1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.560 OF 2009. _______________________________________________________________ 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 : 30.11.2010. 1. This is plaintiff's Second Appeal. The plaintiff had filed a suit for declaration of ownership and possession. The trial Court dismissed the suit. The plaintiff preferred an appeal. The appellate Court also dismissed the suit confirming the judgment and decree passed by the trial Court. The plaintiff has preferred this Second Appeal. 2. Mr.R.M.Deshmukh, learned counsel for the appellant vehemently contended that the Courts below have not properly appreciated the evidence of the attesting witness of the will. Anjanabai had bequeathed the suit properties to the appellant as it was the appellant who was taking care of the deceased Anjanabai. Pursuant thereto, the will-deed was executed. Just because the daughter has been excluded that would not be sufficient to disbelieve the due execution of the Will. According to the learned counsel, the Will has been proved as is required U/s 68 of the Indian Evidence Act. The Courts have perversely appreciated the evidence on record. 3. With the assistance of the learned counsel, I have gone through the judgments. The present Respondent is the daughter of Anjanabai. Even open space and house property is bequeathed which is already sold by the husband of the deceased Anjanabai in the year 1971, the Will- deed is said to have been executed in 1987. Moreover, the name of the scribe is scored off. The plaintiff and the attesting witness are also not consistent while giving the name of the scribe. Moreover, on one hand, the appellant says that as deceased Anjanabai was ailing, he was taking care of deceased Anjanabai and as such out of love and affection, the properties were bequeathed, pursuant to the Will-deed as against her natural daughter. When the appellant comes with the case that deceased was ailing and he was providing all the medical facilities, no evidence is produced nor any certificate of Doctor that deceased was in a perfect condition to execute the Will. Both the Courts have taken into consideration the anomaly in the evidence and have arrived at conclusion that the appellant could not prove the due execution of the Will. The finding arrived at by the Courts below is a possible view taken by the Courts. 4. In light of the above, the Second Appeal being sans substantial question of law, is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.30.11.2010. asp/office/sa560.09