Second appeal challenging concurrent findings that the appellant-defendant failed to prove a Will executed by Housabai bequeathing suit property. The High Court held the burden lies on the propounder of a Will, found no substantial question of law, and dismissed the appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
28-SA-817-2017.doc
Harish
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.817 OF 2017 WITH CIVIL APPLICATION NO.1612 OF 2017 IN SECOND APPEAL NO.817 OF 2017
Anadrao Maruti Chougale ...Appellant/ Applicant Versus Dhondiba Doulu Vanganekar ...Respondent
Mr. Rajesh B. Parab for the Appellant/Applicant. Mr. Ruturaj P. Pawar for the Respondent.
CORAM : SHARMILA U. DESHMUKH, J. DATE : FEBRUARY 6, 2024
P. C. :
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28-SA-817-2017.doc
seeking declaration that the alleged Will deed executed by Housabai in favour of the original Defendant is null and void and for a declaration that the Plaintiff is the owner of the entire property and for perpetual injunction. It was pleaded by the Plaintiff that the suit property was the ancestral property of one Appa Vanganekar who had two sons Doulu and Sakharam. The Defendant claimed through the Will of Housabai who belongs to the branch of Sakharam being the wife of Yashwant i.e. son of Sakharam. The case of the Plaintiff was that Housabai never resided at the matrimonial house and after the death of Yashwant and Krishna i.e. sons of Sakharam the name of Housabai should not have been mutated in the Revenue records. It was the case of the Plaintiff that upon the death of Sakharam, and Yashwant and Krishna, the Plaintiff’s father i.e. Doulu received the property being ancestral property by survivorship and as such, Housabai had no right to execute Will deed in respect of the suit property. The Defendant resisted the suit and submitted that Housabai was the full owner of half portion of the suit property which has been bequeathed in his favour by Will of 8th April, 1994.
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over the suit property. As against this, the original Defendant filed Regular Civil Appeal No. 47 of 2005. The Appellate Court considered the evidence and held that the Defendant has failed to prove the Will and as such, the Defendant had no claim over the suit properties and dismissed the Appeal.
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28-SA-817-2017.doc
the document Exhibit 95 came to be exhibited in view of Section 90 of the Evidence Act. He would further submit that mere exibiting of the document would not lead to the contents being proved. He submits that the document prima facie is doubtful inasmuch as, the documents is stated of the year 1950 by which it is claimed that Housabai had received half share in the property upon partition at time when her husband i.e. Yashwant was alive who is stated to have expired in the year 1952. He submits that there is no substantial question of law which arises in the present case.
7. Considered the submission and perused the record.
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28-SA-817-2017.doc
of the witnesses. That being the case the Defendants have failed to prove the genuineness of the Will and that the same was executed by Hausabai in his favour. Considering the evidence which has been brought on record, the Trial Court as well as the Appellate Court has rightly decreed the suit. Considering the settled position in law as regards the burden being upon the propounder of the Will to establish the execution of the Will, no substantial question of law arises in the present case.
(SHARMILA U. DESHMUKH, J. )
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1 issue framed by the court
Whether a substantial question of law arose as to the burden of proving the genuineness of the Will in the second appeal.
1 provisions across 1 enactments
Anadrao Maruti Chougale
Dhondiba Doulu Vanganekar
Sharmila U. Deshmukh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
