JUDGMENT

A.S. Chandurkar, J. (Oral) - This appeal under section 100 of the Code of Civil Procedure, 1908 has been filed by the legal heirs of the original defendant being aggrieved by the decree passed by the trial Court declaring the respondent as owner of the suit properties.

2. The facts giving rise to the second appeal are that it is the case of the respondent original plaintiff that her aunt, viz. Sonibai was the absolute owner of Field Survey no. 19/03 ad-measuring about 0.81 R, Survey No. 22/1 ad-measuring 1 Hectare 72 R as well as the house property. On 25.01.1977, said Sonibai executed a gift deed in respect of the house property as well as two acres of land from Field Survey no. 19/3 in favour of the plaintiff. On the same day, said Sonibai also executed a will in favour of the plaintiff bequeathing land ad-measuring 4 Acres 10 Gunthas of land from Field Survey No. 22 in her favour. Said Sonibai expired on 27.07.1993. As the plaintiff was married and residing elsewhere, she came to the suit site on 16.09.1993. She found the defendant in possession and hence asked him to handover the same to her. The defendant claimed right on the basis of will executed by Sonibai in his favour. On that basis, the plaintiff filed the aforesaid suit for declaration that she was the absolute owner of the suit properties by virtue of the gift deed and will, both executed by Sonibai.

3. Written statement at Exhibit 16 was filed by the defendant denying the case as pleaded. It was further pleaded that in the year 1982, said Sonibai had executed a will in his favour bequeathing all the properties to him. It was thus pleaded that the defendant was the absolute owner of the suit properties.

4. After the parties led evidence before the trial Court, it was held that the plaintiff had proved that she was the absolute owner of the suit properties by virtue of the gift deed and the will deed. It was held that the will put forth by the defendant had not been duly proved. The suit was accordingly decreed. The appellate Court after re-appreciating the evidence, confirmed that decree. Being aggrieved, the legal representatives of the original defendant have filed this appeal.

5. The following substantial question of law was framed while admitting the appeal. I) Whether will dated 28.10.1982, Exh.49, is shrouded with suspicious circumstances?

6. Smt. S.W. Deshpande, the learned counsel for the appellant in support of the appeal, submitted that Sonibai having executed will dated 28.10.1982 at Exhibit 49 in favour of the defendant, he became owner of the entire suit properties. By virtue of that will, the earlier will at Exhibit 48 claimed to be executed in favour of the plaintiff stood revoked and the plaintiff was not entitled to claim any right on that basis. She referred to the deposition of the attesting witness to indicate that the will at Exhibit 49 was duly executed. The alleged suspicious circumstances referred to by the Courts could not be termed as suspicious so as to discard the case of the original defendant. The said defendant was in fact working as a servant of the testator and as the testator had no issues, it was but natural that the suit properties would be bequeathed in his favour. In the alternative, it was submitted that if the gift deed at Exhibit 47 is held to be valid then the will in favour of the defendant would operate with regard to the properties not gifted in favour of the plaintiff. She placed reliance on the judgment reported in (1995) 4 SCC 459 (Rabindra Nath Mukherjee & Another vs. Panchanan Banerjee (Dead) by LRs & Others) . It was thus submitted that in absence of any suspicious circumstance, the will dated 28.10.1982 deserves to be accepted.

7. Shri K.B. Zinzarde, the learned counsel for the respondent, on the other hand, supported the impugned judgment. He submitted that both the Courts had rightly discarded the will dated 28.10.1982 by holding that due attestation as required by section 63(c) of the Indian Succession