* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1444 OF 2004 Smt. Laxmibai Balkrishna Kudtarkar .......Appellant V/S. Tata Engineering and Locomotive Co.Ltd and 7 Ors. ........Respondents. ----------- Mr.R.V. Govilkar with Mr. Sanjay Aradhye, Advocate for the appellant. Mr. I.M. Khairadi, Advocate for the respondents. CORAM :- SMT. R.P. SONDURBALDOTA, J. DATED : 26th NOVEMBER, 2009. P.C. :- 1. This First Appeal is preferred against the judgment and decree dated 16th September, 2004 by which the suit filed by the appellant was dismissed, the counterclaim by respondent no.2 was partly decreed and the suit filed by respondent no.2 decreed. Considering the facts and circumstances of the case, as also the fact that the appeal has been pending for admission for the last five years, the same is being disposed off finally. The appellant has filed paper- * 2 * book. Records and Proceedings are dispensed with. Heard learned counsel for both sides. 2. The appellant Laxmibai is the second wife of one Balkrishna Kudtarkar and respondent no.2, his first wife. Respondents no.3, 4 and 5 are the children of Balkrishna born from the appellant and respondents no.6, 7 and 8 are his children born from respondent no.2. Respondent no.1 is the employer of Balkrishna. 3. The appellant filed Special Civil Suit No.1034 of 1998 for a declaration that she is exclusively entitled to the estate of Balkrishna in view of the will dated 26th October, 1995 and for permanent injunction to restrain respondent no.1 from paying the dues to any other person. Respondent no.2 denied the claim of the appellant and disputed the will. She filed counterclaim for declaration that she and her children are entitled to succeed to the estate of Balkrishna and for permanent injunction to restrain the appellant from claiming the property. 4. Respondent no.2 filed Regular Civil Suit No. 976 of 1997 for a declaration that the alleged will of Balkrishna is void and for a permanent injunction to restrain the appellant from acting on the probate of the will obtained by her. The appellant defended the suit contending that the marriage of Balkrishna and respondent no.2 had come to an end in the year 1979-80 and therefore she can claim no right to the properties of Balkrishna. * 3 * 5. The trial court heard both the suits together. The evidence led in the cases consists of evidence of both the women, appellant and respondent no.2. Additionally, appellant examined one Shrikant Kulkarni, the attesting witness to the will and the Notary Public, Satishkumar Tiwari. The trial court on appreciation of the evidence held that respondent no.2 is the legally wedded wife of Balkrishna. The appellant has no right to the properties of Balkrishna. The appellant failed to establish that Balkrishna had executed will dated 26th October, 1995. Therefore, the Succession Certificate obtained by the appellant is not legally valid. It declared that respondent no.2 and all the 6 children of Balkrishna are entitled to an equal share i.e. 1/7th in his estate. 6. Mr. Govilkar, the learned counsel for the appellant fairly concedes before this court that respondent no.2 is the legally wedded wife of Balkrishna. But according to him, the finding of the trial court on the will of Balkrishna is erroneous. He submits that the evidence led before the court is sufficient to draw inference in favour of the appellant as regards execution of the will. Thus, the moot question in the matter is whether Balkrishna had executed will bequeathing his estate to the appellant. 7. It is the case and evidence of the appellant that the will was executed before the Notary, Satishkumar Tiwari and was attested by Shri. Kulkarni and Appasaheb Argade. The trial court rightly observed that since the will was relied upon by the appellant, the entire onus to prove it s execution was upon ’ * 4 * the appellant. This included the proof of disposing state of mind of Balkrishna. Admittedly, the appellant was personally present when the will was allegedly executed. The trial court also took note of the peculiar fact of the case that improbable and unfair disposition of the property was made in favour of the appellant keeping away the natural heirs. The above two circumstances are required to be treated as suspicious circumstances. In this regard, the observations of the Apex Court in the case of H. Venkatchalayya V/S. B.N. Thimmajamma reported in (AIR 1959 SC page 443) noted by the trail court are as follows : If it is shown that the propounder has taken a prominent part in execution “ of will and has received substantial benefits, that it self is generally treated as suspicious circumstance pertaining to execution of will and propounder is required to remove the said suspicion by clear and satisfactory evidence.” . In the above circumstances, scrutiny of evidence by the court had to be stricter and closer. 8. Coming to the evidence of the appellant, it is silent as to disposing state of mind of Balkrishna and execution of the will. At the same time, she admitted that about 5 to 6 years before his death, Balkrishna was suffering from cancer. He died due to cancer. The appellant was not aware as to who had prepared the will and who had typed it. The attesting witness, Kulkarni simply stated that when Balkrishna took him to one, Tiwari, the will was lying on the table of Tiwari, he alongwith other attesting witness signed the will and * 5 * Balkrishna signed the will in his presence. He also did not know as to who had drafted the will, at whose instructions and who had typed it. The third witness, the Notary Public stated reverse order of signature. He was unable to identify Balkrishna from the photographs annexed to the will. Strangely, the photograph annexed was not of Balkrishna alone. It was of both Balkrishna and the appellant. The Notary was unable to produce his Notary Register and stated that the same was misplaced. He was unable to state the serial number at which the will was registered. He was not able to number even the month of the execution of the will. He deposed to have prepared the will as per the instructions of Balkrishna, but, had not preserved the rough instructions given by Balkrishna. Though the witness claims to have drawn the will, he did not know as to who had typed the same. On perusal of the same, the Court found that two signatures of Balkrishna on last page of the will and that there was no signature on the earlier pages. The two signatures were sought to be explained by the Notary by saying that the signature above the name of Balkrishna was not made in his presence and therefore he asked Balkrishna to again sign the same in his presence. Then, Balkrishna had signed the will this time, below his signature. There is no whisper in the evidence of these two witnesses about the disposing state of mind of Balkrishna. 9. The appellant produced medical certificate of one Dr. R.S. Joglekar which is dated 24th October, 1995 obtained two days prior to the date of the will. * 6 * Balkrishna has been taking treatment from Jahangir Hospital. But no certificate was obtained from the Doctor of Jahangir Hospital about the mental and physical condition of Balkrishna. There is no evidence of Dr. Joglekar examining Balkrishna or of his knowledge of the ailment of Balkrishna. In the circumstances, the medical certificate produced cannot be relied upon to arrive at the conclusion as regards the disposing state of mind of Balkrishna. Thus, there is almost no evidence on this aspect of the matter. 10. There is one more serious circumstance that goes against the appellant and that is a false statement made in the will. Mr.Khairadi, the learned counsel for respondent no.2 points out that the will at page no.2 mentions that Balkrishna was not suffering from any kind of disease at the relevant time and that he was executing the will only because there can be no certainty of life. Had the will been really executed by Balkrishna, such a false statement would not have been made. 11. The trial court has exhaustively considered the entire evidence led by the appellant, as regards the execution of the will and concluded that the appellant was unable to establish that Balkrishna had executed a will as claimed by the appellant. No fault whatsoever can be found with the conclusion reached by the trial court. There is no scope whatsoever for any other inference on the evidence before the court, particularly in the absence of the evidence as regards the mental status of Balkrishna at the time of execution of the will. * 7 * 12. Considering the proceedings, evidence laid thereon and the impugned decision, there is no question either of fact or law falling for consideration of this court. Hence, the First Appeal is dismissed. In the facts and circumstances of the case, no order as to costs. [SMT. R.P. SONDURBALDOTA, J]