Narsingrao Kisanrao Murme vs Mahananda Sudhakar @ Sudam Ingle
2022 Latest Caselaw 8983 Bom

                                                                    SA-135-2016.odt



             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD

                         SECOND APPEAL NO. 135 OF 2016

 Narsingrao Kisanrao Murme                            ... Appellant
                                                      (Orig. Defendant)
          Versus

 Mahananda Sudhakar @ Sudam Ingle                     ... Respondent
                                                      (Orig. Plaintiff)
                                   ....
 Mr. P. V. Barde, Advocate for appellant
 Mr. N. L. Jadhav, Advocate for respondent
                                   ....

                                   CORAM : R. G. AVACHAT, J.

DATED : 8th SEPTEMBER, 2022

PER COURT :-

 .                Heard.


 2.               This is original defendant's     Second Appeal.                The

respondent is the real sister of the appellant herein. Their father died

on 27.05.2009. The mother predecess the father. The respondent

filed the suit for partition and separate possession of ancestral

property. The learned Advocate for the appellant would submit that

the suit property was the self acquisition of the father. The said had

been averred in so many words. The trial Court answered the issue

No.1 as regards nature of the suit property in not more than 3 - 4

1 of 3

(( 2 )) SA-135-2016

lines. In view of this Court, in the facts and circumstances of the

case, answer to the question whether the property was ancestral on

self acquired property of the father, would make little difference.

3. The appellant had come with the case of the father to

have executed a 'Will' in his favour on 26.05.2009. According to him,

the respondent/plaintiff did not challeng the Will. The appellant had

no occassion to see the Will is given effect to in revenue record. The

fact that the appellant purchased the stamp paper on which the Will

was executed in no way lead to infer that he played any role in

getting the Will executed. Since the father was old, he simply

purchased the stamp paper on father's request. The Will has been

duly proved in terms of Section 63 of the Evidence Act.

4. Considered the submissions advanced. It is a case of

concurrent finding of fact recorded by both the Courts below. The

Will is unregistered. It is said to have been executed on 26.05.2009.

The father passed away within 24 hours of execution of the Will.

Admittedly, the father had not been keeping well for about eight

days next before the alleged Will was executed. Admittedly, the

father was not examined by medical practitioner to find him to be

conscious oriented to execute a Will.

                                                                                  2 of 3





                                        (( 3 ))                       SA-135-2016

5. Both the Courts below cannot be observed to have erred

in holding the 'Will' to have not been duly proved. This Court, after

having gone through the impugned judgments and considering the

submissions advanced, do not find any substantial question of law, as

has been suggested, to have been arisen in the present appeal. The

Second Appeal is therefore dismissed.

6. In view of dismissal of the Second Appeal, Civil

Application No.2053 of 2016 does not survive. The same is

therefore, disposed of.

[ R. G. AVACHAT, J. ]

SMS

3 of 3