1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. Second Appeal No. 423 of 2007 (Ishwardayal Ramkhilawan Pande Vs. Prabhu Dayal Ramkhilawan Pande & ors.) Appeal District : Application No. of 200 Writ petition - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's Orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CORAM : Smt. Vasanti A. Naik, J. DATE : 13 th June, 2008 Heard Shri Nitil Lalwani for the appellant, Shri Shereef for respondent nos. 1 and 2, and Shri Kukdey holding for Shri Khare for the respondent no.3. The appellant is the original defendant no.2. A suit was filed the respondent nos. 1 and 2 against the present appellant and the State Bank of India. It was the case of the plaintiffs that the present appellant/defendant no.2 and the plaintiffs were the sons of one Shri Ramkhilawan Pande who owned several movable and immovable properties. Ramkhilawan Pande died on 22/10/1990 and the mother of the plaintiffs and defendant no.2, also died at Nagpur on 2 14/4/1992. It is the case of the plaintiffs that their father had executed a valid Will on 5/10/1990, making his bequest of all movable and immovable properties in favour of the plaintiffs as well as his other son i.e. the defendant no.2. According to the plaintiffs, the defendant no.2/present appellant was trying to withdraw the entire amount placed by Ramkhilawan Pande with the State Bank of India/present defendant no.3 in Term Deposit. Hence, the plaintiffs filed a suit for a declaration that the defendant no.2 was entitled only for 1/3rd share as per the Will in the amount which was payable under the TDR No. 420683 dated 30/9/1990. The defendant no.1-State Bank filed its written statement and admitted the deposit of Rs. 22,500/- by Shri Ramkhilawan on 30/9/1990 for a period of two years. According to the State Bank, the amount was payable to the defendant no.2 as the amount was lying in the Bank also in the name of the defendant no.2. The defendant no.2 filed his written statement and denied the claim of the 3 plaintiffs. It was denied by the defendant no.2 that Ramkhilawan executed a Will on 5/10/1990. It was the case of the defendant no.2 that, in fact, Ramkhilawan had executed a Will on 18/10/1990 and the same was the last Will of Ramkhilawan. According to the defendant no.2, Ramkhilawan was not in a condition to sign the Will since he was suffering from paralysis and as the Will dated 5/10/1990 bore the signature of Ramkhilawan, it was clear that the Will was a bogus one. On the aforesaid pleadings of the parties, the trial Court framed the issues and after considering the evidence tendered by the parties on record, held that the plaintiffs had succeeded in proving that the Will dated 5/10/1990 was valid. The Courts further held that the plaintiffs had succeeded in proving that they were each entitled to 1/3rd share in the amount deposited by Ramkhilawan with the defendant no.1- Bank in terms of the Will dated 5/10/1990. Story of execution of the Will on 18/10/1990 by Ramkhilawan was disbelieved by the trial Court. According to the 4 trial Court, handwriting expert, also did not support the case of the defendant no.2. Though the report of the handwriting expert was called, handwriting expert was not examined by the appellant. It is submitted on behalf of the appellant that it was necessary for the trial Court to give one more opportunity to the appellants so as to secure a second opinion of a handwriting expert about the genuineness of the signature of Ramkhilawan. It is also submitted on behalf of the appellant that Ramkhilawan was suffering from paralysis and, therefore, he could not have signed the Will dated 5/10/1990. It is submitted on behalf of the respondent nos. 1 and 2 by the learned counsel that both the Courts have considered the oral and documentary evidence adduced by the parties on record in its entirety to hold that the Will dated 5/10/1990 was genuine and valid. It is submitted on behalf of the respondent nos. 1 and 2 that the findings recorded by both the Courts are pure findings of facts which are based on a proper appreciation of the evidence 5 on record and, therefore, second appeal is liable to be dismissed as no substantial question of law is raised in the second appeal. Shri Kukdey, the learned counsel appearing on behalf of the respondent no.3, had nothing to say on the merits of the matter, since the respondent no.3 was a formal party to the litigation. I have perused both the judgments. The oral and documentary evidence tendered by the parties on record is appreciated by the Courts in an extremely reasonable manner and the Courts have arrived at a concurrent finding of fact that the plaintiffs had succeeded in proving that the Will dated 5/10/1990 was a valid document and the defendants had failed to prove the validity of the Will dated 18/10/1990. The first appellant Court rightly observed that though Ramkhilawan had suffered from paralysis attack, only his left side was paralyzed and there was ample evidence to show that he was able to sign by his right hand. Both the Courts had observed that the evidence adduced by the plaintiffs was cogent and 6 reliable and hence in this view of the matter, since no substantial question of law arises in this second appeal, same is dismissed with no order as to costs. JUDGE RMP