JUDGMENT :

Sadhana S. Jadhav, J.

1. Heard respective parties. The appellant herein impugns the judgment and order passed by the Principal District Judge, Nashik dated 13th September 2016 passed in Civil Appeal No. 601 of 2012 thereby setting aside the judgment and decree of the first Court in R.C.S. No. 273 of 2012.

2. The facts of the case are as follows:-

Jyoti Vijay Vinchurkar expired on 30th May 2005 in the house of her sister at Akola. It is an admitted position that Jyoti was carrying pregnancy of about 6 months at the time of her death. She had been to her sister's house to attend marriage. She did not return from the marriage. There were certain complications in her pregnancy and she expired on 30th May 2005.

3. That on 23rd April 2007, the son of sister of deceased Jyoti filed a suit for recovery of possession and injunction of the suit property which was Galla (Shop) situated at Mauje Takali within the limits of Nashik Municipal Corporation. The shop was situated in Bombay House Cooperative Housing Society at Upnagar, Nashik. It was the contention of the plaintiff that on 20th May 2005, deceased Jyoti had got the Will executed thereby endowing the shop upon the plaintiff. The Will was placed on record by the plaintiff. The Will was neither a registered document nor a notarized document. Needless to say that the suit shop was mutated in the record of the Bombay House Co-operative Housing Society. Advocate Mr. Hirurkar was close family friend of the plaintiff's family. In the present case, he happens to be the scribe of the document as well as the witness and executor of the said document. The Will is marked at Exh. 55.

4. Upon perusal of the said Will, it is more than clear that according to testator, the suit shop was purchased on 4th June 2006 by a registered sale deed. She had given the entire description of the suit property in the Will. It was further contended that she was informed by the Doctor about poor prognosis therefore, she had an anxiety about devolution of her property after her demise and had executed the said Will. According to the testator, father of the plaintiff had settled her marriage with Mr. Vinchurkar and had always been helpful to her. He had started Kumar Typing Institute in her name for her welfare and he was the person who had paid the amount for purchasing the said property. That her son-in-law (sic) had purchased the property in her favour and therefore, she desires that the said property should devolve upon his son i.e. the plaintiff.

5. It is an admitted position that the plaintiff happens to be the son of the sister of the deceased and by virtue of the same, his father would not be the son-in-law of the deceased Jyoti.

6. Perused the copy of the sale deed. It is pertinent to note that the sale deed is executed on 4th May 2004. It was purchased from one Ramesh Samel. The sale deed also indicates that the owner of the said property was a member of the said Bombay House Co-operative Housing Society and that by virtue of the said sale deed, he would transfer all the shares in the name of the purchaser of the said property after clearing all the charges. The expenditure for execution of the sale deed was borne by purchaser. It is further pertinent to note that the typing institute was in existence in the said shop even at the time of execution of the sale deed. The vendor of the said property had transferred the said shop in the name of the testator along with the furniture and other equipment which were required for a typing institute. An amount of Rs. 1,75,000/- was paid by cheque and Rs. 50,000/- was paid in cash at the time of agreement of sale.

7. It is pertinent to note that the plaintiff had examined the scribe/witness of the said document which was none other than his close relative. The plaintiff had not examined the vendor of the said property Mr. Samel. The defendant no. 2 was the Bombay House Co-operative Housing Society which was a formal party. Father of the plaintiff i.e. Shriram Hir