1 956-sa-593-2022 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 593 OF 2022 Dilip Jagannath Ambilwade VERSUS Manjiri Laxman Autee ... Mr. D. D. Pokharkar, Advocate for Appellant Mr. S. S. Kote a/w Mr. A. D. Sonkawade h/f Mr. A. V. Hon, Advocate for Respondent Nos.1 to 5, 6 to 8 ... WITH CIVIL APPLICATION NO. 12463 OF 2022 IN SA/593/2022 WITH CIVIL APPLICATION NO. 12466 OF 2022 IN SA/593/2022 ….. CORAM : ROHIT W. JOSHI, J. DATED : 20TH MARCH, 2025 PER COURT :- . This appeal is filed by the original defendant No.4. The respondent Nos.1 and 2 in the present appeal had filed a suit being Regular Civil Suit No.252 of 2012 challenging will dated 14.08.2002 allegedly executed by their father Laxman in favour of one Ganesh Ambilwade, husband of defendant No.1 and father of defendant Nos.2 and 3. 2. The plaintiffs also challenged will dated 11.11.2007 executed by Ganesh Ambilwade in favour of his brother Dilip Ambilwade who is the appellant herein. 2025:BHC-AUG:8601 2 956-sa-593-2022 3. Admittedly, attesting witnesses to both these wills have not been examined by the appellant/defendant No.4 who is propounder of the said wills. The learned Trial Court has decreed the suit declaring that the impugned wills dated 14.08.2002 and 11.11.2007 are null and void ab-initio. Regular Civil Appeal No.61 of 2017 filed by the present appellant i.e. the defendant No.4 also came to be dismissed vide judgment and decree dated 11.07.2022. 4. Against the said decrees, the defendant No.4 has filed the present appeal. 5. Learned Counsel for the appellant contends that although both the documents were titled as will, the same were in fact in the nature of agreement of sale. He contends that the transaction between late Laxman and Ganesh was in fact one of agreement of sale, however, since the property covered under the will was held by deceased Laxman in Class- II rights, permission of District Collector was required for transferring the property and therefore, Laxman had executed will in favour of Ganesh rather than executing the sale deed or an agreement for sale. 3 956-sa-593-2022 6. Learned Counsel for the respondent counters the submission stating that the will deed dated 14.08.2002 was in fact treated as a will by the appellant and his brother late Ganesh. He contends that on the basis of the wills, application for mutation were made before the Revenue Authorities. He contends that since attesting witnesses to the said wills have not been examined, no fault can be found with the impugned decrees. 7. Having heard the respective submissions and on perusal of the judgments passed by the learned Courts, I find that no fault can be found with the judgments passed by the learned Courts that the propounder of the will i.e. present appellant/defendant No.4 had failed to prove the wills by examining any attesting witness to the said wills. I also find favour with the contention of Learned Advocate Mr. Hon that the will cannot be treated as an agreement of sale since such is not even the case pleaded by the defendant No.4 in his written statement. Such a case cannot be invented for the first time in the Second Appeal. 8. In view of the above, no substantial question of law 4 956-sa-593-2022 arises for consideration. The Second Appeal is therefore dismissed with no order as to costs. 9. Pending Civil Applications, if any, stand disposed of. ( ROHIT W. JOSHI, J ) Rushikesh/2025