Bombay High Court
Ashok Kashinath Deshmukh vs Gopala Kashinath Deshmukh And Ors. on 4 October, 2007
Equivalent citations: 2008(1)MHLJ768, AIR 2008 (NOC) 1161 (BOM.) = 2008 (1) AIR BOM R 619 (AURANGABAD BENCH), 2008 (1) AIR BOM R 619, 2008 (4) AKAR (NOC) 555 (BOM.) = 2008 (1) AIR BOM R 619 (AURANGABAD BENCH), 2008 A I H C 1306
Author: V.R. Kingaonkar
Bench: V.R. Kingaonkar
JUDGMENT V.R. Kingaonkar, J.
1. This appeal is directed against Judgment and decree rendered by learned Civil Judge (S.D.), Sangamner, in Spl.C.S. No. 193 of 1996. Appellant is original defendant No. 6.
2. For understanding relationship between the parties, following genealogical table may be reproduced.
Govind (died 1962) ¦
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¦ ¦
Godabai Seetabai (D1)
(died 31.1.74) ¦
¦ ¦
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¦ ¦ ¦ ¦ ¦
Narmadabai Housabai Krushnabai Sakharbai Chahabai
(Died on (Died on (D2) (D3) (D4)
31.7.91) 10.3.80)
¦ ¦
¦ Budit
¦
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¦ ¦ ¦ ¦ ¦ ¦ ¦ Gopala Annasaheb Chandrabhan Shivaji Ashok Shishila Lahanabai Pltff.1 (D5) (D7) Pltff.2 (D6) (D8) (D9) (Son) (Son) (Son) (Son) (Son) (Daughters)
3. Original defendant Nos. 10 to 12 are purchasers of part of the suit properties from the appellant by virtue of a sale deed dated 12.1.1996 (Exh.86). Original defendant Nos. 13 to 19 are formal parties, who were impleaded because they were cultivating some of the lands in question.
4. Admittedly, deceased Govind held various properties as shown in claim clause 1-A to 1-C. He had left two widows, viz., Godabai and Seetabai. There is no dispute about the fact that the plaintiff's mother - Narmadabai was the sister of deceased Hausabai. Narmadabai and Hausabai were the two daughters of said Godabai. They together inherited 1/3rd share in the suit properties and thus, deceased Hausabai was having undivided 1/6th share in the suit properties.
5. The plaintiff's case, in short, is that the legal representatives of deceased Godabai were unable to cultivate the suit lands and, therefore, it was decided to alienate the lands. Accordingly, one of the land bearing Survey No. 162/9 was alienated in favour of one Baburao Deshmukh on 17.1.1995 and the consideration amount was distributed amongst the co-sharers. Thereafter, it was decided to alienate another land to defendant No. 10-Kondibhau for consideration of Rs. 1 lac. At that time, defendant No. 6 (appellant) put forth a Will deed purportedly executed by deceased Hausabai and claimed more share on that basis.
6. The plaintiffs allege that Will deed dated 7.1.1980 relied upon by the appellant is a false document. Said Hausabai never executed such document in his favour. She would not have executed the Will deed without consent of her sister - Narmadabai. The Will deed is, therefore, not binding on their rights. The plaintiffs further allege that the defendant No. 6 (appellant) executed a sale deed in collusion with the other defendants in favour of defendant Nos. 10 to 12 (Exh.86) in order to grab monetary benefits pertaining to undivided 1/6th share of said Hausabai. The plaintiffs, therefore, sought declaration that the Will deed purportedly executed by deceased Hausabai is not binding on their rights and that the sale deed executed by defendant Nos. 1 and 6 on 12.1.1996 (Exh.86) in favour of defendant Nos. 10 to 12 regarding part of the lands shown in claim clause 1-A is also not binding on their rights. They urged for partition decree to the extent of their 1/7th share each.
7. The suit was resisted by original defendant No. 6 (appellant) on the ground that he became owner of the undivided share held by deceased Hausabai on basis of her Will deed. He contended that deceased Hausabai held 1/4th share and executed the Will deed in his favour on her own free will and volition. He contended that the house properties have collapsed and there remained nothing for effecting partition. He also submitted that the suit was bad for misjoinder of parties. He denied that the Will deed was false and that deceased Hausabai did not execute the same on her own. He, therefore, sought dismissal of the suit with compensatory costs of Rs. 1,000/-. His pleadings were adopted by original defendant Nos. 5, 8 and 9 as per purshis (Exh.57 and Exh.64).
8. Significantly, the other defendants, including the purchasers, did not file any written statement. They did not participate during the course of trial.
9. The trial Court raised several issues. The trial Court came to the conclusion that the Will deed in question is not duly proved by the appellant. The trial Court also came to the conclusion that the appellant had no competency to alienate the lands in question in favour of original defendant Nos. 10 to 12. The trial Court held that both the said documents were not binding on the rights of original plaintiff Nos. 1 and 2. Consequently, the suit for declaration and partition came to be decreed. The trial Court held that the plaintiffs would be entitled to separate possession of 1/10th share each in respect of all the suit properties.
10. Feeling aggrieved, only original defendant No. 6 has preferred this appeal.
11. The material points involved in this appeal are thus:
(i) Whether in the facts and circumstances of the present case, the trial Court erred in holding that the Will deed dated 7.1.1980 is not proved by the appellant and is a void document, which does not bind the plaintiffs and, therefore, the share of deceased Hausabai could not be alienated by him in favour of defendant Nos. 10 to 12 ?
(ii) Whether in the facts and circumstances of the present case, the appellant, being propounder of the Will deed dated 7.1.1980 duly dispelled surrounding suspicious circumstances and that the disposition of the property rights of deceased Hausabai in his favour is legal and valid ?" Both the above points are answered in negative for the reasons discussed hereinafter.
12. Mr. S.K. Shinde, learned Advocate for the appellant and Mr. A.B. Gatne, learned Advocate for the purchasers adopted same line of arguments. Both of them would submit that the plaintiffs were required to prove existence of suspicious circumstances surrounding the Will. They would submit that in absence of proper pleadings regarding existence of suspicious circumstances, the trial Court erred in holding that the Will deed is a void document. They would submit that the plaintiffs failed to discharge initial burden of proof as required under Section 102 of the Evidence Act. They would further submit that the plaintiffs were required to set out the circumstances which are said to be suspicious, and burden should not have been shifted on the shoulder of the appellant. They pointed out from version of DW-Namdeo that there is sufficient material to infer due execution of the Will deed in question. They seek to rely on various authorities, to which I shall refer during course of further discussion.
13. Before I proceed to scan oral evidence tendered by the parties, it is pertinent to note that the appellant did not enter the witness box. He claims to be beneficiary under the Will deed in question. The plaintiffs examined PW- one Shivaji on their behalf. On behalf of the defendants, only DW-1 Namdeo entered the witness box. The parties closed their evidence without any further witness examined at the trial. DW-Namdeo is said to be the attesting witness of the Will deed in question (Exh.85). It cannot be overlooked that since beginning, the stance of the plaintiffs is that the Will deed was not known to them untill the second alienation was proposed by the co-sharers in favour of defendant No. 10 in the year 1996. Thus, from 1980, the Will deed did not see day of light untill the proposal for alienations were deliberated upon by the co-sharers, in the year 1996.
14. Coming to the oral evidence of PW-Shivaji, it may be said that in 1996, the plaintiffs gathered information regarding the alleged Will deed executed by deceased Hausabai in favour of defendant No. 6 (appellant). His version reveals that in the year 1995, land Survey No. 162/9 was alienated by all the co-sharers in favour of one Govinda. That first alienation is not disputed by the defendants. The version of PW-Shivaji reveals that the defendant Nos. 1 and 6 alienated 3/4th of the suit properties in favour of defendant Nos. 10 to 12 without the plaintiffs' consent. He claims that after certain enquiry, he came to know about execution of the Will deed in question. He was asked reason for seeking the declaration to treat the Will deed as illegal. He explained that deceased Housabai did not inform about the said Will deed and further that she did not consider share of the plaintiffs. It is argued that such admission of PW-Shivaji discloses his intention to lay false claim over the suit properties. I do not agree. He has only furnished the explanation, which was sought from him during the cross-examination.
15. In "Kalyan Singh v. Smt. Chhoti and Ors." , the Apex Court held that the propounder is required to dispel the suspicious circumstances by placing satisfactory material on record. It is observed:
In order to judge the credibility of witnesses and disengage the truth from falsehood the court is not confined only to their testimony and demeanour. It would be open to the court to consider circumstances brought out in the evidence or which appear from the nature and contents of the document itself. It would be also open to the court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party.
Similarly, in "Gurdial Kaur and Ors. v. Kartar Kaur and Ors." , the Apex Court held that onus of proof is on the propounder of Will to dispel the suspicious circumstances existing in respect thereof.
16. There is consistent view taken by the Apex Court and other Courts that conscience of the Court must be satisfied not only regarding due execution of the Will deed and appropriate attestation thereof but also regarding existence of free volition of the executant and real intention to bequeath the property mentioned in the Will deed.
17. The version of DW-Namdeo reveals that he was present at the time of execution of Will deed by deceased Hausabai. He states that he was not called by anyone but had gone to Tahsil office at the relevant time for his own work. He is stranger to the family. His version purports to show that the Will deed was read over to deceased Hausabai and thereafter, she had put her thumb mark as an executant. He attested the Will deed. It is important to note that the original Will deed was not produced before the Court. A xerox copy thereof was filed and signature of DW-Namdeo is identified by him on that copy (Exh.85). His version is blown up in the cross-examination. He admits, unequivocally, that he was unable to know as to in what respect the Will was executed. He had no personal talk with the appellant and deceased Hausabai in regard to the contents of the Will deed. He does not know whether said Hausabai was suffering from any ailment at that time. He did not know her full name. He admits:
I cannot tell whether Hausabai had any intention to execute the Will. It is true that I had been to Tahsil office on that day for my personal work. On looking me, those people called me for the signature.
He also admits that he was unable to tell whether the Will deed was registered thereafter. In other words, it is sufficiently clear that he was just a signatory of the Will deed in question.
18. The appellant ought to have proved that deceased Hausabai was mentally sound at the relevant point of time. He was required to establish that she could have taken independent decision to execute the Will deed. It appears from the record that the appellant participated in the execution of the Will deed. He is a beneficiary under the Will deed and his participation itself is a suspicious circumstance. The recitals of the Will deed would show that deceased Hausabai was suffering from Asthama since about couple of years before execution of the so called document and had anticipated that she would not live longer. In case of old aged widow, it is always necessary to prove that there was absence of influence by anyone and she had opportunity to get independent advise. In the present case, she could have confided in her real sister, viz., Narmadabai. There is nothing on record to show that she consulted Narmadabai prior to execution of the so-called Will deed. Nor, it is so stated in the written statement of the appellant. The appellant has not explained as to why he kept himself away from the witness box. So also, no other defendant came forward to face the cross-examination and explain about the mental and physical condition of deceased Hausabai, at the time of execution of the said Will deed (Exh.85). It need not be reiterated that DW-Namdeo is a stranger and, admittedly, a chance witness. He did not even wait to see whether the Will deed was registered. He simply signed the Will deed and walked away. Therefore, I am not inclined to attribute much significance to his version. Not only that his version is insufficient to prove due execution of the Will deed and particularly, the intention of deceased Hausabai to bequeath her undivided share in favour of the appellant, but that is also insufficient to prove due execution of the Will deed as required under Sections 63 and 68 of the Evidence Act.
19. The revenue entries appearing from the relevant 7/12 extracts (Exh.7 to Exh.19) purport to show that the Will deed was not brought to the notice of the revenue authorities. It is worthwhile to note that said Hausabai is said to have executed the Will deed in question on 7.1.1980. She was suffering from illness and died on 10.3.1980. Obviously, the appellant could have anticipated her death within a short span in the first week of January 1980 and, therefore, he organised for execution of the so-called Will deed with the help of the stranger witnesses. Another attesting witness by name Thakaji Kute is also unrelated to the parties. He was not examined and there is no evidence on record to show that in his presence, contents of the Will deed were explained to Hausabai, which she admitted to be correct as per her free Will.
20. The evidence tendered by the appellant is inadequate, shaky and unreliable to reach conclusion that the Will deed was executed as a matter of fact by deceased Hausabai and that she was mentally fit to bequeath her undivided share. Several judgments were referred by the learned Advocate for the appellant and the learned Advocate for purchasers. In "Ramabai Patil (Dead) through LRs. and Ors. v. Vishnu Vekhande and Ors." 2004 (1) Mah.L.J. 1, it is held that mere non-examination of an advocate, who was present at the time of preparation or registration of the Will deed cannot by itself be a ground to discard the Will. In "Banubai Dadu Mane and v. Smt. Subhadrabai Krishna Nikam" 1997 (1) Mah LR 278, it is held that Will deed can be proved by examining at least one attesting witness and no particular form of attestation is necessary. Mr. Gatne seeks to rely on Anil Rishi v. Gurbaksh Singh in support of his conention that the initial burden of proof would be on the plaintiffs in view of Section 101 of the Evidence Act. He contended that the plaintiffs ought to have pleaded and proved the existence of suspicious circumstances.
21. The fact situation in the present case is different. The plaintiffs denied execution of the Will deed by deceased Hausabai. They cautiously pleaded that if at all it is proved to have been executed by her, then also it was not binding on them because the Will deed could not have been executed by her in view of the fact that she did not consult her real sister - Narmadabai. The question of initial burden would arise only when the absence of averments in the plaint would be noticed and that there was requirement to plead all the suspicious circumstances. It cannot be ignored that since 1980 till 1996, the execution of the Will deed was not within knowledge of the plaintiffs. Obviously, they could not have gathered what were the exact circumstances prevailing at the relevant time in January 1980. The very fact that the Will deed was hidden for a considerable period of about 15/16 years, by itself is a suspicious circumstance. Mr. Gatne also seeks to rely on "P. Subramanian and Ors. v. Ramachandran and Ors." . A Division Bench of Kerala High Court held, on basis of the facts obtained in the said case, that in the absence of initial evidence on the part of the plaintiff, who disputed the genuineness of the Will, the propounders of the Will deed need only to prove due execution of the Will. So, at least, the propounder was required to prove due execution of the Will deed. The vague version of DW-Namdeo, as stated earlier, is insufficient to prove due execution of the Will deed in question.
22. As a general rule, it may be said that initial burden is on the plaintiff to prove his case. However, when there are inherent improbabilities, appearing from the line of defence as well as from the evidence of the defendants, it cannot be said that the burden would be displaced and that everything is required to be proved by the plaintiff. The litmus test is to see, which party would fail if no evidence at all is adduced. In the present case, if no evidence would have been adduced, then the suit could not be dismissed on the assumption that the Will deed is to be presumed to have been duly executed. I am of the opinion that the relevant suspicious circumstances are not dislodged by the appellant. Further, when the defendant Nos. 10 to 12 (purchasers) did not file any written statement and no participation on their part in the trial is conspicuous, they have no legal right to set up any particular defence much less in regard to the execution of the Will deed in question. The defendants failed to prove the Will deed in question and hence, no interference is warranted in the concurrent findings of the Courts below.
23. For the reasons aforestated, there is no substance in the appeal. Hence, the appeal fails and is accordingly dismissed with costs.