Manoj @ Rajaram Uddhav Bachal & Anr. v. Manohar Sridhar Bachal & Ors.

This is an application seeking direction to the trial Court to record evidence of three witnesses, namely, Baburao Kundalik Kumbhar , Popat Raghu Gaikwad and V.B.Hattiwate to prove the alleged will executed by Sridhar, grandfather of the present applicants in the favour of their father Uddhav. Special Civil Suit No.183 of 2001 was filed for partition and separate possession of certain properties wherein the present applicants, who were defendant no.6 and 7 claimed that deceased Sridhar had executed a will in respect of his property. It was also contended that the original will was in possession of the plaintiff and as he was not willing to produce the same, defendant nos.6 and 7 requested the trial Court for permission to lead secondary evidence vide application Exhibit 147. 2 Initially, permission was granted. Later on defendant nos.14 to 20 moved an application to review that order and the order was reviewed and the permission granted earlier was withdrawn.

Suit proceeded and the trial Court held that will was not proved. Defendant nos.6 and 7 have filed the first appeal. The appeal is admitted. It is their contention that witnesses are aged more than 75 years and, therefore, recording of their evidence is immediately required. Application is opposed on behalf of the respondents. 2 It appears that plaintiff had through his advocate Mr. V.S.Deshmukh from Nagpur issued notice to the Sarpanch of Gram Panchayat Kusegaon on 30th April, 1992 for taking certain entries about the house property on the basis of a will executed by his father Sridhar. That notice prima-facie reveals that some will was executed by deceased Sridhar and that will was in possession of the plaintiff. As the plaintiff denied that will, defendant no.6 and 7, who are the beneficiaries, wanted to prove execution of the will by leading secondary evidence. In my considered opinion, permission should have been granted.