1 S.A.No.439/1995. IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. SECOND APPEAL NO.439 OF 1995. Syed Ahmed S/o Syed Nabisaheb Kazi, Since deceased through his Heirs and Legal representatives: 1. Syed Naushad S/o Syed Ahmed Kazi, Age: 28 years, Occupation: Agriculture, R/o: Kazi Galli, House No.1734, Osmanabad, Tal.Dist.Osmanabad. 2. Syed Dilshed S/o Syed Ahmed Kazi, Age: 22 years, Occupation: Agriculture, R/o: Kazi Galli, House No.1734, Osmanabad, Tal.Dist.Osmanabad. 3. Nayyar Sultana D/o Syed Ahmed Kazi, Age: 24 years, Occupation: Household, R/o: C/o.Muzaffar Ali Akbar Ali Patel, Parands Road, Naikwadi Flat, Mahatma Gandhinagar, Floor Mill Barshi, District: Solapur. 4. Shahana Begum W/o Syed Ahmed Kazi, Age: 42 years, Occupation: Household, R/o. Kazi Galli, House No.1734, Osmanabad, Taluka & District: Osmanabad. 5. Syed Sajid S/o Syed Ahmed Kazi, Age: 13 years, Minor U/g of his real mother i.e. Appellant No.4, above, occu.Nil, R/o.as above. 6. Syed Majid S/o Syed Ahmed Kazi, Age: 12 years, Minor, U/g of his real mother i.e. Appellant No.4, above R/o.as above. 7. Syed Javed S/o Syed Ahmed Kazi, 2 S.A.No.439/1995. Age: 5 years, Minor U/g of his real mother i.e. Appellant No.4 above, r/o.as above. 8. Syed Wajed S/o Syed Ahmed Kazi, Age: 8 years, Minor U/o. ofhis mother i.e. Appellant No.4, R/o.as above. 9. Parveen D/o Syed Ahmed Kazi, Age: 18 years, Occupation: Household, R/o: As above. 10. Narseen D/o Syed Ahmed Kazi, Age: 17 years, minor U/g of her mother, i.e. Appellant No.4, above R/o.as above. 11. Jabeen D/o Syed Ahmed Kazi, Age: 16 years, Minor U/g of her mother i.e. appellant No.4 above. R/o. as above. 12. Aafreen D/o Syed Ahmed Kazi, Age: 10 years, Minor U/g of her mother i.e. appellant No.4, above, R/o. as above. ...Appellants. (Heirs of ori.deft.No.1.) VERSUS 1. Syed Abdul Mukhtyar alias Talemiya S/o Sayed Abdul Masjid Kazi, Age: about 64 years, Occupation: Agriculture, R/o: Osmanabad. 2. Hirachand S/o Shivdas Patil, Age: About 76 years, Occupation: Agriculture, R/o: Wadgaon (Siddheshwar), Taluka & District: Osmanabad. 3 S.A.No.439/1995. ...Respondents. (Respdt.No.1- Ori.plaintiff. Respdt.No.2- Ori.Deft.No.2.) ... Mr.A.S.Bayas,Advocate, for the appellants. Mr.P.V.Mandlik, Senior Advocate, instructed by Mr.A.S.Gandhi, Advocate for respondent No.1. ... CORAM: A.V.NIRGUDE,J. Date : 26th August, 2009. ORAL JUDGMENT: 1. Following substantial questions of Law were noticed at the time of admission of the appeal and they are enumerated below: (i) Whether the will Exh.50 was properly proved (by the appellants)? (ii) Whether the respondent/plaintiff has right to the property of Abdul Majid ? 2. The facts leading to the litigation are as under: . Abdul Majid, was admittedly owner of the suit property since he purchased the same in 1945. Abdul Majid was working as police constable at 4 S.A.No.439/1995. Osmanabad. He was married to one Liyakatbi, who was resident of village Ekurka, Taluka and Dist.Solapur. It is also not in serious dispute that Abdul Majid and Liyakatbi got separated and Liyakatbi started residing at Ekurka and at Ekurka she delivered a male child. The respondent No.1/plaintiff is the said child. The appellant/defendant No.1, happened to be the step brother of Abdul Majid. 3. It is the case of the respondent No.1/ plaintiff that he was son of Abdul Majid, whereas the appellant/defendant No.1 asserted that he was born to Liyakatbee after separation from her husband Abdul Majid. He also asserted that Abdul Majid had lawfully divorced her. He thus suggested that respondent No.1/plaintiff was illegitimate offspring of Liyakatbee and has no relation with Abdul Majid. 4. Abdul Majid died in 1962. Soon thereafter, the respondent No.1/plaintiff got his name mutated as owner of the suit property as Abdul Majid’s only legal heir. For the first time, the appellant/defendant No.1 challenged the mutation in or about 1976 when he for the first time proclaimed that Abdul Majid had executed a will and had bequeathed the suit property to him. The parties then got engaged in litigation before Revenue Authorities over the question as to in 5 S.A.No.439/1995. whose name the suit property should stand in the Revenue record. The Revenue Authorities apparently accepted the case of the appellant/defendant No.1 about the will etc. and canceled the mutation which was effected in 1965 in favour of the respondent No.1/plaintiff and then advised him to approach Civil Court for getting his right established. It is the case of the respondent No.1/plaintiff that in this process, he lost possession at the hands of the appellant/defendant No.1 and so he filed the present suit for possession. 5. As said above, two questions arose for my consideration. On both these questions, rather surprisingly, the learned trial Court held in favour of the appellant/defendant No.1. But the First Appellate Court reversed both the findings recording cogent reasons. 6. I carefully went through the judgments of the both the Courts below and the oral as well as documentary evidence. I fully endorse the reasoning and the conclusion of the First Appellate Court. The proof of parentage of the respondent No.1/plaintiff is, first his assertion that he was son of Abdul Majid and the admitted facts that Abdul Majid was married to Liyakatbee, the mother of the respondent No.1/ plaintiff. Once these two facts are admitted by 6 S.A.No.439/1995. the appellant/defendant No.1, the burden shifts on him to prove that the respondent No. 1/plaintiff was not son of Abdul Majid. 7. It is contended on behalf of the appellant that the respondent No.1 did not produce documentary evidence such as his school record for showing that since his childhood the respondent No.1 was mentioning his father's name as Abdul Majid. There is a document on record which is copy of mutation entry dated 21st of June, 1965. From this mutation entry, it is clear that the respondent No.1 had made an application in writing giving his name as Sayyed Abdul Mukhtar s/o Abdul Majid Kazi and further requested the Revenue Authorities to enter his name as a legal heir of his father. 8. The mutation entry also shows that there were as many as 10 pieces of lands owned by Abdul Majid and all of them, then were mutated in favour of the respondent No.1. The Lower Appellate Court rightly pointed out that the appellant could not even prove that Abdul Majid had divorced Liyakatbee. He could not pin pointedly mention the date of divorce. The appellant and his witness' evidence on this point was held to be based on hear say knowledge. So, the factum of divorce between Abdul Majid and Liyakatbee has not been proved. But I am inclined 7 S.A.No.439/1995. to hold that the couple got separated and Liyakatbee, the mother of the respondent No.1 started residing at her maternal village namely Ekurka and stayed there till her death. But despite of this finding on probability, as said above, the appellant could not prove that there was no cohabitation between Liyakatbee and Abdul Majid prior to the birth of the respondent No.1. 9. The learned Judge of the Lower Appellate Court rightly mentioned that the appellant could not have placed reliance on the contents of the will in which the testator, (allegedly) mentioned that he had divorced his wife Liyakatbee and the son born to Liyakatbee was not his son etc.. The respondent No.1, thus would succeed in saying that he was son of Abdul Majid. 10. The second question is whether the will of the Abdul Majid in favour of the appellant/defendant No.1 is proved and is a genuine document? 11. The learned Judge of the Lower Appellate Court rightly criticized the trial Court Judge in exhibiting this document. When the Trial Court received this document on record, this document, which is in Urdu language, was not even accompanied with a true translation. There are 8 S.A.No.439/1995. two witness for this document. The first one was Kazi Afsar Ahmad who simply said that the Urdu document bore his father's signature and handwriting. He admittedly, was not present when the document was allegedly written. This witness thus could not prove the contents of the documents. The second witness was Sayyed Nisar, who said that he was present when the document was scribed, the contents of the same were read over to Abdul Majid and he had put his signature on the same. The witness also stated that he too put his signature on the same. But this witness did not state as to whether the testator was in good health and whether any Doctor had checked his health etc. prior to the execution of the document. This was necessary because, admittedly, after ten days Abdul Majid succumbed to the ailment of cancer. It is clear that, the evidence adduced for proving the document was weak in nature and the learned Judge of the First Appellate Court rightly rejected it's veracity. 12. The learned Judge of the First Appellate Court rejected this document also because the appellant, who is the propounder of the will kept this document with him for about seventeen long years without disclosing it's presence to any one. Admittedly, though this document was allegedly executed in 1962 it remained 9 S.A.No.439/1995. undisclosed till 1979. The learned Judge, thus has given cogent reasons as to why he disbelieved the appellant's case on the will. 13. The learned Advocate appearing for the appellants, despite this, placed reliance on three judgments of the Supreme Court. They are as under: "(1) Daulat Ram & others V/s Sodha & others 2004(8) Supreme 1. (2) Meenakshiammal (Dead) through Lrs.& others V/s Chandrasekaran and another 2004(8) Supreme 418. (3) Janki Narayan Bhoir V/s Narayan Namdeo Kadam 2003(1) Supreme 297." 14. The ratio of all the three judgments, in short, can be stated as under: "When a will is to be proved, the requirements mentioned in clauses (a), (b) and (c) of Section 63 of the Succession Act are to be complied with i.e.- (a) the testator has to sign or affix his mark to the will, or it has got to be signed by some other person in his presence and by his 10 S.A.No.439/1995. direction; (b) that the signature or mark of the testator, or the signature of the person signing at his direction, has to appear at a place from which it could appear that by that mark or signature the document is intended to have effect as a will; (c) the will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the Will." 15. The further part of the ratio, is once a will is proved through the above mentioned requirements, it is for the opponent who disputes the genuineness of the will, to prove the defect in the will. 16. In other words, the learned Advocate appearing for the appellants, is trying to suggest that by examining witness Sayyed Nisar, the appellant had sufficiently proved the will. He, thereby suggested that it was necessary for the respondent No.1 to prove that Abdul Majid did not put his signature on the will, he was not in a position to understand as to what he was doing and when the will was executed he was not in good health etc.. I am afraid, this argument is of no avail to the appellants, mainly because, I am holding and the Lower Appellate Court also held that the appellant has not discharged his basic 11 S.A.No.439/1995. duty to prove the execution of will. 17. The reliance placed on the judgment of this Court in the case of Anilkumar Narharrao Satarkar and others V/s Shrinivas @ Digambar Achutrao Mudhalwadkar and others 1994 Mh.L.J.597 in my view is unnecessary because the ratio of that judgment is in respect of the manner in which the Court should appreciate the will. 18. The appeal thus should fail. The Appeal stands dismissed. 19. In view of this, Civil Application Nos. 6167/1998 & 2022/2005 do not survive. Both Civil Applications stand dismissed. (A.V.NIRGUDE,J.) Dt.26/08/2009. . Mr.Bayas, learned Advocate for the appellants, requests to keep this judgment in abeyance for four weeks. The request of learned Advocate is rejected. (A.V.NIRGUDE,J.) lkp