Bombay High Court
Smt. Girija Bai Marotrao Bondre vs Ganesh Dattaji Bondre on 27 February, 2018
Author: Manish Pitale
Bench: Manish Pitale
1 270218 judg sa 123.17.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Second Appeal No.123 of 2017
Smt. Girija Bai Marotrao Bondre,
Aged 70 years, Occ.-Household,
R/o.-Shaniwari, Cotton Market, Nagpur. ... Appellant
(Original Defendant)
Versus
Ganesh Dattaji Bondre,
Age 23 years,
R/o.-Shaniwari, Cotton Market, Nagpur. ... Respondent
(Original Plaintiff)
Shri R.R. Shrivastava, Adv for appellant.
Shri A.M. Ghare, Adv for respondent.
Coram : Manish Pitale, J.
Dated : 27th February, 2018.
ORAL JUDGMENT
In this appeal, on 22-09-2017, this Court had framed the following substantial question of law for consideration :-
"whether the circumstances taken into consideration by the appellate Court for discarding the Will executed on 06/07/2004 (Exhibit-40) could be said to be suspicious in nature?"
2. I have heard the learned Counsel for the parties on the aforesaid question of law and this appeal is being disposed of finally.
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3. The respondent herein had filed a suit for possession against the appellant in respect of Municipal House No.844 in Ward No.6 Shaniwari, Cotton Market, Nagpur, admeasuring 795 Sq.ft. The respondent/plaintiff claimed ownership of the aforesaid property on the basis of will deed dated 14-09-1995 executed by Shantabai and Anjanabai in his favour. The respondent claimed that he and his parents looked after both the ladies and that they had, therefore, jointly executed the will deed in his favour in respect of the suit property.
4. The defendant resisted the suit and claimed ownership in the suit property on the basis of a subsequent will deed said to have been executed by said Shantabai and Anjanabai in her favour, which was executed on 06-07-2004 and registered on 12-07-2004.
5. The trial Court framed issues, including the issue pertaining to the validity of the aforesaid two will deeds, being will deed dated 14-09- 1995 (Exhibit-35) and subsequent will deed dated 12-07-2004 (Exhibit- 36/48). The existence of earlier will deed dated 14.9.1995 was undisputed. The trial Court decreed the suit and directed the appellant (defendant) to handover vacant peaceful possession of the suit property to the respondent/plaintiff within three months from the date of its order. While holding in favour of the respondent, the trial Court found that the will deed registered on 12-07-2004 in favour of the appellant was shrouded with suspicious circumstances and that therefore it could not be believed. The trial Court gave a list of such suspicious circumstances in its judgment in paragraph 20, which reads as follows :-
::: Uploaded on - 01/03/2018 ::: Downloaded on - 02/03/2018 01:57:25 :::3 270218 judg sa 123.17.odt "20. The suspicious circumstances surrounding will can be sum up as following.
(1) original will deed not produced on record.
(2) Execution of last will deed not proved as per section 63 of the Indian Succession Act.
(3) Stamp paper of last will deed is of 1.7.2004, will deed was drafted on 6.7.2004 and that was registered on 12.7.2004. There is no explanation why there is difference of these dates.
(4) At the time of execution of last will, Shantabai was suffering from heart ailments and she expired after one month eight days of execution of last will. There is no evidence about the fitness of Shantabai to travel to Sub Registrar office.
(5) It has come in evidence that at the time of execution of last will Anjanabai was suffering from paralysis and was unable to walk. There is no evidence as to how Anjanabai was taken to Registrar Office for registration of last will.
(6) Defendant had taken active participation in preparation of last will.
(7) Defendant had not even averred in written statement nor has given evidence about the reasons for Shantabai and Anjanabai to execute last will in her favour."
6. Aggrieved by the said judgment and order, the appellant filed Regular Civil Appeal No.102 of 2013, which has been dismissed by the ::: Uploaded on - 01/03/2018 ::: Downloaded on - 02/03/2018 01:57:25 ::: 4 270218 judg sa 123.17.odt impugned judgment and order dated 23-01-2017. In its judgment, the appellate Court has agreed with the findings of the trial Court and it has found that there were number of suspicious circumstances demonstrating that the will deed executed in favour of the appellant was not a believable document. Aggrieved by the said judgment and order of the appellate Court, the present appeal has been filed, in which the above mentioned question of law has been framed for consideration.
7. Shri R.R. Shrivastava, learned Counsel appearing on behalf of the appellant has submitted, that the circumstances found to be suspicious by the two Courts below were not enough to hold that the will deed executed in favour of the appellant could not be believed. It was submitted that other than the health condition of Shantabai and Anjanabai, who executed the will in favour of the appellant, no other circumstances could be said to be a suspicious circumstances at all. It was submitted that since the will deed registered on 12-07-2004, was a registered document, the two Courts below were not justified in disbelieving it on the basis of alleged suspicious circumstances. It was further submitted that the appellate Court had committed a factual error while holding that the subsequent will deed executed in favour of the appellant registered on 12-07-2004 did not cancel the earlier will deed dated 14-09-1995 on which the respondent was relying. It is submitted that a perusal of registered will deed dated 12-07-2004 shows that there was indeed a reference made to earlier will deed and that it was cancelled. The learned Counsel further submitted that since the respondent herein had contended that there were suspicious circumstances surrounding the aforesaid will deed registered on 12-07-2004, the onus was completely on ::: Uploaded on - 01/03/2018 ::: Downloaded on - 02/03/2018 01:57:25 ::: 5 270218 judg sa 123.17.odt him to prove such suspicious circumstances and that the material placed on record was not sufficient for the Courts below to have rendered findings against the appellant in that context. The learned Counsel appearing on behalf of the appellant placed reliance on the judgment of the Hon'ble Supreme Court in the case of Pentakota Satyanarayana and others vs Pentakota Seetharatnam and others, reported at (2005) 8 SCC 67.
8. On the other hand, Shri A.M. Ghare, learned Counsel appearing on behalf of the respondent, submitted that concurrent findings rendered by the Courts below were correct and they were based on a proper appreciation of the evidence and material on record. The learned Counsel fairly conceded that the appellate Court had committed a factual error to the extent that it had wrongly held that the aforesaid subsequent will deed registered on 12-07-2004 did not cancel the earlier will deed dated 14-09-1995. Nevertheless, it was submitted by him that the suspicious circumstances brought out by the evidence and material on record were correctly appreciated by the appellate Court while confirming the findings of the trial Court. It was submitted that perusal of evidence of the attesting witness and that of the appellant herself demonstrated that will deed registered on 12-07-2004 was completely shrouded with suspicious circumstances and that it was not a document that could be believed. On this basis, the learned Counsel submitted that the appeal deserved to be dismissed.
9. Having heard the learned Counsel appearing on behalf of the rival parties and having perused the pleadings, evidence and documents on record, it appears that the concurrent findings rendered by the Court ::: Uploaded on - 01/03/2018 ::: Downloaded on - 02/03/2018 01:57:25 ::: 6 270218 judg sa 123.17.odt below do not deserve interference. The learned Counsel appearing on behalf of the appellant has emphasized that the will deed in question executed on 06-07-2004 and registered on 12-07-2004 being a registered document, could not have been lightly disbelieved by the Courts below. To that extent, the submission of the learned Counsel appearing on behalf of the appellant is justified that the said will deed being a registered document, in order to disbelieve the same it has to be established that there were suspicious circumstances of such nature that, although being a registered document the same deserved to be disbelieved.
10. The trial Court has given a list of suspicious circumstances in paragraph 20 of its judgment which have been quoted above. While confirming the said finding regarding suspicious circumstances, the appellate Court has held in paragraph 16 of the impugned judgment and order as follows:-
"16] On perusal of record it clearly reveals that the defendant has failed to place the original will deed (Exh 36) on record. On perusal of contents of the will (Exh.36) it clearly reveals that there is no mention of cancellation of previous will or there is no whisper as to Shantabai and Anjanabai had executed their previous will on 14-09-1995 and now they are intending to cancel the same. If it had been the fact that Shantabai and Anjanabai were intending to cancel their previous will (Exh.35), the contents about cancellation of the same should have been in the will (Exh.36). Another suspicious circumstance is that the stamp paper of the will (Exh.36) is dated 01-07-2004. It appears to be drafted on 06-07-2004 and it appears to be registered on 12-07-2004. The defendant has failed to put forward any explanation as to why the stamp paper was purchased on 01-07-2004. It was drafted ::: Uploaded on - 01/03/2018 ::: Downloaded on - 02/03/2018 01:57:25 ::: 7 270218 judg sa 123.17.odt on 06-07-2004 and registered on 12-07-2004. The defendant, during cross examination, has specifically admitted that at the time of execution of the will (Exh.36), Shantabai was suffering from heart disease and she expired after 1 month 8 days of execution of the will (Exh.36). The defendant has failed to bring any medical evidence on record to show that on the date of execution of the will (Exh.36) Shantabai and Anjanabai were mentally and physically fit to execute the will (Exh.36) and to travel to Sub-Registrar Office. It has come on record that Anjanabai was suffering from paralysis and was unable to walk. Therefore it was boundant duty of the defendant to prove that both of them were mentally and physically fit to execute the will (Exh.36) in her favour by cancelling previous will. Furthermore, another suspicious circumstance of the will (Exh.36) is that the defendant herself has taken active participation in preparation of the will (Exh.36). Further suspicious circumstance is that the defendant neither in her written statement nor in her notice mentioned as to why Shantabai and Anjanabai intended to cancel their previous will and to execute their will in her favour. The original will of Exh.36 is not filed on record. The defendant has failed to prove the will (Exh.36). The plaintiff, by examining herself and by examining attesting witnesses, has proved attestation, execution and contents of the will (Exh.35). Therefore the plaintiff, on the basis of the will deed (Exh.35) became absolute owner of the suit property."
11. Except the finding regarding the subsequent will deed at Exhibit 36 registered on 12-07-2004, not having cancelled the earlier will deed dated 14.9.1995 at Exhibit 35, there is no factual mistake made by the appellate Court in the impugned judgment and order. Even if that mistake is taken into consideration, it is found that the appellate Court in the impugned judgment and order has discussed in detail regarding ::: Uploaded on - 01/03/2018 ::: Downloaded on - 02/03/2018 01:57:25 ::: 8 270218 judg sa 123.17.odt suspicious circumstances surrounding the will deed at Exhibit 36, which was registered on 12-07-2004. The circumstances relied upon by the Courts below which may not amount to suspicious circumstances are that the stamp papers were purchased on 01-07-2004, the will deed was executed on 06-07-2004 and that it was registered on 12-07-2004 and that there was active participation of the appellant in the preparation of the said will deed. Other than the aforesaid circumstances, on which the Courts below have relied upon, the remaining circumstances need to be examined to ascertain whether the findings rendered against the appellant are justified.
12. The appellant herself has admitted that both Shantabai and Anjanabai who had allegedly executed the will deed in her favour were suffering serious ailments at the time when the said will deed was executed on 06-07-2004 and registered on 12-07-2004. It is admitted by the appellant that Anjanabai suffered from paralysis and it was difficult for her to walk and it is specifically admitted by her in her cross examination that said Anjanabai had not gone out of her house for period of about one year before her death. The said Anjanabai admittedly died on 21-02-2005 and the will deed in question was executed on 06-07-2004 and registered on 12-07-2004. If, even as per the appellant herself, Anjanabai had not gone out of her house due to paralysis for one year prior to her death, the execution and registration of the Will Deed on 12.7.2004 is rendered suspicious. Apart from this, she has also admitted that Shantabai was suffering from heart ailment and that she died one month and eight days after the execution of the said will deed. These circumstances coupled with the statements made in cross examination by ::: Uploaded on - 01/03/2018 ::: Downloaded on - 02/03/2018 01:57:26 ::: 9 270218 judg sa 123.17.odt one of the attesting witness to the said will deed, show that the execution and registration of the said will deed was indeed shrouded by suspicious circumstance. It has been stated by the said attesting witness in his cross examination that when he put his signature on the documents, there were some thumb impressions and signatures already made and that no person had put thumb mark on the documents in his presence. The other attesting witness to the said will deed did not support the case of the appellant at all.
13. The trial Court as well as the appellate Court have considered these circumstances and they have come to the conclusion that these were suspicious circumstances raising doubts about the genuineness of the said will deed registered on 12.7.2004 (Exh.36). It is in these circumstances, that the Courts below have found the active participation of the appellant in execution and registration of the said will deed as another suspicious circumstance.
14. A perusal of the oral and documentary evidence on record shows that the findings rendered by the Court below cannot be said to be perverse and they are based on proper appreciation of the evidence and material on record. Once it is found that the aforesaid will deed at Exhibit- 36 registered on 12-07-2004 is not a document that can be believed, the very basis of the claim of the appellant is taken away. In these circumstances, there appears to be no error in the decree granted by the trial Court in favour of the respondent, which has been confirmed by the impugned judgment and order. There is no quarrel with the principle laid down by the Hon'ble Supreme Court in the case of Pentakota (supra), ::: Uploaded on - 01/03/2018 ::: Downloaded on - 02/03/2018 01:57:26 ::: 10 270218 judg sa 123.17.odt wherein, it is held that when a person alleges suspicious circumstances in respect of a will, the onus will be on him to prove the same. As stated above, there was sufficient evidence and material placed on record by the respondent to prove the fact that the aforesaid will deed at Exhibit-36 was shrouded with suspicious circumstances.
15. Accordingly, the question of law framed by this Court in the order dated 22-09-2017 is answered in favour of the respondent and no error is found in the impugned judgment and order passed by the appellate Court. Therefore, this appeal is dismissed. No order as to costs.
16. The learned Counsel appearing on behalf of the appellant prays for extension of interim order granted by this Court on 08-03-2017 for a period of six weeks. Considering the facts and circumstances of this case and the findings rendered in this order, interim order dated 08-03-2017, is continued for a further period of four weeks from today and it is made clear that no further extension of the interim order shall be granted.
JUDGE Deshmukh ::: Uploaded on - 01/03/2018 ::: Downloaded on - 02/03/2018 01:57:26 :::