Bombay High Court
Ramesh S/O Adku Warthi & 4 Others vs Bhuran Wd/O Bhaiyalal Raut & 2 Others on 5 February, 2018
Author: A. S. Chandurkar
Bench: A. S. Chandurkar
226-J-SA-455-04 1/11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.455 OF 2004
1. Ramesh s/o Adku Warthi,
Aged about 42 yrs, Occ. Labour,
2. Maleshyam s/o Anijayayya Yerola,
Aged about 39 yrs, Occ. Business,
3. Vyankat s/o Anjayayya Yerola,
Aged about 28 yrs, Occ. Business,
4. Kantabai w/o Pralhad Raut,
Aged about 36 yrs, Occ. Household,
5. Suresh s/o Adku Warthi,
Aged about 34 yrs, Occ. Service,
Nos.1 to 3 and 5 r/o Goregaon,
Tah. Goregaon, District-Gondia ... Appellants.
-vs-
1. Bhuran wd/o Bhaiyalal Raut,
Aged about 49 yrs, Occ. Household,
r/o Goregaon, Tahsil-Goregaon,
District-Gondia
2. Prabhawati @ Karan w/o Kashiram Ambadare,
Aged about 44 yrs, Occ.Household, R/o Navegaon,
Bandh, Tahsil Lakhandur, Dist. Bhandara
2a. Ashok s/o Kashiram Ambedare,
Aged about 44 yrs. Occ. Service,
R/o C/o Prakash Parihar, Ganesh Ward,
Post & Tah. Deori, Dist. Gondia.
2(b) Mandabai w/o Ishwar Gate,
Aged about 40 years,
Occ. Household,
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226-J-SA-455-04 2/11
R/o Tadgaon, Post Zarpoada,
Tah. Morgaon Arjuni, Dist. Gondia
2(c) Rajesh s/o Kashiram Ambedare,
Aged about 39 years, Occ. Labour
R/o Toli Ward No.1, I/F of P.H.C.
Navegaon - Banch, Tah. Morgaon Arjuni,
Dist. Gondia.
2(d) Arun s/o Kashiram Ambedare,
Aged about 37 years, Occ. Service,
R/o Behind Gaytri Mandir, Sendurwafa,
Tah. Sakoli, Dist. Bhandara
3. Hiran s/o Nathu Wagade,
Aged about 59 yrs, Occ. Household,
r/o Hiran s/o Nathu Wagade,
Aged about 59 yrs, Occ. Household,
r/o Patekurra, Tahsil Deori,
District - Bondia
3(a) Khelanbai w/o Laxman Neware,
Aged about 45 years, Occ. Household,
R/o Palkheda, Post : Tilli - Mohgaon,
Tah. Gorgaon, Distt. Gondia.
3(b) Sankuntala w/o Fulichand Neware,
R/o Tilli - Mohgaon,
Tah. Gorgaon, Distt. Gondia ... Respondents.
Shri A. P. Wachasunder, Advocate with Shri Rohan Malviya, Advocate for
appellants.
Shri R. K. Borkar, Advocate for respondents.
CORAM : A. S. CHANDURKAR, J.
DATE : February 05, 2018.
Oral Judgment :
This appeal filed under Section 100 of the Code of Civil ::: Uploaded on - 17/02/2018 ::: Downloaded on - 17/02/2018 23:45:58 ::: 226-J-SA-455-04 3/11 Procedure, 1908 has been filed by the original plaintiff who is partly aggrieved by the judgment of the first appellate Court refusing to grant relief of possession of the suit house to him.
2. Facts in brief giving rise to this appeal are that one Sadu Sonwane expired on 01/02/1954 leaving behind his widow Sugabai to inherit his property. Said couple had no male issue but had five daughters. The plaintiff Ramesh is the son of one of the daughters. His father Adku started residing with Sugabai and out of love and affection said Sugabai executed Will dated 04/10/1979 in favour of the plaintiff-her grandson and bequeathed various properties in his favour. This Will was duly registered. Thereafter on 29/10/1979 one of the daughters of said Sugabai got executed an agreement and intended to transfer some of the properties in favour of other relatives. On that basis the plaintiff filed suit for declaration that this agreement dated 29/10/1979 had no legal force and that by virtue of Will dated 04/10/1979 the plaintiff had become absolute owner of the suit property.
3. The defendant Nos.1 to 3 disputed the claim of the plaintiff. According to them the Will alleged to be executed on 04/10/1979 was not genuine and that the sisters had share in the suit property. They relied upon the agreement dated 29/10/1979.
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4. The trial Court recorded a finding that Sugabai was the absolute owner of the suit property and that she had validly executed a Will in favour of the plaintiff. The subsequent agreement dated 29/10/1979 was not valid. Accordingly it decreed the suit and granted relief of possession. Being aggrieved the defendants filed an appeal. The first appellate Court partly allowed the appeal and set aside the finding regarding validity of Will dated 04/10/1979. The relief of possession was disallowed and the declaration as to invalidity of agreement dated 29/10/1979 was maintained. Being aggrieved the legal representatives of the plaintiff filed this appeal.
5. While admitting the appeal, the following substantial question of law was framed :
" Whether the decree passed by the lower appellate Court is vitiated on account of the fact that the finding given by the lower appellate Court that will dated 04/10/1974, executed by deceased Sugabai, has not been proved, is perverse."
During the course of hearing of the appeal following additional substantial question under Section 100(5) of the Code of Civil Procedure, 1908 was also framed :
" Whether execution of agreement dated 29/10/1979 (Exhibit-199) is a factor to be taken into consideration as removing one suspicious circumstance surrounding execution of Will dated 04/10/1979 (Exhibit-203). "::: Uploaded on - 17/02/2018 ::: Downloaded on - 17/02/2018 23:45:58 ::: 226-J-SA-455-04 5/11
Shri R. K. Borkar, learned counsel for respondent Nos.1 to 3 submitted that he was ready to answer this substantial question of law also and did not seek any further time. Hence learned counsel for the parties have been heard on both the substantial questions of law.
6. Shri A. P. Wachasunder, learned counsel for the appellant submitted that the first appellate Court committed an error in reversing the finding with regard to validity of the Will. According to him the circumstances relied upon by the appellate Court were not suspicious in nature and the Will could not be said to be shrouded in doubt. He urged that the mental state of the testatrix was sound though she was suffering from paralysis. The fact that the Will was duly registered and the witness from the office of Sub-Registrar was examined indicated the circumstances surrounding its registration. Merely because the attesting witness had turned hostile and the Sub-Registrar was not examined could not be grounds to discard the said Will at Exhibit-203. The testatrix was residing with the plaintiff and at her request the plaintiff had taken the testatrix to the office of the Sub-Registrar. Referring to the agreement at Exhibit-199 he submitted that the same refers to execution of the Will dated 04/10/1979 and said reference substantiates the case of the plaintiff. Both the Courts had concurrently found this agreement to be valid and the defendant had not challenged the finding in respect of Exhibit-199 before this Court. The said ::: Uploaded on - 17/02/2018 ::: Downloaded on - 17/02/2018 23:45:58 ::: 226-J-SA-455-04 6/11 document reflected the intention of the testatrix and therefore the first appellate Court ought to have given due weightage to that document. The testatrix expired in the year 1981 and therefore in view of the provisions of Section 32(6) of the Indian Evidence Act, 1872 the statement of the testatrix in Exhibit-199 supported the stand with regard to execution of the Will as per Exhibit-203. In support of his submissions, the learned counsel placed reliance on the following decisions :
i) Gummalpura vs. Setra Veeravva Veeravva and ors. AIR 1959 SC 577.
ii) Dolgobinda vs. Nimai C. Mishra and ors. AIR 1959 SC 914.
iii) Ramchandra Rambux vs. Champabai and ors. AIR 1965 SC 354.
iv) Surendra Pal vs. Dr Sarswati Arora and ors. AIR 1974 SC 1999.
v) Sadhu Singh vs. Gurdwara Sahib Narike and ors. (2006) 8 SCC 75.
vi) Tejram Patil vs. State of Maharashtra (2015) 8 SCC 494.
7. Shri R. K. Borkar, learned counsel for the respondents supported the impugned judgment. According to him the trial Court committed an error in holding the Will at Exhibit-203 to be duly proved. In fact said document could not have been exhibited as the witness examined in that regard had stated that he had not seen the testatrix put her thumb impression on the same. The suspicious circumstances relied upon by the first appellate Court clearly casted doubt on the due execution of the Will. Its registration by itself would not be a factor to contend that it was duly ::: Uploaded on - 17/02/2018 ::: Downloaded on - 17/02/2018 23:45:58 ::: 226-J-SA-455-04 7/11 executed. The plaintiff was interested in execution of the Will and had taken active participation in that regard. The medical condition of Sugabai was not sound as deposed by her daughter. It is thus submitted that the findings recorded by the appellate Court could not be termed to be perverse and hence no interference with the impugned judgment was called for. In support of these submissions, he placed reliance on the following judgments :
i) Ram Piari v. Bhagwant and ors. Air 1990 SC 1742 ii) Joseph Antony Lazarus (D) by L. Rs. vs. A. J. Francis AIR 2006 SC 1895 iii) H. Venkatachala Iyengar vs. B. N. Thimmajamma and ors. AIR 1959 SC 443, iv) B. Venkatamuni v. C. J. Ayodhya Ram Singh and ors. AIR 2007 SC 311 v) Shirin Baman Faramarzi vs. Zubin Boman Faramrzi 2017(6) Mh.L.J.115. vi) Janki Narayan Bhoir vs. Narayan Bhoir vs. Narayan Namdeo Kadam (2003) 2 SCC 91 vii) Rani Purnima Debi and anr. vs. Kumar Khagendra Narayan Deb and anr. AIR 1962 SC 567 viii) Jagdish chand Sharma vs. Narain Singh (dead) through L.Rs. And ors. 2016(2) Mh.L.J. 366 ix) Dhannulal & Ors. vs. Ganeshram and anr. 2015(4) ALL MR 917 (SC).
8. While considering the first substantial question of law the suspicious circumstances taken into consideration by the appellate Court are that the testatrix Sugabai was suffering from Paralysis and therefore she was not in a sound state of health, the scribe of the said Will at Exhibit-203 had not been examined, the Sub-Registrar who had registered the said document was also not examined and Ramesh the propounder had taken active part in ::: Uploaded on - 17/02/2018 ::: Downloaded on - 17/02/2018 23:45:58 ::: 226-J-SA-455-04 8/11 execution of the Will.
As held in Ramchandra Rambux (supra) it is for the propounder to dispel doubts arising out of suspicious circumstances that relate to the execution of the Will and he must satisfy the conscience of the Court that the document upon which he relied is the last Will of the testator. In that regard if the evidence of Ramesh at Exhibit-142 is considered, he has stated that for the purposes of executing the Will, he alongwith Sugabai had come to Gondia. At that time Bhaiyalal Kalsarpe and Nogo Raut were also present. The contents of the Will were narrated by Ramesh as per the instructions given by Sugabai. After the testatrix put her thumb impression it was also signed by the witnesses after which they all went to the office of the Registrar. In his cross-examination he stated that the averments made in the plaint that on 29/10/1979 the physical and mental condition of Sugabai was not good were correct. She was suffering from Paralysis prior to about five months from said date. Since then her physical and mental condition was not proper and that she could not move on her own. While the Will was being typed Ramesh was alone there with the scribe. All payments were made by him while having the Will executed and registered. An attesting witness Bhaiyalal Kalsarpe was examined at Exhibit-209. He stated that when he came to the office of the Registrar, the Will was already being typed. Sugabai was sitting in the rickshaw and he waited with her. This witness has stated that he was told by Ramesh that as Sugabai did not have ::: Uploaded on - 17/02/2018 ::: Downloaded on - 17/02/2018 23:45:58 ::: 226-J-SA-455-04 9/11 any male issue, property was being given in the name of four daughters. He stated that he did not remember who had signed the Will and denied having gone to the office of the Registrar. This witness has not supported the case of the plaintiff. The Will was sought to be exhibited in his deposition and an objection was raised to the same on the ground that he could not recollect the manner in which the Will was executed. The defendants examined one of the daughters of Sugabai and she stated that since the year 1979 she was suffering from paralysis due to which she could not speak and talk properly.
9. On considering the entire evidence brought on record by the propounder, it can be seen that Sugabai was suffering from Paralysis since at least five months prior to executing the Will. The propounder Ramesh as well as the daughter of Sugabai have deposed that her mental and physical condition was not very sound. There is no evidence otherwise to indicate that the testatrix was in a position to give proper instructions for execution of the Will. In fact, nobody saw her giving instructions to Sugabai. In this backdrop the other evidence on record that it was Ramesh who had dictated the contents of the Will while Sugabai was sitting in rickshaw, cannot be lost sight of. The petition writer and scribe has not been examined which is yet another circumstance giving rise to doubt. In the light of this evidence, mere registration of the Will would not be sufficient to conclude that its valid execution and attestation was duly proved. The Sub-Registrar who had got ::: Uploaded on - 17/02/2018 ::: Downloaded on - 17/02/2018 23:45:58 ::: 226-J-SA-455-04 10/11 the said document registered was not examined. Though it is true that the scribe had since expired and the plaintiff had examined PW-3 who was a clerk from the office of the Registrar, that evidence is insufficient to remove the aforesaid suspicious circumstance. Hence after examining the entire evidence on record and after considering the law as laid down in Surendra Pal (supra) I find that the appellate Court has rightly held that in the light of aforesaid suspicious circumstances the Will cannot be held as duly proved. The finding in that regard is not perverse. The substantial question of law No.(1) stands answered accordingly.
10. As per the second substantial question of law, execution of the agreement dated 29/10/1979 at Exhibit-199 is a factor indicating execution of the Will on 04/10/1979. Though execution of said agreement at Exhibit- 199 would be a factor to be taken into consideration, the same by itself would again not be sufficient to come to the conclusion that the Will was duly executed by Sugabai on 04/10/1979. Though it was urged by the learned counsel for the appellants that this agreement was required to be given due importance in the light of provisions of Section 32 of the Evidence Act by relying upon the decision in Tejram Patil (supra) I do not find that this contention is well founded. The provisions of Section 32 (6) of the Evidence Act, 1872 cannot be applied in the facts of the present case. Said agreement would not further the case of the appellants in removing the ::: Uploaded on - 17/02/2018 ::: Downloaded on - 17/02/2018 23:45:58 ::: 226-J-SA-455-04 11/11 suspicious circumstances noted above. Hence substantial question of law No.2 is answered against the appellants.
11. As a result of aforesaid discussion, I do not find any reason to interfere with the judgment of the appellate Court. The second appeal is thus dismissed with no order as to costs.
At this stage learned counsel for the appellants prays that the interim orders passed in the appeal be continued for a short period to enable the appellants to take appropriate steps.
This request is opposed by learned counsel for the respondents. Considering the fact that interim orders passed on 15/12/2004 is operating since that date, the same would continue to operate for a period of six weeks from today and it shall cease to operate automatically thereafter.
JUDGE Asmita ::: Uploaded on - 17/02/2018 ::: Downloaded on - 17/02/2018 23:45:58 :::