1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.387 OF 1990 1. Keshav Daulat Bhoi age 46 years, occup.agril. r/o Bhoiwada, ward No.34, Amalner, District Jalgaon. 2. Kasaturabai w/o Keshav Bhoi age 42 years, occupation : household, r/o Bhoiwada, Appellants/ Amalner, District Jalgaon. ori.defts. versus 1. Laxman Daulat Bhoi, age 40 years, occupation service, r/o Bhoiwada, At post Taluka Amalner, District Jalgaon. 2. Kashinath Keshav Bhoi, age 24 years, occup.agril. Respondents/ r/o Bhoiwada, Tal. Amalner, Resp.No.1 is District Jalgaon. orig. pltff. -------------------------------------------------- Shri S.P. Brahme, Advocate, for the Appellant. Shri V.T.Chaudhary, Advocate for Respondent No.1. -------------------------------------------------- 2 Coram: P.R. Borkar, J. Date : August 27, 2009. ORAL JUDGMENT 01. This second appeal is directed against the judgment and decree passed by the II Joint Civil Judge, Junior Division, Amalner in Regular Civil Suit No.45 of 1982 decided on 19.4.1986, whereby Defendants were directed to hand over possession of suit house and suit land to the plaintiff Laxman, which judgment and decree is further confirmed by learned Additional District Judge, Amalner, in Regular Civil Appeal No.429 of 1989 decided on 2.11.1990. 02. Briefly stated, appellants are original defendant Nos. 1 and 2. Respondent No.1 is original plaintiff and Respondent No. 2 is original Defendant No.3. Daulat Bhoi was the owner and possessor of the suit house and the suit land. He had three sons and two daughters, namely, Sukhlal, Keshav, Laxman, Dhanabai and 3 Sonabai. Keshav is appellant No.1-original defendant No.1. Laxman-present Respondent No.1 is the original plaintiff. Appellant No.2 Kasturabai is the original defendant No.2 and wife of appellant No.1 Keshav. Respondent No.2 Kashinath- original Defendant No. 3 is the son of appellant No. 1 Keshav. Daulat died on 4.1.1982. Respondent No.1 Laxman claimed exclusive title over the suit properties on the basis of Will (Exh.68) that is said to have been executed by Daulat on 27.9.1977. On the basis of the title founded on the said Will, Laxman filed suit for declaration of title and possession. It is also not disputed that Laxman was son of deceased Daulat from his second wife Savitrabai. Appellant No.1 Keshav (ori.deft.No.1) was son of Daulat born to his first wife Nagabai. Daulat was working in Pratap Mill at Amalner. Until 1973, present appellants and Respondent No.2, who were original defendants, resided at Surat and Respondent No.1-plaintiff, Daulat and Savitrabai stayed at Amalner in the suit house. In 1973, appellant Keshav returned to Amalner and was 4 allowed to stay in part of the suit house. 03. It is also admitted position that Criminal Case No.1179 of 1979 (Exh.70) was filed by Kasturabai-the wife of appellant No.1 Keshav against Daulat, present Respondent No.1 Laxman and Savitrabai. Appellants and Respondent No. 2 set up a plea that there was partition of the suit house and the suit land on 11.3.1981. On 2.5.1981, Regular Civil Suit No.75 of 1981 was filed by Daulat and present Plaintiff Laxman, challenging the alleged partition deed and consequent mutation entry. The plaintiff Laxman claimed to have been dispossessed from the suit property on 23.6.1981 and therefore sought possession of the suit land and suit house on the basis of the Will which, according to him, was executed by Daulat on 27.9.1977 in his favour. 04. The suit was opposed by present appellants on the ground that the suit land and the suit house were not exclusive properties of Daulat, but those were ancestral properties and, 5 therefore, partition had taken place and hence, Daulat had no authority to bequeath the suit properties or execute any Will in respect of the same. It is also stated that appellant No.1 stayed at Surat due to harassment by Daulat and Savitribai. The will in question was not genuine and was not executed by Daulat and since there was partition on 11.3.1981 between Daulat and his sons and the document to that effect was executed and the suit properties were given to the appellant No.1, the suit deserves to be dismissed. 05. Both the courts disbelieved the theory of partition. It is held that the partition deed is not registered. It was also not trusted, as relations between Daulat and his brothers were not cordial. The suit properties were self acquired properties of Daulat. The partition deed is a suspicious document. Both the courts below also have held that the Will is duly proved by plaintiff-respondent No. 1. He has exclusive title over the suit properties and as such, he is entitled to the decree of possession. It is this 6 order which is challenged in the present second appeal. 06. This second appeal is admitted on substantial questions of law embodied in ground Nos. 3 to 5 which are as follows; (III) The lower Courts below did not interpret properly Section 17(1)() R/W 49 of Indian Registration Act. (IV) The lower Courts below failed to interpret properly partition deed the title deed of Appellant No.1. (V) It ought to have been considered that Will dated 27-9-87 is neither legal nor valid and not admissible in evidence. Moreover the said will stands revoked by Subsequent Partition effected by Daulat Elji Bhoi during his life time. " 7 07. Heard learned counsel for the parties. So far as partition deed is concerned, it is on simple paper and is not registered. It was relied upon by the appellants-defendants to prove the alleged partition and in these circumstances in absence of registration of the partition deed, the said document cannot be read in evidence to prove partition and the view to that extent taken by the trial court and the first Appellate Court cannot be said to be erroneous or illegal. 08. The first Appellate Court has also considered some more circumstances for disbelieving the case of partition. In order to prove partition, the defendants examined DW-2 Bhika Gangaram Patil. DW-2 Bhika who deposed that there was partition of landed property under which Gat No.29/2 was allotted to defendant Keshav and Gat No.29/1 was allotted to plaintiff Laxman. He was present at the time of partition and at the instructions of deceased Daulat, actual possession was handed over to defendant Keshav. Thereafter they went to Amalner and partition was 8 reduced to writing in the handwriting of Shankar Sali. Bhika deposed that he put his signature on the partition deed at the house of Shankar Sali. According to the witness, Daulat Elji had also come to the house of Shankar Sali and there he signed on partition deed. But, evidence of defendant Keshav is to the effect that he had brought Shankar Sali to his house telling him that the deceased Daulat had called him. Moreover, DW-2 Bhika Gangaram in his cross examination admitted that he had filed Criminal Case No.171 of 1983 against plaintiff Laxman and his wife and the said criminal complaint was dismissed and the accused persons were acquitted and thereafter the Plaintiff had filed suit for defamation against DW-2 Gangaram. It is thus seen that there were no cordial relations between DW-2 and plaintiff Laxman. Moreover, it has come in the evidence of plaintiff Laxman that since 1978 Dault was suffering from paralysis and his one leg and one hand were affected. The District Court also observed that the partition deed was not duly stamped or registered. Considering the strained 9 relation between the parties, theory of partition was not accepted. 09. After giving anxious thought to the arguments advanced before me, I am not satisfied that the trial court or the first appellate court committed any error in holding that the partition was not duly proved. Moreover, admittedly Daulat had three sons and two daughters and it also appears that Savitrabai was alive. So it cannot be said that the theory of partition was probable and possible inasmuch as no provision was made for Daulat and his wife. 10. So far as execution of the Will is concerned, learned Advocate for the appellant has pointed out to me that in the deposition of PW-2 Bhaga Fula Birhade, who was attesting witness, it is stated that Daulat had called him and told that he was executing 'Mukhtyar Patra' (Power of Attorney) in the name of his younger son and therefore he (Bhaga) should sign on the said Mukhtyar Patra as a witness and accordingly he 10 signed the document. So, it is argued that what was represented to the witness Bhaga was that Daulat was executing a power of attorney and not a Will and, therefore, this could not be proper attestation of the Will. Before we draw any conclusion, it is necessary to consider entire evidence of PW-2 Bhaga Fula Birhade in the context of Section 63 of the Indian Succession Act 1925 which deals with execution of unprivileged Wills. Section 63 reads thus : "63. Execution of unprivileged Wills. Every testator, not being a soldier employed in an expedition nor engaged in actual warfare [or an airman so employed or engaged] or a mariner at seal, shall execute his will according to the following rules; (a) The testator shall sign or shall affix his marks to the will, or it shall be signed by some other persons in his presence and by his directions. 11 (b) The signature of mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. (c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the directions of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be 12 necessary." 11. As per clause (c) of Section 63 of the said Act, will has to be attested by two or more witnesses each of whom has seen the testator signing or affixing his mark to the will, or has received from the testator a personal acknowledgment of his signature or mark and each of the witnesses has signed the will in the presence of the testator, although all witnesses need not be present at the same time. 12. In his evidence at Exh.77, PW-2 Bhaga Birhade stated that he was serving in Pratap Mill and was president of Republic party. He was knowing Daulat Bhoi, who was also serving in the said Pratap Mill. On the day he had gone to Tahsil Office, Daulat was present there. Daulat told him that he is executing power of attorney in the name of his younger son and that he (Bhaga) should sign the same. Accordingly, witness Bhaga signed the Mukhtyar Patra. It is argued on behalf of the appellants that this statement clearly 13 indicates that what was signed by Bhaga was Mukhtyar Patra and therefore, attestation of the Will is not proved. However, Advocate for the respondent drew my attention to further part of deposition of witness Bhaga wherein he has stated that the said incident had taken place 8 to 9 years prior to his deposition. He deposed that document exhibit 68, which is the Will, bore his signature and it is the same Mukhtyar Patra. So, although witness Bhaga was under impression that what was signed by him was Mukhtyar Patra, it was in fact, the Will. It is argued that he being a mill worker might not be knowing distinction between Mukhtyar Patra and a Mrityu Patra (Will). 13. PW-2 Bhaga has further stated that one more witness was present and he put his signature on the said document. Exhibit 68 was in the handwriting of Harchand Chindha and its contents were narrated by Daulat Bhoi and that in his (witness) presence Daulat Bhoi signed on the document. PW 2 Bhaga further stated that the document was written as desired by Daulat and then 14 Daulat signed the document in presence of attesting witnesses. Both the attesting witnesses also signed at about the same time. So, the attestation is duly proved. Witness Bhaga was categorical in saying that at the time of execution of Will Exh.68, Daulat was physically sound. In the cross examination of this witness it is brought on record that what Daulat had told him that he (Daulat) has given rights to his younger son. Witness in cross examination also said that he was there for one or two minutes and had not read Exhibit 68. 14. There is also evidence of PW-3 Herchand Chindu Badgujar at aExh.80. He was scribe of the Will. He stated that he had written the Will Exh.68 which was drafted by him as per the instructions of Daulat. According to the witness, the Will was signed by witnesses Bhaga Fula and Lotan Maharu in his presence. The witness proved the will. Similarly, will is also proved by plaintiff Laxman. 15 15. Considering totality of the facts and circumstances on record, it appears that there was an error on the part of witness Bhaga to describe the document as Mukhtyar Patra which in fact was the Mrityu Patra (will) that attestation was duly proved as per Section 63 of Indian Succession Act read with Section 68 of the Indian Evidence Act. 16. In this view of the matter, substantial questions of law raised in this second appeal will have to be and are accordingly answered in favour of present plaintiff Laxman. Hence, second appeal is dismissed. Parties to bear their own costs. pnd/sa387.90 (P.R.BORKAR, J.)