Case: Mahadev Tukaram Vetale &amp; Others Vs. Sugandha &amp; Another

2. The facts of the case are as follows. Dadu and Tukaram were brothers. The appellant Mahadev is the son of Tukaram. The first plaintiff Sugandha is the daughter of Kisabai. Kisabai claims to be the wife of Dadu. Dadu died at a ripe old age of over 80 years, on October 26, 1968. It is said that on July 24, 1968, he had executed a will in favour of the plaintiffs bequeathing his interest in his family properties. On the strength of that will the plaintiffs have brought the present suit for partition as well as other incidental reliefs. The suit was resisted mainly by the first defendant on the ground that the will put forward is not a genuine will and the deceased Dadus mental condition, on the date he is said to have executed the will, was such that he could not have been in a sound disposing state of mind. Further plea of the first defendant was that Kisabai was not the wife of Dadu and Sugandha was not his daughter.      3. The Trial Court rejected the contention of the first defendant. It first examined the genuineness of the will. It came to the conclusion that the will in question was a genuine will and thereafter partly relying on the recitals in the will and partly on other evidence came to the conclusion that Kisabai was the wife of Dadu and Sugandha was his daughter. Aggrieved by the decision of the Trial Court the first defendant went up in appeal to the High Court of Bombay. The High Court summarily dismissed the appeal with one word "dismissed".

Reasoning:
4. We have heard arguments from the counsel for the parties. In our opinion the appeal did raise triable issues. It may be noted that Dadu was literate but the will does not bear his signature. It purports to bear only his. The reason given for not signing the will was that Dadu on the date he executed the will was quite old and therefore his hands were shaking and consequently he could not sign the document. As Dadu is not proved to have put hisn for any other document it was difficult for the first defendant to prove that then in question was not his. On the date the will was executed Dadu was admittedly more than 80 years old. Six witnesses are said to have attested the will. Out of them only two have been examined. One of the witnesses is Dr. Vaze. We have gone through his evidence. After going through his evidence, as well as examining the other circumstances of the case we think this is a case which the High Court should not have dismissed summarily. We will not be justified in deciding any of the contentions urged at the bar at this stage. They have to be gone into by the appellate court.