Bombay High Court
Shri. Vijay Gopal Bhagwat vs Shri. Suresh Gopal Bhagwat And Ors on 27 January, 2021
Bench: C.V. Bhadang
17-sa-15-2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.15 OF 2021
Shri.Vijay Gopal Bhagwat ..Appellant
V/s.
Shri.Suresh Gopal Bhagwat & Ors. ..Respondents
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Mr.Dormaan J. Dalal for the Appellant.
Digitally signed
Mr.Samir A. Vaidya for the Respondents.
Nilam by Nilam Kamble
Date:
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Kamble 2021.01.28
17:25:03 +0530 CORAM : C.V. BHADANG, J.
DATE : 27th JANUARY 2021
P.C.
1. The challenge in this Second Appeal is to the concurrent
finding of the Courts below, dismissing the suit filed by the
appellant.
2. The appellant filed Special Civil Suit no.1537 of 1993
against the respondents, before the learned Civil Judge Senior
Division, at Pune. That suit was filed for declaration/partition and
possession of the suit property, more specifically described in the
plaint. The appellant also sought a declaration that the Will Deed
dated 22nd March 1988 executed by father of the appellant i.e. Gopal
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Bhagwat was invalid. Mr.Gopal Bhagwat was a practicing lawyer
who died on 24th August 1992 at Pune.
3. The suit was resisted on behalf of the respondent No.1
(Defendant No.1). The record discloses that the defendant Nos.2 to
5 did not enter appearance and the suit proceeded ex-party against
them.
4. The learned Trial Court framed the following issues :
Sr.No. Issues
1 Whether plaintiff proves that the property
described in Schedule 'C' is self-acquired
property ?
2 Whether the Will Deed dated 22.03.1988 is
executed by late Shri.G.B. Bhagwat voluntarily
and at his freely ?
3 Whether the will deed is proved to the satisfaction
of the court ?
4 Whether plaintiff proves that the property in
Schedule A and B are joint family properties ?
5 Does he further prove that he has 1/4th share in
the property described in Schedule A and B ?
6 Is plaintiff entitled to the relief of declaration,
partition and separate possession, as prayed for ?
7 What order, decree and costs ?
5. The appellant/plaintiff examined himself along with
Balkrushna M. Apte (PW-2). The defendant No.1 examined himself
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alongwith Shrikant Sharangpani (D.W-2), Ramchandra Bhide
(D.W.3) and Ananda Mathuji Gaikwad (D.W. 4).
6. The learned Trial Court answered Issue no.1,4,5 and 6
in the negative and Issue Nos.2 and 3 in the affirmative and by a
judgment and decree dated 28th February 2006 dismissed the suit.
In short the learned Trial Court came to the conclusion that late
Gopal Bhagwat had voluntarily executed the Will Deed dated 22 nd
March 1988 and the said will was valid.
7. The appellant challenged the same before the learned
District Judge in Civil Appeal No.696 of 2012 (Old First Appeal
No.2810 of 2006). The learned District Judge framed the following
points for determination.
Sr.No. Issues
1 Whether the plaintiff proved that Will dated
22.03.1988 was not voluntarily executed by
Shri.Gopal Bhagwat, during his lifetime ?
2 Whether the plaintiff proved that he is entitled to
1/4th share in the properties described in
Schedule-A and B of the plaint ?
3 Whether the plaintiff proved that the property
described in Schedule-C is his self acquired
property ?
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4 Whether the impugned judgment and decree
suffers from any illegality, requiring interference
at the hands of this court ?
5 What Order ?
8. The learned District Judge answered Point No.1 and 4
in the negative and found that the Point No.2 does not survive. In
that view of the matter, the learned District Judge by a judgment
and order dated 07th September 2015 dismissed the appeal. That is
how the appellant is before this Court.
9. There was a delay in filing the appeal which was
condoned as per order dated 08 th January 2021 in Civil Application
No.1482 of 2017 after which the Second Appeal came to be
registered.
10. I have heard the learned counsel for the appellant and
the learned counsel for the respondents. With the assistance of the
learned counsel for the parties, I have gone through the record.
11. The learned counsel for the appellant submitted that
late Gopal Bhagwat was residing jointly with the appellant and the
other brothers and there is no reason why late Gopal Bhagwat
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would execute a Will Deed to the exclusion of the appellant. It is
submitted that there was no independent Medical evidence about
the physical and mental fitness of Gopal Bhagwat.
12. It is submitted that there are over writings in the said
will and all the circumstances taken together make the said will
suspicious. It is submitted that the will is a typed document which is
not registered. It is submitted that late Gopal Bhagwat being a
practicing advocate, it is unlikely that he will not get the Will
registered.
13. The learned counsel for the respondent has supported
the impugned order. It is submitted that both the courts below after
appreciating oral and documentary evidence on record have
concurrently found that the will is genuine and properly proved and
this finding of fact properly recorded is not amenable to challenge in
the second appeal.
14. I have considered the circumstances and the
submissions made and I do not find that the appeal raises any
substantial question of law. It is not disputed that the Will is not a
compulsorily registerable document. Thus merely because the Will
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was executed by practicing advocate and it is not registered will be
inconsequential. It also transpired during the course of the
arguments that the attesting witness of the Will who was examined,
was a doctor. Thus the contention about the absence of an
independent medical evidence about the physical and mental fitness
of late Gopal Bhagwat would also not be decisive. I have gone
through the copy of the will and additions made have been counter
signed by the testator. I have gone through the impugned judgment
passed by the learned trial Court as well as the First Appellate Court
and on appreciation of the evidence on record they have
concurrently found the will to be genuine and properly proved. This
finding of fact in the absence of it being perverse and/or against the
weight of the evidence on record, does not partake of the nature of a
substantial question of law. No other grounds were raised. In the
result, I find that the appeal is without any merit and is accordingly
dismissed, with no order as to costs.
C.V. BHADANG, J.
N.S. Kamble page 6 of 6
