Ashok S/O Sakharam Neware vs Sitaram S/O Pochu Neware And ...
2021 Latest Caselaw 10306 Bom

Order                                                                                 15 sa 11974-2020
                                                  1

                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             NAGPUR BENCH, NAGPUR.

                              SECOND APPEAL ST. NO.11974/2020

                                     Ashok s/o Sakharam Neware,
                                              -VERSUS-
                               Sitaram s/o Pochu Neware and another.


Office notes, Office Memoranda of
Coram, appearances, Court's orders                        Court's or Judge's Orders
or directions and Registrar's orders.

                                         Shri Niharika Chandak, Advocate h/f Shri Rohit Joshi,
                                         Advocate for appellant.

                                         CORAM : S.M. MODAK, J.

DATE : AUGUST 04, 2021.

Heard learned Advocate for the appellant/defendant. He was the beneficiary of the Will alleged to be executed by the deceased Shantabai. It was a registered Will dated 20/06/2009. The defendant beneficiary was not related to the testator Shantabai. Whereas the plaintiffs Sitaram and Sudhakar are the lineal decedents from one Pochu Neware and said Pochu is real uncle of Shantabai. The hierarchy is given on the page no.29 of the paper book. The plaintiffs have challenged the Will on the ground of the testator not having fit state of mind.

2 Before the Trial Court, both the sides have examined themselves as well as one witness. As it is true that Will can be proved by examining attesting witness. However, when the beneficiary i.e. defendant examined the attesting witness Shantaram Bhoyar, while giving evidence before the Court during chief examination he has stated the facts which

Order 15 sa 11974-2020

are in favour of the defendant. However, during cross- examination he has admitted that signature on the registered Will does not belong to testator Shantabai.

3. The Trial Court appreciated the evidence and was pleased to declare the Will not having executed by the deceased Shantabai. Though defendants have preferred first appeal, they were not successful.

4. I have perused both the judgments. I find that defendant was not in a position to remove the suspicious circumstances around the Will. Even the attesting witness has said that Shantabai was bed ridden and she was not able to prove the fact and in paragraph no.14 of the judgment had given reasons why the Will was under the cloud of suspicion. The Appellate Court also has considered those factors in paragraph no.9 of the judgment. So merely, because the Will was registered one, for the circumstances mentioned above, no weightage can be attached to it. I agree on the concurrent findings given by the Courts below. So I find no reason to interfere in those findings. No substantial question of law is involved in the present appeal. Hence the appeal is dismissed.

JUDGE

R.S. Sahare