32. SA 453.22.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. SECOND APPEAL NO. 453 OF 2022 APPELLANT Ori. Defendant on R.A. : Gangubai Chandrabhanji Nagdevate, aged 68 years, occ. Cultivation, r/o Jamgaon Taluqa Warud, District Amravati, (Dead thru. LR’s) As per Court’s order dt. 22.11.2024. 1A Namdeo S/o Chandrabhanji Nagdevate, aged about 53 years, occ. Agriculturist, resident of residents of Ward No.3, Jamgao, Post Jamgaon, Tah. Warud, Distt. Amravati 1B Digambar Chandrabhan Nagdevate, aged about 48 years, occ. Agriculturist, residents of Ward No.3, Jamgao, Post Jamgaon, Tah. Warud, Distt. Amravati, 1C Sunanda Manojrao Sonule aged about 44 years, occ. Household, residents of Ward No.4, Benoda, Post Benoda, Tah. Warud, Distt. Amravati, 1D Manda Manoj Taywade, aged about 42 years, occ. Household, Ward No.1, Devwadi, Post Sarvadi, Tah. Karanja, Distt. Wardha. ..VERSUS.. RESPONDENT : Gumfabai Keshavarao Landge, aged about 62 years, occ. Cultivation, r/o Tembhurkheda, Taluqa Warud, District Amravati. ------------------------------------------------------------------------------------------------------------------------------------ Mr. Masood Shareef, Advocate for Appellant. Ms. Aparna Jha, Advocate h/f. Mr. A. A. Dhawas, Advocate for the Respondent. ------------------------------------------------------------------------------------------------------------ T ... αɳɱαყ 2026:BHC-NAG:3988 32. SA 453.22.odt 2 CORAM : ROHIT W. JOSHI, J. DATE : 09.03.2026 J U D G M E N T : 1) Heard finally with consent of learned advocates for the respective parties. 2) The present appeal arises out of judgment and decree dated 04.04.2022 passed by the learned Principal District Judge, Amravati in Regular Civil Appeal No.96 of 2018, whereby the learned First Appellate Court has reversed the judgment and decree dated 14.05.2018 passed by the learned Joint Civil Judge, Junior Division, Warud in Regular Civil Suit No.14 of 2007 and has accordingly decreed the suit for partition and separate possession filed by the present respondent, who is the original plaintiff. The plaintiff and defendant are real sisters. The defendant claims ownership over the suit property by virtue of a Will executed in her favour by father of the parties on 14.01.2004. This Will is a registered document. 3) The plaintiff filed the aforesaid suit for partition T αɳɱαყ... 32. SA 453.22.odt 3 and separate possession inter alia contending that the father was not the sole owner of the property and that the suit property was an ancestral property and also on the ground that he was not in a fit disposing state of mind while the Will was purportedly executed by him. The defendant filed a written statement opposing the claim placing reliance on the Will. 4) The learned Trial Court accepted the Will and accordingly dismissed the suit. However, the learned First Appellate Court has reversed the findings with respect to the Will while reversing the findings recorded by the learned Trial Court, the learned First Appellate Court has found that the testator was around 80 years of age on the date of execution of Will and that he was admittedly suffering from various ailments at the relevant time. 5) The learned First Appellate Court has recorded a finding based on admissions of the defendant, that the testator had shortly before execution of the Will undergone a major abdominal surgery and also eye operation and at times he was not even able to identify people. The learned First T αɳɱαყ... 32. SA 453.22.odt 4 Appellate Court expressed that it was necessary for the defendant to lead evidence with respect to medical condition of the testator at the relevant time. The learned First Appellate Court has also expressed that in such circumstances the Will must be accompanied by a certificate by a doctor certifying that the testator was in a fit medical state of mind. 6) Apart from this, the learned First Appellate Court has also found that attesting witness No.1, who is friend of defendant’s son and the other attesting witness clearly stated in his deposition that the instructions for preparing the Will were given by the second attesting witness, who is son of the defendant. 7) In view of such findings although, the learned First Appellate Court holds that the testator was sole owner of the suit property, decree for partition is granted holding that the Will is not duly proved and that suspicious circumstances with respect to the execution of Will are not properly explained. 8) Mr. Shareef, learned Advocate for the appellant vehemently argues that the evidence of the attesting witness T αɳɱαყ... 32. SA 453.22.odt 5 is misconstrued by the learned First Appellate Court. He contends that the Will is a registered document and that the draft of Will was merely readout by Namdeo, the grand-son of testator for the purpose of typing of the Will. He further contends that there is no specific prayer in the plaint challenging the Will and as such the registered Will ought not to have been discarded. 9) As regards the contention with respect to challenge to the Will, in the considered opinion of this Court, the plaintiff has specifically disputed the Will in the pleadings. It was not necessary for her to seek a declaration with respect to the Will. Rather, it was for the defendant, who is propounder of the Will to prove the same. Unless due execution and attestation of a Will is proved, the beneficiary of Will cannot exclude rights of the legal heirs of the testator from their right to inherit the property of the testator. 10) In the present case, the attesting witnesses were examined in order to prove the Will. The first attesting witness has stated that the Will was prepared on instructions of grandson of the testator, who is son of the T αɳɱαყ... 32. SA 453.22.odt 6 beneficiary/defendant. Likewise, there is evidence with respect to medical condition of the testator which gives rise to inference that he was not in a fit disposing state of mind while the Will was executed. 11) The view taken by the learned First Appellate Court is a possible view based on appreciation of evidence. It must also be stated that although the learned Courts have not discarded the Will on the ground that attestation is not as per Section 63 of the Indian Succession Act, 1925, perusal of examination-in-chief of both the witnesses will reveal that an express statement that the testator marked his thumb impression in their presence and they have signed the Will as attesting witnesses in the presence of testator is pertinently missing in the examination-in-chief of both the attesting witnesses. 12) In view of the aforesaid, no substantial question of law arises for consideration in the Second Appeal. Second Appeal is, therefore, dismissed with no order as to costs. (ROHIT W. JOSHI, J.) T αɳɱαყ...