Bombay High Court
Sau. Gayabai W/O Maroti Bodadkar vs Namdeo Dajiba Junghari on 6 August, 2008
Author: S.R.Dongaonkar
Bench: S.R.Dongaonkar
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 56/1994
Sau. Gayabai w/o Maroti Bodadkar,
aged 53 years, Occ. House hold work,
R/o. Chargaon, Taluka Wani,
Distt. Yavatmat APPELLANT
Org.Plaintiff
...versus...
Namdeo Dajiba Junghari,
aged about 41 years, Occ. Cultivator,
R/o. Punvat, Taluka Wani,
Distt. Yavatmal RESPONDENT
Org. Defendant
======================================
Shri S.P.Palshikar, Adv. for the appellant. Shri K.R.Lambat, Adv. Respondent ================================= CORAM : S.R.DONGAONKAR, J JUDGMENT DELIVERED ON : 06/08/2008 Oral Judgment 1/- The appellant/ original plaintiff Sou.Gayabai is taking exception to the judgment and order passed by the District Judge, Yavatmal, in Regular Civil Appeal No. 99/1989 filed by the respondent to challenge the judgment and decree in Regular Civil Suit No. 151/1978, decided by Joint Civil Judge, Junior Division, Wani, by which the plaintiff's suit for ::: Downloaded on - 09/06/2013 13:39:54 ::: 2 possession of the suit field i.e. Survey No.138/2 and 138/2B of Punwat, Tq. Wani, Distt. Yavatmal (hereinafter referred to as suit field) was decreed. The consequence of the said appeal was the dismissal of the suit.
2/- Brief facts leading to the suit of the appellant/ plaintiff are thus;
One Saibai owned suit field situated at Punwat, Tq.
Wani, Distt. Yavatmal. It is alleged that she had inherited the suit field from her mother. She died on 3.6.1974, leaving behind Sakhubai as legal representative, rather legal heir being her real sister. She was original plaintiff in the suit. In the suit she has claimed that Saibai died on 29.9.1980 leaving behind the plaintiff - the sister, as her heir and successor of the estate of Saibai. It was claimed that defendant is a son of a woman whom Vithoba Dhore, husband of plaintiff's sister had married by "Pat". The defendant is a son from first husband of the said Saibai i.e. Dajiba Junghari. It was claimed that after the death of Saibai, the defendant had taken the possession of the suit field and he was cultivating the same without any right ::: Downloaded on - 09/06/2013 13:39:54 ::: 3 and title. With these main contentions, the predecessor of the present plaintiff Sou. Gayabai had claimed possession of the suit property, besides other reliefs.
3/- During the pendency of the suit, said Sakhubai expired and so Sou. Gayabai stepped in place of the plaintiff contending that said Sakhubai had died on 29.9.1980. She further contended that she (Sakhubai) had executed a will in favour of the present plaintiff on 13.5.1980 whereby she bequeathed the suit property to her. The relevant contentions as to why the said will was genuine and legal were also raised.
On the strength of this will executed by the erstwhile plaintiff, she claimed same relief of possession and other consequential reliefs.
4/- Defendant initially had resisted the claim of the erstwhile plaintiff saying that he was adoptive son of Saibai.
Said Saibai had executed a will in favour of the defendant on 22.1.1974 and therefore, according to him, consequent to that, he was in possession of the suit property. He had also claimed ::: Downloaded on - 09/06/2013 13:39:54 ::: 4 that he was treated as a "son" by the said Saibai and Vithoba, and he was cultivating the suit field and as such he was entitled for the possession of the same. He had denied the claim of the erstwhile plaintiff Sakhubai and later; of Sou.
Gayabai for possession of the suit property. It was his case that the will executed by said Saibai could not be produced on record because the original of the same was handed over to Patwari for carrying out mutation ig in respect of the suit property and despite request & notice thereafter, he did not return the original will. In short, his case is that he was in possession of the suit property as a consequence to the will executed by Saibai on 22.1.1974.
5/- The learned trial Judge framed the issues and recorded his findings on the assessment of the evidence after hearing the parties. I state the same as follow;
Issues and findings
1. Does the Plaintiff prove that she is sole legal heir of Saibai? ..Yes
2. Does she prove that the Defendant unauthorisedly took possession fo the suit property and has been cultivated without any right and title? ... Yes.
::: Downloaded on - 09/06/2013 13:39:54 ::: 53. Does the defendant prove that Vithoba and Saibai had adopted him as son ? ...No.
4. Does he prove that after the death of Vithoba he as a Karta of the family, was looking after the suit field ? ...No.
5. Does he proved that the deceased Vithoba gifted his estate to him vide gift-deed dated 3.3.1966 ? ... Deleted vide order below Exh.1
6. Does he proves that deceased Saibai by her last Will dated 22.1.1974 gave the suit field to him ?
...No.
7. Does he prove that he is entitled to rely upon the copy of the Will as in para 15 of the plaint? ...No.
8. Does he prove that the plaintiff alone is not entitled to file the suit as she has two sisters by name Radhabai and Balkabai? ...No.
9. Does he prove that in view of the Will dated 22.1.1974 he is the owner of the suit fields? ...No.
10. Cost and reliefs ?
...Suit is partly decreed as per final order.
Amended issue.
2A. Does plaintiff Gayabai prove that she became owner of F.S.No. 138/2 and 138/2-B by the valid Will dated 13.5.1980? ... Yes.
It would thus seen that the learned trial Judge held that the plaintiff has proved the will in her favour, and also proved that ::: Downloaded on - 09/06/2013 13:39:54 ::: 6 the original plaintiff was sole surviving legal heir of Saibai.
He also found that defendant was in unauthorized possession of the suit property and he was cultivating the same without any right and title. He found that the will propounded by the defendant was not "proved". Consequently, he decreed the plaintiff's suit.
6/- I may add that the plaintiff herein had examined three witnesses. PW-1 was the plaintiff herself, PW-2 Ambadas, main witness to the Will and PW-3 Charandas, witness of the will. The defendant had examined four witnesses including himself. He has examined DW-1 Shamrao, who is Talathi, to whom the alleged original Will was given and who had not returned the same despite notice. DW-2 is defendant himself. DW-3 Bhaurao and DW-4 Wasudeo are the witnesses on the point of execution of the said Will-deed dated 22nd January, 1974. Thus, it would be seen that the learned trial Judge has held the will in favour of the plaintiff as proved. He further held the will propounded by the defendant was not "proved".
::: Downloaded on - 09/06/2013 13:39:54 ::: 77/- The matter was carried in the appeal by the defendant. Learned appellate Judge found that the Will propounded by the defendant was proved properly, whereas the Will pressed into service by the plaintiff was not "proved"
because it was surrounded by suspicious circumstances.
Ultimately he found that the plaintiff's suit was liable to be dismissed. Accordingly, he allowed the appeal and ordered to dismiss the suit.
8/- This court while admitting the appeal, framed following substantial questions of law, in respect of the Will which was sought to be proved by defendant i.e. "Whether Will dated 22.1.1974 can be said to have been proved by the defendant?". However, as I noticed that the issue of proof of the Will propounded by the plaintiff is also material inasmuch as unless that Will is proved by the plaintiff, she can not succeed simply as a consequence of the fact of non proving the will by the defendant, I directed to have another substantial question of law in this appeal for decision i.e. ::: Downloaded on - 09/06/2013 13:39:54 ::: 8 "Whether, the plaintiff proves the Will dated 13.5.1980 executed by Sakhubai - erstwhile plaintiff?"
Thus this appeal needs to consider the proof of both the Wills propounded by the plaintiff as well as defendant.
9/- Needless to say that in this view of the matter, the observations of the Apex Court in A.I.R. 1959 SC 443;
H.Venkatachala Iyengar vs. B.N.Thimmajamma & ors, particularly in paras 18 & 21, which read thus, need to be in mind before assessing the evidence on record.
"18. What is the true legal position in the matter of proof of wills? It is well know that the proof of wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68, Evidence Act are relevant for this purpose. Under S. 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for providing such a handwriting under Ss. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a ::: Downloaded on - 09/06/2013 13:39:54 ::: 9 document shall not be used as evidence until one attesting witness at least has been called for the purpose of providing its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, Ss. 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a well. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus,s the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what is contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by S. 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters."
"21. Apart from the suspicious circumstances to which we have just referred in some cases the wills ::: Downloaded on - 09/06/2013 13:39:54 ::: 10 propounded disclose another infirmity. Propounder themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English Courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by eccelasiastical Courts in England when they exercised jurisdiction with reference to wills; but any objections to the use of the word 'conscience' in this context would in our opinion, be purely technical and academic, if not pedantic. The text mnerely emphasized that, in determining the question as to whether an instrument produced before the Court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.
10/- As regards Will propounded by the plaintiff, the learned appellant Judge has observed in para 10 thus;
10. In the instant case beyond this evidence there is no other evidence on record for removing all the suspicious circumstances surround the Will. It is well settled law that in order to judge the credibility of the witnesses supporting the Will, the Court is not confined only to the way in which the witnesses have deposed or to the demeanor of the witnesses but it is ::: Downloaded on - 09/06/2013 13:39:54 ::: 11 open to the Court to look into the surrounding circumstances as well as the probability so as to form the correct ideal fo the trustworthiness of the witnesses. In the instant case there are certain suspicious circumstances surrounding the Will Exh. 61 and these suspicious circumstances cast serious doubt on the credibility or trustworthiness of the witnesses. Let us examine these circumstances one by one. In the first place the Will Exh.61 gives suspicious look. The Will Exh. 61 recites that the testator Sakhubai has two daughters viz. Gayabai who is the respondent herein and one Parvatibai. Significantly enough the name of the husband of Parvatibai has not been written in the body of the Will Exh. 61 and the space is left blank. It is highly improbable that Sakhubai would not remember the name of her son-in-law. The Will Exhj.61 further recites that Sakhubai has no other issue besides these two daughters and she has been residing with her eldest daughter Gayabai. This recital is marked 'A' in the body of the Will Exh. 61. Accoridng to P.W.1 Gayabai the said portion marked 'A' has been correctly written in the Will-deed. In cross-examination P.W.1 Gayabai has admitted that she has two brothers viz. Sitaram and Laxman. She has further admitted in cross examination that Ramchandra Vaid of Punvat is a son of Govinda Vaid her father and he is also son of Sakhubai. Thus it has come on reocrd that Sakhubai has three sons viz. Sitram, Laxman and Ramchandfra and there was partition amongst them. According to P.W.1 Gayabai she does not treat Ramchandra as her brother on the ground that he never performed his duties a a brother towards her. Be that as it may, one thing is certain that Sakhubai has three sons and two daughters viz. P.W.1 Gayabai and Parvatibai. Then the question is why there were deprived of by deceased Sakhubai or why no share was given to any of them. Exhibit 61 further shows that the testator of the will did not want to give any thing to her daughter Parvatibai because ::: Downloaded on - 09/06/2013 13:39:54 ::: 12 whatever she wanted to give to her was given to her previously. When the testator of the Will has three sons the recital in the Will-deed Exh.61 that she has no issue besides two daughters ivz. Gayabai and Parvatibai is found to be false. P.W.1 Gayabai has deposed that on the date of the Will i.e. 13.5.1980 her mother Sakhubai came to Wani in the morning. She has further admitted that she did not have any other talk with them i.e with the witnesses prior to the Will-
deed and even they did not enquire any details with her. P.W.1 Gayabai has also admitted in her cross- examination that there were other relatives in her village Chargaon. When Sakhubai had three sons, it is higly improbable, unnatural and unfair in the light of these circumstances that she would not consult any of her sons before executing the Will-deed in favour of Gayabai. There is absolutely no evidence on record to shwo that all her three sons had strained relations with her. This circumstances would indicate that the deposition by Will may not be the result of testators' free Will and mind. Therefore, it can naturally be expected that all legitimate suspicion should competelyb e removed before the document Exhl; 61 can be accepted as the last Will of the testator. Unfortunately these suspicious circumstances have not been at all removed by the Respondent.
According to the learned Judge, these suspicious circumstances have not been at all removed by the respondent and therefore, he held that the Will pressed into service by the plaintiff (Exh.61) could not be acted upon. Naturally, As the alleged source of title was not established, the suit was dismissed.::: Downloaded on - 09/06/2013 13:39:54 ::: 13
11/- Para 13 of the impugned judgment , reads thus;
13. As regards the Will executed by Saibai in favour of the Appellant, original Will is not forth- coming on the ground that the original Will executed by Saibai in favour of the Appellant was given to village talathi for mutation of his name and it was lost by him. Therefore, the draft of the Will which is in pencil is produced at Exh.92 by way of secondary evidence. D.W.1 Shamrao Parkhi is village Talathi who has deposed that the appellant approached himf or mutation of his name after the death of Saibai and therefore, subsequently he issued notice to the appellant to show the document on the basis of which his name can be mutated in the record of right and thereafter the Appellant handed over the document of Will to him and on the basis of the Will the mutation entry was taken in the record of right as entry No. 480 dated 21.2.1976. D.W.1 Shamrao has admitted that he was served with the notice of the Appellant but he did not give reply to the said notice. According to D.W.1 Shamrao the contents of the Will-deed do not tally with the copy of the Will-deed shown to him. However, he has admitted that there is slight difference regarding the construction of the sentence. That does not make any difference. When D.,W.1 Shamrao had an occasion to see the original will and when he has carried out mutation of the name of the Appellant in the record of right, his evidence cannot be discarded. Exhibit No. 83 is the certified copy of the mutation entry in respect of the suit lands which shows that the name of the Appellant has been mutated on the basis of the Will-deed dated 22.1.1974, Exh. No. 92 further shows the stamp number 9175 and Stamp No. 9182 dated 22.1.1974 and both these stamps are of Rs. 3.50. Under Section 65 of the Evidence Act, secondary evidence may be given . Under Section 63 of the ::: Downloaded on - 09/06/2013 13:39:54 ::: 14 Evidence Act, secondary evidence means and includes copies made from or compared from the original or oral accounts of the contents of a document given by some person who has himself seen it. When D.W.1 Shamrao had an occasion to see the original Will-deed and when he has carried out mutation entry in the record of right on the basis of the Will-deed his evidence assumes much importance. Now, there is no doubt that the defendant was treated by Saiba andher second husband as their son. As a matter of fact, Vithoba gifted his property to the appellant by registered gift-deed which is at Exh.91 on 3.3.1966. Admittedly, Saibai had not begotten any issue by her second husband Vithoba. When admittedly appellant was brought up by Saibai as her son it was most natural on her part to bequeath all her property to him. Exhibits Nos. 93, 94, 95 and 96 are the crop- statements for the year 1974-75 and 1975-76 which would go to show that the appellant has been in cultivating possession of the suit land. When there was affection between deceased Saibai and the appellant, the will-deed Exh. 92 cannot be said to be unnatural or a suspicious document. Even D.W.4 Wasudeo Kadu has deposed that the Will-deed was scribed on two stamp papers of which a reference has been given in Exh. 92. He has clearly deposed that in the beginning the Will-deed was scribed on simple paper and later on the Will-deed was scribed on stamp paper. Therefore, the Will copy of which is produced at Exh.92 appears to be genuine. I do hold disagreeing with the learned trial Judge that Saibai has validly bequeathed her property to the appellant by her Will copy of which is produced at Exh. 92. On the contrary, the learned trial Judge ought to have accepted the secondary evidence for proof of the Will.
The learned appellate Judge found that the Will propounded ::: Downloaded on - 09/06/2013 13:39:54 ::: 15 by the defendant was properly proved by secondary evidence that was adduced on record and so he found that the appeal was to be allowed. This has ultimately confirmed the title of the defendant on the suit property.
12/- Paramount question in the present case would be whether erstwhile plaintiff in the suit has established that she is entitled for possession of the suit property being the owner.
If yes, whether she could bequeath the property in favour of the present plaintiff. The next question would be whether defendant has proved the will dated 22.1.1974 because of which he became the owner of the suit property and therefore, his title could not be divested to the erstwhile plaintiff Sakhubai or later to present plaintiff Gayabai.
13/- In these circumstances, the first point that would be necessary to consider is as to the validity of the will dated 22nd January, 1974, which is in favour of the defendant.
14/- Admittedly, the original of this Will is not produced ::: Downloaded on - 09/06/2013 13:39:54 ::: 16 on record. The secondary evidence in respect of the said Will was sought to be adduced. In fact the original will was not produced saying that the said will was not returned back by the Talathi DW-1 Shamrao.
15/- It is necessary at this stage to note that the alleged secondary evidence which is sought to be pressed into service is the Draft prepared prior to the execution of the said Will. It is written in pencil.
The secondary evidence as per Section 63 of the Indian Evidence Act, is thus-
(1) certified copies given under the provision hereafter contained;
(2) copies made from the original by a mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a document given by some person who has himself seen it.
On close perusal of the items given which are considered as secondary evidence, it is evident that that the draft of the ::: Downloaded on - 09/06/2013 13:39:54 ::: 17 original cannot be said to be secondary evidence of that document, unless it is shown that the original was compared with the said draft and that draft was found to be correct as per the document which is in fact executed, for which it is said to be the secondary evidence. It cannot be presumed that the original document is exactly same as per draft prepared, unless that is proved to have been compared with the original. In this context, therefore, the evidence of DW-2 Namdeo needs to be seen. He has deposed that during life time of Saibai, she executed the Will. That will was scribed by one Bhaurao Paighan and at that time Bapurao Paighan, Ram Patil, Maroti Patil Bodhane, Nathu Patil Nibrad and Vasudeo Kadu etc. were present. He also stated that the contents of the said Will were stated by Saibai and the same were scribed by Bhaurao Patil and Saibai put her Thumb Impression on it. This would mean that the Will was scribed by Bhaurao Patil, but there is no reference to the draft of the Will in his evidence to show that the said Will was in fact scribed as per said draft and the draft alone.
::: Downloaded on - 09/06/2013 13:39:54 ::: 1816/- Turning to the evidence of Bhaurao, he has stated that Saibai had called him in her house. She stated him that she wanted to execute the Will-deed, so stamp was purchased.
Bapurao Paighan, Borkute and Wasudeo were present at the time of execution of the Will-deed. He scribed the contents of the Will-deed as per the say of Saibai. He also did not refer to the said draft of the Will-deed and so as to suggest that the said Will-deed was written only as per the draft. The evidence of other witness on the point of "Will" i.e. DW-4 Wasudeo also says in the same tune. Thus, it would be seen that none of these witnesses stated before the Court that the said Will was written only as per the draft prepared and there was no word more or less. In this view of the matter, therefore, even if that draft is on record, in my opinion, that cannot be said to be the secondary evidence as envisaged by Section 63 of Indian Evidence Act. This would lead to discard all other evidence in this context.
17/- It has to be noted further that the evidence of DW-1 Shyamrao who is the concerned Patwari, who is examined to ::: Downloaded on - 09/06/2013 13:39:54 ::: 19 say that the original Will was not returned. For this reason, secondary evidence was adduced. He has stated that he did not issue any notices to Gayabai or Sakhubai. He was knowing the fact that Saibai was having sister. He has stated that the notices were sent to the concerning party after taking entry in the mutation register in the prescribed form and the office copy of the prescribed form was placed on record. He has further stated that he does not remember as to whether he got certified the entries from the revenue authority after the period from from 21.2.1976. It is necessary to note in this context that although he tried to say that the said mutation entry was on the strength of the said will, the relevant record does not clearly say this. Even otherwise, the exigency for which the secondary evidence was sought to be adduced was not established in clear terms. What is necessary to note is that, in examination in chief itself, he has stated; "the contents of the Will-deed is not tallied with the contents of the copy of the Will now shown to me i.e. Draft". All this will show that the draft of the Will which has been produced on record as secondary evidence is not sufficient to show that the actual alleged Will ::: Downloaded on - 09/06/2013 13:39:54 ::: 20 deed was in the same terms as that is in the draft, which is produced on record. In my opinion, therefore, the Will, which is held to be established by the defendant, by the learned appellate Judge, can not be said to be "established". The view taken by him in this regard does not seem to be correct at law.
Needless to mention that mere possession of the suit property will not confer any title to him even if he says that he has been regarded as son by Vithoba and Saibai. I may add that no adoption is sought to be proved.
18/- Sakhubai was admittedly the sister of Saibai. No doubt, it is sought to contend that there were other sisters of the said Sakhubai and therefore, she could not be said to be the only legal heir of Saibai. But. that fact appears to be not proved by suitable evidence. As Sakhubai now has expired during the pendency of the suit and as it appears that the said Sakhubai was the only heir available, who has inherited the property of Saibai, she would be entitled for possession of suit field, inasmuch as defendant has failed to prove his title to the suit field.
::: Downloaded on - 09/06/2013 13:39:54 ::: 2119/- This takes me to consider the genuineness and truthfulness of the will pressed into service by the present plaintiff Gayabai. That will is produced on record. Ex facie, because it was executed during the pendency of the suit, and because the present plaintiff is the daughter of the said Sakhubai, ex facie there appears to be no surrounding suspicious circumstances which can make the court to throw away that Will.
20/- The learned appellate judge while discarding that will has found that as the name of the husband of Parvatibai is not mentioned in the said will and as the said Sakhubai, the testator would not have failed to remember the said name, that will was suspicious. It is pertinent to note that the said Sakhubai at that time was aged about 70 years. She has specifically stated in the will that she was living with her elder daughter i.e. present plaintiff and she was being maintained by her. Unless these contents of the will are proved to be totally incorrect, merely because the name of the husband of ::: Downloaded on - 09/06/2013 13:39:54 ::: 22 Parvatibai is not stated in the will, that fact by itself would not cast doubt on the said will.
21/- In cross examination, Gayabai had admitted that she has two brothers viz. Sitaram and Laxman and also one Ramchandra who was the son of Sakhubai. As regards Ramchandra, Gayabai has stated that he is not her relative.
Therefore, non mentioning of these persons in the Will, would not make any difference. In any case this cannot shed doubts on the validity of the said Will. They or none through them have not challenged the said Will nor defendant has tried to bring any evidence for making this Will untrustworthy.
22/- The learned appellate Judge has further opined that when the testator of the will has three sons, the recital in the Will-deed Exh. 61 that she has no issue besides two daughters i.e. Gayabai and Parvatibai, is found to be false. No doubt, there is no reference of these persons in the said Will. Fact remains that two sons were already dead and one son was not regarded as son. As such it does not seem to be unnatural that ::: Downloaded on - 09/06/2013 13:39:54 ::: 23 their names were not referred and only names of Gayabai and Parvatibai were referred in the Will. In fact, there is mention as regards Parvatibai that she has given everything to said Parvatibai prior to the execution of the said Will and therefore, she does not want to give anything to her at that stage. This would clearly depict the intention of the testator. In any case, when Sakhubai was surviving heir of Saibai, merely because these things are not mentioned in the Will, that would not affect the validity of the said Will unless it is specifically shown that she was interested in her son and Parvatibai and instead of giving anything to them, she had given the suit property to the present plaintiff Gayabai to the detriment & exclusion of others.
23/- It is necessary further to note that witnesses to this Will were from Wani including the writer. Had this Gayabai any intention to get false Will executed, she would not have chosen to do all these things at Wani, she could have very well done all these things at village Chargaon itself where she was residing, so also said Sakhubai was residing. In fact, it is not ::: Downloaded on - 09/06/2013 13:39:54 ::: 24 the case of the defendant that the said Sakhubai would not have bequeathed any property to said Gayabai for any material reason. On the contrary the circumstances are such that in all probabilities she would have bequeathed, if at all she was to make Will in favour of the plaintiff.
24/- The learned Appellate Judge has also considered the fact that there was no evidence to show that the relations of these three sons had strained with her. In fact, the learned appellate Judge was oblivious of the fact that two sons were already dead and one son was not living with her and he was not regarded as son; for the reasons already on record. As such, simply because the Will was in favour of the present plaintiff and the said Will does not contain any reference to the names of the sons, that fact by itself would not lead to the conclusion that the said Will is surrounded with suspicious circumstances and not genuine. I have already pointed out that this Will is executed during the pendency of the suit. She was living with plaintiff - her daughter. Therefore, unless there is some material circumstance to show that this plaintiff ::: Downloaded on - 09/06/2013 13:39:54 ::: 25 Gayabai had any reason to get this will fraudulently executed in her favour, it would not be reasonable to say that the plaintiff had got that will executed fraudulently.
25/- Learned appellant Judge has found that PW-1 Gayabai had admitted in her evidence that her husband also accompanied Sakhubai to will. It is also pointed out by him that PW-3 Charan had admitted that Maroti - husband of the Respondent was also present i.e. husband of Gayabai.
Considering the age of the testator, and when Gayabai was her daughter, it cannot be said to be unnatural for a daughter and her husband to take the said Sakhubai for execution of the said Will. In any case, it is not possible to hold that the reasons recorded by the learned appellate Judge for coming to the conclusion that Will Exh. 61 in favour of the plaintiff is not free from suspicion circumstances, are sufficient.
26/- By far stretched inferences of suspicion circumstances can be found in almost in all cases which at times may cast doubts on any Will. However, in the present ::: Downloaded on - 09/06/2013 13:39:54 ::: 26 case, the inferences drawn by the learned appellate Judge do not appear to be sufficient to cast doubts on the said Will on preponderance of probabilities. More so because, when this Will was produced in the suit long back, no other person including Ravindra has not taken any objection. Even defendant could have produced any of them as witnesses in the suit to show that there is strong possibility of getting that Will executed by the plaintiff from that Sakhubai fraudulently. I have already pointed that the defendant had tried to prove the Will in his favour only and he is unsuccessful. He has not produced any material, rather sufficient material through the witnesses to show that the Will propounded by the plaintiff is shrouded with the suspicion circumstances. The circumstances referred by the learned appellate Judge for coming to the conclusion that the will is suspicious, are not sustainable. The reasons recorded by the learned appellate Judge are not sound enough in that regard. As already held above Defendant/ Respondent has failed to prove that because of Will in his favour, earlier plaintiff Sakhubai could not maintain the instant suit.
::: Downloaded on - 09/06/2013 13:39:54 ::: 2727/- In the result, therefore, I find that the Will propounded by the present plaintiff Gayabai, is legally proved and worth accepting to confirm title of the suit field to her, whereas the story set up by the defendant to claim title through alleged Will executed by Saibai, is far from proved. I find that the Will set up by the defendant is not established. As such the judgment of the learned appellate Judge is liable to be set aside by restoring that of learned trial Judge. In sequel, the appeal is allowed. The judgment impugned of the learned appellate Judge is hereby set aside and that of the learned trial judge is restored. The appellant shall be entitled for costs throughout, while respondent to bear his own.
Ordered accordingly.
JUDGE Rvjalit ::: Downloaded on - 09/06/2013 13:39:54 :::