JAYESHBHAI CHANDRAKANTBHAI PATEL Vs. PRITIBEN

JUDGEMENT

(1.) This second appeal is filed by the original defendant No.2 and is directed against the concurrent findings of both the Courts below. The Trial Court (the 12th Additional Civil Judge, Vadodara) allowed the Regular Civil Suit No.390 of 2011 vide judgment and decree dated 05.07.2018, which is confirmed by the 6th Additional District Judge, Vadodara vide judgment and decree dated 30.01.2019 in Regular Civil Appeal No.259 of 2018. This is under challenge in this second appeal.

(2.) 2.1 Mr. Shalin Mehta, learned senior advocate with Mr. S.P.Majmudar, learned advocate for the appellant original defendant No.2 has submitted that, the Courts below fell in error inasmuch as the Will dated 03.07.2003 (Exh.46) claimed to have been executed by the mother of the appellant, was not legally proved. It is submitted that only one of the witnesses to the Will was examined and from his deposition also, it is not clear as to whether the Will was signed by the mother of the present appellant in presence of the witnesses or not. It is therefore submitted that the Will could not be said to have been proved in the trial.

(3.) On the other hand, Mr. Shushil Shukla, learned advocate for the respondents original plaintiffs (sisters) and the original defendant No.1 (father) has submitted that, both the Courts below have, on the basis of the evidence led before it, arrived at the conclusion that, the Will of the mother is duly proved and by the said Will, the mother has, in no uncertain terms, excluded the son from any share in the suit property and there were good reasons for doing so. It is submitted that the appellant son was beating his parents and the mother did not wish any share in her property being given to the said son. It is submitted that the contemporaneous material on record confirms this aspect. It is submitted that, if the complaint of the mother dated 21.08.2003 written to the Police Commissioner, Vadodara, which is relied by the appellant himself is seen, vis-a-vis the Will dated 03.07.2003, there is no inconsistency. It is submitted that any person of ordinary prudence would have adopted the same course. Reliance is placed on the decision of Supreme Court of India in the case of Mahesh Kumar versus Vinod Kumar, 2012 4 SCC 387. Learned advocate for the respondent has also relied on the decision of the Supreme Court of India in the case of Leela Rajagopal versus Kamala Menon Cocharan, 2014 15 SCC 570. It is submitted that no question of law arises for consideration of this Court and this appeal be dismissed.