SRJ 1 sa-178-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.178 OF 2010 WITH CIVIL APPLICATION NO.505 OF 2010 Parashram H. Gaikwad .. Appellant V/s. Smt. Savitribai R. Bhoye & Others .. Respondents. Shri Prashant D.Patil, for Appellant. Shri Girish R. Agrawal, for Respondent No.1. CORAM : R.G.KETKAR, J. DATE : JULY 22,2010. P.C.:- 1. Heard P.D.Patil, learned counsel for Appellant and Shri G.R.Agarwal, for Respondent No.l. 2. This appeal is preferred by the Original Defendant No.1 challenging the judgment and decree dated 16th February, 2010 passed by the learned District Judge-1, Nashik in Regular Civil Appeal No.134 of 2007 arising from the judgment and decree dated 12th April, 2007 passed by learned Civil Judge Junior Division, Dindori in Regular Civil Suit No.7 of 2003. By these judgments and decrees, the Courts below decreed the suit instituted by Respondent No.1 Smt. Savitribai R. Bhoye and declared that she became SRJ 2 sa-178-10.sxw the owner of the suit property as more particularly described in para 1 on the basis of registered Will dated 4th March, 1987 executed by Smt. Sakribai,Ex.30. The Appellant and Respondent No.2 being the original Defendant Nos.1 & 2 were directed to hand over the possession of the property. The parties will herein after referred as per their original status of the trial court. 3. The Plaintiff claimed ownership on the basis of registered Will dated 4th March, 1987 whereas the Defendant No.1 claimed ownership on the basis of Will dated 13th February, 1993. In order to establish the Will dated 4th March, 1987, the Plaintiff examined herself as PW-1 at Ex. 16, PW-2 Madan Khande at Ex.29 and PW-3 Madhav Deshmukh at Ex.31. The said Will at Ex.30 was duly proved by examining PW-2-Madan Khande and PW-3- Madhav Deshmukh. The Courts below have recorded that the said Will was prepared by one Shri Gokuldas Bhutada and Smt. Sakribai herself had given information while preparing this Will, and thereafter the said Will was registered in the office of Sub-Registrar where Smt. Sakribai put her thumb impression in front of the Sub-Registrar and the said witness had signed the Will. PW-3 Madhav Deshmukh deposeed that the Will which was prepared by Shri Bhatuda and same was executed by Smt.Sakribai. It was registered in Sub-Registrar s Office where Smt.Sakribai and her husband had put their thumb impression in his presence and he had signed the Will. Considering the evidence of the attesting witnesses, the Courts below recorded that the Plaintiff has established SRJ 3 sa-178-10.sxw due execution and attestation of the Will dated 4th March, 1987, Ex.30. 4. On the other hand, Defendant No.1 in order to establish the Will dated 13th February, 1993 Ex.44 examined three witnesses namely DW-2 Paras Samdadiya at Ex.41, DW-3 Motiram Chouwdahry at Ex.42 and DW-4, Advocate Sanjay Bora, at Ex.43. Considering their evidence, the Courts below recorded that in so far as PW-2 Paras Samdadiya is concerned, he deposed that he gave dictation to the typist and Smt.Sakribai was not present there. He nowhere stated that the Will was read over to Smt. Sakribai and she put her thumb impression after understanding and satisfying the correctness thereof. He further admitted that Smt. Sakribai never informed him about the earlier Will executed by her. The Courts below found that the said witness was interested person as Defendant No.1 used to visit his shop for purchasing articles and he has good relations with Defendant No.1. 5. As far as DW-3 Motiram Chaudhary is concerned, he deposed that Smt. Sakribai was read over the contents of the Will and she put her thumb impression after satisfying herself. He however contradicted the version of DW-2 Paras Samdadiya. 6. As far as DW-4 Advocate Sanjay Bora is concerned, he deposed that the contents of attestation are in his hand writing and that he dictated the Will. However, other witnesses DW-2 and DW-3 did not depose about the participation of the DW-4 either in the drafting SRJ 4 sa-178-10.sxw Will or about his presence. 7. In this circumstances, the Courts below recorded the findings that the Will propounded by Defendant No.1 dated 13th February 1993 appeared to be doubtful. 8. Shri Agarwal, learned counsel for Plaintiff submitted that Will executed by Smt. Sakribai in favour of Plaintiff on 4th March, 1987 is a registered document. Having regard to the provisions of section 58 r/w 60 of the Indian Registration Act, 1908, there is a statutory presumption that the said Will was properly executed. He relied upon the judgment of learned Single Judge of this Court in the case of Bandopant S. Bapat V/s. Shankar S.Bapat & Others , 1996,(I) Bombay Cases Reporter 304. He further submitted that Defendant No.1 came with the case that Will dated 4th March, 1987 was got executed by the Plaintiff from Smt. Sakribai by playing fraud. Except bare words of Defendant No.1, there is no evidence led to rebut the presumption under section 60 of the Indian Registration Act. In support of this submission, he relied upon the Division Bench judgment of this Court in case of Shivdas L. Singh & Others V/s. Gayabhai S. Surwase, 1993 (2) Mh.L.J.Page 1623. 9. After hearing learned counsel for the respective parties and after considering material on record, I find that the Courts below after considering the evidence on record came to the conclusion that the Will dated 4th March, 1987 is duly established whereas the Will propounded by Defendant No.1 dated 13th February, 1993 is SRJ 5 sa-178-10.sxw not established by leading cogent evidence of the attesting witnesses. The Courts below considered the evidence of DW-2. DW-3 and DW-4 and thereafter, came to the conclusion that their evidence does not establish due execution and attestation of Will dated 13th February, 1993. 10. In the circumstances, I do not find that the Courts below have committed any error in reaching the conclusion. The Second Appeal does not involve any substantial question of law and the same is dismissed. In the circumstances of the case, there shall be no order as to costs. 11. In view of the dismissal of the Second Appeal, the Civil Application No.505 of 2010 does not survive and the same is dismissed with no order as to costs. (R.G.KETKAR,J.)