grt/-