[1] By way of this first appeal, the appellant herein – original plaintiff has challenged the judgment and decree dated 13.09.1999 passed by the learned Judge, City Civil Court, Ahmedabad in Civil Suit No.4340 of 1990, by which the learned Judge has dismissed the suit preferred by the original plaintiff.
[2] Facts :
[2.1] According to the appellant herein – original plaintiff, one Ramniklal Premshanker Pathak died at V.S. Hospital on 08.09.1983. He had executed one will on 16.05.1982 during his lifetime. According to the appellant herein, he is the executor named in the said will. The applicant also produced true copy of the last will executed by the said deceased. He has also submitted description of the properties of the deceased by separate schedule. According to the appellant herein, he is the sole successor of the deceased as per the said will executed by the deceased. Therefore, appellant herein – original plaintiff filed application for obtaining probate of will of deceased which was numbered as Civil Suit No.4340 of 1990.
[3] In the said suit, original opponents appeared and filed reply.
They submitted that the will in question is not genuine and it has been forged by the appellant herein or the same was got executed by the deceased under mental pressure. Therefore, they requested to dismiss the suit. After considering oral and documentary evidence on record, learned Trial Court by order dated 13.09.1999 dismissed the suit. Hence, this appeal.
[4] It is submitted by Ms.Lopa Bhatt, learned advocate appearing for the appellant herein that trial court has not considered the fact that original will was lying in the record of Civil Suit No.49 of 1984 and therefore, opportunity should be given to the appellant herein to produce original will or by calling record of Civil Suit No.49 of 1984 and by that trial court has committed error. Therefore, the matter be remanded back to the trial court. It is further submitted that having regard to fact that out of two witnesses of the will, since whereabouts of one witness viz. Ranchhodbhai Vaghela is not known and since other witness – Maneklal Bhatt has expired and the will is registered will, trial court ought to have held that will has been proved by the appellant herein. Therefore, it is requested to allow the appeal.
[5] Learned advocate appearing for the respondents herein has submitted that order passed by the learned Trial Court is legal and proper and not required to be interfered with. Therefore, it is requested to dismiss the appeal.
[6] Heard learned advocates for the respective parties. Original plaintiff was examined at Exh.29. He has stated that will is lying in the proceedings of civil suit no.49 of 1984. The said suit was filed by his father Premshanker Pathak against the defendant of present suit i.e.
Anilaben. On account of the death of his father during the pendency of the suit, the plaintiff was joined as legal heir. It is further deposed that the will in question came in his hands. He therefore, got the will registered. He took two witnesses of the said will namely, Ranchhodbhai Vaghela and Maneklal Bhatt. He has further stated that he is not aware of present whereabouts of Ranchhodbhai Vaghela who is one of the two witnesses named in the said will. He has further stated that said witness has already retired and he has not been staying at present in Sabarmati area where earlier he was residing. Other witness of the said will, namely, Maneklal is not alive at present.
[7] It is an admitted fact that original will executed by Ramniklal Pathak on 16.02.1982 has not come on record. Plaintiff has only produced true copy of the will. It is the case of the plaintiff that original will is lying in the record of Civil Suit No.49 of 1984. However, the said suit is already disposed of and it is not the case of the plaintiff that any revision or appeal is preferred or pending against the said order. Civil Suit No.49 of 1984 was decided way back in the year 1995 and the plaintiff has failed to obtain the original will of the deceased from the record of the said suit. There are two witnesses of the will namely Ranchhodbhai Vaghela and Maneklal Bhatt. It is admitted fact that plaintiff is not aware of whereabouts of Ranchhodbhai Vaghela and so far as other witness – Manekelal Bhatt is concerned, he is not alive. In the present case, will produced is alleged to have been attested by the said two witnesses. But neither of them have been examined on behalf of the plaintiff. Thus, the plaintiff has not able to prove the will. If the plaintiff could take the two witnesses before the Registrar for the purpose of registration, whey the plaintiff could not bring one of them before the Court to prove the will in question. Even the plaintiff could have examined some person from the office of SubRegistrar before whom the will is registered. But the plaintiff has not done so. Moreover, the will was also got registered after more than one and half year from the date of execution by the deceased. The plaintiff has also failed to produce the original will and its certified copy cannot be admitted in evidence as provided under section 65 of the Indian Evidence Act. Considering all this aspects, it creates doubt about genuinenesses of the will in question. When the plaintiff has not been able to prove will in question and same having been found not genuine or legal, the question of appellant herein plaintiff being sole successor does not survive. This Court is in agreement with the findings recorded by the Trial Court.
[8] In view of above, the appeal deserve to be dismissed and accordingly it is dismissed.
[M.D.Shah, J.] satish