1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.1001 OF 2007 WITH CIVIL APPLICATION NO.1856 OF 2007 ALONG WITH SECOND APPEAL NO.1002 OF 2007 WITH CIVIL APPLICATION NO.1857 OF 2007 Smt.Anandi Ukadya Kini & ors. : Appellants. Versus Sukribai Hari Kadu : Respondent Mr.Samir Vaidya for the Appellants. Mr.S.G.Karandikar for the Respondent CORAM : R.M.SAVANT, J. DATED : 21st JULY 2008 P.C. 1. Since the above Second Appeals arise out of the common Judgment and Decree dated 30th October 2007 passed by the District Judge-Palghar in Regular Civil Appeal Nos.86 of 2006, 96 of 2006 and Misc.Appeal No. 2 of 2001 concerning the same property and between the same parties, the above Appeals are therefore dealt with together. 2 2. The Appellants in Regular Civil Appeal Nos.86 of 200 and 2 of 2001 are the original Defendants in Regular Civil Suit No. 61 of 2001 and the original Plaintiffs in Regular Civil Suit No.10 of 1994 respectively. 3. The Regular Civil Suit No.61 of 2001 came to be partly decreed as a consequence of which the original Plaintiffs filed Regular Civil Appeal No.96 of 2006 and the original Defendants filed Regular Civil Appeal No.86 of 2006. The original Plaintiffs in R.C.S.No.10 of 1994 have filed Regular Civil Appeal No.2 of 2001 against the dismissal of their said suit. 4. The Plaintiff in Regular Civil Suit No.61 of 2001 i.e. Sukribai and the Plaintiff in Regular Civil Suit No.10 of 1994 i.e. Ukdya Govind Keni traced their lineage to one Shinwar. The Plaintiff Sukribai filed Regular Civil Suit No.61 of 2001 for a declaration that the Plaintiff is the owner of the suit properties and for possession of the same. The Plaintiff is the daughter of the said Shinwar, who was in possession of ancestral lands bearing Survey Nos.22/5, 36/40 and 20/2 at village Badapokharan, Taluka Dahanu and residen4tial houses bearing House Nos.127 and 128 3 at village Badapokharan, Taluka Dahanu. On the death of said Bhikari Shinwar, the said properties were entered in the name of his wife Bhivribai who expired on 07/11/1991. The plaintiff is the sole heir of Bhivribai and after the death of said Bhivribai, the plaintiff's name was entered in the revenue records of the suit properties vide mutation entry No.6010 dated 24/01/1992. It is the case of the plaintiff in the said suit that the defendants and especially Defendant No.1 who is related to the Plaintiff being a son of paternal aunt taking advantage of the death of plaintiff's husband in the riots in Mumbai in 1993 and also taking advantage of the illiteracy of the plaintiff had taken illegal possession of the suit properties on basis of alleged will of the said Bhivribai. The Plaintiff therefore had filed the said suit for the said reliefs. 5. On the other hand, the Defendants had filed Regular Civil Suit No.10 of 1994 for perpetual injunction in respect of the said suit lands. The said suit came to be dismissed by the trial Court against which the Plaintiffs in the said suit i.e. the Defendants in Regular Civil suit No.61 of 2001 had filed Regular Civil Appeal No.2 of 2001. 4 6. In the said Regular Civil suit No.61 of 2001 the sum and substance of the case of the Defendants is that they had become exclusive owners of the suit properties by virtue of the will deed dated 15.7.1989 and that in so far as the agricultural lands bearing Survey No.22/5 are concerned, they are in possession of the Defendant No.1 as tenant and in so far as the suit houses are concerned, the same have been mutated in the name of Defendant No.1 as owner during the life time of Bhivribai. The trial Court on the basis of the decision rendered in Regular Civil Suit No.10 of 1994 did not accept the contentions of the defendants that the suit properties were self-acquired properties of Bhivribai and also did not accept the theory of the defendants based on the will. The trial Court, therefore, partly decreed the suit and directed the defendants to deliver possession of the suit properties to the plaintiff within one month from the date of the said order. 7. As mentioned herein above, aggrieved by the decree passed in the Regular Civil suit No.61 of 2001 and the decree passed in Regular Civil Suit No.10 of 1994, the defendants had 5 filed two appeals being Regular Civil Appeal Nos. 86 of 2006 and 2 of 2006 and Plaintiff Sukribai filed an appeal being Regular Civil Appeal No.96 of 2006. All the three appeals were heard together and by common Judgment and Order dated 30/10/2007, the Regular Civil Appeal Nos.86 of 2006 and 2 of 2001 filed ;by the Defendants i.e. the Appellants herein came to be dismissed and the Regular Civil Appeal No.96 of 2006 filed by the Plaintiff Sukribai came to be allowed. 8. Since it was the case of the defendants that they have become the owners of the suit properties on account of the will deed dated 15.7.1989 executed by Bhivribai in favour of the Defendant No.1 Ukdya, the lower Appellate Court examined the case of the defendants on the touch-stone of the genuineness of the said will. The lower Appellate Court on the basis of the evidence that was before it came to a conclusion that the defendants have failed to prove the said will and that the said will was not free from suspicious circumstances. 9. The lower Appellate Court considered the following circumstances to come to the said conclusion ; 6 (i) That the said will dated 15/7/1989 was executed on a stamp paper of Rs.100/- which was not purchased either in the name of Bhivribai or in the name of Ukdya and that was in the name of third person and therefore expressed a serious doubt as to how the said stamp paper came in possession of the Defendant No.1; (ii) That one Balrkushna Jaitu Kadu, who attested the thumb impression of Bhivribai, is not examined by the defendant as a witness. (iii) That the evidence of witness Suresh, on behalf of the Defendants, discloses that the thumb impression of Bhivribai was not affixed to the Will Deed in his presence and it is the evidence of witness Suresh that Bhivribai told him that she has affixed her thumb impression and, therefore, he signed the will deed. But he 7 has not stated as to when he signed the will deed and whether Bhivribai was present at that time. (iv) That in terms of Section 63 of the Indian Succession Act, the attestation requires presence of the executant as well as the witnesses, while the said document is being signed and each person must state that they have seen each other while signing the document. There is no such evidence in the instant case. (v) That the evidence of witness Suresh was disbelieved as, according to the lower Appellate Court, he was a tutored witness. (vi) That the examination of attesting witness is not sufficient. The attesting witness must in so many words prove the execution of the will deed by testator and so also prove the attestation. 8 10. Therefore, the lower Appellate Court, relying upon the land mark judgment of the Supreme Court in the matter H.Venkatachala Iyengar v/s. B.N.Thimmajamma, reported in 1958 STPL (LE) 1094 SC observed that the test laid down in the said Judgment was not satisfied in the case of the instant will. The lower Appellate Court, therefore, came to a conclusion that the defendants had failed to prove the will deed and that it was not free from suspicious. Therefore, the defendants had failed to prove that the deceased Bhivaribai had bequeathed the suit properties to Ukadya i.e. Defendant No.1. 11. The learned counsel for the Appellants contended that the Regular Civil Suit No.61 of 2001 was not maintainable on the application of the principle of Res-judicata, as the issue raised in the said suit was substantially a issue in the Regular Civil Suit No.10 of 1994 filed by the Defendant No.1. 12. The said submission has no merit. Firstly, the said Regular Civil Suit No.61 of 2001 was filed by Smt.Sukribai on the 9 basis of her right by way of inheritance and, therefore, the cause of action for the said suit was totally different. In any event, the decree passed in the said Regular Civil Suit No.10 of 1994 was a subject matter of appeal being Regular Civil appeal No.2 of 2001 which was pending when the said Regular Civil Suit No.61 of 2001 was filed. 13. The lower Appellate Court dismissed the Regular Civil Suit Nos. 86 of 2006 and 2 of 2001 filed by the Defendants i.e. the Appellants herein and allowed the Regular Civil Appeal No.96 of 2006 filed by the Plaintiff i.e. the Respondent herein. The lower Appellate Court, however, modified the decree passed in the said Regular Civil Suit No.61 of 2001 in so far as Survey Nos.22/5 is concerned and directed the defendants to hand over vacant and peaceful possession of the said lands subject to the decision of the Tenancy Court. The Lower Appellate Court also directed the defendants to pay an amount of Rs.30,000/- as mesne profits. However, the decree passed by the trial Court in so far as lands bearing Survey Nos.22/5, 36/40 and 20/2 of village Bada-Pokhran to the extent as described in the plaint and also in respect of the 10 Grampanchayat Houses bearing Nos.127 and 128 of the same villages was confirmed. 14. Both the Courts below have recorded findings of fact as regards the will deed dated 15.4.1989. In fact one more court i.e. the learned Civil Judge Junior Division, Dahanu, in Regular Civil Suit No.10 of 1994 has recorded the findings in respect of the said will deed. The said findings, in my view, cannot be faulted with. In my view, the challenges raised in the above Second Appeals do not raise any substantial question of law. Both the Second Appeals are accordingly dismissed. 15. In view of dismissal of the above Second appeals, the Civil Applications No.1856 of 2007 and 1857 of 2007 do not survive and are disposed of as such. In both the Second Appeals, the ad-interim relief, if any, to stand vacated forthwith. [R.M.SAVANT, J]