1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Second Appeal No.205 of 1989 Smt. Kewalbai Raghunath Patil ... appellant/ori.plaintiff versus (1) Madhavrao Sukhlal Patil (2) Sumanbai Sukhlal Patil ... Respondents/ori.defendants ===== Shri B.R. Varma, Advocate, for the appellant. Shri S.A.Kulkarni, Advocate, for Respondents. CORAM: P.R. Borkar, J DATE: 11th June 2009. ORAL JUDGMENT This Second appeal is filed by original Plaintiff being aggrieved by the dismissal of her suit, bearing Regular Civil Suit No. 45 of 1983 by the learned Civil Judge, Junior Division , Chopda, on 11.11.1987, which judgment and decree is further confirmed by the learned Second Additional District Judge, Jalgaon in Regular Civil Appeal No.398 of 1987 decided on 6.1.1989. 2. Present appellant Kewalbai filed said suit No. 45 of 1983 for perpetual injunction. She averred that she is in exclusive possession 2 of block No. 575 of village Chahardi Taluka Chopda, District Jalgaon. The property originally belonged to Narmadabai, who was mother of the plaintiff-appellant. Narmadabai was widow and was in exclusive possession of the property as it was allotted to her in family partition. By will dated 30.7.1982, she bequeathed the same to the plaintiff and as such, the Plaintiff became owner and possessor of the property. Defendants, who are plaintiff’s brother’s son and his mother, have no concern with the property and yet they are disturbing plaintiff’s possession and hence suit for injunction. 3. Respondent Nos. 1 and 2 filed their written statement at Exh.13 and stated that Narmadabai was mother of the plaintiff and Sukhlal and Bhikan are brothers of the plaintiff. No will was executed by Narmadabai as physically she was not in a position to execute any will. According to Defendants, for about 8 days prior to her death, mental condition of Narmadabai was not fit to execute any will. Narmadabai died on 3.8.1982 . According to defendants, alleged will was not executed by Narmadabai and defendants are also owners and in possession of the suit property. As such, injunction could not be granted in favour of the plaintiff. It is specifically stated that the defendants are in possession of southern portion of the said block No. 575. 4. Both, trial court and first appellate court, held that the plaintiff failed to prove her exclusive possession over the suit property. It is held that the Will was not duly proved. The trial court, therefore, dismissed the suit and the District Court dismissed the appeal. Hence, this second appeal. 3 5. Appeal is admitted on following questions of law. (i) Whether the plaintiff has proved that she has become exclusive owner of the property on the basis of will executed by deceased Narmada. ? (ii) Whether the trial court committed error in holding that the plaintiff failed to prove her exclusive possession ? 6. Heard Shri B.R. Varma, learned counsel for the appellant and Shri S.A. Kulkarni, learned counsel for Respondents. So far as exclusive possession of the appellant is concerned, Advocate Shri Varma pointed out evidence of appellant-plaintiff Kewalbai who is examined at Exh. 65 and also evidence of Bhikan, who was her brother and uncle of Respondent No.1. Both have stated that the suit property block No.575 was in possession of Narmadabai and after her death, it was in possession of the plaintiff and that plaintiff was exclusively possessing the same. Plaintiff also stated that her mother Narmadabai received the property in family partition. 7. Attention was also drawn to copies of decree and judgment passed in Regular Civil Suit No.69 of 1978 decided by Civil Judge, Junior Division, Chopda on 18.3.1982. It was a suit by Narmadabai against present Respondents. Narmadabai had claimed that she was exclusive owner and possessor of the property. The court has held that the property was exclusively belonging to Narmadabai and that she was in possession of the same and present Respondents were 4 wrongfully disturbing her possession and so the decree for perpetual injunction was issued. Thus, it is clear that when the decree was passed on 18.3.1982, relations between present Respondents and Narmadabai were not good. Narmadabai had obtained decree of perpetual injunction against present Respondents and, therefore, the Respondents are estopped from claiming that they were in possession of the property till decision of the said suit. It may be noted that Narmadabai has expired on 3.8.1982 i.e. 5 months after decision of the said suit. It is not disputed that Narmadabai was not living with present Respondents. The age of Narmadabai was 75 years and thus she was an old lady living with her daughter. Obviously, therefore, it can be presumed that the suit property was in possession of Narmadabai and after her death, the same continued to be in possession of the Plaintiff. Evidence of appellant and her witness Bhikan, therefore, ought to have been accepted. Hence, I answer point No. 2 accordingly. 8. So far as point No.1 is concerned, evidence regarding execution of Will is shrouded with suspicious circumstances. The law regarding proof of will is sumarised by the Hon’ble Apex Court in the case of K. Laxmanan vs. Thekkayil 2009(3) Mh.L.J. 510. In paragraph 21 of the judgment, the law is laid down as follows; “When there are suspicious circumstances regarding the execution of the Will, the onus is also on the propounder to explain them to the satisfaction of the Court and only when such responsibility is discharged, the Court would accept the Will as genuine. Even where 5 there are no such pleas, but circumstances give rise to doubt, it is on the propounder to satisfy the conscience of the Court. Suspicious circumstances arise due to several reasons such as with regard to genuineness of the signature of the testator, the conditions of the testator’s mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the Will to show that the testator’s mind was not free. In such a case, the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the testator. The aforesaid view is taken by us in consonance with the decision of this Court in Shashi Kumar Banerjee vs. Subodh Kumar Banerjee, AIR 1964 SC 529 and Pushpavathi vs. Chandraraja Kadamba, (1973) 3 SCC 291.” 9. In the present case, evidence of appellant-plaintiff Kewalbai (PW-1) at Exh.65 shows that when alleged Will was executed, Narmadabai was residing with her and appellant appears to have taken prominent role in obtaining the Will. Appellant, in cross examination deposed that at the time of preparation of Will, she was with Narmadabai; that the Will was prepared in her presence. However, she did not remember, who had written the Will. She also did not remember the names of the witnesses. She did not remember whether a stamp paper or an ordinary paper was used for writing the Will. She stated that she, as also witnesses, signed the Will. 6 According to plaintiff, first her mother signed . She then stated that she did not remember where she has signed on the Will. According to the Plaintiff, the Will was prepared 4 to 5 months prior to death of Narmadabai. If we look at the Will, which is produced at Exh. 70, the same is on ordinary paper. It is a detailed Will. It is signed by one Shivlal Kumbhar and Mohan Sapadu. It does not bear signature of scribe. It also does not bear signature of the Plaintiff-appellant. It is executed on 30.7.1982. Admittedly, Narmadabai expired on 3.8.1982 within a period of 4 days after execution of the Will. It is not stated by the appellant whether Narmadabai was suffering from any illness. As stated earlier, Narmadabai was aged 75 years at the time of death. On the Will, age of Narmadabai was stated to be 65 years. 10. Appellant examined Prabhakar Anvardekar, who had scribed the Will. He is resident of Chopda. He stated that the Will was written at the house of Narmadabai at Chahardi. The contents of the Will were stated by Narmadabai. He wrote the Will and read over the same to Narmadabai and thereafter she put her thumb impression on the same and the two witnesses signed. Witnesses were present since beginning. If we have regard to the language and details given in the Will, it is difficult to believe that the said contents could have been dictated by an illiterate village lady aged 65 years, who died within four days from the date of execution of the Will. Language in the Will is definitely not that of the illiterate villager and so the say of the scribe that the contents were dictated by Narmadabai cannot be believed. According to Prabhakar, he was called by one Shamrao Patil. In the cross examination, the witness admitted that Narmadabai 7 only referred to 7 x 12 extract. He could not remember if the house in which they wrote the document was one storied or double storied . He could not give other details. According to him, only Shamrao Patil and Kumbhar were present. This witness does not state that Mohan Sapadu was present. 11. On the other hand, attesting witness Shivlal Kumbhar at Exh.71 has stated that the scribe (stamp vendor) Mohan and Narmada were present at the time of preparation of the Will. The contents were told by Narmadabai. The Will was read over to her. She put her thumb impression on it and the vendor signed the same in his presence and thereafter he and Mohan signed the Will. As stated earlier, the Will does not bear signature of the scribe who is stamp vendor. Shivlal was specific about presence of Shamrao and in cross examination, he specifically stated that Shamrao was not present. That raises a question whether all witnesses were really present when the Will was written. In cross examination, Shivalal stated that Narmadabai did not refer to any document but she said that the landed property should be transferred in the name of her daughter. So, it is clear that Narmadabai did not speak about Will. According to witness Shivlal, Narmadabai died five months after execution of the Will. Thus, the Will is shrouded with suspicious circumstances. Evidence of the witness is not satisfactory. The propounder of the Will has taken leading part in obtaining the Will. Both the courts below have not committed any error in not believing the genuineness of the Will. In the facts and circumstances of the case, point No. 2 will have to be answered against the appellant and the appeal will have to be dismissed. 8 12. Appellant is, therefore, not entitled to injunction as against the the Respondents who are co-owners . In this view of the matter, the appeal is dismissed. Parties to bear their own costs. (P.R.BORKAR, J.) pnd/oo sa205.89