1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE First Appeal No.753 of 2002 1. Sou.Kunda Jagdish Pendase 2. Shri Jagdish Vaijanath Pendase Appellants Vs. Smt. Padmavati Shripad Ghaisas Respondent Ms.Gauri Godse for appellants. Mr.S.G.Deshmukh for respondent. CORAM: B.H.MARLAPALLE, J. Reserved on : February 16, 2008. Pronounced on: February 25, 2008. JUDGMENT: 1. This First Appeal arises from the judgment and decree passed by the learned Civil Judge, Senior Division at Sangli on 17/1/2002 in Special Civil Suit No.124 of 1993 filed by the present respondent. In the said suit the appellants - defendants had filed counter claim for recovery of an amount of Rs.75,000/- from the plaintiff and the same also has been allowed with interest at the rate of six per cent per annum. 2. Shri Shripad Ghaisas owned the property in Survey No. 1068 / 13-14-15 at Sangli and on the said land he had constructed a house. On 4/2/1989 he had 2 entered into an agreement with M/s. Krishna Builders for development i.e. by demolishing the old bungalow to put up a multi storeyed building with a total built up area of 3700 sq.ft. His daughter Kunda is married to Shri Jagdish Vaijnath Pendase, resident of Mumbai and, therefore, the said daughter and son-in-law reside at Borivli, Mumbai. In January 1989 or thereabout the couple had come to stay with the daughter and thus left their son. While at Mumbai, Shripad Ghaisas made a Will dated 3/10/1989 which was reduced in writing and by the said Will he had distributed his immovable and moveable property. He was also to receive an amount of Rs.2 lakhs from the Builder in addition to the constructed area of 3700 sq.ft. and it appears the builder had paid an amount of Rs.50,000/- by way of the first instalment. The said amount was invested by way of fixed deposit on 3/4/1989 with the New India Co-operative Bank Ltd. at Borivli and in the joint names of his wife and daughter. Shripad died on 26/3/1990 while at Mumbai and on 10/4/1990 his wife appointed the son-in-law as her power of attorney. Shripad had also opened a locker in the said Bank in the name of his wife and daughter (Locker no.410) and in the same the ornaments and valuable articles belonging to him 3 were kept. On the demise of Shripad it appears the builder was not inclined to pay the balance amount of Rs.1,50,000/- and, therefore, Suit No.115 of 1990 came to be filed against the builder on the basis of the power of attorney executed in favour of the son-in-law and on the basis of the Will dated 3/10/1989 executed by Shripad. The said Suit was compromised on 27th July 1990 and the builder agreed to pay an additional amount of Rs.2 lakhs, thus making a total of Rs.2,50,000/-. On 1/8/1990 out of the said amount of Rs.2 lakhs, an amount of Rs.1,50,000/- came to be invested in the same fashion in fixed deposits after the demise of Shripad. It appears, thereafter the mother left the daughter’s home and initially the daughter had reached the mother at Baramati where the mother’s brother resided and subsequently the mother went and joined her son at Sangli. By notice dated 22/10/1990 she claimed to have cancelled the power of attorney executed in favour of her son-in-law and called upon the daughter and the son-in-law to let her know the details of the fixed deposits as well as to have the key of the locker. The son-in-law replied the said letter on 19/12/1990 and stated that he had no concern with any amount or articles belonging to his mother-in-law. 4 The mother also sent notices through her lawyer to the daughter and son-in-law and ultimately she filed Special Civil Suit No.124 of 1993 for a declaration and a mandatory injunction. She had prayed for a declaration that the amount of fixed deposits with interest on their renewal as well as the amount lying in the savings bank account along with interest, if any, be declared as her property and the defendants i.e. the daughter and son-in-law have no title to the same without the consent of the plaintiff. She also prayed for similar relief in respect of the ornaments and articles in the locker and further prayed for renewal of the fixed deposits as well as compensation by way of loss of interest on account of non-renewal of the fixed deposits. She also prayed for directions against the defendant no.2 to call upon him to furnish the details of all the transactions and the expenses made by him on the basis of the power of attorney dated 10/4/1990. As noted earlier, the said suit has been allowed with a counter claim filed by the defendant no.2 for payment of Rs.75,000/- with interest at the rate of 6 % per annum The decree passed in favour of the plaintiff has been challenged by the defendants in Appeal No.753 of 2002 whereas the counter claim allowed in 5 favour of the defendant no.2 has been challenged by the plaintiff in Cross Objection Stamp No.33932 of 2002. During the pendency of the appeal and cross objection the plaintiff - mother died on 16/12/2002 and, therefore, her son Santosh Ghaisas filed Civil Application No.1538 of 2003 for being impleaded as the LR of the original plaintiff and to the exclusion of his sister - defendant no.1. He claimed that on 22/11/1990 the mother had executed a Will in respect of her property, bequeathing the same entirely in his favour and, therefore, he prayed that he ought to be brought on record as the only LR of the plaintiff. This application was opposed by the defendants and they challenged the Will. This Court by order dated 20/4/2005 passed in Civil Application No.1538 of 2003 directed the trial Court to record evidence of both the parties in respect of the said Will and then render its findings as to whether the alleged Will produced by Santosh has been established or not so as to decide the question of LR of deceased Padmavati. Consequently the learned Civil Judge, Senior Division at Sangli recorded the evidence and by his order dated 30/8/2005 declared that Shri Santosh Shripad Ghaisas is the LR of deceased plaintiff - Padmavatibai, wife of Shripad Ghaisas on the strength 6 of Deed of Will executed by her on 22/11/1990 and registered with the Office of the Sub-Registrar, Sangli (Exhibit "H"). A copy of the said order has been transmitted to this Court by the learned Civil Judge, Senior Division as directed and as per the order passed by this Court on 10/4/2006 Civil Application No.1538 of 2003 came to be allowed and it was further clarified on 13/4/2006 that the order passed in Civil Application No.1538 of 2003 shall be subject to the decision of the objection. 3. Ms.Godse, the learned counsel for the defendants urged that the Will dated 3/10/1989 purportedly executed by late Shripad was tainted under suspicion and it was not a registered Will. By opening the locker and investing the amount of Rs.50,000/- in joint names of his wife and daughter, late Shripad Ghaisas had indicated that all his property and more particularly the fixed deposit amount and the ornaments and articles lying in the locker would be a joint property of the plaintiff as well as defendant no.1 and in any case the defendant no.1 being the daughter of Shripad had a right as sharer in his property and it could not be said to be an exclusive property of the plaintiff. Thus the 7 first challenge is to the factum of execution of the Will and it is contended that the Will was illegal and was signed when Shripad was not mentally fit, he was lying on bed and was not capable of taking a decision to bequeath his property. Even otherwise before the trial Court the original of the said Will never surfaced and the trial Court committed an error in law by allowing the secondary evidence in asmuchas a copy of the said Will was placed on record and was exhibited (Exhibit No.91) In support of these contentions Ms.Godse relied upon the following decisions: (1) Gorantla Thataiah Vs. Thotakura Venkata Subbaiah & ors. [AIR 1968 SC 1332] [AIR 1968 SC 1332] [AIR 1968 SC 1332] (2) Uma Devi Nambiar & ors. Vs. T.C. Sidhan (Dead) [(2004) 2 SCC 321] [(2004) 2 SCC 321] [(2004) 2 SCC 321] (3) Meenakshiammal (Dead) through LRs & ors. Vs. Chandrasekaran & anr. [(2005) 1 SCC 280] [(2005) 1 SCC 280] [(2005) 1 SCC 280] (4) Kalyan Singh Vs. Smt. Chhoti [(1990) 1 [(1990) 1 [(1990) 1 SCC SCC SCC 266] 266] 266] 8 (5) J. Yashoda Vs. K. Shobha Rani [(2007) 5 [(2007) 5 [(2007) 5 SCC SCC SCC 730] 730] 730] 4. Before the trial Court the plaintiff examined herself, her son Santosh and nephew Sadanand Anand Ghaisas. Whereas the defendants examined Mukund Madhusudan Kulkarni, Kunda Pendase and Jagdish Pendase. Sadanand Ghaisas and Mukund Kulkarni were the witnesses who had signed the Will made by Shripad on 3/10/1989. The defendants mainly relied upon the evidence of Mukund Kulkarni in support of their contentions that the Will was suspicious. In his depositions Mukund had stated that the defendants’ son Dilip was his friend. He was called by Dilip to his house on one day, he accordingly visited the house of Dilip and met his grandfather who was lying on the bed, he was not in a condition to talk and the plaintiff and defendant no.1 were present in the house at that time. He came out of the said room and when he was in the hall the plaintiff handed over to him the Will and asked him to sign on it and, therefore, he signed on the same. In his cross-examination he admitted that he had passed his B.Com. examination in 1987. He was familiar with Mercantile Law. He also stated that it was his 9 responsibility to read the contents of the Will before he signed. He deposed that the other witness Sadanand Ghaisas had not signed the Will in his presence and he did not know him. He also did not know as to how and when the signature and thumb impression of Shripad Ghaisas were obtained on the Will. He stated that he did not know whether he signed the Will on 3rd October 1989 or not but he admitted that he had signed the Will. He also stated that he was acquainted with Dilip since they were studying together in 8th standard and his house was at a distance of 5-10 minutes walk from the house of Dilip. He also admitted that the Will is a solemn important document and he did not feel it necessary to get it confirmed whether the Will was really executed by Shripad Ghaisas. On the other hand, the other witness Sadanand Ghaisas thoroughly supported the execution of the Will. He also supported that the other witness Mukund had signed in his presence and when the Will was made Shripad Ghaisas was in sound mental condition and it was made as per his desire. The Will at Exhibit 91 has also been certified by Dr.Shailaja Patil. 5. Though the defendants challenged the legality 10 of the Will, from the oral as well as documentary evidence coming from the said defendants, it is clear that the said challenge is only by way of an afterthought and in fact on the basis of the said admitted documents, the defendants were lying on oath before the trial Court. There is sufficient evidence on record from the authorship of the defendants only to show that the Will was executed in the presence of the defendants and to their knowledge. They acted on the basis of the Will, approached the Government offices to get the property mutated in the name of the plaintiff, defendant no.2 filed Special Civil Suit No. 115 of 1990 on the basis of the said Will, he compromised the suit and received the amount of Rs.2 lakhs from the developer on the basis of the said Will. The first documentary proof is the reply at Exhibit 80 dated 4th March 1992 sent by the defendant no.1 to Advocate A.V.Gadre at Sangli. In the said letter she emphatically stated that her father Shripad had executed a Will before his demise and all his self acquired property was bequeathed by her father in favour of her mother. She also stated that from the income arising by way of interest etc. from the bequeathed property she as the daughter was required to take care of the mother during her life 11 time. She also stated that the entire property standing in City Survey No.1068/13-14-15 was bequeathed by the said Will in favour of the plaintiff. Then comes another reply at Exhibit 82 dated 13th April 1992 addressed to Advocate A.V.Gadre by defendant no.1. She reiterated the execution of the Will by her father. The next document is the joint statement of the defendants recorded before the District Inspector of Land Records at Sangli on 29/4/1991 at Exhibit 111. The statement was recorded on oath and both the defendants made the joint statement based on the Will dated 3/10/1989 in support of their request to record the entire property in the name of the plaintiff and on the basis of the application submitted by the defendant n.2 to the same effect on 24/4/1990 in the office of the District Inspector of Land Records. Then comes the plaintiff of Special Civil Suit No.115 of 1990 and the same was filed in the name of the plaintiff and the defendant no.1 through their power of attorney, the defendant no.2. As noted earlier the said Suit was compromised. In the same suit the execution of the Will by Shripad on 3/10/1989 was admitted and the apportionment of the money to the exclusive account of the plaintiff was also claimed. 12 The amount was accordingly received and invested in fixed deposit in the names of the plaintiff and the defendant no.1 by the defendant no.1. In addition when the son of the plaintiff was in the witness box, he stated that in Special Civil Suit No.115 of 1990 the original Will executed by Shripad on 3/10/1989 was placed on record and the suit was compromised on the basis of the said Will. He was a party to the said suit and defendant no.2 had engaged Shri V.D. Jadhav as his Advocate in the said suit. He further stated that after compromising the suit, the original copy of the Will and other documents were obtained by the defendant no.2 by submitting an application (in Special Civil Suit No.115 of 1990). He also brought on record a certified copy of the application at Exhibit 26 made by the defendant no.2 through Advocate Shri V.D. Jadhav for return of the original copy of the Will and the other documents. Exhibit 3 is the signature of Shri V.D.Jadhav having received all those documents including the original Will dated 3/10/1989 executed by his father Shripad. The application filed for return of the documents was brought on record with its certified copy at Exhibit 38/1. In addition in her cross-examination the defendant no.1 clearly admitted that her late father 13 had executed the Will dated 3/10/1989. The document at Exhibit 24 was the compromise in Suit No.115 of 1990 which clearly referred to the Will dated 3/10/1989. . Thus all this evidence on record clearly went to show that on 3/10/1989 late Shripad had executed a Will while he was in the house of the defendants along with his wife and the said Will was acted upon by the defendants themselves by submitting applications before the statutory authorities, by filing Special Civil Suit No.124 of 1993. The plaintiff’s son had to approach the District Inspector for Land Records and obtained a photo copy of the Will submitted by the defendant no.2 along with the application made to the said authority in his capacity as the power of attorney for the plaintiff and the said copy was brought on record in Special Civil Suit No.124 of 1993. The copy was shown to the witness Shri Sadanand Ghaisas as well as the plaintiff while in the witness box and it has been exhibited (Exhibit 91). Under these circumstances the contentions of the defendants that the Trial Court had committed errors in allowing secondary evidence are fallacious and they ought to 14 be rejected. It cannot be accepted that the Will dated 3/10/1989 was prepared under suspicious circumstances. The non registration of the Will will not, in the facts of this case, weaken the plaintiff’s case. 6. Once the Will dated 3/10/1989 (Exhibit 91) is established to have been executed by late Shripad, it would be necessary to consider the contents therein. A perusal of the said Will shows that the earlier Will made on 5/9/1985 was revoked by Shripad along with the letter of administration dated 23/1/1989. He bequeathed the entire property in favour of his wife - the plaintiff and the income arising from the said property was to be made available to the defendant no.1 so as to look after the plaintiff. He also bequeathed the entire amount received from the builder exclusively to the plaintiff. There is no indication whatsoever in the said Will that the deposited amounts or the amount received from the builder or ornaments / articles kept in the locker were to be shared between the plaintiff and the defendant no.1. Thee is also no dispute that the property covered by the said Will was the self acquired property of late Shripad. The defendant 15 no.1, therefore, raised totally false and fabricated grounds to contest the suit filed by the plaintiff and this behaviour of the defendant no.1 was unbecoming of daughter who was well educated and employed as a teacher. The trial Court rightly accepted the plaintiff’s claim on the fixed deposit amount as well as the ornaments kept in Locker No.410. It is evident that the amount of Rs.50,000/- was invested in fixed deposits in the joint names before the Will was made by Shripad and during his life time whereas the remaining amount of Rs.1,50,000/- was invested in the fixed deposit on 1/8/1990 by the defendant no.2 in the joint names of the plaintiff and the defendant no.1 as the power of attorney of the plaintiff and the said amount was received from M/s. Krishna Builders in terms of the development agreement of the property at Sangli. The defendant no.1 cannot have any legal claim on the ground that her father had intended to distribute the said amount between the plaintiff and herself equally and the same reasoning applies to the ornaments / articles deposited in the Locker No.410. 7. Now coming to the Counter-claim of the defendant no.2, while allowing the same the trial 16 Court has also directed interest to be paid at the rate of 6 % per annum (Purshis at Exhibit 130) and in the same the plaintiff clearly stated that if her daughter and son-in-law had spent any amount on her maintenance or well being from their earnings, the same must be reimbursed to them and she would not be happy if the money spent by the defendants was not reimbursed to them or paid by her. She, therefore, requested the Court to allow the Counter-claim made by the defendant no.2 for an amount of Rs.75,000/- without questioning or calling for the details of the said amount. Mr.Deshmukh, therefore, was right in his contentions that when the Counter-claim was being allowed by consent and mostly on account of the overwhelming sentiments expressed by the plaintiff, it was not proper for the trial Court to award interest on the said amount claimed by the defendant no.2. Hence the impugned decree to that extent requires to be modified. 8. In the result First Appeal No.753 of 2002 fails and the same is hereby dismissed. The decree allowing the Counter-claim of the defendant no.2 is modified and it is directed that an amount of Rs.75,000/- shall be payable to the defendant no.2, 17 but without any interest thereon. Save and except this modification the decree passed by the trial Court in Special Civil Suit No.124 of 1993 is hereby confirmed. 9. During the pendency of this Appeal, the plaintiff died and consequently her son Santosh has been brought on record as her LR to the exclusion of the defendant no.1 and on the basis of the registered Will dated 22/11/1990 executed by the plaintiff in favour of her son. The decree passed in Special Civil Suit No.124 of 1993 and confirmed in this Appeal will not by itself preclude the defendant no.1 in taking out appropriate proceedings to claim her share, if permissible in law, in the immovable property left behind by her mother. (B.H.MARL