Bombay High Court
Smt. Madankuwar Wd/O Rekhchandji ... vs Smt. Sushila W/O Gyanchand Katariya And ... on 24 August, 2017
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
sa109.15.odt 1/30
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.109 OF 2015
APPELLANT: 1. Smt. Madankuwar wd/o Rekhchandji
Parakh, aged about 96 years, Occ.
(Ori. Defendants)
Household, r/o Dhanraj Plaza, Main
Road, Chandrapur.
2. Smt. Shardkuwar wd/o Pannalaji
Talera, aged about 78 years, Occ.
Household, r/o Pawan Building, Ekori
ward, Chandrapur.
3.
Smt. Shantakuwar wd/o Gulabchandji
Shishodiya, aged about 74 years, Occ.
Household, r/o Bogulkanta, Hyderabad
(Telangana) A.P.
-VERSUS-
RESPONDENTS: 1. Smt. Sushila w/o Gyanchand Katariya,
(Ori. Plaintiff) Aged about 67 years, Occ. Household,
r/o Near Bank of India, Main road,
Chandrapur.
(Ori. Deft. No.4) 2. Shri Deepakkumar S/o Rekhchandji
Parakh, aged about 49 years, Occ.
Business, R/o Dhanraj Plaza, Main
Road, Chandrapur.
Mr. K. H. Deshpande, Senior Advocate with Mr. Akshay Sudame,
Advocate for the appellants.
Mr. Anil Mardikar, Senior Advocate with Mr. S. Tapadia, Advocate
for the respondent no.1.
Mr. V. R. Choudhari, Advocate for the respondent no.2.
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CORAM: A.S. CHANDURKAR, J.
DATE ON WHICH SUBMISSIONS WERE HEARD: 03-08-2017
DATE ON WHICH JUDGMENT IS PRONOUNCED: 24-08-2017
ORAL JUDGMENT :
1. This appeal filed under Section 100 of the Code of Civil Procedure, 1908 is at the instance of the original defendant nos.1 to 3 who are aggrieved by the judgment and decree passed by the first appellate Court decreeing the suit for partition and separate possession filed by the respondent no.1.
2. Facts found necessary for deciding this appeal are stated thus:
3. One Jethmalji Parakh was married to Smt. Hirabai. Said Jethmalji died in November, 1956. Thereafter, his step-son Rekhchand and Hirabai constituted joint Hindu family possessing various properties. Rekhchandji was married to one Madan Kuwar
- defendant no.1. They had three daughters namely the plaintiff and the defendant nos.2 and 3. The defendant no.4 was taken in adoption as son of late Rekhchandji. According to the plaintiff, Hirabai had executed a will in her favour on 18-10-1981. Said Hirabai also executed a lease deed in favour of the plaintiff on 30-7-1982. Though the defendant nos.1 to 3 sought to rely upon a partition that took place on 9-1-1983, this partition was denied by ::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 01:20:43 ::: sa109.15.odt 3/30 the plaintiff. On that basis, the plaintiff filed suit for partition and separate possession of various properties as described in the Schedule to the plaint.
4. The defendant nos.1 to 4 filed their written statement and admitted the relationship between the parties. It was denied that Hirabai had executed any will in favour of the plaintiff on 18-10-1981. They relied upon an oral partition that took place on 31-12-1982 which was later on reduced to writing on 9-1-1983. According to the defendants, this partition was acted upon by all the parties including the plaintiff. The defendants relied upon will dated 26-5-1983 executed by Hirabai and according to them, the earlier will dated 18-10-1981 could not be acted upon. It was thus, prayed that the suit be dismissed.
5. After the parties led evidence, the trial Court held that the plaintiff had failed to prove that Hirabai had executed a will in her favour on 18-10-1981. The partition dated 9-1-1983 was also held to be not proved by the defendant nos.1 to 4. The subsequent will dated 26-5-1983 was also not accepted. The suit accordingly came to be dismissed.
The first appellate Court in the appeal filed by the plaintiff confirmed the finding that the plaintiff had failed to prove the execution of will dated 18-10-1981. Similarly, the finding that ::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 01:20:43 ::: sa109.15.odt 4/30 the defendant nos.1 to 3 had failed to prove the Will dated 26-5-1983 was affirmed. The first appellate Court, however, granted the alternate prayer and held the plaintiff as well as the defendant nos.1 to 3 entitled to 1/4 th share each by virtue of the decree for partition.
6. The defendant nos.1 to 3 being aggrieved by this adjudication have preferred the present second appeal. The plaintiff being aggrieved by the finding recorded with regard to the will dated 18-10-1981 and the family settlement dated 20-11-1982 has also filed cross objections.
7. This Court on 4-4-2016 allowed the second appeal and dismissed the cross objections. After setting aside the judgment of the appellate Court, the judgment of the trial Court was restored. This judgment in the second appeal was then challenged by the original plaintiff before the Hon'ble Supreme Court. Civil Appeal Nos.2568/2017 and 2569/2015 were disposed of on 10-2-2017. It was found that this Court while deciding the second appeal had reframed the substantial questions of law that had been originally framed while admitting the appeal. It was held that the procedure as laid down by provisions of Section 100(5) of the Code of Civil Procedure, 1908 (for short, the Code) while reframing said substantial questions of law had not been followed. On that ::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 01:20:43 ::: sa109.15.odt 5/30 ground, the judgment of this Court was set aside and the proceedings were remitted for reconsideration in accordance with law. It was observed that the appeal be decided within two or three months. In view of aforesaid order, the appeal was taken up for hearing.
8. After hearing the learned Counsel for the appellants and the respondents the following substantial questions of law were framed on 27-7-2017:-
(1) Whether the findings of fact recorded by both the Courts below for rejecting the Will (Exh.202) dated 28th October, 1981, projected by the plaintiff are perverse?
(2) Whether the plaintiff having accepted, admitted and acted upon the Family Settlement dated 20th November, 1982 (Exh.244) would be estopped by conduct in setting up a challenge to the same Family Settlement as not receivable in evidence for want of registration?
(3) Whether the plaintiff did not receive any share from the share of Hirabai under the Family Settlement dated 20th November, 1982 (Exh.
244) and consequently whether she was entitled to claim partition in the undivided estate of Hirabai?
(4) Whether the Family Settlement dated 20 th November, 1982 (Exh.244) and oral partition reduced to Memorandum Fard dated 9 th January, 1983 (Exh.243) require compulsory registration under Section 17 of the Registration Act?
9. I have heard Shri K. H. Deshpande, learned Senior ::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 01:20:43 ::: sa109.15.odt 6/30 Advocate with Mr. A. M. Sudame, learned Advocate for the appellants and Shri Anil Mardikar, learned Senior Advocate with Mr. S. Tapadia for the respondent no.1. Shri V. R. Choudhari, learned Advocate appeared for the respondent no.2.
10. Shri K. H. Deshpande, learned Senior Counsel for the appellants - defendant nos.1 to 3 made the following submissions:
(a) Both the Courts were justified in holding the will dated 18-10-1981 Exhibit-202 to be not duly proved. According to him, there were various suspicious circumstances on record which supported the aforesaid conclusion. It was submitted that though it was claimed that this will was executed on 18-10-1981, it was not at all referred to in the earlier suit that was filed by the present plaintiff. Regular Civil Suit No.238/1984 was filed by the plaintiff against some of the present defendants on 13-8-1984 seeking mandatory and perpetual injunction with regard to the suit properties by relying upon the family settlement dated 20-11-1982. Existence of said will was not pleaded in that suit.
Similarly, there was also no reference to the said will in the lease deed dated 31-7-1982 (Exhibit-214) as well as in the family arrangement dated 22-11-1982 (Exhibit-244) as well as the partition deed dated 9-1-1983 (Exhibit-243). It was then submitted that the manner in which the said will was executed ::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 01:20:43 ::: sa109.15.odt 7/30 coupled with the active participation of the plaintiff's husband therein also cast a doubt on its execution. Said will saw the light of the day only in the year 1987 when the present suit was filed on 13-11-1987. The thumb impression of the executant Hirabai was also not duly proved and therefore these findings which were findings of fact recorded by both the Courts could not be termed to be perverse. According to the learned Senior Counsel, this finding therefore did not require any interference.
(b) The plaintiff having accepted and acted upon the family settlement dated 20-11-1982 (Exhibit-244) was estopped by her conduct from challenging this settlement on the ground that it was not registered. Referring to the pleadings of the present plaintiff in Regular Civil Suit No.238/1984, it was submitted that the family arrangement dated 20-11-1982 as well as the partition deed dated 9-1-1983 were relied upon by the said plaintiff. The family arrangement dated 20-11-1982 was in fact scribed by the plaintiff's husband Shri Gyanchand Kataria. It was prepared with the consultation of all family members. Referring to the judgment in Regular Civil Appeal No.2 of 2001 that was filed by the present plaintiff challenging dismissal of Regular Civil Suit No.238/1984, it was submitted that the appellate Court in para 7 of its judgment had recorded a finding that said family arrangement dated ::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 01:20:43 ::: sa109.15.odt 8/30 20-11-1982 did not require registration and was admissible in evidence. As the family settlement dated 20-11-1982 merely recorded what was already agreed, said document did not require registration. On the aspect of estoppel on account of conduct in accepting such family arrangement, the learned Senior Counsel placed reliance on the decisions in Kale and others Vs. Dy. Director of Consolidation (1976) 3 SCC 119 and in P. N. Wankudre vs. C. S. Wankudre AIR 2002 Bombay 129. It was thus submitted that having accepted and acted upon the said family settlement, the plaintiff was estopped from laying a challenge to the same.
(c) The plaintiff having received share from the estate of Hirabai under the family settlement dated 20-11-1982, she was not entitled to claim partition in the undivided estate of Hirabai. The plaintiff had accepted the family settlement as well as the partition and had also acted upon the same. No grievance in that regard was made by her in the earlier suit. Having accepted said arrangement, she was precluded from again demanding partition from the share of Hirabai.
(d) The family settlement dated 20-11-1982 as well as partition deed dated 9-1-1983 were not required to be registered as they did not create any right in immoveable property for the first time. These documents merely recognized the pre-existing ::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 01:20:43 ::: sa109.15.odt 9/30 rights of the parties and they did not by themselves transfer any right or property. Referring to the pleadings in the earlier suit, it was contended that the plaintiff had in fact admitted the family settlement and partition and therefore, it was not at all necessary to again prove the same. The averments in the plaint in Regular Civil Suit No.238/1984 as well as documents filed in that suit were not at all considered by the appellate Court. Reference was also made to the adjudication in Regular Civil Appeal No.2/2001 in that regard. In any event, it was submitted that the proviso to Section 49 of the Indian Registration Act, 1908 could be taken into consideration to hold that there was severance of the joint family. In that regard, reliance was placed on the decisions in Roshan Singh and Others Vs. Zile Singh and others AIR 1988 SC 881.
It was thus, submitted that for aforesaid reasons, the judgment of the first appellate Court was liable to be set aside and the judgment of the trial Court dismissing the suit ought to be restored.
11. Per contra, Shri Anil Mardikar, learned Senior Advocate for the respondent no.1 - plaintiff opposed aforesaid submissions by contending as under:
(a) The will dated 18-10-1981 (Exhibit-202)was the last will that was duly executed by Hirabai bequeathing her properties ::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 01:20:43 ::: sa109.15.odt 10/30 in favour of the plaintiff. It was submitted that execution of this will was not denied and in paragraph 4 of the written statement it was merely pleaded that the executant was not in good health or sound mind. No suspicious circumstances were pleaded for denying the validity of the aforesaid will. The will at Exhibit-404 also executed by Hirabai was undated, but it was prepared prior to the will at Exhibit-202. Reference was made to the letter at Exhibit-198 to point out the nature of relations Hirabai had with other family members and it was on that basis that they had been excluded from being granted any share as per that will. The thumb impression of Hirabai on the said will had been duly proved and on account of death of the attesting witness Dr. Dave, his son was examined under Section 69 of the Indian Evidence Act. The husband of the plaintiff was in the office of the District Government Pleader in the year 1983-84 which was subsequent to the execution of said will on 18-10-1981. The circumstances relied upon for discarding said will could hardly be termed as suspicious.
The typewriter was brought merely to facilitate preparation of the will and the contents of that will were prepared as per the directions of Hirabai. The contents were then read over and explained to Hirabai who had put her thumb impression on the same. According to the learned Senior Counsel as the property that ::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 01:20:43 ::: sa109.15.odt 11/30 was the subject matter of the earlier suit being Regular Civil Suit No.238/1984 was different from the property bequeathed under the will at Exhibit-202, there was no reference made to the same in the earlier suit. Similarly, the lease at Exhibit-214 was to operate during the life time of Hirabai and hence, there was no reason to refer to it in the said will. Exhibit-232 being a photo copy of the will at Exhibit-202 and the thumb impressions of Hirabai having been obtained separately, there was bound to be some difference in that regard. Hirabai was in good physical and mental condition as was deposed by DW-1. Failure on the part of PW-2 in identifying the photograph of Hirabai was also not a suspicious circumstance inasmuch as the will having been executed in the year 1981 and said witness having deposed after almost twenty years, there was bound to be some difficulty in identifying the executor of the will. In any event neither were the negatives of the photographs placed on record nor was any photographer examined. As the plaintiff was already in possession of the suit property as a lessee pursuant to the lease deed at Exhibit-214, there was no occasion for the plaintiff to refer to the said will at any earlier point of time. It was only on account of the dispute being raised by the defendants that the plaintiff was required to file the suit by referring to the said will in the year ::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 01:20:43 ::: sa109.15.odt 12/30 1987. It was thus submitted that the will was duly proved in the light of provisions of Sections 61 and 63 as well as Section 69 of the Indian Evidence Act and therefore both the Courts recorded a perverse finding while discarding said will. In that regard the learned Senior Counsel placed reliance on the following judgments:
(1) Madhukar D. Shende vs. Tarabai Aba Shedage (2002) 2 SCC 85.
(2) Leela Rajagopal and Ors. v. Kamala Menon Cocharan and Ors. AIR 2015 SC 107.
(3) Rajgopal vs. Kishan Gopal and anr AIR 2003 SC 4319. (4) Surendra Pal and others v. Dr. (Mrs.) Saraswati Arora and anr. AIR 1974 SC 1999.
(5) Mahesh Kumar V Vinod Kumar and ors. AIR 2012 SCW 2347.
(6) Naresh Charan Das Gupta v. Paresh Charan Das Gupta and anr. AIR 1955 SC 363.
(7) Laxman Ganpati Khot and others v. Anusuyabai and anr. AIR 1976 Bom. 264.
(8) Ramdas Bhatu vs. Anant Chunilal 2006 (6) Mh.L.J. 571.
(b) In addition to the aforesaid, the learned Senior Counsel referred to the observations in paragraph 17 of the judgment of the appellate Court to the effect that the plaintiff had failed to refer the will at Exhibit-202 to the Finger Print Expert for ::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 01:20:43 ::: sa109.15.odt 13/30 verifying the thumb impression of Hirabai. For said purpose he referred to Civil Application Nos.293/2017 that was filed on behalf of the original plaintiff seeking permission to file additional documents in the form of the opinion of the Finger Print Expert. Alternatively, it was prayed that the thumb impression on Exhibit- 202 be directed to be examined by the Thumb Impression Expert. According to the learned Senior Counsel before the trial Court there was no serious dispute raised with regard to the thumb impression of Hirabai and hence, the plaintiff did not feel it necessary to make such application before the trial Court. As the first appellate Court had taken into consideration absence of any evidence being led with regard to the said thumb impression and had treated the same as a suspicious circumstance, this application was moved by relying upon the provisions of Order XLI Rule 27 of the Code. If such evidence was permitted to be brought on record, the same would enable the Court to adjudicate this question in a better manner.
(c) It could not be said that the plaintiff had accepted, admitted and acted upon the family settlement dated 20-11-1982. Hence, there was no question of she being estopped by conduct in challenging the same. Referring to various clauses of this family settlement, it was submitted that the property therein was that of ::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 01:20:43 ::: sa109.15.odt 14/30 Rekhchand. Hirabai's property remained with her which could be gathered from the documents at Exhibit-216, 221 and 222. Referring to the judgment of the appellate Court in Regular Civil Appeal No.2 of 2001 that arose out of the earlier suit filed by the plaintiff, it was submitted that the family arrangement was on record of those proceedings and it was held therein that the property of Rekhchand was the subject matter of that suit. As no relief was sought with regard to said properties, there was no question of any estoppel operating. As 1/8th share was given to the plaintiff in the said family arrangement, it was clear that the property of Rekhchand was its subject matter. This arrangement also took place during the life time of Hirabai who was shown as party no.3 therein. As the plaintiff did not receive any share in the property of Hirabai, she was entitled to seek partition from her undivided estate. Reference was made to the judgment of the Hon'ble Supreme Court in Seethalakshmi Ammal v. Muthuvenkatarama AIR 1998 SC 1692 in that regard.
(d) That the trial Court while answering issue no.5 had held that the defendants had failed to prove the partition dated 9-1-1983 between them and Hirabai. Though the said defendants as respondents in Regular Civil Appeal No.60/2012 had filed application below Exhibit 22 for challenging these findings, the ::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 01:20:43 ::: sa109.15.odt 15/30 appellate Court by order dated 16-1-2014 had rejected the said application filed under provisions of Order XLI Rule 22 of the Code. It was therefore not permissible for the said defendants to challenge said findings of the trial Court. It was however fairly submitted by the learned Senior Counsel that the findings recorded in paragraph 7 of the judgment of the appellate Court in Regular Civil Appeal No.2/2001 that the family settlement dated 9-1-1983 being a document of family arrangement was not compulsorily registrable and therefore, admissible in evidence had become final.
It was, therefore, submitted that in the light of the cross objections filed by the plaintiff, the will dated 18-10-1981 (Exhibit-202) deserves to be accepted. However, if that will was held to be not validly proved, the plaintiff would be entitled to rely upon the family settlement dated 20-11-1982 (Exhibit-244) for claiming a share in the joint family property.
12. Shri V. R. Choudhari, learned Counsel appearing for respondent no.2 who was the original defendant no.4 adopted the arguments of learned Senior Counsel for the appellants - defendant nos.1 to 3.
13. In reply to the aforesaid arguments, Shri K. H. Deshpande, learned Senior Advocate submitted that there were no pleadings on behalf of the plaintiff that the undated will at Exhibit- ::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 01:20:43 ::: sa109.15.odt 16/30 404 was executed prior to the will at Exhibit-202. As the document of family arrangement dated 20-11-1982 was scribed by the plaintiff's husband, a reference to the will dated 18-10-1981 was necessary. Absence of such mention indicated that the plaintiff was satisfied with what she had received. Hirabai being a party to the partition deed at Exhibit-243, it could not be said by the plaintiff that Hirabai had disowned this document. Once the will dated 18-10-1981 was discarded, this document become relevant. Relying upon the decision in Union of India vs. Ibrahim Uddin and another (2012) 8 SCC 148 it was submitted that no case for leading additional evidence was made out by the plaintiff.
14. I have heard the learned Counsel for the parties at length and with their able assistance, I have also perused the records of the case.
AS TO SUBSTANTIAL QUESTION OF LAW NO.1:
15. This substantial question of law pertains to the validity of the will dated 28-10-1981 (Exhibit-202). According to the plaintiff, this will was executed by Hirabai and her property was bequeathed in favour of the plaintiff. It was pleaded that this will was executed when Hirabai was in good health and in sound mind. As the defendants were selling some of the properties that were bequeathed to the plaintiff, it became necessary to file the present ::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 01:20:43 ::: sa109.15.odt 17/30 proceedings. In the written statement filed on behalf of the defendant nos.1 to 4, it was denied that Hirabai in good health and sound mind and that she had executed a last will dated 18-10-1981. It was pleaded that the properties sought to be sold were within their own rights and the plaintiff had no concern with the same. It was pleaded that the alleged will was false and fabricated. The defendants then relied upon a subsequent will dated 26-5-1983 executed by Hirabai and thus contended that the will dated 18-10-1981 was a false and fabricated document.
Both the Courts have after considering the evidence on record referred to various suspicious circumstances for not accepting the claim of the plaintiff based on the will dated 18-10-1981. It has been found that though it was claimed that such will was executed on 18-10-1981, it found no reference in the documents prepared subsequently being the lease deed dated 30- 7-1982 (Exhibit-214), family arrangement dated 20-11-1982 (Exhibit-244) and the partition deed dated 9-1-1983 (Exhibit-
243). It was then found that the will had been got typed by bringing a typewriter at the place of its preparation. It was scribed in Hindi while Hirabai was illiterate and could neither read nor write Hindi. The presence of PW-2 - Shaineshchandra was found to be a bit unnatural as he was not well acquainted with Hirabai. ::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 01:20:43 ::: sa109.15.odt 18/30 Said PW-2 also could not identify the photograph of Hirabai when he was confronted with the same in his cross-examination. The appellate Court further observed that the plaintiff did not take any steps to have the thumb impression of Hirabai examined by an expert.
16. On behalf of the plaintiff, Civil Application No.293/ 2017 has been moved seeking permission to file on record a copy of the opinion of an Hand Writing expert. An alternate prayer is also made to have the thumb impression of Hirabai examined by an expert. This application is purportedly under provisions of Order XLI Rule 27 of the Code. According to the plaintiff, the defendants had not seriously disputed that the thumb impression on the will dated 18-10-1981 was that of Hirabai. In view thereof, this application was not moved before the first appellate Court nor was it found necessary by the plaintiff to have the opinion of such expert before the trial Court. For showing her bonafides, the plaintiff intended to dispel all doubts about the will bearing the thumb impression of Hirabai and hence, this application was moved.
According to the defendants, the plaintiff had not satisfied the ingredients of Order XLI Rule 27 of the Code and that the application was moved for delaying the proceedings. ::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 01:20:43 ::: sa109.15.odt 19/30
17. On hearing the learned Counsel in that regard, I find that this application moved by the plaintiff does not deserve to be allowed. The plaintiff being the propounder of the will dated 18-10-1981, it was for her to remove all circumstances that could cast a doubt on the execution of the will. In the written statement, it had been denied that such will was executed by Hirabai. The reasons furnished for not obtaining the opinion of Thumb Impression expert either before the trial Court or first appellate Court do not appear to be convincing. The ingredients for permitting the plaintiff to rely upon the additional evidence under provisions of Order XLI Rule 27 of the Code also are not satisfied. On considering the entire evidence on record, I do not find the necessity to rely upon such additional evidence for a proper adjudication of the appeal. After considering the law laid down in Ibrahim Uddin and another (supra) I find that the prayer made in the application for relying upon the opinion of the Thumb Impression expert dated 9-3-2017 as well as the alternate prayer for obtaining such opinion does not deserve to be granted. Accordingly, said application stands rejected.
18. It is necessary to briefly refer to the suspicious circumstances that have been taken into consideration by both the Courts. An important circumstance that has gone unexplained is ::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 01:20:43 ::: sa109.15.odt 20/30 the absence of any reference to the will dated 19-10-1981 in the lease deed dated 30-7-1982, family arrangement dated 20-11-1982 and the deed of partition dated 9-1-1983. Besides these documents, Regular Civil Suit No.238/1984 had been filed by the present plaintiff seeking the relief of removal of encroachment along with a prayer for perpetual injunction. This relief was sought with regard to the properties referred to in the Schedule of the plaint. Reference in that plaint was made to the family arrangement dated 20-11-1982 as well as the partition dated 9-1-1983. However, there was no reference made in that plaint to the will dated 18-10-1981. Be it noted that Hirabai was a party to all these documents and it would have been natural for her to have referred to the will executed by her on 18-10-1981 in the documents executed subsequently. There is no justifiable reason for the absence of any reference to the will in the aforesaid documents. Moreover, by executing said will as alleged, rights had been conferred on the plaintiff by Hirabai. In such situation, if the will was already executed on 18-10-1981 then there was no reason for executing lease dated 30-7-1982 again by Hirabai in favour of the plaintiff with regard to the same property. Said lease was for a period of sixty years and Hirabai was aged about 75 years when the lease deed was executed. The reason furnished that the lease ::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 01:20:43 ::: sa109.15.odt 21/30 was executed to enable Hirabai to receive lease amount does not appear to be very convincing.
The aforesaid aspects are clearly evident from the record and absence of reference to the execution of the will in the subsequent documents dealing with the right in said properties to which the executant was the party does not appear to be very natural.
19. The will at Exhibit-202 has been type written in Hindi. It has come on record that Hirabai was illiterate and was speaking Marwadi language. PW-2 in his deposition has further admitted that the portion marked 'D' was not narrated by Hirabai when the rough notes were being taken by him. The exclusion of other relatives including defendant nos.1 to 3 which is sought to be justified on account of strained relations by referring to the letter at Exhibit-198 also does not appear very convincing. This letter at Exhibit-198 is dated 19-3-1977 written by the defendant no.1 to the plaintiff. Similarly, the thumb impression of Hirabai appears only on the first and third page of the will. Absence of the thumb impression on the second page of the will is sought to be explained by stating that as the thumb impression was put on the first and third page, its absence on the second page was not very material. Further the description of the property sought to be bequeathed ::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 01:20:43 ::: sa109.15.odt 22/30 has not been mentioned in the said will and it is stated in general terms that all properties in which Hirabai had a right stood bequeathed. Though it is true that the photographs with which PW-2 was confronted were not duly proved as required in view of the law laid down in Laxman Ganpati Khot and Ramdas Bhatu Chaudhary (supra), that aspect by itself would not assist the case of the plaintiff.
20. I find that both the Courts on consideration of the entire evidence on record have found that there were various suspicious circumstances surrounding the alleged execution of will dated 18-10-1981. The plaintiff has been found to have been unable to remove those suspicious circumstances by leading cogent evidence. The plaintiff as propounder of the will failed to prove its execution in a manner that would warrant its acceptance as the last will of Hirabai. As held in Dhannulal vs. Ganeshram (2015) 12 SCC 301, proof of a will stands on a higher degree in comparison with other documents. On a consideration of the cumulative effective of the entire material on record and after scrutinizing the same in the light of the ratio of the decisions cited by both parties, I do not find any reason to disregard the findings concurrently recorded by both the Courts as regards invalidity of will dated 18- 10-1981. The appreciation of evidence in that regard cannot be ::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 01:20:43 ::: sa109.15.odt 23/30 said to be perverse nor can it be said that such conclusion arrived at by both the Courts was an impossible conclusion not warranted by the evidence on record. Substantial question of law No.1 is answered by holding that the rejection of the will dated 18-10-1981 projected by the plaintiff is not a perverse conclusion.
AS TO SUBSTANTIAL QUESTION OF LAW NOS.2 & 4:
21. On 20-11-1982 a family arrangement at Exhibit-244 was entered into between the parties. The need for this family arrangement was felt on account of the death of the husband of the defendant no.1 as well as aunt of the husband of defendant no.1. The joint property of the Hindu undivided family had not been partitioned after the death of Rekhchand, husband of defendant no.1. The defendant no.1 intended that a male child be adopted to continue the family tree. Hence, with a view to avoid any dispute pursuant to such adoption, it was resolved to make an arrangement of the family properties before hand. The plaintiff who had 1/8th share in the joint family property was given various properties in lieu of that share. Hirabai had consented for adoption of a male child and on that count also she gave some properties from her half share to the plaintiff. In lieu thereof the defendant nos.1 to 3 each agreed to pay Hirabai Rs.100/- per month. On receiving various properties in the family arrangement, ::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 01:20:43 ::: sa109.15.odt 24/30 the plaintiff no.1 relinquished all her rights over the other properties of the joint family. The plaintiff, defendant nos.1 to 3 as well as Hirabai were signatories to this family arrangement that was scribed by the husband of the plaintiff.
On 31-12-1982, there was an oral partition between Hirabai and defendant nos.1 to 3. This oral partition was then scribed on 9-1-1983 (Exhibit-243). In this document a reference has been made to the family arrangement dated 20-11-1982 and the rights given to the plaintiff therein. Excluding those properties in which the plaintiff had been given her rights, Hirabai and the defendant nos.1 to 3 partitioned the remaining properties.
22. The plaintiff on 16-8-1984 filed Regular Civil Suit No.238/1984 pleading that on 20-11-1982 she was given certain properties exclusively. The said suit was filed against present defendant no.1 and defendant no.4 praying that they be directed to remove encroachment in the properties to which the plaintiff had an absolute right. It is pertinent to note that in the plaint of that suit at Exhibit-203 there is a clear reference to the family arrangement dated 20-11-1982 with further pleading that the plaintiff had become the absolute owner of those properties by virtue of said family arrangement. This document of family arrangement as well as copy of the partition deed dated 9-1-1983 ::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 01:20:43 ::: sa109.15.odt 25/30 were filed on record along with the plaint. The averments of the plaintiff in that suit, therefore, clearly indicate that the plaintiff had accepted, admitted and acted upon the family settlement at Exhibit-244 as well as memorandum of partition dated 9-1-1983. In that view of the matter, it was open for the defendants to canvass that the findings recorded against issue no.5 by the trial Court were incorrect. In any event, the appellate Court while rejecting application below Exhibit 22 had observed that said grounds could be argued in the appeal.
23. The aspect of estoppel in the matter of accepting a family arrangement and subsequently trying to resile from the same has been considered in Kale and others (supra) by the Hon'ble Supreme Court. The following observations in said decision apply to the case in hand:
"9. By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their confrlicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and good will in the family. The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made.
The object of the arrangement is to protect the family from long-drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad ::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 01:20:43 ::: sa109.15.odt 26/30 blood between the various members of the family.
The Courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the Courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits."
24. The evidence on record indicates that initially on 20-11-1982, the family members before the adoption of defendant no.4 gave share of the joint family property to the plaintiff. The remaining property was then partitioned between the defendant nos.1 to 3. In other words, those properties that were not allotted to the plaintiff as per Exhibit-244 were subsequently divided between other family members as per Exhibit-243. The plaintiff enjoyed the properties received by her as per Exhibit-244 and made no grievance in that regard till the year 1987 when she came up with her stand that by virtue of will dated 18-10-1981, she was the owner of the suit property. Absence of any grievance immediately after the family arrangement was scribed by her husband and which was signed by the plaintiff is a factor that cannot be ignored. The aforesaid conduct of the plaintiff clearly estops her from contending that both these documents did not ::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 01:20:43 ::: sa109.15.odt 27/30 deserve to be taken into consideration for want of registration. Moreover, in Regular Civil Appeal No.2/2001 that arose out of dismissal of Regular Civil Appeal No.238/1984, the learned 2 nd Additional Sessions Judge, Chandrapur while considering the family arrangement dated 20-11-1982 has in paragraph seven of the judgment recorded a finding that said document was not compulsorily registrable and therefore admissible in evidence. This finding has attained finality in the proceedings to which the present plaintiff and the defendant nos.1 and 4 are party. Similarly, on a plain reading of the memorandum of partition at Exhibit-243, it can be found that it refers to the oral partition that had taken place on 31-12-1982 between the defendant nos.1 to 3 and Hirabai. It was only scribed on 9-1-1983. As observed in Roshansingh (supra), the subsequent list of properties prepared pursuant to earlier agreement of partition does not require any registration. The first appellate Court committed an error when it held that the family settlement at Exhibit-244 was improperly stamped and unregistered due to which it could not be read in evidence. The trial Court had rightly found that the plaintiff had acted upon these documents and was thus estopped from challenging the same.
Accordingly, substantial question of law Nos. 2 and 4 ::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 01:20:44 ::: sa109.15.odt 28/30 are answered by holding that the plaintiff having accepted and acted upon family settlement as well as the memorandum of partition, she was estopped from challenging the same. Said documents even otherwise did not require any compulsory registration under Section 17 of the Registration Act, 1908.
AS TO SUBSTANTIAL QUESTION OF LAW NO.3:
25. Perusal of the family settlement dated 20-11-1982 (Exhibit-244) indicates the purpose of making the family arrangement. The adoption of a male child was being pondered over as the defendant no.1 had three daugthters. After recognizing the 1/8th share of the plaintiff in the joint family property, various properties were given to the plaintiff in lieu of her share in the joint family property. Hirabai from her half share had also given some property to the plaintiff as mentioned in clause (6) of this family arrangement. In lieu thereof the plaintiff gave up her rights in other properties. These remaining properties were then partitioned on 31-12-1982 and scribed accordingly on 9-1-1983. Thereafter, on 21-4-1983 the defendant no.4 was taken in adoption. As referred to earlier, the document of family arrangement has to be given due importance as it was got executed to enable adoption of a male heir to continue the family tree. It was in lieu thereof that the plaintiff got certain properties ::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 01:20:44 ::: sa109.15.odt 29/30 from the undivided share of Hirabai after which she gave up her rights in the remaining estate of Rekhchand and Hirabai. This document having been scribed by her husband and no grievance in that regard having been made shortly thereafter, it cannot be said that the plaintiff did not receive any share in the property from the share of Hirabai. She was, therefore, not entitled to claim partition in the undivided estate of Hirabai. The first appellate Court misconstrued both the documents at Exhibits-244 and 243 when it held otherwise. On a plain reading of both these documents, it cannot be said that the plaintiff was deprived of her share in any manner whatsoever. Hence, the ratio of the decision relied upon by the learned Senior Counsel for the plaintiff cannot be applied to the facts of the case. The substantial question of law No.3 stands answered accordingly.
26. Thus, as a result of the answers given to the aforesaid substantial questions of law, the judgment of the first appellate Court to the extent it has granted 1/4th share in the suit property to the plaintiff is liable to be set aside. The finding with regard to the non-acceptance of will dated 18-10-1981 is however liable to be confirmed. As a result thereof, the judgment of the first appellate Court to that extent is set aside. As a consequence thereof, the judgment of the trial Court dismissing the suit has to ::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 01:20:44 ::: sa109.15.odt 30/30 be restored.
27. In the result, the following order is passed:
(a) The second appeal is allowed.
(b) The cross-objection filed by the original plaintiff stands
dismissed.
(c) The judgment of the first appellate Court in Regular
Civil Appeal No.60 of 2012 dated 18-9-2014 is quashed and set aside.
(d) The judgment of the trial Court in Special Civil Suit No.129 of 1987 is restored. There would be no order as to costs.
JUDGE /MULEY/ ::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 01:20:44 :::