{1} fa24890.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.248 OF 1990 Bhau baba Sabale, age; 60 years, Occ: agri., R/o Watefal, Tq. & District Ahmednagar. Appellant Versus Raghunath Govind Sabale (died) through Lrs: 1 Gangubai Raghunath Sable, age: 65 years, Occ: Agri.; 2 Digambar Raghunath Sable, age: 30 years, Occ: Agri.; 3 Baban @ Dattatraya Raghunath Sable, age: 30 years, Occ: Agri.; 4 Sangeeta Rajendra Zende, age: 32 years, Occ: Agri., R/o Chikkali, Tal. Shrigonda, District Ahmednagar. 5 Kirshnabai Chhabu Amrute, age: 35 years, Occ: Agri., 6 Anjana Radhakisan Amrute, age: 50 years, Occ: Agri.; 7 Vimal Chandrabhan Kohale, age: 42 years, Occ: Agri., R/o Damla Wadgaon, Tq.Ashti, {2} fa24890.odt District Beed. Respondents Mr.H.D.Deshmukh, advocate for appellant. Mr.A.K.Gawali, advocate for respondents. CORAM : R.M.BORDE, J. DATE : 06 th July, 2011 ORAL JUDGMENT: 1 This is an appeal by the original opponent challenging the judgment and order dated 03.08.1990, passed by Civil Judge, Senior Division, Ahmednagar in Civil Misc. Application No.4 of 1986. 2 Respondent Raghunath – original applicant presented an application under Section 276 of the Indian Succession Act, 1925 for grant of probate in respect of Will dated 30.12.1981, allegedly executed in his favour by deceased Trimbak Khandu Shelke. Deceased Trimbak Khandu Shelke was resident of village Watefal and was owner of land G.No.242, admeasuring 0.91 hectare. During illness, he was being looked after by the applicant as he was suffering from cancer. The applicant is one of the relatives of the deceased and he took his care during his last days. Deceased Trimbak, therefore, expressed his desire to bequeath the landed property owned by him to the applicant. Accordingly, on 30.12.1981 deceased executed will deed in favour of applicant and {3} fa24890.odt bequeathed the landed property to him. The will was attested by three witnesses. It was written by the scribe Dnyanoba, as per the instructions given by the testator. The contents of the will were read over and explained to the testator and the attesting witnesses had seen the deceased testator putting his thumb impression on the will deed. 3 The application tendered by the applicant was opposed by the objector contending that deceased Trimbak was not in a disposing state as he was suffering from terminal illness. He did not understand consequences of his act and that the the will deed has been fraudulently obtained by the applicant beneficiary. The objector has also questioned capacity of testator to dispose of the property by executing the will. 4 The trial Court, after considering the contentions raised by respective parties and after receiving evidence led by the parties to the application, recorded a finding that the will deed in question has been duly proved in accordance with provisions of law. The objection raised by the objector regarding capacity of the testator to dispose of the property by executing the will as well as the objection as regards disposing state of health of the deceased testator has been negatived by the trial Court. The trial Court, as such, directed to issue probate in favour of the applicant on the basis of will deed Exhibit-64 executed by deceased Trimbak on {4} fa24890.odt 30.12.1981. 5 Shri H.D.Deshmukh, learned Counsel appearing for the appellant has not pressed the objection as regards capacity of deceased Trimbak to bequeath the property in favour of the applicant by executing the will deed. The only argument canvassed by the appellant is in respect of suspicious circumstances surrounding execution of the will dated 30.12.1981. Learned Counsel Shri Deshmukh contends that admittedly deceased was suffering from terminal illness and was admitted in the hospital for treatment. Deceased Trimbak was suffering from cancer and he died barely five days after execution of the will deed. It is contended that deceased had reached terminal stage and as he was suffering from cancer, an inference needs to be drawn that he was not in a sound state of health and as such was not in a position to understand consequences of his act. It is also contended that in the absence of there being any disposition of the property by execution of will deed, the applicant as well as opponent could have shared the property 50% each. It is, thus, contended that the opponent has been kept away from securing his share in the property. It is also contended that the will deed was not written in the presence of testator and as such, evidence tendered by the applicant in support of proof of execution of the will is shaky and not worthy of acceptance. {5} fa24890.odt 6 Shri Gawali, learned Counsel appearing for Respondents, has supported the order passed by trial Court and contended that there are no suspicious circumstances surrounding execution of the will deed and the trial Court has adopted correct approach in the matter. 7 With the assistance of learned Counsel for respective parties, I have gone through the judgment and order passed by the trial Court. I have also perused oral evidence placed on record by the parties. 8 It is not disputed that deceased Trimbak was suffering from cancer and was admitted in the hospital for securing treatment. It is also not disputed that the will deed was executed on 30.12.1981 and testator died on 04.01.1982. Merely because the testator died five days after execution of the will deed, that itself cannot be said to be a circumstance to draw an inference that the deceased was not in a position to understand consequences of his act, or that he was not in a disposing state. The objector has objected for grant of probate on the ground that there were suspicious circumstances surrounding execution of the will and, therefore, it is for the objector to prove his contentions. The burden is heavy on the objector to prove that there exist suspicious circumstances surrounding execution of the will. There is no evidence placed on record by the objector as regards state of health {6} fa24890.odt of deceased, which, according to the objector, was not sound at the time of execution of the will deed. 9 The applicant, however, has led evidence of three witnesses who have signed the will deed as attesting witnesses. P.W.2 Dnyanoba has deposed before the Court that he wrote the will deed of Trimbak while he was in the hospital. It is stated that deceased was suffering from cancer, however, he was physically and mentally fit. It is further stated by the witness that the will deed was written by him as per the instructions given by Trimbak. The contents of the will were read over and explained to the testator. That the testator put his thumb impression on the will deed in the presence of witness Dnyanoba and thereafter Dnyanoba put his signature on the will deed as attesting witness. Nothing has been carved out from the cross examination of the witness to discredit his testimony. Applicant’s witness no.3 Vithoba is also an attesting witness. He has deposed before the Court that on 30.12.1981, he had been to the hospital where the testator was admitted. The testator was conscious. It was informed by the testator to the witness that he is going to execute will deed in favour of the applicant. The witness has further stated that he has seen the testator putting his thumb impression on the will deed and thereafter the witness has put his signature as attesting witness to the will. Witness No.3 has further stated that the scribe read over {7} fa24890.odt contents of the will to the testator and those were approved by him. It is further stated that deceased Trimbak voluntarily executed will deed in favour of the applicant. Witness no.4 for the applicant is one Pralhad Wagh. He has also stated that he had been to the Civil Hospital on the given date. The witness states that deceased testator told him in the hospital that as applicant Raghunath had taken his care, he (testator) had decided to bequeath his properties to applicant- Raghunath. The witness was asked to bring a Five Rupees’ stamp for preparing the will. The will deed was written on the stamp paper as per the instructions of the testator. The contents of the will deed were read over to him and he admitted correctness thereof and put his thumb impression in the presence of the witness. Witness No.4 has further stated that he had put his signature on the will deed as attesting witness. It is, thus, clear on consideration of evidence of applicant’s witnesses that the will deed executed by deceased Trimbak has been proved in accordance with provisions of Section 63 of the Indian Evidence Act. The objector has failed to prove that deceased was suffering from terminal illness and as such was unable to understand consequences of the act and was not in a disposing state. It is for the objector to establish the suspicious circumstances alleged by him. 10 In the instant matter, it is not a case of either of the parties that there were other close relatives who were excluded and {8} fa24890.odt the property was bequeathed in favour of total stranger. Deceased Trimbak was not survived by any close relatives. It is also established that applicant took care of deceased during his illness. Deceased Trimbak was residing with the applicant during his concluding part of life and, therefore, as a token of gratitude, deceased bequeathed his landed property in favour of the applicant. Merely because in the absence of there being a will in favour of the applicant, the opponent could have also shared some part of the property, is not a circumstance to discard the will, which is otherwise voluntarily executed and properly proved by the applicant. That, so far as state of health of deceased is concerned, the opponent has failed to lead any evidence to contradict the contentions raised by the applicant that the deceased was in a fit and proper state of health and was capable of understanding the consequences. The witnesses for the applicant have in clear terms stated that deceased Trimbak was conscious and his state of health, both physically and mentally, was sound and he was in a position to execute the will deed. 11 Considering all these aspects, in my opinion, the trial Court was justified in allowing the application tendered by the applicant and granting probate in the name of the applicant on the basis of the will deed, placed on record at Exhibit-64, executed by deceased Trimbak on 30.12.1981. {9} fa24890.odt 12 For the reasons recorded above, I do not deem it necessary to cause interference in the appeal. Appeal is devoid of substance. 13 In the result, appeal stands dismissed. In the facts and circumstances of this case, there shall be no order as to costs. R.M.BORDE adb/fa24890 JUDGE