:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE SECOND APPEAL NO.441 OF 2008 SECOND APPEAL NO.441 OF 2008 SECOND APPEAL NO.441 OF 2008 WITH WITH WITH CIVIL APPLICATION NO.1628 OF 2007 CIVIL APPLICATION NO.1628 OF 2007 CIVIL APPLICATION NO.1628 OF 2007 Shri Pargonda Virabhadrappa Revur ...Appellant. v. 1.Smt. Gangavva Dhangappa Ankalgi & Ors....Respondents. Mr.Amit Sale , adv. for the Appellant. Mr.Vijay Killedar , adv. for the Respondents. CORAM: CORAM: CORAM: J.H.BHATIA,J. J.H.BHATIA,J. J.H.BHATIA,J. DATE: 29th July, 2008. DATE: 29th July, 2008. DATE: 29th July, 2008. P.C. P.C. P.C. 1. Leave to add additional grounds tendered today. Amendment be effected immediately. 2. Heard the learned counsel for the Parties. 3. Admitted facts are that the deceased Mallappa and the father of the appellant were the real brothers. Mallappa died in January, 1980 leaving behind his daughter Gangavva and widow Gurbai. After his death, the present appellant filed Miscellaneous Application No.26 of 1980 for letter of administration on the basis of a will allegedly executed by Mallappa on 26-12-1979, whereby he had allegedly bequeathed his undivided half share in the property in favour of the appellant. The daughter and the widow of Mallappa were shown as :2: opponent nos.1 and 2 in the said proceeding while the opponent no.3 was Virbhadra, the father of the appellant and brother of Mallappa. Opponent no.3 in his written statement supported the appellant. Matter was contested by the daughter of the deceased Mallappa. According to her, long before his death, Mallappa had left the village Bilur where the property is situated and where the family of his brother was residing and he had shifted to village Gugwad where he was living with his keep, namely, Yamanavva. She also contended that for about two years prior to his death, physical and mental condition of Mallappa was deteriorated and he was unable to understand. She contended that her father had not made the will knowing the contents of the same. She contended that the joint family property was already partitioned and in 1974, her father had executed agreement in favour of Vishwanath, who was cultivating the land. 4. The trial Court upheld the contention of the appellant and found that he is entitled to letter of administration in respect of will. That judgment was challenged by the daughter in Regular Civil Appeal No.38 of 2003. The appeal was allowed and it was held that the appellant had failed to prove that the deceased Mallappa had executed the will and bequeathed the property to him. Being aggrieved by the decision of the appellate Court, the appellant has preferred the present :3: second appeal. 5. The appellate Court found that as per the evidence on record, Mallappa had left the village Bilur about 15 years prior to his death and he was living with his keep, Yamanavva. As per the evidence of Yamanavva, brother or brother’s son of Mallappa had never taken care of him. The appellant had not examined himself as a witness to prove the circumstances in which the Mallappa would like to bequeath whole of his property to him by excluding his wife and real daughter. It is said that the wife was living separately from him therefore, he could exclude her but there was no valid reason why he would exclude his real daughter also. The appellate Court compared the signature of Mallappa on the will with his signature on a document executed by him in favour of one Daryappa in 1965 and found that the signatures on both the documents were not of the same person. The Appellate Court also found that as per the contents of the will, Mallappa was having half share in the joint family property and in view of the provisions of Section 368 of Hindu Law by Mulla, he had no right to dispose off the undivided coparcenary property, by will. The learned counsel for the Appellant conceded that this ground given by the appellate Court is not correct. In view of Section 30 of the Hindu Succession Act, co-parcener can also bequeath his share by will. He also conceded that the manner in which the appellate :4: Court compared the signature on the will with another document of 1965 without referring the same to the handwriting expert was also not proper. However, the learned counsel for the respondent/daughter vehemently contended that the Appellate Court was perfectly justified in holding that there was no justifiable reason for Mallappa to exclude his daughter and bequeath whole of the property to his brother’s son, who had never taken care of Mallappa. 6. After perusal of the judgments of both the Courts below, it appears that the trial Court accepted the contention of the appellant while the Appellate Court on analysing all the evidence and the circumstances came to conclusion that the appellant had failed to prove the will. The matter is based on the appreciation of the evidence. No substantial question of law is involved in the matter. Therefore, the Second Appeal can not be admitted. 7. In the result, the appeal stands dismissed summarily. 8. As the appeal itself is dismissed, civil application does not survive and stands disposed off accordingly. :5: (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)