Bombay High Court
Devidas Ragho @ Ganpat Peche vs Raghoba S/O Maroti Peche on 10 January, 2008
Equivalent citations: 2008(2)MHLJ296
Author: C.L. Pangarkar
Bench: C.L. Pangarkar
JUDGMENT C.L. Pangarkar, J.
1. This is an appeal by the defendant against whom decree was passed by the Appellate Court by reversing the judgment and decree of the trial Court. The parties shall hereinafter be referred to as plaintiff and defendant.
2. A few facts necessary for the decision may be stated thus-
One Ganpat Peche owned the suit property. He died on 16-2-1987 leaving behind him the plaintiff as the only legal heir of Class-II, since the plaintiff is the son of Ganpat's real brother. The plaintiff contended that he is in possession of the suit property after the death of Ganpat. When Ganpat died he was more than 88 years of age. He was ailing for quite some time. He had lost his power of understanding since six months before his death. Once the plaintiff had sent deceased Ganpat with the defendant for medical treatment. Taking disadvantage of the same, it is alleged that Ganpat got executed a gift-deed as well as Will on 21-1-1987 in his favour. The defendant claims himself to be the adopted son even though he is not actually adopted by deceased Ganpat. The defendant has done this with an intention to grab the property of Ganpat. It is also the contention of the plaintiff that Ganpat had executed one Will in his favour on 19-1-1983 and the said document is also registered one. The plaintiff subsequently amended the plaint and claimed possession of the suit property alleging dispossession.
3. Defendant's contention is that the suit property was gifted and bequeathed to him by the deceased of his free will. He does not dispute the relationship between the plaintiff and the deceased. The defendant denies that the deceased was not mentally and physically fit. On the other hand, it is his contention that the deceased was mentally and physically fit and he voluntarily gifted and bequeathed the property in favour of the defendant. It is his contention that he is the adopted son of Ganpat and on that count also he is entitled to inherit that property. It is also contended by the defendant that he was taking care of deceased and the deceased was living with him. He also contends that deceased had actually put him in possession of the suit property. The defendant finally contends that since the property was gifted and bequeathed to him he has become the absolute owner of the suit property.
4. The learned Judge of the trial Court, upon consideration of the evidence, found that the deceased had gifted the property and had bequeathed the property to defendant and therefore, plaintiff was not entitled to any relief. Holding so, he dismissed the suit. The Appellate Court, however, found that the Will executed in favour of defendant is surrounded by suspicious circumstances and the defendant was unable to remove the suspicion. Holding so, the learned Judge allowed the appeal and decreed the suit. Being aggrieved by that, the defendant has come up in second appeal.
5. This appeal was admitted by Joshi, J. on the following substantial questions of law.
(i) Whether the judgment of the Appellate Court suffers from the defects of being perverse being passed on incorrect reading of the evidence on record?
(ii) When on the pleadings of the parties, the execution of Will was an admitted fact and the challenge thereto was on account of the testator not being in good state of mind to understand the effects of his acts, whether the Will can be faulted on the ground of suspicion etc.?
(iii) What is the effect of Section 58 as to the burden on the defendant to prove the Will which was an admitted fact?
6. I have heard the learned Counsel for the appellant and the respondent.
7. The undisputed facts can be stated thus:
Deceased Ganpat was the real uncle of the plaintiff and the suit property exclusively belonged to Ganpat. It is also not disputed that the defendant is the distant nephew of deceased. The deceased Ganpat did not leave behind him his wife, daughter or natural son. The plaintiff, as stated, is the son of real brother of Ganpat. The plaintiff, therefore, falls in Entry No. 4 of heirs mentioned in Class-II under the Hindu Succession Act, 1956. If, therefore, gift and the Will fail, the property must go to the plaintiff.
8. It is the case of the defendant that deceased Ganpat had executed a gift-deed and a Will in his favour on 27-1-1987 in respect of the entire property of Ganpat. Now as far as the gift is concerned, it can be set aside only if it is proved that it was not executed by deceased of his free will. It would be necessary, therefore, to took into the pleadings of the plaintiff to find out if there is any pleading that the gift-deed was brought about by undue influence, misrepresentation or fraud. If that is not pleaded and proved, it must follow that the execution of the gift-deed was of free will. It would be useful to reproduce the pleading of the plaintiff here in paragraph No. 2 of the plaint.
2. That the plaintiff is in possession of the said property in suit. The deceased Ganpat Vithu Peche is uncle of the plaintiff was ill for a long period. His age was more than 88 years. He lost his power of understanding since six months before his death. Once the plaintiff sent the deceased Ganpat Vithu Peche along with the defendant for medical treatment. Taking disadvantage the defendant fraudulently got registered the Gift-deed and Will deed on 21-1-1987. The defendant also did this in the name Devidas Ganpat Peche. Thus he changed the name of his father. The defendant is not real son or adoptive son of deceased Ganpat Vithu Peche. The defendant did this mischief with the intention to grab the suit property. Though the defendant is not legal heir of the deceased Ganpat Vithu Peche.
9. Whenever a party pleads a case of fraud, undue influence or misrepresentation, it is supposed to support the plea by giving particulars as envisaged by Order 6, Rule 4 of Civil Procedure Code. The only thing that is alleged is that the deceased was ill and 88 years old and had lost power of understanding six months before his death. The pleadings are absolutely vague. They do not make out case of undue influence or misrepresentation or even fraud. If the evidence is seen, it is not consistent with the pleading at all. Though it is pleaded that the deceased had lost power of understanding, a very strange suggestion is given to the defendant himself and his witness No. 2 Ramchandra. It is suggested in cross-examination to the defendant and his witness Ramchandra that they had presented somebody else before the sub-Registrar in place of Ganpat. Such thing is not at all pleaded. Obviously, what is pleaded is not sought to be proved. The attesting witness Ramchandra has positively stated that deceased Ganpat had executed a gift-deed by putting his thumb impression and that he himself attested it. He denies the suggestion that Ganpat was ill and was not able to see and understand the things. There is nothing in cross-examination to hold that the deceased had lost his capacity to understand or was ailing. There is, therefore, no evidence with regard to misrepresentation, fraud or exercise of any undue influence.
10. As far as Will is concerned, defendant has examined attesting two witnesses as it is necessary for the propounder of the Will to examine the attesting witness for proof of the Will since Will is a document which is compulsory attestable. The defendant has examined DW 2 Ramchandra and DW 3 Champat who are the attesting witnesses. Both of them have stated that the deceased had executed a Will and had put thumb-impression on the Will in their presence and they signed the Will as attesting witnesses in his presence. It was contended that the legatee has taken a prominent part in execution of the Will and this is a suspicious circumstance and unless that suspicion is removed the Will cannot be said to have been executed of free Will. DW 1 Devidas does admit that he was along with the deceased when the Will was executed. In this context, it has to be borne in mind that deceased was being taken care of by the defendant who is the legatee. The plaintiff's witness No. 2 Nilkant admits in examination-in-chief itself that deceased Ganpat was living with defendant for 7 to 8 years and was being taken to the hospital by the defendant. Even PW 1 Raghoba - the plaintiff also admits in cross-examination that Ganpat was residing with the defendant for past ten years. It is, therefore, very clear that deceased was living for ten years with defendant and he was taking care of the deceased. It was, therefore, quite natural for defendant to accompany deceased at the time of the execution of the documents. It was also quite natural for deceased to have bequeathed the property in favour of the defendant since he was living with the defendant and defendant was taking his care. Such disposition of the property, therefore, cannot be looked at with suspicion at all. We have already seen that very strange suggestion of impersonation has been given to the witnesses. This itself suggests that the plaintiff is raising a plea for the sake of raising such plea. The cross-examination of both the witnesses does not suggest that they have any reason to go out of the way in telling lies. Their evidence is quite inspiring. Both the documents are registered and that lends support to the evidence of both the witnesses that deceased had come to the Sub-registrar's office and had executed both the documents. The learned Judge of the first Appellate Court has unnecessarily raised suspicion over the execution of the Will.
11. Although the plaintiff is disinherited that is not very unnatural, for two things. First; he is not the son of the deceased but is nephew. He was not taking care of deceased. Secondly; plaintiff admits that deceased was living with the defendant for ten years. It should be seen that although plaintiff was the real nephew he did not take care of deceased but it was the defendant who took care of deceased. It is in evidence of DW 2 Ramchandra that defendant was known in the village as an adopted son of deceased. This suggests that deceased Ganpat was at least treating defendant like his son. The deceased, therefore, must have developed love and affection for the defendant and therefore had a natural desire to bequeath the property to him. Furthermore, the defendant was the only person who was taking care of the deceased and if therefore the deceased was accompanied by the defendant at the time of execution of documents that cannot be faulted with. There is yet another reason to say that the deceased was acting of his free will. His conduct would suggest that he was in sound and disposing state of mind. The deceased had executed two documents on 17-1-1987 - one gift-deed and other Will. By the gift-deed, he gave away only one field to the defendant and executed a Will in respect of other field on the same day. Obviously, he retained ownership of one field with him till his lifetime. Had he been under the thumb or influence of the defendant, the defendant would have and could have taken a gift-deed in respect of the entire property on the same day. and deprive the deceased of the entire property immediately.
12. The deceased was of quite sound mind in bequeathing the other property and retaining its ownership with himself till his death. This conduct of the deceased dispels all doubts surrounding the execution of the Will. The learned Judge of the first Appellate Court did not consider this aspect and came to wrong conclusion. In the result, the appeal must succeed. The Judgment and decree of the first Appellate Court is set aside and that of the trial Court restored. The respondent shall pay costs throughout.