1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.210 OF 2010. _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ CORAM : S.V.GANGAPURWALA,J. Date : 22.03.2011. 1. Heard. 2. This is plaintiff's Second Appeal. The plaintiff had filed a suit for perpetual injunction, restraining the defendants from interfering in his possession. The plaintiff claimed his ownership on the basis of the Will-deed executed by his uncle Dattu. The trial Court dismissed the suit. The plaintiff preferred appeal. The appellate Court also dismissed the appeal, confirming the judgment and decree passed by the trial Court. Being aggrieved thereby, the plaintiff has filed the present Second Appeal. 3. Mr.Chapalgaonkar, learned counsel for 2 the appellant strenuously contended that the plaintiff had proved the Will as is required under the statute. All the necessary ingredients for proof of Will as is required U/s 63 of the Succession Act have been complied and there was no reason to discard the said Will. According to the learned counsel, the scribe of the Will, so also the attesting witness of the Will have proved the said Will. There is no anomaly in their evidence. Out of five sisters, only one sister filed the Written Statement denying the claim of the plaintiff. All other sisters did not contest the matter. This also shows that they accepted the case put forth by the plaintiff. 4. Mr.Chapalgaonkar, learned counsel further submitted that the Court could not have presumed about the health of the deceased, just because he was 90 years of age. The deceased had executed the Will on 5.7.1990 and he died on 21.7.1991. Even the defendant in the Written Statement has nowhere pleaded that deceased Dattu was bedridden or was not in good physical and mental condition. In absence of the same, 3 the Courts could not have inferred about his health simply on the basis of age. It was further contended by the learned counsel that even the reason was stated for executing the Will in favour of the plaintiff who was his nephew. The deceased did not have any son. The daughters were all married and so that his family property should be with the family. As such executed the said Will. 5. With the assistance of the learned counsel, I have gone through the judgments. The Courts below have not only scanned the evidence but have also taken into consideration the attending circumstances while not placing reliance on the case put forth by the plaintiff. It has been observed by the Courts that the plaintiff could not even say as to whether any house was possessed by the deceased. Even the plaintiff did not know whether the wife of deceased was alive when the Will was being executed. The scribe of the Will was the employer of Dattu. No reason is stated as to why his daughters and wife were excluded and the property was bequeathed to his nephew. 4 The said circumstance itself creates suspicion. The Courts have taken into consideration all these factors and has held that the plaintiff has failed to remove the suspicious circumstances. No probable reason for exclusion of the defendant from the Will and the reason for his being exclusive beneficiary is spelt out. The Courts below have arrived at possible and plausible conclusion. Moreover, the original Will was not produced and it was stated that it was filed in another suit. The Will was not a document which was admitted by the defendant. In absence of the original, the signatures could not have been proved on a copy of the Will. 6. Be that as it may, after taking into consideration the total evidence on record and the circumstances, the Courts below have arrived at a possible and plausible view. The Second Appeal can not be entertained only on the ground that some other view may also be possible. The Second Appeal being sans substantial question of law, is dismissed. However, there shall be no 5 order as to costs. (S.V.GANGAPURWALA,J.) Dt.22.03.2011. asp/office/sa210.10