226-J-SA-455-04 1/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR[CASE NUMBER] SECOND APPEAL NO[CASE NUMBER]455 OF 2004 1[CASE NUMBER] [ENTITY] s/o [ENTITY], Aged about 42 yrs, Occ[CASE NUMBER] Labour, 2[CASE NUMBER] [ENTITY] s/o [ENTITY], Aged about 39 yrs, Occ[CASE NUMBER] Business, 3[CASE NUMBER] [ENTITY] s/o [ENTITY], Aged about 28 yrs, Occ[CASE NUMBER] Business, 4[CASE NUMBER] [ENTITY] w/o [ENTITY], Aged about 36 yrs, Occ[CASE NUMBER] Household, 5[CASE NUMBER] [ENTITY] s/o [ENTITY], Aged about 34 yrs, Occ[CASE NUMBER] Service, Nos[CASE NUMBER]1 to 3 and 5 r/o Goregaon, Tah[CASE NUMBER] Goregaon, District-Gondia Appellants[CASE NUMBER] -vs- 1[CASE NUMBER] [ENTITY] wd/o [ENTITY], Aged about 49 yrs, Occ[CASE NUMBER] Household, r/o Goregaon, Tahsil-Goregaon, District-Gondia 2[CASE NUMBER] [ENTITY] w/o [ENTITY], Aged about 44 yrs, Occ[CASE NUMBER]Household, R/o Navegaon, Bandh, [ENTITY], Dist[CASE NUMBER] Bhandara 2a[CASE NUMBER] [ENTITY] s/o [ENTITY], Aged about 44 yrs[CASE NUMBER] Occ[CASE NUMBER] Service, R/o C/o [ENTITY], [ENTITY], Post & [ENTITY], Dist[CASE NUMBER] Gondia[CASE NUMBER] 2(b) [ENTITY] w/o Ishwar Gate, Aged about 40 years, Occ[CASE NUMBER] Household, Uploaded on - 17/02/2018 Downloaded on - 17/02/2018 23:45:58 226-J-SA-455-04 2/11 R/o Tadgaon, Post Zarpoada, Tah[CASE NUMBER] [ENTITY], Dist[CASE NUMBER] Gondia 2(c) [ENTITY] s/o [ENTITY], Aged about 39 years, Occ[CASE NUMBER] Labour R/o Toli Ward No[CASE NUMBER]1, I/F of P[CASE NUMBER]H[CASE NUMBER]C[CASE NUMBER] Navegaon - Banch, Tah[CASE NUMBER] [ENTITY], Dist[CASE NUMBER] Gondia[CASE NUMBER] 2(d) [ENTITY] s/o [ENTITY], Aged about 37 years, Occ[CASE NUMBER] Service, R/o Behind Gaytri Mandir, Sendurwafa, Tah[CASE NUMBER] Sakoli, Dist[CASE NUMBER] Bhandara 3[CASE NUMBER] [ENTITY] s/o [ENTITY], Aged about 59 yrs, Occ[CASE NUMBER] Household, r/o [ENTITY] s/o [ENTITY], Aged about 59 yrs, Occ[CASE NUMBER] Household, r/o Patekurra, Tahsil Deori, District - Bondia 3(a) [ENTITY] w/o [ENTITY], Aged about 45 years, Occ[CASE NUMBER] Household, R/o Palkheda, Post : Tilli - Mohgaon, Tah[CASE NUMBER] Gorgaon, Distt[CASE NUMBER] Gondia[CASE NUMBER] 3(b) [ENTITY] w/o [ENTITY], R/o Tilli - Mohgaon, Tah[CASE NUMBER] Gorgaon, Distt[CASE NUMBER] Gondia Respondents[CASE NUMBER] Shri [ENTITY], Advocate with Shri [ENTITY], Advocate for appellants[CASE NUMBER] Shri [ENTITY], Advocate for respondents[CASE NUMBER] CORAM : [ENTITY], J[CASE NUMBER]
DATE : February 05, 2018[CASE NUMBER]
Oral Judgment :
This appeal filed under [SECTION] of the [ACT] has been filed by the original plaintiff who is partly aggrieved by the judgment of the first appellate Court refusing to grant relief of possession of the suit house to him[CASE NUMBER]
2[CASE NUMBER] Facts in brief giving rise to this appeal are that one [ENTITY] expired on 01/02/1954 leaving behind his widow [ENTITY] to inherit his property[CASE NUMBER] Said couple had no male issue but had five daughters[CASE NUMBER] The plaintiff [ENTITY] is the son of one of the daughters[CASE NUMBER] His father [ENTITY] started residing with [ENTITY] and out of love and affection said [ENTITY] executed Will dated 04/10/1979 in favour of the plaintiff-her grandson and bequeathed various properties in his favour[CASE NUMBER] This Will was duly registered[CASE NUMBER] Thereafter on 29/10/1979 one of the daughters of said [ENTITY] got executed an agreement and intended to transfer some of the properties in favour of other relatives[CASE NUMBER] On that basis the plaintiff filed suit for declaration that this agreement dated 29/10/1979 had no legal force and that by virtue of Will dated 04/10/1979 the plaintiff had become absolute owner of the suit property[CASE NUMBER]
3[CASE NUMBER] The defendant Nos[CASE NUMBER]1 to 3 disputed the claim of the plaintiff[CASE NUMBER] According to them the Will alleged to be executed on 04/10/1979 was not genuine and that the sisters had share in the suit property[CASE NUMBER] They relied upon the agreement dated 29/10/1979[CASE NUMBER]
4[CASE NUMBER] The trial Court recorded a finding that [ENTITY] was the absolute owner of the suit property and that she had validly executed a Will in favour of the plaintiff[CASE NUMBER] The subsequent agreement dated 29/10/1979 was not valid[CASE NUMBER] Accordingly it decreed the suit and granted relief of possession[CASE NUMBER] Being aggrieved the defendants filed an appeal[CASE NUMBER] The first appellate Court partly allowed the appeal and set aside the finding regarding validity of Will dated 04/10/1979[CASE NUMBER] The relief of possession was disallowed and the declaration as to invalidity of agreement dated 29/10/1979 was maintained[CASE NUMBER] Being aggrieved the legal representatives of the plaintiff filed this appeal[CASE NUMBER]
5[CASE NUMBER] While admitting the appeal, the following substantial question of law was framed :
" Whether the decree passed by the lower appellate Court is vitiated on account of the fact that the finding given by the lower appellate Court that will dated 04/10/1974, executed by deceased [ENTITY], has not been proved, is perverse[CASE NUMBER]"
During the course of hearing of the appeal following additional substantial question under [SECTION] of the [ACT] was also framed :
" Whether execution of agreement dated 29/10/1979 ([SECTION]) is a factor to be taken into consideration as removing one suspicious circumstance surrounding execution of Will dated 04/10/1979 (Exhibit-203)[CASE NUMBER] "
Shri [ENTITY], learned counsel for respondent Nos[CASE NUMBER]1 to 3 submitted that he was ready to answer this substantial question of law also and did not seek any further time[CASE NUMBER] Hence learned counsel for the parties have been heard on both the substantial questions of law[CASE NUMBER]
6[CASE NUMBER] Shri [ENTITY], learned counsel for the appellant submitted that the first appellate Court committed an error in reversing the finding with regard to validity of the Will[CASE NUMBER] According to him the circumstances relied upon by the appellate Court were not suspicious in nature and the Will could not be said to be shrouded in doubt[CASE NUMBER] He urged that the mental state of the testatrix was sound though she was suffering from paralysis[CASE NUMBER] The fact that the Will was duly registered and the witness from the office of Sub-Registrar was examined indicated the circumstances surrounding its registration[CASE NUMBER] Merely because the attesting witness had turned hostile and the Sub-Registrar was not examined could not be grounds to discard the said Will at Exhibit-203[CASE NUMBER] The testatrix was residing with the plaintiff and at her request the plaintiff had taken the testatrix to the office of the Sub-Registrar[CASE NUMBER] Referring to the agreement at [SECTION] he submitted that the same refers to execution of the Will dated 04/10/1979 and said reference substantiates the case of the plaintiff[CASE NUMBER] Both the Courts had concurrently found this agreement to be valid and the defendant had not challenged the finding in respect of [SECTION] before this Court[CASE NUMBER] The said document reflected the intention of the testatrix and therefore the first appellate Court ought to have given due weightage to that document[CASE NUMBER] The testatrix expired in the year 1981 and therefore in view of the provisions of [SECTION] of the [ACT] the statement of the testatrix in [SECTION] supported the stand with regard to execution of the Will as per Exhibit-203[CASE NUMBER] In support of his submissions, the learned counsel placed reliance on the following decisions :
i) [PRECEDENT][CASE NUMBER] [PRECEDENT][CASE NUMBER]
ii) [PRECEDENT][CASE NUMBER]
iii) [ENTITY] vs[CASE NUMBER] Champabai and ors[CASE NUMBER] AIR 1965 SC
iv) [ENTITY] vs[CASE NUMBER] Dr Sarswati Arora and ors[CASE NUMBER] [PRECEDENT][CASE NUMBER]
v) Sadhu Singh vs[CASE NUMBER] Gurdwara Sahib Narike and ors[CASE NUMBER] (2006) 8 SCC
vi) [ENTITY] vs[CASE NUMBER] State of Maharashtra (2015) 8 SCC 494[CASE NUMBER]
7[CASE NUMBER] Shri [ENTITY], learned counsel for the respondents supported the impugned judgment[CASE NUMBER] According to him the trial Court committed an error in holding the Will at Exhibit-203 to be duly proved[CASE NUMBER] In fact said document could not have been exhibited as the witness examined in that regard had stated that he had not seen the testatrix put her thumb impression on the same[CASE NUMBER] The suspicious circumstances relied upon by the first appellate Court clearly casted doubt on the due execution of the Will[CASE NUMBER] Its registration by itself would not be a factor to contend that it was duly executed[CASE NUMBER] The plaintiff was interested in execution of the Will and had taken active participation in that regard[CASE NUMBER] The medical condition of [ENTITY] was not sound as deposed by her daughter[CASE NUMBER] It is thus submitted that the findings recorded by the appellate Court could not be termed to be perverse and hence no interference with the impugned judgment was called for[CASE NUMBER] In support of these submissions, he placed reliance on the following judgments :
i) [PRECEDENT] ii) [PRECEDENT] iii) [PRECEDENT], iv) [PRECEDENT] v) [PRECEDENT] [CASE NUMBER][CASE NUMBER][CASE NUMBER][CASE NUMBER] vi) [PRECEDENT] [PRECEDENT] viii) [PRECEDENT] (dead) through L[CASE NUMBER]Rs[CASE NUMBER] And ors[CASE NUMBER] 2016(2) [CASE NUMBER][CASE NUMBER]L[CASE NUMBER]J[CASE NUMBER] 366 ix) [PRECEDENT][CASE NUMBER]
8[CASE NUMBER] While considering the first substantial question of law the suspicious circumstances taken into consideration by the appellate Court are that the testatrix [ENTITY] was suffering from Paralysis and therefore she was not in a sound state of health, the scribe of the said Will at Exhibit-203 had not been examined, the Sub-Registrar who had registered the said document was also not examined and [ENTITY] the propounder had taken active part in execution of the Will[CASE NUMBER]
As held in [ENTITY] (supra) it is for the propounder to dispel doubts arising out of suspicious circumstances that relate to the execution of the Will and he must satisfy the conscience of the Court that the document upon which he relied is the last Will of the testator[CASE NUMBER] In that regard if the evidence of [ENTITY] at Exhibit-142 is considered, he has stated that for the purposes of executing the Will, he alongwith [ENTITY] had come to Gondia[CASE NUMBER] At that time [ENTITY] and [ENTITY] were also present[CASE NUMBER] The contents of the Will were narrated by [ENTITY] as per the instructions given by [ENTITY][CASE NUMBER] After the testatrix put her thumb impression it was also signed by the witnesses after which they all went to the office of the Registrar[CASE NUMBER] In his cross-examination he stated that the averments made in the plaint that on 29/10/1979 the physical and mental condition of [ENTITY] was not good were correct[CASE NUMBER] She was suffering from Paralysis prior to about five months from said date[CASE NUMBER] Since then her physical and mental condition was not proper and that she could not move on her own[CASE NUMBER] While the Will was being typed [ENTITY] was alone there with the scribe[CASE NUMBER] All payments were made by him while having the Will executed and registered[CASE NUMBER] An attesting witness [ENTITY] was examined at Exhibit-209[CASE NUMBER] He stated that when he came to the office of the Registrar, the Will was already being typed[CASE NUMBER] [ENTITY] was sitting in the rickshaw and he waited with her[CASE NUMBER] This witness has stated that he was told by [ENTITY] that as [ENTITY] did not have any male issue, property was being given in the name of four daughters[CASE NUMBER] He stated that he did not remember who had signed the Will and denied having gone to the office of the Registrar[CASE NUMBER] This witness has not supported the case of the plaintiff[CASE NUMBER] The Will was sought to be exhibited in his deposition and an objection was raised to the same on the ground that he could not recollect the manner in which the Will was executed[CASE NUMBER] The defendants examined one of the daughters of [ENTITY] and she stated that since the year 1979 she was suffering from paralysis due to which she could not speak and talk properly[CASE NUMBER]
9[CASE NUMBER] On considering the entire evidence brought on record by the propounder, it can be seen that [ENTITY] was suffering from Paralysis since at least five months prior to executing the Will[CASE NUMBER] The propounder [ENTITY] as well as the daughter of [ENTITY] have deposed that her mental and physical condition was not very sound[CASE NUMBER] There is no evidence otherwise to indicate that the testatrix was in a position to give proper instructions for execution of the Will[CASE NUMBER] In fact, nobody saw her giving instructions to [ENTITY][CASE NUMBER] In this backdrop the other evidence on record that it was [ENTITY] who had dictated the contents of the Will while [ENTITY] was sitting in rickshaw, cannot be lost sight of[CASE NUMBER] The petition writer and scribe has not been examined which is yet another circumstance giving rise to doubt[CASE NUMBER] In the light of this evidence, mere registration of the Will would not be sufficient to conclude that its valid execution and attestation was duly proved[CASE NUMBER] The Sub-Registrar who had got the said document registered was not examined[CASE NUMBER] Though it is true that the scribe had since expired and the plaintiff had examined PW-3 who was a clerk from the office of the Registrar, that evidence is insufficient to remove the aforesaid suspicious circumstance[CASE NUMBER] Hence after examining the entire evidence on record and after considering the law as laid down in [ENTITY] (supra) I find that the appellate Court has rightly held that in the light of aforesaid suspicious circumstances the Will cannot be held as duly proved[CASE NUMBER] The finding in that regard is not perverse[CASE NUMBER] The substantial question of law No[CASE NUMBER](1) stands answered accordingly[CASE NUMBER]
10[CASE NUMBER] As per the second substantial question of law, execution of the agreement dated 29/10/1979 at [SECTION] is a factor indicating execution of the Will on 04/10/1979[CASE NUMBER] Though execution of said agreement at Exhibit- 199 would be a factor to be taken into consideration, the same by itself would again not be sufficient to come to the conclusion that the Will was duly executed by [ENTITY] on 04/10/1979[CASE NUMBER] Though it was urged by the learned counsel for the appellants that this agreement was required to be given due importance in the light of provisions of [SECTION] of the [ACT] by relying upon the decision in [ENTITY] (supra) I do not find that this contention is well founded[CASE NUMBER] The provisions of [SECTION] of the [ACT] cannot be applied in the facts of the present case[CASE NUMBER] Said agreement would not further the case of the appellants in removing the suspicious circumstances noted above[CASE NUMBER] Hence substantial question of law No[CASE NUMBER]2 is answered against the appellants[CASE NUMBER]
11[CASE NUMBER] As a result of aforesaid discussion, I do not find any reason to interfere with the judgment of the appellate Court[CASE NUMBER] The second appeal is thus dismissed with no order as to costs[CASE NUMBER]
At this stage learned counsel for the appellants prays that the interim orders passed in the appeal be continued for a short period to enable the appellants to take appropriate steps[CASE NUMBER]
This request is opposed by learned counsel for the respondents[CASE NUMBER] Considering the fact that interim orders passed on 15/12/2004 is operating since that date, the same would continue to operate for a period of six weeks from today and it shall cease to operate automatically thereafter[CASE NUMBER]
JUDGE [ENTITY]