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How to appreciate evidence regarding proof of execution of will?

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.

SECOND APPEAL NO. 167 OF 2004

Ramesh Tanbaji Satpute
Vs
Smt. Tulsabai Wd/o Laxmanrao Bhanose

CORAM: A.S. CHANDURKAR, J.
DATED: 22­-06-­2018

1. The appellants are the original plaintiffs who are aggrieved by the dismissal of the suit filed for declaration that they are the owners of the suit property with a further prayer for possession of the same.

2. The facts in brief giving rise to the present appeal are that Tanbaji and Ramaji were two brothers who had jointly purchased field Survey Nos.75, 76 and 77 on 30­9­1963. Both brothers were having half share each in the said property. Tanbaji had a son Ramesh. Ramaji had two wives Bhagirathibai and Parvatibai. He also had a daughter Tulsabai. According to Tanbaji and his son, Ramaji had executed a will dated 28­5­1982 bequeathing his half share from the aforesaid lands in favour of Ramesh. Ramaji expired on 10­1­1986. According to Tanbaji and his son, they were in possession of the said half portion that was owned by Ramaji. However, Ramaji’s daughter Tulsabai and her husband sought to interfere with their possession and hence Tanbaji and his son Ramesh filed Regular Civil Suit No.1100/1991 for declaration that they were the owners of the suit field as well as for perpetual injunction seeking to restrain the defendants from disturbing their possession. During pendency of the suit, the plaintiffs claimed that they were dispossessed and hence after amending the plaint, a prayer for possession was also added.

3. The defendants filed their written statement at Exhibit­ 13 and denied the execution of Will dated 28­5­1982. It was claimed that the defendant was in possession since the life time of Ramaji and it was denied that the plaintiffs had been forcibly dispossessed. A counter claim was filed seeking declaration that the alleged Will dated 28­5­1982 was null and void. A prayer was also made so as to protect their possession.

4. The parties led evidence before the trial Court. After considering the same the trial Court held that the plaintiffs had failed to prove that Ramaji had executed Will dated 28­5­1982 in favour of Ramesh. It was held that the plaintiffs had only half share in the suit property. The suit was therefore dismissed and the counter claim seeking declaration as regards invalidity of the Will was decreed. The appeal filed by the original plaintiffs was dismissed by the appellate Court and hence the plaintiffs have filed the present second appeal.

5. While admitting the second appeal, the following substantial questions of law were framed:

(1) When the Will is registered and it is proved by examining one attesting witness is it not the compliance of rules of execution of attestation as per Section 63 of Indian Succession Act?

(2) Was the onus of proof to prove the Will fabricated not shifted on the Defendant/Respondent, once the plaintiff has discharged his burden of proving the execution of Will?

(3) Can evidence be given on the basis of unregistered Power of Attorney which does not speak about case no. or the specification as to conferment of powers?

6. Shri Anjan De, learned Counsel for the appellants – original plaintiffs submitted that both the Courts committed an error in discarding the Will at Exhibit­41. It was submitted that the plaintiffs by examining the Scribe – Baburao Purohit, his son Madhukar and the attesting witness Narayan Ghoradkar had proved the due execution and attestation of the Will. The circumstances relied upon by both the Courts could not be termed as suspicious for casting a doubt on the case of the plaintiffs. Merely because the Will was got executed on the next day and till that period the document of Will remained in custody of the Scribe, the same would not be a justification for discarding the same. Further the fact that the Scribe happened to be the landlord of Tanbaji was also not a relevant circumstance. In absence of any dispute between the family members, it was not felt necessary on the part of Ramesh to disclose about execution of the Will after the death of Ramaji. The same was relied upon only when the defendant sought to disturb the possession of the plaintiffs. There were no pleadings in the written statement alleging any suspicious circumstances and merely on the basis of surmises, the Will has been discarded. The fact that the widows of Ramaji were alive and that he had a daughter would not be sufficient to label the Will as suspicious. In that context, he referred to the legal notice issued on behalf of the defendant at Exhibit­158 to urge that even according to the defendant the plaintiffs were taking care of the widows. Both the Courts committed an error by holding that the Will was not executed in terms of Section 63 of the Succession Act, 1925. Moreover, the evidence given by the defendant’s son on the basis of an unregistered power of attorney could not have been relied upon. It was thus submitted that both the Courts committed an error in dismissing the suit. The Will dated 28­5­1982 ought to have been held to be duly proved and the suit ought to have been decreed. In support of his submissions, the learned Counsel placed reliance on the following decisions:
(1) Janki Vashdeo Bhojwani v. Indusind Bank Ltd. (2005) 2 SCC 217.
(2) Man Kaur vs. Hartar Singh Sangha (2010) 10 SCC 512.
(3) Savithri and others vs. Karthyayani Amma and others (2007) 11 SCCC 621.
(4) M. K. Rappai and others vs. John and others (1969) 2 SCCC 590.
(5) Ram Saran and another vs. Smt. Ganga Devi (1973) 2 SCC 60.
(6) Mahesh Kumr vs. Vinod Kumar and others 2012 (4) SCC 387.
(7) Pentakota Satyanarayana vs. Pentakota Seetharatnam 2005 (8) SCC 67.

7. Shri K. B. Ambilwade, learned Counsel for the respondent Nos.1 and 2 on the other hand supported the impugned judgments. He submitted that both the Courts had rightly found that the plaintiffs had failed to prove the validity and execution of the Will at Exhibit­41. Though it is stated that the Will was scribed on 27­5­1982, no signatures were obtained on said date. The Will was not read over to Ramaji when it was registered on the next day. The witnesses present were not known to the executant and there were various contradictions in the depositions of PW­2, PW­3 and PW­4. There was no reason for Ramaji to exclude his two wives as well as daughter from any benefit under the Will. Parvatibai, the wife of Ramaji was not examined though she was alive during pendency of the suit. The notice at Exhibit­158 issued at the instance of the defendant could not be construed in favour of the plaintiffs and in fact, it had been stated by the defendant that the two widows were subjected to pressure by the plaintiffs. Reference was made to the document at Exhibit­38 which was a sale deed to indicate that the same was bearing the thumb impression of Ramaji and not his signature. It was also submitted that Ramaji during his life time had not obtained any loan and that the Scribe – Baburao did not place on record his registers to indicate that the Will was got executed in the normal course of his activities. Merely because the document of the power of attorney was not registered, the same would not be a justifiable reason to discard the deposition of DW­1 Vitthal. It was thus submitted that in the light of various concurrent findings recorded by both the Courts there was no reason to interfere with the impugned judgments. In support of his submissions, the learned Counsel placed reliance on the following decisions:
(1) Guro vs. Atma Singh and others (1992)2 SCC 507.
(2) Bhagwan Kaur v. Kartar Kaur (1994) 5 SCC 135.
(3) Kalyan Singh v. Smt. Chhoti and others AIR 1990 SC 396.
(4) Smt. Indu Bala Bose and others vs.. Manindra Chandra Bose and another (1982) 1 SCC 20.
(5) Clarence Pais vs. Union of India 2001 Law Suit (SC) 335.
(6) Mudigowda Gowdappa Sankh vs. Ramchandra Revgowda Sankh 1969 Law Suit (SC) 5.

8. Shri S. Chauhan, learned Counsel for the respondent Nos.3 to 5 adopted the contentions raised by the learned Counsel for the respondent Nos.1 and 2 and submitted that the appeal was liable to be dismissed.

9. I have heard the learned Counsel for the parties at length and with their assistance I have gone through the records of the case. Substantial question of law Nos.1 and 2 relate to the proof with regard to the Will dated 28­5­1982. Those questions may be considered first. According to the plaintiffs, the suit property was jointly purchased by Tanbaji and Ramji on 30­9­ 1963. Both the brothers had half share therein. According to the plaintiffs on 27­5­1982, Ramaji had got the will scribed through one Bapurao Purohit. Ramaji was shown to be aged about 72 years and in the will at Exhibit­41 it has been stated that he was not keeping good health. The stamp paper on which the will was scribed had not been purchased by Ramaji. Ramaji was also not acquainted with the Scribe. The said Scribe was the landlord whose premises were let out to plaintiff No.1 – Tanbaji. According to him, though the will was scribed on 27-­5­-1982 as per the say of Ramaji, it could not be registered on the same day as it was prepared in the late hours of the day. The document remained in the custody of the Scribe and on the next date it was got registered through his son – Madhukar. Said Madhukar admitted in his cross­examination that the will in question was read over to Ramaji by his father and that he had not read it over to Ramaji in the office of the Sub Registrar. This version has been found to be in conflict with the version of the attesting witness – Narayan Ghoradkar. Said witness has deposed that the Sub Registrar had read over the contents of the Will to Ramaji after which his thumb impression was obtained. This attesting witness has again not deposed about attestation by the other attesting witness – Devaji. It has also been found that there was nothing brought on record to indicate that the document registered on 28­-5­-1982 was the same document which was stated to have been prepared on 27-­5­-1982 on the instructions of Ramaji as it was in the custody of the Scribe and his son.

In the light of this evidence of the witnesses, both Courts recorded a finding that the there were material contradictions in the evidence of PW­2, PW­3 and PW­4 on the point of execution of the will. This conclusion in my view is based on appreciation of evidence by the trial Court and its reappreciation by the appellate Court. That finding cannot be termed to be perverse warranting interference.

10. As regards suspicious circumstances surrounding the preparation of the will, it is admitted position that Ramaji was survived by his two wives and his daughter Tulsabai. No provision whatsoever was made by Ramaji in the said Will for them. There is no reason that can be found from the record for Ramaji to exclude his family members from any benefit under the Will. Though much emphasis was sought to be placed by the appellants on the legal notice issued on behalf of the defendant No.1 to the plaintiff no.1 at Exhibit­158, a careful perusal of the same indicates that it does not support the case of the plaintiffs that because the plaintiffs were taking care of the widows, Ramaji did not find it necessary to make any provision for them. It was also submitted that there were no sufficient averments as regards suspicious circumstances raised by the defendant. In the Will at Exhibit­41, it was stated by the testator himself that he was not keeping good health. It was for the propounder – Ramesh to bring on record such material that would remove doubts surrounding the execution of the Will. Though Dr. Khobragade was examined at Exhibit­115, his deposition by itself is not sufficient to take the case of the plaintiffs any further. The Scribe though examined did not complete the execution of the document on 27­5­1982 nor did he produce the registers maintained by him while discharging his duties as a Scribe. The stamp papers have not been purchased in the name of Ramaji and the document said to be prepared on the previous day remained with the Scribe and his son till it was registered on the next day. The various circumstances surrounding the preparation and subsequent execution of the Will at Exhibit­41 are of such nature that do not inspire confidence in the mind of the Court to accept the version of the plaintiffs. These circumstances outweigh the case of the proponder that Ramaji had executed the Will in free mind. The explanation that the plaintiffs were taking care of the widows is also not sufficient to conclude that there was some justification for excluding them from any benefit under the Will. In that view of the matter, the finding recorded that the propounder has not been able to remove various suspicious circumstances surrounding the preparation and execution of the will have not been removed.

11. The decisions relied upon by the learned Counsel for the appellants as regards the principles applicable while considering the validity of a will and a challenge raised thereto do not admit of any doubt. However, while applying those principles to the case in hand, it is found that the case of the plaintiffs has not been duly proved and the conclusion recorded by both Courts does not deserve to be interfered with. Substantial question of law Nos.1 and 2 are answered by holding that the plaintiffs have failed to prove proper attestation of the will dated 28­5­1982 (Exhibit­ 41) as required by Section 63 of the Indian Succession Act. The plaintiffs as preponders have failed to prove due execution of the Will.

12. Once it is found that the plaintiffs and especially the plaintiff no.2 – Ramesh who was the propounder of the Will had not discharged the burden of proving the due execution of the will and had failed in removing the suspicious circumstances surrounding the same, the burden to disprove the said will did not shift on the defendants. On that count merely because the defendant examined the power of attorney holder – Vitthal who was not fully aware about the facts of the case would not affect the case of the defendant. It was only if the valid execution and due attestation of the will at Exhibit­41 would have been proved as required by Section 63 of the Indian Execution Act, that burden would have shifted on the defendant. At that stage, the aspect of the defendant not examining herself and instead examining her power of attorney holder would have been a relevant factor. However, as it has been found that the will propounded by the plaintiffs has not been duly proved the aspect of the defendant examining her power of attorney holder is not of much consequence. In that view of the matter, the decisions relied upon by the learned Counsel for the appellants in Janki Vashdeo Bhojwani and another as well Man Kaur through her legal heirs (supra) does not take the case of the plaintiffs any further. Accordingly, substantial question of law No.3 is answered by holding that the plaintiffs having failed to prove their case as preponder of the will at Exhibit­41, the examination of DW­1 on the basis of an unregistered document of power of attorney does not help the case of the plaintiffs.

13. As a result of the foregoing discussion and the answers given to the substantial questions of law, the judgment of the trial Court and that of the first appellate Court does not deserve to be interfered with. The second appeal No.167/2004 is therefore stands dismissed with no order as to costs.

JUDGE

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