1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.220 OF 2010 Joakim alias Joky Kaitulya alias Kaitan Kutinho (Bardeskar) and another ..Appellants Vs. Shaver Kaitulya alias Kaitan Kutinho Bardeskar ..Respondent ......... Mr.Amit B.Borkar, for appellants. Mrs.Varsha Palav, for respondent. ......... CORAM: R.G.KETKAR, J. DATE : 7th JUNE, 2010. P.C. : This Second Appeal is preferred by the original defendants challenging the judgment and decree dated 1 st April, 2000 passed by the learned District Judge-1, Gadhinglaj in Regular Civil Appeal No.13 of 2004 arising from the judgment and decree dated 31 st December, 2003 passed by the learned Civil Judge, Junior Division, Ajara in Regular Civil Suit No.89 of 1995. By the impugned judgments, the Courts below decreed the suit instituted by the respondent seeking relief of partition and separate possession to the extent of his half share in the agricultural land bearing gat No.399 admeasuring 4 hectare and 42 Are situate at Mauje Marude, Taluka Ajara, District Kolhapur, more particularly, described in paragraph No.1 of the plaint (for short “suit land”). 220-10 (final).sxw 2 2] Appellant No.1 and respondent are brothers interse. Their father namely Kaitulya alias Kutinho Anton Bardeskar alias Kutinho died in the year 1989 leaving behind the suit land. It is the case of the respondent that earlier the partition took place only in respect of house property bearing Grampanchayat Property No.553 and 54/412. He, therefore, instituted the suit for the aforesaid reliefs. It is the case of the respondent that his father was mentally ill 3-4 years prior to his death and, in order to deprive him from his rights in the suit land to the extent of half share, the appellants have forged the document styled as Will Deed alleged to have been executed by his deceased father in favour of the appellant no.2. 3] The appellants resisted the suit and contended that the father of the appellant no.1 and respondent had executed a Will on 25 th October, 1990 bequeathing the suit land in favour of appellant No.2. The father eventually died on 13 th October, 1991. On the basis of the said Will, the appellants claimed title over the suit land. The Courts below decreed the suit instituted by the respondent. In so far as the Will is concerned, the courts below came to the conclusion that in view of the suspicious circumstances, it cannot be said that the said Will is genuine. Against the decisions of the Courts below, the appellants have preferred present Second Appeal. I have heard Mr.Amit Borkar, learned counsel for the appellants and Ms.Varsha Palav, learned counsel for the respondent at length. 4] Mr.Borkar submitted that the courts below committed error in holding that the Will deed is not genuine and is surrounded by the suspicious circumstances. He submitted that the so called admission given by the attesting witness Nivrutti 220-10 (final).sxw 3 @ Nivas Dadaso Patil cannot be said to be fatal as the entire evidence of the said witness is required to be considered. As far as another suspicious circumstance considered by the courts below to the effect that no reason was given in the Will deed to exclude the respondent, he submitted that the appellant no.2 was looking after the testator during his last days and, out of love and affection, the testator bequeathed the suit land in her favour. He submitted that the intention of the testator was very clear in executing the Will. The Will was executed in the year 1990 and the testator died in the year 1991. The courts below also considered the fact that during the last days the testator was mentally ill and this is evident from the oral evidence of the respondent. Since there was no endorsement made by the Doctor on the Will as also no Doctor was examined for establishing the mental condition of the testator. Having regard to the age of the testator at the time of execution of the Will, the absence of endorsement of the Doctor was also one of the suspicious circumstances. Lastly, the courts below found that though the Will was executed in the year 1990 it was not brought forward till the filing of suit. The said Will was also not produced before the revenue authorities which also was one of the suspicious circumstances. 5] Mr.Borkar, in support of his submissions, has relied upon the judgment of the Apex Court in the case of Meenakshiammal (dead) through Lrs. and others Vs. Chandrasekaran and another, (2005) 1 SCC 280 and, in particular, paragraph no.20 thereof as also the judgment of this Court in the case of Subhash Hiraji Jadhav (since deceased) Mrs.Kumud Subhash Jadhav and another Vs.Padmakar Hiroo Jadhav and others, 2009 (4) Mh.L.J.266 and the judgment in the case of Savita Dattatraya Karandikar Vs. Nishikant Sadashiv 220-10 (final).sxw 4 Karandikar, 2009(6)Mh.L.J. 431. 6] The learned District Judge recorded the finding that the attesting witness admitted in the cross-examination that when he had been to the house of Dattatraya Raje at that time Dattatraya Raje and Hari Wadkar only were present and except them nobody was present. In view of this admission, the statement of the attesting witness in his examination-in-chief that the testator dictated the contents of the Will deed and Dattatraya Raje scribed accordingly and, thereafter, the said document was read over to the testator and he put his thumb impression below it, cannot be accepted. The admission given by the attesting witness in the cross-examination casts serious doubt about the presence of the testator. I do not find that the learned District Judge has committed any error in that behalf. 7] Mr.Borkar further submitted that the learned District Judge found that no reason was set out in the Will deed for excluding the respondent. Relying upon the judgment of the Apex Court in the case of Meenakshiammal (supra), he submitted that it is not necessary to set out the reason for exclusion of the respondent in the Will deed. Perusal of the judgment of the Apex Court in the case of Meenakshiammal (supra) reveals that the evidence on record indicated that the relation between Siva and his real sister Kamakshi were not cordial. Siva used to live with his step sister namely Kaveri. Though Siva was 85 years old and had suffered fracture, he was mentally alert. He was looked after by the defendant. The plaintiffs were nowhere in the sight during his hospitalisation or his statement. The court, therefore, recorded that the defendant proved the reason for exclusion of the plaintiffs from the benefit under the Will. In the 220-10 (final).sxw 5 present case, both the courts below have recorded the findings that the respondent was having no cross terms with the testator and that was not even the case of the appellants. Thus, there was no reason for the testator to exclude the respondent from the suit land. In that background, the courts below recorded that merely because the appellant no.2 was looking after the testator during his old age, that cannot be a reason to execute the Will in respect of the entire suit land in favour of the appellant no.2 by excluding respondent. The courts below, therefore, held that this was one of the suspicious circumstances surrounded by the Will in question. Having regard to the material on record, I do not find that the courts below have committed any error in that regard. 8] Mr.Borkar further submitted that there was no endorsement of the Doctor about the physical and mental unfitness of the executor which was wrongly considered as one of the suspicious circumstance. Relying on the decision in the case of Subhash (Supra), he submitted that there is no specific provision which requires that the Doctor should certify about the mental ability to execute the Will. The learned District Judge recorded that as the testator was 71 years old at the time of execution of the Will and he died one year thereafter in such situation, the appellants ought to have called the Doctor for examination of the testator prior to executing the Will and obtained endorsement on the Will to that effect. It is undoubtedly true that the law does not require the endorsement of the Doctor about physical and mental fitness of the testator however, as a matter of prudence and precaution the endorsement is taken. The courts below also found that the Will was not brought on record till filing of the suit i.e.for almost five years and it was also not produced before the revenue authorities. 220-10 (final).sxw 6 9] On the other hand, Ms.Varsha Palav, learned counsel appearing for the respondent, invited my attention to the judgments of the courts below and, in particular, paragraph nos.15 to 18 of the District Court’s judgment and supported the impugned judgments. 10] The courts below found that the Will dated 25 th October, 1990 is surrounded by suspicious circumstances. In the first place, in the evidence of the attesting witness Nivrutti, he explained the circumstances in which the Will came to be executed. However, in the cross-examination, he admitted that when he went to the house of Dattatraya Raje, at that time, Hari Wadkar was present and except them nobody was present. He admitted that the appellant no.1 is his friend. This creates serious doubt about the very presence of the testator. 11] The contention raised by Mr.Borkar, learned counsel, that before execution of the Will the deceased father had made an application to the revenue authorities for entering the name of the appellant no.2 also indicates his intention to transfer the suit land in favour of appellant no.2. This intention was reinforced by executing the Will subsequently. However, it has been brought on record that pursuant to the application made by the deceased father, mutation entry was made entering the name of appellant no.2 and the said mutation entry was challenged and was set aside. In view of that, no importance can be given to the application made by the deceased father. It is to be seen that whether the Will executed by the father on 25 th October, 1990 is proved by the appellants. The burden is clearly on the persons in whose favour the Will is executed. Considering the circumstance narrated by the courts below, in my opinion, no 220-10 (final).sxw 7 fault can be found with the findings recorded by the courts below in holding that the Will is surrounded by the suspicious circumstances. 12] Mr.Borkar relied upon the decision in the case of Meenakshiammal (supra) and, in particular, paragraph no.20 of the judgment that when a person claims that a Will is not genuine or forged and it is executed under the undue influence, the onus of proving the undue influence is upon the person making such allegation. In the present case, as already stated, the courts below have rightly come to the conclusion that the Will is surrounded by the suspicious circumstances and, therefore, the reliance placed by the learned counsel for appellants on the decision in the case of Meenakshiammal (Supra) does not advance his case any further. 13] Mr.Borkar has also invited my attention to the decision in the case of Subhash Hiraji Jadhav (supra) and contended that the Will was executed by the deceased father on 25 th October, 1990 and he died on 13 th October, 1991 i.e. merely after one year. It cannot be said that at the time of executing the Will deceased father was not of sound state of mind. He submitted that there is no provision requiring certification by a Doctor about the mental condition of the testator. In my opinion, the law does not require the certification of the mental condition of the testator by a Doctor, but, it is the matter of prudence and caution that certificate of a Doctor about the mental and physical condition of the testator is obtained. Therefore, the reliance placed by the learned counsel for the appellants on the decision in the case of Subhash Hiraji Jadhav (supra) does not advance his case any further. 220-10 (final).sxw 8 14] Finally, Mr.Borkar has relied upon a decision in the case of Savita Dattatraya Karandikar and, in particular, paragraph no.14 thereof and contended that once the plaintiff proves the case that the Will in question has been executed in accordance with law, then the burden to disprove the same lies upon the defendants who make the allegations of undue influence, force and misrepresentation, as mere allegations or averments are insufficient. In view of above, there is no suspicious circumstance raised to point out and could be extracted from this witness. However, in the present case, the respondent has brought on record the suspicious circumstances and the courts below have accepted that the Will was surrounded by the suspicious circumstances. I do not find that the courts below have committed any error or their findings are based upon no evidence. 15] In view of above, I find that no substantial question of law arises for my determination. Therefore, Second Appeal is dismissed. In view of the disposal of the Second Appeal, Civil Application No.648 of 2010 does not survive and the same is, accordingly, disposed of. 16] At this stage, Mr.Borkar, learned counsel for the appellants, orally prays for setting aside this order for four weeks. Ms.Palav, learned counsel for the respondent, strongly opposes this prayer. Since the appellants desire to carry this matter further, in the interest of justice, this order shall stand set aside for four weeks. [R.G. KETKAR, J.] 220-10 (final).sxw