Bombay High Court
Gajanan Maroti Kohale & Another vs Mahadeo Dhadu Kohale & Another on 11 June, 2018
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
sa649.04.odt 1/8
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO. 649 OF 2004
APPELLANTS: 1. Gajanan Maroti Kohale,
(Ori.Deft. On aged about 30 years,
R.A.)
2. Maroti S/o Dhadu Kohale,
aged about 65 years, Occ: Cultivation,
Both residents of Hanuman Ward,
Weekly Market, Gadchiroli.
-VERSUS-
RESPONDENTS: 1. Mahadeo S/o Dhadu Kohale,
(Ori. Deft. On aged about 55 years, Occ: Cultivator,
R.A.)
R/o Gadchiroli, Distt. Gadchiroli.
2. Sau. Mangalabai W/o Ushtu Bebate
Aged 60 years, Occ. Household,
R/o Gadchiroli, Distt. Gadchiroli.
Shri R. S. Kalangiwale, Advocate for the appellants.
Ms. S. Thakur, Advocate for respondent No.1.
CORAM: A.S. CHANDURKAR, J.
DATED: 11-06-2018.
ORAL JUDGMENT :
1. The appellants are the original defendants in the suit filed by the respondent No.1 wherein it was prayed that the suit ::: Uploaded on - 20/06/2018 ::: Downloaded on - 21/06/2018 00:04:47 ::: sa649.04.odt 2/8 property be partitioned and a share be granted to the plaintiff. Further relief of cancellation of Will Deed dated 9-6-1989 was also sought. The suit was decreed by the trial Court and the appellate Court has maintained the said decree.
2. In the plaint, it is the case of the plaintiff that his father Dhadu was married with one Ramabai and they had two sons being the plaintiff no.1 and the defendant no.2. The defendant no.1 was the son of defendant No.2. The defendant No.3 was the sister of the plaintiff. Dhadu expired on 25-6-1991 and according to the plaintiff his father was unwell for last two to four years prior to his death. It was pleaded that the defendant No.2 taking disadvantage of his health had got executed a document in the form of Will dated 9-6-1989 and the same was not binding on the plaintiff. Accordingly, the aforesaid suit came to be filed.
3. In the written statement, it was pleaded that by virtue of Will deed dated 9-6-1989, the defendant No.2 as well as the defendant No.1 became owners of the suit property. The suit property was not joint family property and the plaintiff had no right whatsoever.
4. The parties led evidence before the trial Court which held that the suit property was ancestral property of Dhadu. It ::: Uploaded on - 20/06/2018 ::: Downloaded on - 21/06/2018 00:04:47 ::: sa649.04.odt 3/8 further held that the Will in question was not duly proved and that the plaintiff had 5/16th share in the suit property. The suit was accordingly decreed. In the appeal filed by the defendants the appellate Court held that the suit property was the self acquired property of Dhadu. It maintained the finding that the Will dated 9-6-1989 was not duly proved. The decree for partition was therefore maintained. Being aggrieved the present second appeal has been filed.
5. The following substantial questions of law were framed when the appeal as admitted:
Whether the plaintiff was entitled to grant of decree for possession of 5/16th share in the suit property after having failed to prove that the suit property was self acquired property of Dhadu and there was no necessity to prove the Will when the plaintiff had admitted the Will and has sought the cancellation thereof?
6. Shri R. S. Kalangiwale, learned Counsel for the appellants - defendants submitted that the appellate Court having held that the suit property was the self acquired property of Dhadu and the plaintiff having admitted execution of the Will dated 9-6-1989 in favour of the defendant Nos.1 and 2, it could not have held that the plaintiff had 5/16 th share in the suit property. The ::: Uploaded on - 20/06/2018 ::: Downloaded on - 21/06/2018 00:04:47 ::: sa649.04.odt 4/8 execution of the Will having been admitted by the plaintiff, it was not necessary for the defendants to prove the same. Without considering this aspect, the Courts examined the validity of the Will and held against the defendants. Placing reliance on the decision in Balathandayutham and another vs. Ezhilarasan (2010) 5 SCC 770, it was thus submitted that it was not necessary for the defendants to prove the Will dated 9-6-1989. It was then submitted that the trial Court did not frame any specific issue with regard to the validity of the Will while decreeing the suit. This fact was noted by the first appellate Court in para 11 of its judgment and therefore the appellate Court ought to have remanded the suit with a direction to frame an issue with regard to the validity of the Will in question. The same was however not done. In absence of any specific issue being framed, prejudice was caused to the defendants. For said purpose, the learned Counsel placed reliance on the decisions in Bachhaj Nahar vs. Nilima Mandal and another (2008) 17 SCC 491, Sri Gangai Vinayagar Temple v. Menakshi Ammal (2015) 3 SCC 624 and Alka Gupta Vs. Narender Kumar Gupta (2010) 10 SCC 141. It was thus submitted that the decree passed by the trial Court and confirmed by the appellate Court was liable to be set aside.
7. Ms. S. Thakur, learned Counsel for the respondent ::: Uploaded on - 20/06/2018 ::: Downloaded on - 21/06/2018 00:04:47 ::: sa649.04.odt 5/8 No.1 supported the impugned judgment. She submitted that issue No.1 framed by the trial Court related to the declaration sought by the plaintiff as to the validity of the Will in question. The parties were aware about said issue and accordingly, they led evidence. The plaintiff did not admit the execution of the Will and therefore the burden was on the defendant Nos.1 and 2 who were the propounders of the said will. A copy of the will was not placed on record and the burden on the defendants was not discharged. Both the Courts therefore rightly held that the will was not proved. She referred to the deposition of defendant No.3 who had admitted that Dhadu was not keeping well for some period prior to his death when the will was executed. Even if it was held that the suit property was self acquired property of Dhadu, the plaintiff had share therein. It was therefore submitted that it was not necessary to interfere with the impugned judgments.
8. I have heard the learned Counsel for the parties at length an with their assistance, I have perused the records of the case. In so far as the contention raised by the appellants that the plaintiff had admitted the execution of the Will and therefore it was not necessary for the defendants to prove the same, that submission cannot be accepted. In para 3 of the plaint reference to the will dated 9-6-1989 is only as a material fact with further ::: Uploaded on - 20/06/2018 ::: Downloaded on - 21/06/2018 00:04:47 ::: sa649.04.odt 6/8 averment that the same was got executed taking disadvantage of the health of Dhadu and the same was got executed in a clandestine manner. On reading the entire plaint, it cannot be said that the plaintiff had admitted execution of the will. An admission as to the execution of the will would presuppose such execution satisfying the requirements of Section 63 of the Succession Act, 1925. When it is specifically pleaded that the alleged will was got executed by the defendant Nos.1 and 2 by taking the disadvantage of the health of Dhadu and that too in a clandestine manner, the same cannot be said to be an admission as regards execution of the Will as contended.
The law with regard to framing of issues on the pleadings of parties as sought to be relied upon by the learned Counsel for the appellants in Alka Gupta, Sri Gangai Vinayagar Temple and another and Bachhaj Nahar (supra) cannot be disputed. However, when said law is applied to the facts of the present case, it cannot be said that the plaintiff had admitted due execution of the will dated 9-6-1989 in favour of defendant Nos.1 and 2. Moreover, issue No.1 as framed by the trial Court relates to the declaration sought by the plaintiff in the suit. Issue No.1 reads thus :
"(1) Is plaintiff entitled for declaration sought for? ::: Uploaded on - 20/06/2018 ::: Downloaded on - 21/06/2018 00:04:47 ::: sa649.04.odt 7/8
On perusing the plaint, it becomes clear that the only declaration sought by the plaintiff was that the Will dated 9-6-1989 be declared as illegal and not binding on the plaintiff. The other relief sought is with regard to share in the suit property. Issue No.1 though not happily worded related to the declaration sought by the plaintiff and the only declaration sought was in respect of the said Will. It cannot be said that the parties were prejudiced by the framing of this issue and that the defendants, therefore, were precluded from leading any evidence with regard to the said Will. Moreover, the memorandum of appeal filed by the defendants before the first appellate Court also does not raise any ground that there was no issue framed with regard to the validity of the Will dated 9-6-1989. The parties were aware about their respective stands and that taken by the other side. Despite that the defendants who were claiming under the said Will failed to place a copy thereof on record and prove the same in accordance with law. No fault therefore can be found with the judgment of the trial Court when it held that the Will was not duly proved. It is also not necessary to remand the proceedings again as urged by the appellants.
9. The first appellate Court has recorded a finding that the suit properties were the self-acquired properties of Dhadu. ::: Uploaded on - 20/06/2018 ::: Downloaded on - 21/06/2018 00:04:47 ::: sa649.04.odt 8/8 Once it is found that the Will alleged to be executed by Dhadu on 9-6-1989 has not been duly proved, it becomes clear that said Dhadu died intestate. The plaintiff as the son of Dhadu therefore was entitled to share in the said property. His share to the extent of 5/16th has been rightly determined by both the Courts. On that count the impugned judgment does not deserve to be interfered with.
10. Accordingly, the substantial questions of law as framed are answered by holding that the plaintiff had not admitted the Will dated 9-6-1989 and it was for the defendants to prove the same. In the circumstances, the plaintiff was entitled for 5/16 th share in the suit property as successor of Dhadu who had died intestate. The decree passed by the trial Court and confirmed by the first appellate Court therefore does not call for any interference. The second appeal therefore stands dismissed with no order as to costs.
JUDGE /MULEY/ ::: Uploaded on - 20/06/2018 ::: Downloaded on - 21/06/2018 00:04:47 :::