Bombay High Court
Vishnu Motiramji Gawande (Dead) ... vs Sau Rajdevi Shrikumarji Rathi on 6 July, 2018
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
SA 397/04 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO. 397/2004
Vishnu Motiramji Gawande (Dead) by L.R.s
1. Sewakram Motiramji Gawande,
Aged about 59 years, Occupation - Agriculturist.
2. Ganesh S/o Sewakram Gawande,
Aged about 31 years, Occupation - Agriculturist.
3. Rameshwar S/o Pralhadrao Gawande,
Aged about 33 years, Occupation - Agriculturist.
All residents of Wani Belkheda,
Tq. Chandur Bazar, Dist. Amravati. APPELLANTS
.....VERSUS.....
Sau.Rajdevi W/o Shrikumarji Rathi,
Aged about 40 years, Occ. Household work,
Resident of 356 Mint Street, Saucarpet,
Madras - 600 079 (Tamilnadu). RESPONDENT
Smt. S.W. Deshpande, counsel for the appellants.
Shri K.B. Zinzarde, counsel for the respondent.
CORAM : A.S. CHANDURKAR, J.
DATE : 6 TH JULY, 2018.
ORAL JUDGMENT
This appeal under Section 100 of the Code of Civil Procedure, 1908 has been filed by the legal heirs of the original defendant being aggrieved by the decree passed by the trial Court declaring the respondent as owner of the suit properties.
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SA 397/04 2 Judgment
2. The facts giving rise to the second appeal are that it is the case of the respondent-original plaintiff that her aunt, viz. Sonibai was the absolute owner of Field Survey No.19/03 admeasuring about 0.81 R, Survey No.22/1 admeasuring 1 Hectare 72 R as well as the house property. On 25.01.1977, said Sonibai executed a gift-deed in respect of the house property as well as two acres of land from Field Survey No.19/3 in favour of the plaintiff. On the same day, said Sonibai also executed a will in favour of the plaintiff bequeathing land admeasuring 4 Acres 10 Gunthas of land from Field Survey No.22 in her favour. Said Sonibai expired on 27.07.1993. As the plaintiff was married and residing elsewhere, she came to the suit site on 16.09.1993. She found the defendant in possession and hence asked him to handover the same to her. The defendant claimed right on the basis of will executed by Sonibai in his favour. On that basis, the plaintiff filed the aforesaid suit for declaration that she was the absolute owner of the suit properties by virtue of the gift-deed and will, both executed by Sonibai.
3. Written statement at Exhibit 16 was filed by the defendant denying the case as pleaded. It was further pleaded that in the year 1982, said Sonibai had executed a will in his favour bequeathing all the properties to him. It was thus pleaded that the defendant was the absolute owner of the suit properties.
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SA 397/04 3 Judgment
4. After the parties led evidence before the trial Court, it was held that the plaintiff had proved that she was the absolute owner of the suit properties by virtue of the gift-deed and the will-deed. It was held that the will put forth by the defendant had not been duly proved. The suit was accordingly decreed. The appellate Court after re-appreciating the evidence, confirmed that decree. Being aggrieved, the legal representatives of the original defendant have filed this appeal.
5. The following substantial question of law was framed while admitting the appeal.
I) Whether will dated 28.10.1982, Exh.49, is shrouded with suspicious circumstances?
6. Smt.S.W. Deshpande, the learned counsel for the appellant in support of the appeal, submitted that Sonibai having executed will dated 28.10.1982 at Exhibit 49 in favour of the defendant, he became owner of the entire suit properties. By virtue of that will, the earlier will at Exhibit 48 claimed to be executed in favour of the plaintiff stood revoked and the plaintiff was not entitled to claim any right on that basis. She referred to the deposition of the attesting witness to indicate that the will at Exhibit 49 was duly executed. The alleged suspicious circumstances referred to by the Courts could not be termed as suspicious so as to discard the case ::: Uploaded on - 10/07/2018 ::: Downloaded on - 11/07/2018 01:09:18 ::: SA 397/04 4 Judgment of the original defendant. The said defendant was in fact working as a servant of the testator and as the testator had no issues, it was but natural that the suit properties would be bequeathed in his favour. In the alternative, it was submitted that if the gift-deed at Exhibit 47 is held to be valid then the will in favour of the defendant would operate with regard to the properties not gifted in favour of the plaintiff. She placed reliance on the judgment reported in (1995) 4 SCC 459 (Rabindra Nath Mukherjee & Another Versus Panchanan Banerjee (Dead) by LRs & Others). It was thus submitted that in absence of any suspicious circumstance, the will dated 28.10.1982 deserves to be accepted.
7. Shri K.B. Zinzarde, the learned counsel for the respondent, on the other hand, supported the impugned judgment. He submitted that both the Courts had rightly discarded the will dated 28.10.1982 by holding that due attestation as required by Section 63(c) of the Indian Succession Act, 1925 was not duly proved. The witnesses had not stated that the testator had signed the will in their presence after which it was signed by them. Referring to various suspicious circumstances, he submitted that the plaintiff in the plaint had specifically averred that the testator was suffering from paralysis and asthma. The will was also vitiated by misrepresentation inasmuch as the testator belongs to Marwadi community while the defendant belonged to another caste. The ::: Uploaded on - 10/07/2018 ::: Downloaded on - 11/07/2018 01:09:18 ::: SA 397/04 5 Judgment defendant being the servant was in a fiduciary relationship which by itself was a circumstance that was required to be taken into consideration. In that regard, he placed reliance on the decision reported in AIR 2012 Bombay 1971 (Public Information Officer Versus Manohar Parrikar & Others). As regards the plea of misrepresentation and undue influence, the learned counsel referred to the decision reported in AIR 1963 SC 1279 (Ladli Prashad Jaiswal Versus Karnal Distillery Company Limited). It was then urged that the defendant had taken active part in the execution of the will which aspect was clear from the evidence on record. The earlier will at Exhibit 48 not being cancelled, the subsequent will did not deserve acceptance. It was thus submitted that as both the Courts had concurrently held that the will at Exhibit 49 was not proved, no interference was called for in the second appeal.
8. I have heard the learned counsel for the parties at length and with their assistance I have gone through the records of the case. According to the plaintiff, she had become the owner of the suit properties by virtue of the gift-deed at Exhibit 47 and the will at Exhibit
48. These deeds were executed on 25.01.1977. The defendant is the attesting witness to both these deeds. In his cross-examination at Exhibit 44, the defendant clearly admitted that Sonibai had signed both the deeds in his presence after which it was signed by the attesting witnesses. It is, ::: Uploaded on - 10/07/2018 ::: Downloaded on - 11/07/2018 01:09:18 ::: SA 397/04 6 Judgment in the light of this piece of evidence, that both the Courts have held the deeds at Exhibits 47 and 48 to be duly proved. The finding recorded in that regard has not been specifically challenged in this appeal. The aforesaid finding having been recorded on the basis of evidence available on record, the same deserves to be maintained. Once it is held that there was a valid gift of a portion of the suit property in favour of the plaintiff by virtue of the deed at Exhibit 47, the will in favour of the defendant if accepted, would operate only with regard to those properties which are not the subject matter of the gift-deed at Exhibit 47. If the will at Exhibit 49 is held to be valid, the will at Exhibit 48, which was prior in point of time, would stand revoked.
9. The defendant was working as a servant with the testator. The evidence on record indicates that the testator was suffering from paralysis and was living alone. The Division Bench in Public Information Officer (Supra) has held that there are various instances of fiduciary relationship between the parties. It has been observed that the relationship between a director of a company and the company, a lawyer and his clients, a doctor and his patients as well as an executor and the beneficiary under a will are the examples of fiduciary relationship. The defendant as a beneficiary under the will was having fiduciary relationship with the testator Sonibai. In addition, the defendant was also her servant.
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SA 397/04 7 Judgment
10. In the plaint, it was specifically pleaded by the plaintiff that the testator was not keeping good health and that she was suffering from paralysis. Some of her relatives were residing nearby though she did not have any issues. The fact with regard to the testator suffering from paralysis has been admitted by DW2-Baburao Kokate in his deposition when he stated that Sonibai was suffering from paralysis and that she could not move around. This witness was the attesting witness to the will at Exhibit 49 on which the defendant has claimed title to the suit property. The evidence on record further indicates that the health of the testator due to her suffering from paralysis was not up to the mark. The defendant no.1 in his deposition has also admitted that fact. It can be further seen that the testator was taken to the office of the Sub-Registrar by the defendant and the attesting witness. In his cross-examination the defendant has admitted that he had given all details with regard to the house property and the agricultural lands to the scribe. That scribe has not been examined. When the entire evidence on record is perused, it can be seen that the defendant as propounder of the will dated 28.10.1982 has not been able to explain these circumstances. In view of the fact that there was a fiduciary relationship between the testator and the defendant, this burden was required to be discharged by the defendant. Both the Courts have found that the defendant has failed to disprove the suspicious circumstances and it is found that this conclusion ::: Uploaded on - 10/07/2018 ::: Downloaded on - 11/07/2018 01:09:18 ::: SA 397/04 8 Judgment is arrived at after appreciating the evidence on record. That appreciation of evidence cannot be termed as perverse for being interfered with.
11. Another relevant aspect which cannot be ignored is with regard to provisions of Section 63(c) of the Succession Act, 1925. The attesting witness at Exhibit 50 in his deposition has stated that the contents of the will were scribed and the testator stated that the contents were correct. Thereafter, the testator as well as the attesting witness went to the registrar's office. The attesting witness has not deposed as required by provisions of Section 63(c) of the Act of 1925 that the testator had signed in presence of the attesting witness after which he had signed the same. In his cross-examination, he stated that nobody had signed in front of the scribe. Same is the situation in the deposition of the defendant at Exhibit 44. Thus, a vital requirement of complying with the provisions of Section 63(c) of the Act of 1925 is missing. Moreover, the defendant in his cross-examination stated that when the will was executed it was summer. The attesting witness in his deposition has stated that the will was executed in winter. Thus, the entire evidence on record is not of such nature that would inspire confidence in the mind of the Court to hold that the same was the last will of the testator. That finding recorded by both the Courts therefore does not deserve to be interfered with. The ratio of the decision in Rabindra Nath Mukherjee & ::: Uploaded on - 10/07/2018 ::: Downloaded on - 11/07/2018 01:09:18 ::: SA 397/04 9 Judgment Another (Supra) that has been relied upon by the learned counsel for the appellant cannot be applied to the case in hand. The facts of that decision indicate various steps taken by the testator after the execution of the will in question. In that view of the matter said decision does not assist the case of the appellant.
12. In view of the aforesaid, the substantial question of law is answered by holding that the will dated 28.10.1982 at Exhibit 49 is shrouded with suspicious circumstances which have not been explained by the defendant. In view of this answer, there is no reason to interfere with the judgment of the appellate Court. The second appeal therefore stands dismissed with no order as to costs.
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