*1* kps I N THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION SECOND APPEAL NO.638/2008 with CIVIL APPLICATON NO.1587/2007 Smt.Champubai @ Yashodabai Yashwant Patil. (deceased) Smt.Kusum Rohidas Gurav and others. . ..Appellants -VERSUS- Smt.Vithabai @ Satyabhamabai Krishna Gharat. (deceased) Shantaram Krishna Gharat and others. ..Respondents. .... Mr.K.S.Dewal, for the Appellants. None for the Respondents. .... CORAM : K.K.TATED, J. DATE : 28th April, 2010. P.C. 1 Heard Mr.Dewal, learned counsel appearing for the Appellants. 2 Perused the appeal. 3 By this Second Appeal, the original Defendants challenge the judgment and decree dated 09.12.2005 passed by the learned District Judge, Raigad- Alibag in Civil Appeal No.88/1998 arising out of the judgment and decree dated 07.04.1998 passed by the learned Joint Civil Judge, Junior Division, Alibag in Regular Civil Suit No. *2* 76/1996. 4 The brief facts of the case are that the predecessor of Appellant i.e. Smt.Champubai @ Yashodabai Yashwant Patil (original Defendant) and the predecessor of Respondents i.e. Smt.Vithabai @ Satyabhamabai Krishna Gharat (original Plaintiff) were real sisters. Their father Govind Bhavarya owned and possessed the lands bearing Survey No.65A/2A admeasuring 0.20.4 R, Survey No.77/2 admeasuring 0.22.1 R and Survey No.77/5 admeasuring 03.5 R situated at village Sasavane, Taluka : Alibag, District : Raigad. The said Govind expired sometime in the year 1943 leaving behind him his wife Radhabai i.e. mother of the original Plaintiff and Defendant. After the death of Govind, the said Radhabai became the owner of the suit property. It is contention of the Defendant that by the Will Deed dated 22.12.1943 the said Radhabai bequeathed the suit property in favour of the original Defendant (Champubai). The said Radhabai expired in the year 1959. In the year 1974, a part of the suit property was given by way of Gift Deed in favour of the Defendant-Champubai’s daughter Vanita. 5 The original Plaintiff (Vithabai) filed Regular Civil Suit No.76/1996 for declaration and partition of the suit property on the ground that she has equal share in the suit property. The Plaintiff contended that her mother Radhabai had not acquired any right in the suit property on account of existence of legal position at that time and, therefore, the Plaintiff and Defendant became owners of the suit property after demise of their father Govind as they received right by way of succession. *3* 6 On the other hand, the original Defendant contended that after the death of her father Govind, the suit property was owned by their mother Radhabai. Radhabai bequeathed her property by a registered Will Deed dated 22.12.1943 in favour of the Defendant and after death of Radhabai, the Defendant became absolute owner of the suit property. However, in the record of right the name of the original Plaintiff was continued. A portion of the land was gifted in favour of her daughter Vanita on 21.04.1974 and the original Plaintiff was signatory to the said Gift Deed. 7 The said suit was dismissed by the learned Joint Civil Judge, Junior Division, Alibag vide his judgment and decree dated 07.04.1998 on the ground that the original Plaintiff failed to prove that the suit property was jointly owned, possessed and cultivated by them. The Trial Court also held that the deceased Radhabai executed a registered Will Deed dated 22.12.1943 bequeathing entire property in favour of the original Defendant. 8 Being aggrieved by the aforesaid judgment and decree dated 07.04.1998, the Plaintiff filed the Civil Appeal No.88/1998 on the contention that during the lifetime of Radhabai no testamentary disposition was made by her. The said Radhabai died in the year 1956 i.e. after coming into force the Hindu Succession Act, 1956. So on the date i.e. 25.12.1956 when the Hindu Succession Act, 1956 came into operation, the original Plaintiff and Defendant as daughters of Govind stepped into the ownership of the suit property left behind him. The Plaintiff also contended that the suit property was owned and cultivated jointly by the original Plaintiff and *4* Defendant as there was no testamentary disposition. Some portion of the Survey No.65/A/2 was gifted by them to the daughter of original Defendant and this fact was sufficient to hold the joint ownership and joint cultivation of the parties. 9 The first Appellate Court allowed the appeal vide its judgment and decree dated 09.12.2005 and set aside the judgment and decree passed by the Trial Court. The Appellate Court held that the original Plaintiff and Defendant have equal shares in all the suit properties and the Plaintiff is entitled for partition and separate possession of her half share from the original Defendant. The Appellate Court also observed that the original Defendant failed to establish that the deceased Radhabai by the Will Deed dated 22.12.1943 bequeathed the suit property to her. The said Will Deed was wrongly exhibited as 30 years old document at Exhibit-47 at the time of evidence of DW-1 Kusum and both the attesting witnesses of the said Will are stated to be dead by the DW-1 and there is no other reliable evidence to contradict those facts. The said Will was never acted upon or brought into light by the original Defendant. The Appellate Court held that on the death of Govind, his widow Radhabai could not acquire full ownership of the suit property. After the death of Radhabai in the year 1959, all the suit properties were mutated in the name of original Plaintiff and Defendant as legal heirs of late Radhabai. 10 Against the aforesaid judgment and decree dated 09.12.2005, the heirs of original Defendant Champubai filed the present Second Appeal. *5* 11 Mr.Dewal, learned counsel for the Appellants/Defendants submits that the first Appellate Court failed to consider that the deceased Radhabai was absolute owner of the suit property as the same was inherited by her from her husband prior to 1956 i.e. before commencement of the Hindu Succession Act, 1956 and after 1937 i.e. after commencement of the Women’s Right to Properties Act, 1937. He further submits that the first Appellate Court also failed to consider that as per the Will dated 22.12.1943 the deceased Radhabai bequeathed the entire property to the original Defendant. Though the said Will was duly proved as per the Evidence Act, the Appellate Court disbelieved the same and held that the Will could not be looked into for deciding the dispute in the present case. Mr.Dewal further submits that the first Appellate Court failed to consider that since 22.12.1943 i.e. the date of execution of Will the original Plaintiff did not raise any objection to the same but in fact by her conduct consented to the said Will. 12 I have gone through the judgments of both the Courts below. In the present case, the original Defendant is claiming the suit property on the basis of the Will Deed dated 22.12.1943 executed by her mother deceased Radhabai. It is to be noted that the deceased Radhabai was having a limited interest in the suit property. As per the general principles of inheritance of the Hindu Law before the Hindu Succession Act, 1956 came into force, females succeeding as heirs, whether to a male or to a female, take a limited estate in the property inherited by them. If a separated Hindu either under Mitakshara or under Dayabhaga, dies leaving a widow and a brother, *6* the widow succeeds to the property as his heir, but the widow, being a female, does not take the property absolutely. She is entitled only to the income of the property. She can neither make a gift of the property nor can she sell unless there is a legal necessity. 13 This position changed after the Hindu Succession Act, 1956 came into force and as per Section 14 of that Act, the property possessed by a female Hindu whether acquired before or after the commencement of that Act, held as full owner and not as a limited owner. In this case, on the death of Govind, father of the original Plaintiff and Defendant, in the year 1943 both the Plaintiff and Defendant succeeded to the suit property and the property was mutated in their names jointly in the revenue records and both continued in possession of the property. Therefore, even after the 1956 Act came into operation, the Defendant alone could not become owner of the suit property and as such even on the date of Radhabai’s death in the year 1959, she alone was not the owner of the suit property and hence, she was not competent to bequeath the suit property by Will. As such, the Defendant could not claim ownership to the suit property on the basis of the Will dated 22.12.1943 executed by Radhabai. Therefore, even if it is presumed that the Will dated 22.12.1943 was executed by Radhabai after complying all the legal requirements, on its basis, the Defendant alone could not claim to be owner of the suit property. 14 The first Appellate Court specifically held that the original Defendant failed to prove the genuineness of the Will dated 22.12.1943. From a bare reading of the judgment of the first *7* Appellate Court, it is clear that the original Defendant failed to prove the Will dated 22.12.1943 as per the Evidence Act, 1872. The Apex Court, in the matter of Yumnam Ongbi Tampha Ibemma Devi Vs. Yumnam Joykumar Singh and others reported in JT 2009(4) SC 307, held that for the due execution of a Will, the necessary ingredients are (a) the testator should sign or affix his mark to the Will, (b) the signature or the mark of the testator should be so placed that it should appear that it was intended thereby to give effect to the writing as a Will, (c) the Will should be attested by two or more witnesses and (d) each of the said witnesses must have seen the testator signing or affixing his mark to the Will and each of them should sign the Will in the presence of the testator. Paragraphs Nos.6 and 7 of the said judgment read thus:- “6. As per provisions of Section 63 of the Succession Act, for the due execution of a Will (1) the testator should sign or affix his mark to the Will, (2) the signature or the mark of the testator should be so placed that it should appear that it was intended thereby to give effect to the writing as a Will, (3) the Will should be attested by two or more witnesses and (4) each of the said witnesses must have seen the testator signing or affixing his mark to the Will and each of them should sign the Will in presence of the testator. 7. The attestation of the Will in the manner stated above is not an empty formality. It means signing a document for the purpose of testifying of the signatures of the executant. The attested witness should put his signature on the Will animo attestandi. It is not necessary that more than one witness be present at the same time and no particular form of attestation is necessary. Since a Will is required by law to be attested, execution has to be proved in the manner laid down in section and the Evidence Act which requires that at least one attesting witness has to be examined for the purpose of proving the execution of such a document. Therefore, having *8* regards to the provisions of Section 68 of the Evidence Act and Section 63 of the Succession Act, a Will to be valid should be attested by two or more witnesses in the manner provided therein and the propounder thereof should examine one attesting witness to prove the will. The attesting witness should speak not only about the testator’s signature or affixing his mark to the will but also that each of the witnesses had signed the will in the presence of the testator.” 15 In the present case, both the attesting witnesses to the document dated 22-12-1943, on the basis of which the original Defendant claimed ownership, are dead and hence no attesting witness could be examined to prove attestation. The document being of more than 30 years old, resorting to the provisions of Section 90 of the Evidence Act, the Trial Court admitted the document and raised the presumption of proper execution and attestation under that section. The presumption relates only to the signature, execution or attestation of a document i.e. to its genuineness. It does not involve any presumption that its contents are true or they have been acted upon. There are many circumstances which militate against the truthfulness of its contents and there is evidence on record that it was never acted upon; on the contrary the conduct of both the parties distinctly indicates that it was never intended to be acted upon as a Will. In the year 1943, Govinda, father of the Plaintiff and Defendant, died and his widow Radhabai succeeded to the suit property. Radhabai during her life time possessed the suit property and died in the year 1959. It is not known why in the same year i.e. 1943 when she succeeded to the suit property, taking it as widow’s estate, she thought of executing a Will though in 1943 she *9* was not competent to bequeath her property by a Will. Secondly, the document was titled as Gift Deed and not a Will. It was never acted upon. The Will operates on the death of the executor. It was not operated even on the death of the executor. The property left by Radhabai on her death was mutated in the Revenue record in the names of her both the daughters, the Plaintiff and the Defendant. The matter did not rest there. Both the Plaintiff and the Defendant joined in the execution of the Gift Deed dated 21-04-1974 in favour of Vanita, daughter of the Defendant in respect of one of the properties left by late Radhabai. 16 All those circumstances strongly militate against the truthfulness of the contents of the document and Radhabai’s intention to bequeath the property to the Defendant by a Will. Therefore the lower Appellate Court, which is the final authority on the questions of facts, rightly rejected the contention of the present Appellants (original Defendant) that she became owner of the suit property on the basis of the document dated 22-12-1943. 17 Considering the above facts and circumstances, I do not find any substantial question of law involved in this second appeal. There is no substance in this second appeal and as such, it is summarily dismissed. 18 In view of the dismissal of the Second Appeal, the Civil Application does not survive and it is also dismissed. [ K.K.TATED, J. ]