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Whether propounder of will is bound to prove will even if objection to will is not taken by other side?

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)

Civil Revision Application No. 68 of 2015

Decided On: 04.04.2018

Bainabai
Vs.
Divisional Manager, Life Insurance Corporation of India and Ors.

Hon’ble Judges/Coram: Manish Pitale, J.

Citation: 2018(6) MHLJ 91

1. This revision application challenges two concurrent orders passed by the Courts below on an application for grant of succession certificate filed by the applicant under Section 372 of the Indian Succession Act, 1925 [for short, ‘Act of 1925’]. The applicant contended in her application that her son Baban Wankhade died on 16-07-2000. She claimed that her son was having strained relations with his wife, respondent No. 7 herein and that only the applicant and her grand-daughters i.e. respondent Nos. 8 to 10 herein were entitled for grant of succession certificate in respect of amounts specified in the application as also securities. It was claimed in the application that respondent No. 7, widow of deceased son of the applicant, had illegally obtained and collected the amounts towards LIC Policy, which were required to be deposited by her along with interest.

2. By amendment to the application, the applicant sought to rely upon a Will purportedly executed by said deceased Baban Wankhade, wherein he had stated that all the amounts lying in his name should be distributed amongst the applicant and his daughters and that nothing was to be given to respondent No. 7 (his wife) because relationship between him and his wife were strained. By the said amendment, a reference was made to the Will but date of the Will was not stated even in the amended application. The said document i.e. Will dated 05-06-2000 was exhibited as Exhibit-71 in the proceedings before the Court of Civil Judge, Senior Division, Amravati (trial Court) in R.M.J.C. No. 97 of 2000. It is the case of the applicant that although the aforesaid Will deed was specifically relied upon by way of amendment in the application filed by the applicant herein, no consequential amendment was made in the written statement on behalf of respondent Nos. 7 to 10 and that therefore, there was no denial in respect of the said Will. It is evident from the record that a photocopy of the said Will deed was also placed on record as Exhibit-80 on behalf of the applicant, which was also not denied by contesting respondent Nos. 7 to 10.

3. The trial Court took into consideration the pleadings and evidence on record and it found that while signatures of one of the two attesting witnesses in the original Will deed Exhibit-71 were scored out, in the photocopy at Exhibit-80 signatures of both the attesting witnesses were found. On an analysis of the oral and documentary evidence on record, the trial Court found that the Will deed at Exhibit-71 was not free from doubt, particularly because the name and signatures of one of the attesting witnesses was scored out. On this basis, the trial Court disbelieved the said Will and held that the application filed by the applicant herein was required to be considered simply, without taking into consideration the existence of the said Will. On this basis, the trial Court allowed the aforesaid application, holding that the applicant and respondent Nos. 7 to 10 were legally entitled to receive equal share in accordance with law.

4. The applicant was aggrieved by the fact that the trial Court had granted share even to respondent No. 7, who according to her was estranged wife of her son and in the Will deed dated 05-06-2000, it was specifically stipulated by deceased Baban Wankhade that no part of his estate should be given to his wife. On this basis, the applicant filed Regular Civil Appeal No. 216 of 2009 before the District Court, Amravati (appellate Court). By the impugned judgment and order dated 27-02-2015, the appellate Court has dismissed the appeal and confirmed the order of the trial Court. The appellate Court has framed points for consideration, including the point as to whether said Baban Wankhade had executed Will dated 05-06-2000 in favour of the applicant. The appellate Court took into consideration the evidence and material on record and found that attestation of Will as required under Section 63(c) of the Act of 1925, was not done in the present case and that the scribe of the Will who had appeared as witness, could not be treated as an attesting witness. It was also found that the applicant did not enter the witness box and that her son-in-law appeared as Power of Attorney holder on her behalf. On this basis, the appellate Court confirmed the findings of the trial Court that the Will was not proved to the satisfaction of the Court and on that basis, it confirmed the order of the trial Court. It is significant that in paragraph 33 of the impugned judgment and order, the appellate Court has observed that grant of succession certificate would not create any exclusive right and title over the subject matter and that it was not a bar for any of the parties to raise an issue in a subsequent suit about right and title over such properties.

5. Aggrieved by the impugned judgment and order, the applicant filed the present revision application. On 03-04-2017, the application was admitted by this Court on the following question of law :-

“Whether both the Court below have rightly shifted the burden on the applicant in the matter of proving Will in question, when there was no denial in written statement to that effect?”
6. Mrs. Smita Deshpande, learned Counsel for respondent No. 1 and Shri Jayant Mokadam, learned Counsel for respondent No. 5, have appeared for the formal parties.

7. Shri Alaspurkar, learned Counsel appearing on behalf of the applicant submitted that the Courts below had committed a grave error in placing the burden on the applicant to prove the said Will dated 05-06-2000, when there was no denial on behalf of contesting respondent Nos. 7 to 10 in respect of the said Will. It was further submitted that, in any case, one of the attesting witnesses and the scribe of the Will had been produced as witnesses in support of the said Will and there was sufficient oral and documentary evidence on record to show that the aforesaid Will was a valid document. According to the learned Counsel appearing on behalf of the applicant, Courts below have committed a grave error in disbelieving the said Will and that such adverse findings were based on erroneous appreciation of the evidence and material on record. In support of his submission the learned Counsel for the applicant relied upon the judgments of the Hon’ble Supreme Court in the case of Vasant Balu Patil and others v. Mohan Hirachand Shah and others, reported at MANU/SC/1138/2015 : (2016) 1 SCC 530, Bharpur Singh and others v. Shamsher Singh, reported at MANU/SC/8404/2008 : (2009) 3 SCC 687, Daulat Ram and others v. Sodha and others, reported at MANU/SC/0969/2004 : (2005) 1 SCC 40, Judgments in Civil Appeal No. 5366 of 2017 (Poonnamma Jagadamma and others v. Narayanan Nair and others) and Mahesh Kumar (dead) by Lrs v. Vinod Kumar and others, reported at MANU/SC/0208/2012 : 2012(4) Mh.L.J. 482 and judgments of this Court in the case of Lalita Krishnaraj Parekh and another v. Kirti Jagadish Mulani, reported at MANU/MH/1553/2009 : 2010(1) Mh.L.J. 761 and Hoshang Pesi Hodiwala v. Bonny Behramshah Bhatahena and others, reported at MANU/MH/1663/2014 : 2015(1) ABR 75.

8. Per contra, Shri Vaishnav, learned Counsel appearing on behalf of contesting respondent Nos. 7 to 10 submits that the findings rendered by the Courts below do not deserve any interference by this Court in revisional jurisdiction under Section 115 of the Code of Civil Procedure, 1908. He submitted that once the applicant propounded the Will and sought benefit under the same, the burden was entirely on her to prove execution of the said Will and that absence of amendment in the written statement/objection on behalf of the contesting respondents to raise objection to the Will would not shift the burden. It was submitted that it was a mandate of the statute that the propounder of the Will proves the same to the satisfaction of the Court. It was further submitted that the Courts below had correctly appreciated the evidence and material on record to come to the conclusion that the applicant had failed to prove the said Will, which was the only basis for her to deny the share to contesting respondent No. 7. It was further submitted that, in any case, the proceedings under the provisions of the Act of 1925 for issuance of succession certificate were necessarily summary in nature and that if the applicant was aggrieved by any findings rendered in such proceedings, she could very well agitate the same in a suit before the Civil Court, which could be considered and decided on its own merits. It was pointed out that there were already two civil suits initiated between the parties, of which one was pending at the trial stage and the other at the appellate stage. It was contended that if the applicant had any grievance, she could very well agitate the same in the said proceedings. The learned Counsel appearing on behalf of contesting respondent Nos. 7 to 10, relied upon the judgments of the Hon’ble Supreme Court in the case of Ramesh Verma (dead) through Legal Representatives v. Lajesh Saxena (dead) by Legal Representatives and another, reported at MANU/SC/1549/2016 : (2017) 1 SCC 257, K. Laxmanan v. Thekkayil Padmini and others, reported at MANU/SC/8352/2008 : (2009) 1 SCC 354, Joginder Pal v. Indian Red Cross Society and others, reported at MANU/SC/0620/2000 : (2000) 8 SCC 143, Janki Narayan Bhoir v. Narayan Namdeo Kadam, reported at MANU/SC/1155/2002 : (2003) 2 SCC 91, M.L. Abdul Jabbar Sahib v. H. Venkata Sastri and Sons and others etc., reported at MANU/SC/0019/1969 : AIR 1969 SC 1147 and judgments of this Court in the case of Dinesh Ramchandra Sawant and others v. Shivaji Ramchandra Sawant, reported at 2013(7) All MR 298 and Ashwinkumar S/o. Kanakraj Gandhi v. Laxmidas Bhagwandas Mehta deceased through Lrs. Laxmibai w/o Laxmidas Mehta and others, reported at MANU/MH/0486/2007 : 2007(6) Mh.L.J. 819.

9. Having heard the learned Counsel for the parties and having perused the record, the crucial question that this Court needs to consider and answer is, as noted above, whether the Courts below were justified in placing the burden on the applicant to prove the aforesaid Will when there was no specific denial in written statement/objection by contesting respondent Nos. 7 to 10 and what was the effect of the findings rendered by the Courts below, considering the provisions of Sections 372, 373 and 387 of the Act of 1925.

10. In the instant case, the applicant amended her application in order to include pleadings pertaining to execution of the aforesaid Will by her son Baban Wankhade. This Will is crucial as regards the claim made by the applicant because it completely leaves out the widow of deceased Baban Wankhade from any benefits in respect of his estate. It is the case of the applicant that since the relations between deceased Baban Wankhade and his wife (contesting respondent No. 7) were strained, the desire of deceased Baban Wankhade is manifested in the contents of the aforesaid Will. It is contended on behalf of the applicant that since there was no consequential amendment made by contesting respondent Nos. 7 to 10 in their written statement/objection in respect of the pleadings pertaining to the said Will incorporated in the application filed by the applicant, the Courts below could not have “shifted the burden” on the applicant as regards the proof of the said Will.

11. In this context, it is to be examined that when the applicant herself has propounded the said Will, whether she is entitled to claim that if there is no denial in the written statement/objection on behalf of contesting respondent Nos. 7 to 10, she is discharged from her burden to prove the execution of the said Will. It is difficult to accept the said contention raised on behalf of the applicant because when she is claiming benefit under the aforesaid Will, it is for her to come to the Court and prove the fact in accordance with law that such a Will was indeed executed by her son Baban. In this context, the learned Counsel appearing on behalf of contesting respondent Nos. 7 to 10 is justified in placing reliance on the judgment of the Hon’ble Supreme Court in the case of Ramesh Verma (supra), wherein it has been held as follows :

“13. A Will like any other document is to be proved in terms of the provisions of Section 68 of the Indian Succession Act and the Evidence Act. The propounder of the Will is called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document on his own free will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. This is the mandate of Section 68 of the Evidence Act and the position remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement. ”
12. It is, thus, clear that the mandate of the Act of 1925 read with the provisions of the Indian Evidence Act, 1872, is that the burden is entirely upon the applicant to prove execution and contents of the said Will since she had propounded the same. Therefore, the question of law framed by this Court while admitting this application is answered in favour of contesting respondent Nos. 7 to 10 and against the applicant.

13. The learned Counsel appearing on behalf of the applicant has vehemently argued that there was sufficient oral and documentary evidence placed on record by the applicant to prove execution, as also the contents of the said Will because one of the attesting witnesses was examined as also the scribe of the said Will. According to the learned Counsel for the applicant there was sufficient compliance with the requirements of law and that the Courts below had committed an error in holding against the contentions raised on behalf of the applicant. The Courts below have found that the signatures and name of one of the attesting witnesses have been scored out. The other attesting witness has indeed appeared before the Court and deposed regarding execution of the said Will deed and scribe had also appeared before the Court as a witness in support of execution of the said document. But, absence of second attesting witness, due to scoring out of his signatures and name, has been taken as a circumstance by the Courts below indicating that the said Will deed was not a document that could be believed.

14. In this context, the learned Counsel for the applicant has submitted that the photocopy of the said Will deed at Exhibit-80 did show signature of the second attesting witness and that there was oral evidence on record to show that the said second attesting witness had himself scored out his signature and name in the original document at Exhibit-71. According to him, this nature of oral and documentary evidence placed on record was sufficient to prove the fact that the said Will dated 05-06-2000 had been indeed executed by deceased Baban Wankhade and that the burden on the applicant was sufficiently discharged. The Courts below have taken a contrary view and they have not accepted the contentions raised on behalf of the applicant. A perusal of the original Will deed dated 05-06-2000 at Exhibit-71 shows that the signatures and name of the second attesting witness have been indeed scored out. The learned Counsel appearing on behalf of respondent Nos. 7 to 10 has correctly relied upon Section 63(c) of the Act of 1925 to contend that the Will shall be attested by two or more witnesses and further it has been contended that scribe of the Will cannot be treated as an attesting witness. Reliance has been placed on the judgment of the Hon’ble Supreme Court in the case of M.L. Abdul Jabbar Sahib (supra) and the judgment of this Court in the case of Ashwinkumar (supra) in this context. It has been held in the aforesaid judgments that in order to show valid attestation it is essential that two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature; with a view to attest or to bear witness to such fact, each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e.g, to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness. In the present case, the Courts below have taken into consideration the scoring out of signatures and name of the second attesting witness while arriving at the conclusion that the Will was not a believable document.

15. The learned Counsel appearing on behalf of the appellant has also contended that the burden was entirely on contesting respondent Nos. 7 to 10 to prove that there were any suspicious circumstances to doubt the validity of the aforesaid Will deed. As stated above, the burden would be first on the propounder of the Will, who in the present case was the applicant, to prove valid execution of the Will. Once, this is accepted, it cannot be said that the Courts below have committed any error in exercising jurisdiction while passing orders on the application for grant of succession certificate filed by the applicant. The reliance placed on behalf of the applicant on various judgments of the Hon’ble Supreme Court and this Court is mainly on the issue that in the absence of specific denial by contesting respondent Nos. 7 to 10, as regards the aforesaid Will, the Courts below could not have placed the burden on the applicant herein. The said judgments do not take the case of the applicant any further because, as stated above, it is the propounder of the Will and one who claims benefit under the same who is required to prove the execution and validity of the same in terms of the provisions of the Act of 1925 and the Indian Evidence Act, 1872. In this context, no error can be attributed to the Courts below in arriving at findings against the applicant while disposing of the application and appeal.

16. The other aspect of the present case is the effect of the findings rendered by the two Courts below in the context of the aforesaid Will dated 05-06-2000. In this regard, Sections 372, 373(3) and 387 of the Act of 1925 are relevant. A perusal of the said provisions show that the entire proceedings are summary in nature. In fact, sub-section (3) of Section 373 of the Act of 1925, specifically provides that if the Court is unable to decide the right to the succession certificate without determining a question of law or fact which seems to be too intricate and difficult for determination in a summary proceeding, it may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best title thereto. Section 387 of the Act of 1925 specifically provides that no decision under this Part upon any question of right between any parties shall be held to bar the trial of the same question in any suit or in any other proceeding between the same parties, and nothing in this Part shall be construed to affect the liability of any person who may receive the whole or any part of any debt or security, or any interest or dividend on any security, to account therefore to the person lawfully entitled thereto.

17. Thus, it is evident that the findings rendered by the two Courts below are essentially summary in nature and that such findings would not bar initiation of the Civil Suit by the applicant or any other party to the proceeding for establishing any right or interest in the subject matter of the proceedings. In this regard it has been held by the Hon’ble Supreme Court in the case of Joginder Pal (supra) as follows :

“16. This question was also considered by this Court in the case of Madhvi Amma Bhawani Amma & Ors. v. Kunjikutty Pillai Meenakshi Pillai & Ors. reported in MANU/SC/0393/2000 : 2000 (5) SC 336. In this case after having considered the provisions of Sections 370 to 390 of the Indian Succession Act as well as Section 11 of the Code of Civil Procedure, it has been held that any adjudication under Part X does not bar the same question being raised between the same parties in a subsequent suit or proceeding. It has been held that Section 387 of the Indian Succession Act takes a decision given under Para X of the Indian Succession Act outside the purview of Explanation VIII to Section 11 of the Code of Civil Procedure. It has been held that Section 387 gives a protective umbrella to ward off from the rays of res judicata to the same issue being raised in a subsequent suit or proceeding. We are in full agreement with the view expressed in this case.

17. In view of the specific provisions of law it is not possible to accept Mr. Sohal’s submissions. Section 387 specifically permits the 2nd Respondent to file a subsequent suit. Merely because issues were raised and/or evidence was led, does not mean that the findings given thereunder are final and operate as res-judicata. Even in summary proceedings issue can be raised and/or evidence can be led. The proceedings remain summary even though the Court may, in its discretion, permit leading of evidence and raising of issues. So in a subsequent suit the crucial issues must be decided afresh untrammelled or uninfluenced by any finding made in the proceedings for grant of Succession Certificate.”

18. In fact, the appellate Court was aware about this position of law and hence it has correctly observed in paragraph 33 of the impugned judgment and order as follows :

“Before parting with my judgment, I would like to state that the Will is already challenged in the suit which is pending in the Court of Civil Judge (SD). It is well settle that considering the provisions of Sec, 372 of the Indian Succession Act, the succession certificate not creates any exclusive right and title over the subject matter and it also not bar for the party to raise the issue in a subsequent suit about the right, title and interest of the party in such properties.”
19. Therefore, while the question framed by this Court is answered against the applicant and the orders passed by the two Courts below are confirmed, it is made clear that the findings rendered therein are subject to Section 387 of the Act of 1925. The findings rendered therein would obviously not operate as res judicata in the civil proceedings initiated by the applicant for redressal of her grievance. The learned Counsel appearing on behalf of the parties inform this Court that there are two proceedings already pending in the form of a suit for partition and a suit for injunction filed by the parties wherein the aforesaid Will is subject matter of challenge. While one of the said proceedings is pending at trial stage and other is pending at the appellate stage. It is made clear that the said Courts will deal with the said proceedings by deciding the issues and contentions raised by the applicant before the said Courts on their own merits and that the findings rendered by the Courts below in the present proceeding would be subject to the fetter of Section 387 of the Act of 1925.

20. In the light of the above, this Civil Revision Application is dismissed. Needless to say that the interim order passed by this Court in the present application stands vacated. No order as to costs.

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