-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.5 OF 1990 LETTERS PATENT APPEAL NO.5 OF 1990 LETTERS PATENT APPEAL NO.5 OF 1990 IN IN IN FIRST APPEAL NO.195 OF 1980 FIRST APPEAL NO.195 OF 1980 FIRST APPEAL NO.195 OF 1980 ALONG WITH ALONG WITH ALONG WITH LETTERS PATENT APPEAL NO.6 OF 1990 LETTERS PATENT APPEAL NO.6 OF 1990 LETTERS PATENT APPEAL NO.6 OF 1990 IN IN IN FIRST APPEAL NO.492 OF 1980 FIRST APPEAL NO.492 OF 1980 FIRST APPEAL NO.492 OF 1980 WITH WITH WITH WRIT PETITION NO. 3271 OF 1980 WRIT PETITION NO. 3271 OF 1980 WRIT PETITION NO. 3271 OF 1980 Ramchandra Balwant Thorat, since deceased by his heirs: 1A Shivaji Ramchandra Thorat, since deceased through his heirs: 1A-1) Kamal Shivaji Thort and ors. Appellants. Vs 1. Bhausaheb Dnyanu Patil, (alleges to be Bhausaheb Balwant Thorat), since deceased, by his heirs and L.Rs.: 1A. Smt Kanchabai B.Patil and ors. Respondents. Mr A.S.Desai i/b Mr Vikas Kolekar, for the appellants. Mr D.K.Dhalke i/b Mr V.S.Talkute for respondent no.1D. CORAM : B.H.MARLAPALLE & D.B.BHOSALE,JJ. CORAM : B.H.MARLAPALLE & D.B.BHOSALE,JJ. CORAM : B.H.MARLAPALLE & D.B.BHOSALE,JJ. DATE : 22/08/2008 DATE : 22/08/2008 DATE : 22/08/2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: (Per B.H.Marlapalle,J.) (Per B.H.Marlapalle,J.) (Per B.H.Marlapalle,J.) 1. First Appeal Nos 195 of 1980 and 492 of 1980 came to be decided by the learned Single Judge of this Court by his common Judgment dated 23.9.86 along with Writ Petition -2- No.3271 of 1980. The writ petition was disposed off as withdrawn. In these two Letters Patent Appeals the said common Judgment and order is under challenge. 2. Regular Civil Suit No.24 of 1942 was decided by the then First Class Judge, Satara, on 2.3.1944. One Balwant Thorat was the owner of the suit properties and he died in the year 1990 leaving behind three widows, viz.Kashibai, Sundrabai and Housabai. None of them could be a mother. However, Sundrabai-the plaintiff in the said suit, adopted Ramchandra on 4.8.1936 and she died thereafter on 3.6.1938. Ramchandra is the decree holder. Subsequently, Housabai adopted Bhausaheb, the Judgment Debtor No.1 and she was also in possession of certain properties left by Bhausaheb. By the decree dated 2.3.1994 the trial Court had directed certain lands to be given in possession of the plaintiff-the decree holder, and it was further held that defendant no.1-Housabai was entitled to retain possession of the lands in lieu of her maintenance and residence during her life time. In the said decree it was further provided that after Housabai’s death the plaintiff -Ramchandra, the adopted son of Sundrabai, had a right to get into possession of the lands under the decree. On 7.2.1969, Housabai executed a Deed of Gift (Exh.90) in favour of the present appellant (the Judgment -3- Debtor No.1) Bhausaheb. It was attested by the witnesses and it was in respect of five pieces of lands, i.e. Survey Nos 490/4, 400/8, 398/8, 397/10 and 291/1. Admittedly, the said lands were tenanted to some persons and before the Gift Deed the tenants were made to surrender the lands in favour of Housabai. On 20.10.1969, Housabai executed a Will (Exh.96) and on the same day it was attested by the witnesses. This Will was in respect of the lands in possession of Housabai and which were allowed to be retained by her by the decree dated 2.3.1944 including the lands which were the subject matter of the Gift Deed, (Exh.90). Housabai died on 6.7.1978 and on 5.8.1978 Darkhast No.50 of 1978 was filed by the plaintiff-decree holder for recovery of possession of the properties which were retained by Housabai according to the decree. In the Darkhast proceedings the Judgment Debtor examined himself and three other witnesses, viz. Akaram Yeshwant More (DW 2), Laxman Mahadeo Pise (DW 3) and Ganpati Bapu Patil (DW 4) so as to prove the execution of the Gift Deed at Exh.90 and the Will at Exh.96. After hearing the respective parties and considering the documentary as well as oral evidence, the learned Civil Judge, Senior Division, at Sangli by his order dated 7.12.1979, held that the decree holders were entitled to get symbolic possession of the following lands from defendant nos 1,3, 4 and 6. -4- SCHEDULE "A" SCHEDULE "A" SCHEDULE "A" _________________________________________________________________ S.No.Gat No. H.R. Survey Nos. A.Gs. Sr.Nos in Darkhast S.No.Gat No. H.R. Survey Nos. A.Gs. Sr.Nos in Darkhast S.No.Gat No. H.R. Survey Nos. A.Gs. Sr.Nos in Darkhast ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ Lands to be got possession from defendant nos 3 and 4: 1. 943 0-72 384A/9 1-15 9 384B/10 0-12 4 2. 944 0-95 385/9 1-24 11 385/10 1-32 (Not in Darkhast) 3. 948 0-74 384A/5 0-33 8 384B/6 0-06 3 385/5 0-29 10 385/10 19 4. 1037 0-27 398/4A 0-34 20 398/6A (Not in the Darkhast) 400/4A 0-39 21 5. 1040 0-46 397/7 1-04 12 6. 1409 0-14 495/4 0-13 18 ------- Lands to be got possession from defendant no.6: 7. 789 0-08 274/2 0-09 1 8. 1400 0-25 494/6 0-25 5 9. 1434 0-18 498/5 0-18 6 The Court further directed that the decree holders shall get actual possession of the following lands from Bhausaheb. Schedule "B" Schedule "B" Schedule "B" _________________________________________________________________ S.No.Gat No. H.R. Survey Nos. A.Gs. Sr.Nos in Darkhast S.No.Gat No. H.R. Survey Nos. A.Gs. Sr.Nos in Darkhast S.No.Gat No. H.R. Survey Nos. A.Gs. Sr.Nos in Darkhast ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ -5- 1. 859 1-43 291/1 3-21 2 2. 1051 3-34 397/11 2-26 13 398/8 2-09 14 400/8 3-12 16 3. 1390 2-47 490/4 6-04 17 ________________________________________________________________ The decree holders shall also get possession of the following lands from defendant no.1. Survey No.498/7 (Sr.No.7 in the Darkhast) measuring 0.16-5 gunthas, and Survey No.398 (Sr.No.15 in the darkhast) measuring 9 gunthas." 2A. Both the parties were aggrieved by this order and, therefore, each one of them filed the First Appeal, i.e. First Appeal No.492/80 which was filed by the Judgment Debtor Bhausaheb and First Appeal No.195 of 1981 was filed by Ramchandra through his L.Rs. 3. The Executing Court held that the agricultural lands which were in possession of Housabai pursuant to the court decree for her maintenance, was her exclusive property and she had the right to deal with as per her choice, in view of the law laid down by the Supreme Court in the case of Tulasamm -AIR 1977 SC 1944, and Gullapalli Krishna Das Vs Vishumolakala Venkayya, 1978 SC 361. However, the executing court discarded the Gift Deed at Exh.90 as well as the Will at Exh.96. He held that they could not be accepted as genuine documents as per the will -6- of Housabai. 4. The learned Single Judge by his common judgment that is brought in question in these two Letters Patent Appeals, held that the executing court was wrong in discarding the Gift Deed at Exh.90 and the Will at Exh.96 and further proceeded to hold that the Will Deed was duly proved by the evidence of the attesting witnesses and it was a genuine document which was prepared as per the instructions of Housabai. In fact, the Will at Exh.96 dealt with all the lands in possession of Housabai including the lands covered by the Gift Deed at Exh.90 and, therefore, if the will was proved as a genuine document, the Gift Deed would pale into inconsequence or insignificance as has been rightly observed by the learned Single Judge. 5. Mr Desai, the learned counsel for the appellants, submitted before us that the executing court had the earliest opportunity of going through the oral evidence of the attesting witnesses and also the advantage of observing them in the witness box. The findings recorded by the executing court to discard both the documents at Exh.90 and Exh.96 did not suffer from any error and, therefore, the learned Single Judge could not have -7- reversed the said findings. With the help of Mr Desai, we have gone through the depositions of the three witnesses examined by the executing court, ie. DW 2 to DW 4 and we find that the Will at Exh.96 was prepared as per the instructions of Housabai in the presence of the witnesses by the writer and she had signed on the same in the presence of the witnesses. DW 1 Bhausaheb had reached the Sub Registrar’s office where the will was reduced to writing after the writing of the Will had commenced. Housabai was present with the record like 7/12 Extracts etc while she wanted the Will to be reduced in writing and in favour of DW 1. DW 2 subsequently stated while in the witness box that Housabai approached him and requested to accompany him to the Sub Registrar’s office and to be a witness for her proposed Will. The executing court found this evidence unreliable and one of the grounds mentioned is about one of the witnesses not being able to identify the thumb impression/signature of one of the remaining witnesses. No doubt, the Will was attested by as many as six persons and it could have been sufficient to examine any one of them to prove the Will but as a matter of abundant precaution the Judgment Debtor examined three witnesses of the attesting witnesses and their depositions on the material particulars are consistent, viz. Housabai to make a Will, her bond writer recording the property details the record of which she had carried with her to -8- the Sub Registrar’s office and her mental and health condition at the relevant time. The inconsistencies in the age of Housabai mentioned by either DW 1 or DW 2 could not be a valid reason to disbelieve the execution of the Will at the instance of Housabai. The learned Single Judge had rightly examined all these aspects and held that the Will at Exh.96 was duly proved. 6. It is true that Housabai had claimed the Judgment Debtor No.1, as her adopted son and the same adoption was found to be illegal by the competent court. However, that by itself could not in any way make the Will as illegal or unreliable. Judgment Debtor no.1 was the son of Housabai’s brother and Housabai was all along staying with her brother after she was deserted by late Balwant. The learned Single Judge rightly observed that Housabai had brought up the Judgment Debtor no.1 as her own son and, therefore, there was no reason to doubt her intention to bequeath the agricultural lands standing in her possession in favour of Judgment Debtor no.1. 7. In the premises, we are satisfied that the reasoning set out by the learned Single Judge does not call for any interference in these appeals. These Letters Patent appeals, therefore, fail and the same are hereby dismissed with costs. -9- (D.B.BHOSALE, J.) (D.B.BHOSALE, J.) (D.B.BHOSALE, J.) (B.H.MARLAPALLE,J.) (B.H.MARLAPALLE,J.) (B.H.MARLAPALLE,J.)