Mr.Ravindra Ramchandra Upadhye vs Shri.Avinash Ramchandra Upadhye
2021 Latest Caselaw 4699 Bom

                                                                     2. SA 478-2018 w CAS-598-2017 .doc
Neeta S.
Sawant
Digitally signed by        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Neeta S. Sawant

                                        CIVIL APPELLATE JURISDICTION
Date: 2021.03.16
14:50:55 +0530




                                           Second Appeal No. 478 / 2018
                                                      Alongwith
                                           Civil Application No. 598 / 2017


                      Mr. Ravindra Ramchandra Upadhye                           .. Appellant
                               Vs.
                      Shri. Avinash Ramchandra Upadhye                          .. Respondent


                                                         ****

Mr. Siddharth C. Wakankar, Advocate for Appellant. Mr. R.B. Jagtap a/w Mr. Aniesh S. Jadhav, Advocate for Respondent.

                                                         ****

                                                 CORAM          : SANDEEP K. SHINDE J.
                                                 DATE           : 15th MARCH, 2021.

                      P.C. : -

                               Heard.

1. Execution and attestation of the Will (Exhibit-16) dated 26 th

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May, 1995 of Jankibai has been challenged and disputed by the

Defendant in the Special Civil Suit No. 2146 / 2008 filed by the

Respondent (Original Plaintiff).

2. Briefly stated it is plaintiff case that, his mother Jankibai

executed the Will on 26th May, 1995 and bequeathed the suit

property to him. The Will was attested by two witnesses. Besides,

Supriya Bhatt, had also attested thumb impression of Jankibai.

Relying on the Will, plaintiff sought a declaration that he is entitled

for 62.5% shares equivalent 1080 sq. ft. in the constructed area and

825 sq. ft. in the vacant area of the property bequeathed to him by

his mother Jankibai. Appellant - Defendant, brother of the plaintiff

disputed the execution of the Will. As such the suit was instituted. It

was decreed by the trial Court by judgment and order dated 17 th

August, 2012. Aggrieved Defendant, preferred Civil Appeal No.

1116/2012. It was dismissed by judgment and order dated 3 rd

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September, 2016. Against the judgment and decree of the

Appellate Court, Defendant has preferred this Second Appeal.

. The only question for determination is; Whether execution of

Will of Jankibai at Exhibit-16 has been proved in terms of Section 68

of the Evidence Act read with Section 63(1) (c) of the Succession

Act?

3. I have perused the evidence of attesting witness Gajanan

Vishnu Upadhye. His testimony, divulge that on 26 th May, 1995,

Jankibai had called him at home and disclosed her wish to bequeath

the properties. At the material time, Gopal Govind Shinde, Supriya

Bhatt, her Daughter Shashikala Vartak and Advocate of Jankibai

were present. Attesting witness stated Jankibai was examined by

Dr. Godbole. He certified, she was in sound the state of mind.

Accordingly, doctor made an endorsement on the Will. He further

stated, that Will was read over to, Jankibai by Advocate and she

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admitted the, contents were correct. Thereafter Jankibai, put her

thumb impression, which, was identified by Ms. Supriya (PW-3).

Soon thereafter himself and Gopal Shinde put their signatures on

the Will in the presence of each other and in the presence of

Jankibai. He admitted his signature and would also depose that the

Will was registered with the Sub-Registrar. However, appears this

witness filed had one affidavit sworn on 18 th March, 2019 at Exhibit-

32. Vide this affidavit, he resiled from affidavit in lieu of examination-

in-chief and wound state, that someone had obtained his signature

on Will. In short, he denied, that the Will was executed by Jankibai

in his presence. However, in cross-examination, he simply affirmed

the contents of affidavit at Exhibit-32 sworn on 13 th March, 2019;

whereas affidavit in lieu of examination-in-chief was filed on 2 nd

December, 2019.

4. Trial Court as well as First Appellate Court relied on the

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evidence, and held that the plaintiff had proved, execution of the

Will.

5. I have perused the evidence of Gajanan Upadhye PW-2 and

his affidavit at Exhibit-32. His evidence has not been questioned by

the defense, at all. The defense has simply placed on record

Exhibit-32 (affidavit of Gajanan Upadhye), wherein he would deny

the execution of Will.

6. It may be stated that the plaintiff had also examined Supriya

Bhatt as PW-3. This witness had identified and attested the thumb

impression (दसतूर) of Jankibai. Her evidence has proved, that the

Will was executed by Jankibai.

7. Thus, in consideration of the evidence on record, in my view

the plaintiff has proved, 'execution' and 'attestation' of the Will and it

cannot be faulted with. On the contrary, it may be stated that the

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defendant, had not approached the Court with the clean hands.

Though he had disputed the execution of the Will, he admitted, that

under the subject disputed Will property at Village Darawli was

bequeathed to him by his mother, Jankibai. Also it appears from his

evidence that other disputes were pending, between him and his

brother, since 1992-93.

8. In consideration of the facts of the case, in my view, the

appeal does not give rise to any substantial question of law. Appeal

is dismissed. All Civil Applications therein, are disposed of.

                                   (SANDEEP K. SHINDE, J.)




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