Gujarat High Court
Kiritbhai Melabhai Tadvi vs Narmadashankar Premjibhai on 1 April, 2013
Author: C.L. Soni
Bench: C.L. Soni
KIRITBHAI MELABHAI TADVI....Appellant(s)V/SNARMADASHANKAR PREMJIBHAI DAVE C/SA/267/2008 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL NO. 267 of 2008 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE C.L. SONI Sd/-
========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
No 2 To be referred to the Reporter or not ?
Yes 3 Whether their Lordships wish to see the fair copy of the judgment ?
No 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
No 5 Whether it is to be circulated to the civil judge ?
No =========================================================== KIRITBHAI MELABHAI TADVI Versus NARMADASHANKAR PREMJIBHAI DAVE & 12 ================================================================ Appearance:
MR MR SUNIT SHAH for MR AY KOGJE for the Appellant MR DHAVAL DAVE, SR. ADVOCATE with MR JIGAR M PATEL for the Respondents =========================================================== CORAM:
HONOURABLE MR.JUSTICE C.L. SONI Date :01/04/2013 CAV JUDGMENT
1. This appeal under Section 100 of the Code of Civil Procedure is at the instance of original objector No.1 in Probate Application No.174 of 2003 filed by respondent Nos.1 to 12 herein- original applicants on 15.9.2003 in the Court of learned Civil Judge (S.D.) at Vadodara seeking declaration that Will annexed with the application is genuine. Respondent No.13 in this appeal was objector No.2, who since passed away, his heirs have been brought on record.
1.1. Parties shall be referred as per their original status before the Trial Court.
2. It is the case of the applicants that deceased Shanabhai Shivabhai Tadvi and his wife, named Suryaben, executed Will on 13.6.1991 in their favour in presence of Notary Ms. Mrunaliben S. Bhatt and two witnesses, namely Patel Jethabhai Motibhai and Patel Ghanshyambhai Chhotabhai, for their properties mentioned in the application. Properties described in the application in para 3 are (1) land bearing Survey No.54 admeasuring 5 Hector 53 Are and 4 Sq. Mtrs. and (2) house No.3 with open Vada. Both the properties are stated to be situated in village Harmanpura, Taluka Waghodia, District Vadodara. As stated in the application that deceased Shahabhai- the testator of the Will died on 7.6.1994 and thereafter, acting upon the Will, the applicants have taken possession of the properties in question and they have been in possession of the said property. Suryaben, wd/o. deceased Shanabhai died on 5.10.1995. Pursuant to the public notice, the objectors lodged their objections on 23.10.2003, inter alia, stating that deceased Shanabhai had no issue and deceased Shanabhai and his widow were maternal uncle and aunt respectively of the father of the objectors. It is further stated that the Will is bogus and thumb impression on the Will is not of deceased Shanabhai. It is further stated that thumb impression of deceased is found only on the last page and not on every page. It is also pointed out that all pages of the Will are typed and are divided in paragraphs except bottom paragraph on the last page, which is handwritten and thumb impression is found below it which raises great suspicion about execution of the Will. It is further stated that deceased Shanabhai was always putting his signature for all kind of transactions with Government or semi Government department. It is further stated that deceased Shanabhai was member of Bakrol Group Gram Panchayat and he was regularly attending meetings of the Gram Panchayat and was putting his signature in minute books of the Gram Panchayat. It is further stated that documents presented with list were also executed by deceased Shanabhai by putting his signature and therefore, thumb impression on the Will creates great suspicion as regards genuineness of the Will. It is further stated that nowhere in the Will, name of widow of Shanabhai is found nor even on the last page of the Will, where thumb of deceased Shanabhai is affixed, thumb impression or signature of his widow is taken but on the reverse page, thumb impression of widow of deceased Shanabhai is stated to have been taken. Objectors have further stated that first two pages of the Will contain page numbers but last page has no page number. It is further stated that the land held by deceased Shanabhai was of restricted tenure under Section 73-A of the Bombay Land Revenue Code and could not have been given by Will to the applicants without prior sanction of the Collector. Objectors have further raised objection that the applicants have got bogus Will prepared from deceased Shanabhai to play fraud with the Statute. It is further stated that the objectors have got interest in the property of deceased Shanabhai, being heirs of deceased Shanabhai, and since the Will is bogus and surrounded with suspicious circumstances, the objectors have lodged objections to prevent the applicants from grabbing the property of deceased Shanabhai.
3. On appreciation of the evidence, learned Trial Judge came to the conclusion that the applicants have failed to discharge heavy onus of explaining the suspicious circumstances surrounding the execution of the Will and failed to establish that the document which they propounded was the last Will and testament of the testator. Learned Trial Judge recorded that the applicants have miserably failed to prove genuineness of the Will, whereas objectors have proved that the Will in question is bogus, fabricated and suspicious. On such conclusion, learned Trial Judge rejected the application by judgment and order dated 1.8.2005.
4. Applicants, therefore, preferred Misc. Civil Appeal No.180 of 2005. Learned Appellate Judge on independent appreciation of the evidence available on record and on consideration of the provisions of Section 63 of the Succession Act and Section 68 of the Evidence Act came to the conclusion that the applicants have proved execution of the Will and have also proved the Will to be genuine by removing the suspicious circumstances by leading cogent and convincing evidence. Learned Appellate Judge thus allowed the appeal by judgment and decree dated 24.10.2008. Hence, this appeal.
5. This appeal was admitted by order dated 11.12.2008 on following substantial questions of law:-
(1) Whether in the facts and the circumstances of the case, can Will be made with regards to property with restricted tenure, in present case Section 73AA of Bombay Land Revenue Code, in favour of a person who under the law cannot acquire such restricted tenure land without permission of competent authority ?
(2) Whether in the facts and circumstances of the case, can Court issue a probate without considering and giving finding on all the suspicious circumstances ?
6. During the course of hearing, learned advocate for the appellants has tendered below mentioned written substantial questions of law dated 11.2.2013:
1. Whether Document alleged to be a Will Ex.7 can be considered to be a Will at all in absence of the Statutory requirement and evidence to establish the same Will ?
2. Whether the alleged Will dated 13.6.91 Ex.7 can be regarded as proved as per the Provisions of the Indian Succession Act ?
3. Whether the alleged Will is a fraud on the Statute itself in view of the Sale deed by the original applicant in favour of the purported testator at Ex.24 and Ex.25 ?
4. Whether the District Court (Appellate Court) has a jurisdiction to decide the Appeal as the Trial Court is a Delegate of the District Court for the purpose of issuance of probate ?
5. Whether the Appellate Court has erred in granting the relief not prayed in the Original Application ?
6. Whether The Application under the provisions of the Succession Act is maintainable for the relief of Declaration ?
7. Whether the Court below were obliged to convert the probate application into a Suit pursuant to the filing of the objection by the appellants ?
8. Whether an Agricultural Land could have been disposed of by Will ?
Learned advocate for the appellants requested the Court to formulate the above-suggested questions of law as additional substantial questions of law. However, the Court deems it proper to frame question Nos.2 and 4 from the above-suggested questions as additional substantial questions of law and they are accordingly formulated as substantial question Nos.3 and 4, which are again reproduced hereinbelow:-
3. Whether the alleged Will dated 13.6.91 Ex.7 can be regarded as proved as per the Provisions of the Indian Succession Act ?
4. Whether the District Court (Appellate Court) has a jurisdiction to decide the Appeal as the Trial Court is a Delegate of the District Court for the purpose of issuance of probate ?
7. I have heard learned advocates for the parties.
8. Learned advocate Mr. Sunit Shah appearing with A.Y. Kogje for the objector submitted that the application of the applicants seeking declaration that the Will is genuine is not maintainable in absence of prayer for grant of probate. He submitted that document alleged to be Will cannot be considered as Will in absence of fulfillment of the requirement for making of Will. Mr. Shah submitted that the applicants have miserably failed in proving not only execution of the Will but also contents thereof. Mr. Shah submitted that the alleged Will was nothing but a fraud on the Statute of the Land Ceiling Act. Since the applicants wanted to escape from clutches of the provisions of the Ceiling Act, they initially transferred the land and then got the Will executed in their favour. Mr. Shah submitted that in any case, Appellate Court has exceeded in its jurisdiction in granting relief of issuance of probate beyond the relief prayed for in the original application. Mr. Shah submitted that once the objector raised many fold objections against grant of the application, probate application became contentious one and therefore, the same was required to be heard like a regular suit. Mr. Shah submitted that since learned Trial Judge was acting as delegate of the learned District Judge, learned District Judge was not competent to hear the appeal. However, learned Appellate Judge has decided the probate application without addressing serious issues involved in the proceedings. Mr. Shah submitted that in any case, land covered under the alleged Will was of restricted tenure under Section 73AA of the Bombay Land Revenue Code and no probate in respect of such land could ever be issued as transfer of such land to non-agriculturist and non-tribal person is clearly prohibited. Mr. Shah submitted that the applicants have miserably failed to remove suspicious circumstances surrounded the Will. Mr. Shah submitted that testator of the Will was not illiterate person, still his thumb impression is found on the Will. He submitted that testator of the Will used to sign all documents executed by him and not only this but he was also Member in the Gram Panchayat and therefore, it is not believable that he would put his thumb impression on the Will. Mr. Shah submitted that there are additional handwritings found at the end of the typed portion in the document, which clearly appear to have been subsequently added so as to make out that the testator had himself read the contents of the Will and then put his thumb impression. Mr. Shah submitted that contents of the Will were neither read by the testator nor were read over to the testator and therefore, the existence and execution of the Will both cannot be believed. Mr. Shah submitted that the alleged Will is on the stamp paper purchased by one of the applicants on 13.8.1990, whereas the Will is stated to have been executed on 13.6.1991. He submitted that one of the beneficiaries of the Will has taken active part in execution of the Will and he is the person who has used old stamp paper to get the Will prepared thereon. Mr. Shah submitted that in absence of examining of the attesting witnesses, Will could not be said to have been proved. Mr. Shah submitted that the witness who was examined was not the attesting witness but he was the person who signed the Will just to identify the thumb impression put by the testator and his wife. Mr. Shah submitted that evidence of such witness, who had just identified the thumb impression of the testator could not be said to be the evidence in support of proof of the Will. Mr. Shah submitted that Notary before whom the Will was stated to have been executed was known to the applicants from beginning as she is neighbour of the applicants. He submitted that in absence of examination of the Notary as witness in support of the Will, it cannot be believed that contents of the Will were read over by the Notary to the testator and it can further not be believed that the Will was executed in presence of the Notary. Mr. Shah submitted that the objectors are relatives of the testator and there is no mention about any of the relatives of the testator which creates strong suspicion about genuineness of the Will. Mr. Shah submitted that no provision for wife of the testator made in the Will in respect of the property covered under the Will and the properties covered under the Will are stated to be taken possession on the death of testator by the applicants though wife of the testator was alive. This clearly goes to suggest that the document alleged to be Will is not Will but a got-up writing to grab the properties of the testator depriving other relatives of the testator of their legitimate right to have property after death of the testator. Mr. Shah submitted that the applicants have failed to remove all suspicious circumstances surrounding the Will and therefore, the alleged Will could not be said to be genuine Will. Not only this but the applicants have also miserably failed to prove execution of the Will by the testator himself and therefore, Appellate Court below was not justified in granting probate in favour of the applicants in respect of the Will alleged to have been executed by the testator.
8.1. Mr. Shah further submitted that though the testator died in 1994 and wife of the testator also died in 1995, still till the year 2003, neither the applicants took any step to get their names mutated in the revenue record nor even applied for probate. Such is a strong circumstance to suggest that the Will is subsequently got up especially when in the alleged Will, it is stated that the Will will bind the heirs which is generally not found in free will executed by any person. Mr. Shah submitted that neither the contents of the alleged Will nor depositions of the witnesses examined by the applicants disclose that the testator and his wife had strained relation with the objectors and therefore, non-mentioning about the relations of the testator in the Will creates strong suspicion against genuineness of the Will. Mr. Shah submitted that in the alleged Will, names of all the applicants are stated, therefore, such could never be termed as Will but fabricated document purporting to transfer the rights and and interest in the property and therefore, no probate for such kind of document could have been granted by the Court below. Mr. Shah submitted that the testator was a residence of Hanumanpura village, whereas the alleged Will was executed at Vadodara, where one of the applicants Prabhashankar actively participated. Therefore, it cannot be believed that the alleged Will was executed as per the wish and freewill of the deceased testator. Mr. Shah submitted that evidence of the witnesses examined by the applicants creates strong suspicion as regards making of the Will by the testator. He submitted that applicant Prabhashakar, who deposed, has no knowledge about the ailment of the deceased testator as also his wife. Evidence of witness Ambalal Tadvi Exh.18 examined by the applicant goes to establish that he had close relations with the applicants and therefore, he had deposed in favour of the applicants. Evidence of such witness could not be relied for the purpose of establishing the genuineness of the Will. Mr. Shah submitted that after the alleged Will was executed in the year 1991, testator had subsequently signed one consent agreement in the year 1993 in respect of one house and therefore, it cannot be believed that the testator was not in a position to sign when the alleged Will was made. Mr. Shah submitted that the applicants have totally failed to establish execution and genuineness of the Will. He submitted that the applicants have totally failed to remove all suspicious circumstances pointed out by the objectors and therefore, the applicants were not entitled to probate in their favour.
8.2. In support of his arguments, Mr. Shah has relied on the following authorities:-
(1) In the case of Girja Datt Singh Vs. Gangotri Datt Singh reported in AIR 1955 SC 346;
(2) In the case of Rani Purnima Debi and Another Vs. Kumar Khagendra Narayan Deb and Another reported in AIR 1962 SC 567;
(3) In the case of Shashi Kumar Banerjee and others Vs. Subodh Kumar Banerjee since deceased and after him his legal representatives and others reported in AIR 1964 SC 529;
(4) In the case of Jaimal and Another Vs. The Financial Commissioner, Punjab and others reported in AIR 1969 SC 392;
(5) In the case of Smt. Indu Bala Bose and others Vs. Manindra Chandra Bose and Another reported in AIR 1982 SC 133;
(6) In the case of Kalyan Singh Vs. Smt. Chhoti and others reported in AIR 1990 SC 396;
(7) In the case of S. Rajagopal Chettiar Vs. Hamasaveni Ammal and others reported in AIR 1992 SC 704;
(8) In the case of B. Rajgopala Rao and Another Vs. Appayya Dora Hanumanthu and others reported in AIR 1990 SC 1889;
(9) In the case of Hardeep Kaur Vs. Malkiat Kaur reported in 2012 AIAR (Civil) 318;
(10) In the case of Mathew Oommen Vs. Suseela Mathew reported in AIR 2006 SC 786;
(11) In the case of L. Shiv Dayal Kapoor and others Vs. Union of India, New Delhi and Another reported in AIR 1963 Punjab 538;
(12) In the case of Smt. Vatsala Srinivasan Vs. Narisimha Raghunathan and Another reported in AIR 2011 Bombay 76;
(14) In the case of Govind M. Asrani Vs. Jairam Asrani and Another reported in AIR 1963 Madras 456.
9. As against the above arguments, learned senior advocate Mr. Dhaval Dave appearing with learned advocate Mr. Jigar Patel for the applicants submitted that whether the restricted tenure land could be given to the applicants by executing a Will in view of the provisions of Section 73AA of the Bombay Land Revenue Code is not a question relevant for the purpose of deciding the probate proceedings.
9.1. Mr. Dave pointed out that the decision reported in AIR 2011 (Gujarat) 55, relied on by learned advocate Mr. Shah for the objector is not on the issue about the grant of probate but the same is in respect to acquisition of the title to the property. Mr. Dave submitted that in the probate proceedings, the Court is concerned to decide whether Will is genuine or not.
9.2. Mr. Dave submitted that exclusion of relatives, including the objectors in the Will, cannot be considered to be a suspicious circumstance when from other material and circumstances, it could be judged that there was a good reason for excluding the relatives. Mr. Dave submitted that such circumstances which are established from the evidence are that the applicants had looked after the testator and his wife all throughout their life. The testator had snapped relations with his only sister whose sons are the objectors and the objectors had never kept relations with the testator. The objectors are not the near relatives but they are the distant heirs by default as the testator has no other near relatives. Mr. Dave, therefore, submitted that the testator has rightly excluded the objectors and other relatives from his property and their objections could not be viewed as suspicious circumstances.
9.3. Mr. Dave submitted that in fact, there are three witnesses who signed as attesting witnesses, two of them having died, remaining witness Shri Umedbhai examined at Exh.14 proved execution of the Will. This witness had also identified thumb impression of the testator as also of the wife of the testator. Mr. Dave submitted that it is clearly found from the Will that the Notary had read over the contents of the Will to the testator and therefore, it cannot be said that the Will was got up and fabricated. Mr. Dave submitted that delay itself in applying for probate is no ground to suggest that the Will is not genuine. Mr. Dave submitted that handwritten portion found below the typed Will has been duly endorsed by the notary and below such handwriting portion, the testator had put his thumb impression and the attesting witnesses also put their signatures and thumb impression of the testator was duly identified by witness Shri Umedbhai who had deposed before the Court. Mr. Dave submitted that simply because handwritten portion is found below the typed portion of the Will could not be suspicious circumstance so as to doubt the genuineness of the Will. Mr. Dave submitted that if the Will is otherwise proved, simply because the Notary is not examined, the same would not render execution and proof of the Will as invalid nor would in anyway impeach upon genuineness of the Will. Mr. Dave submitted that simply because the testator was signing documents and subsequently executed the consent agreement is no ground to doubt execution of the Will. Mr. Dave submitted that law recognizes execution of a document even with thumb impression in a case where author of document is not in a position to put his signature. Therefore, simply because the testator has put his thumb impression would not render execution of the Will invalid.
9.4. Mr. Dave submitted that it has come in evidence that the family of the applicant and the testator had very good relations and the testator and his wife both were being looked after by the family of the applicants. It was family of the applicants who had gifted some land and sold remaining land to the testator. Mr. Dave submitted that if the family of the applicants had all throughout taken care of the testator and his wife and if the testator and his wife had felt obliged and developed affection towards the family of the applicants, there is no reason to doubt execution of the Will by the testator in favour of the applicants especially when the mother of the objector, who was real sister of the testator had kept no relations with the testator. Mr. Dave submitted that it is not unknown that a person who does not get love and affection from near relatives, excludes such relatives from taking any share in his property. Mr. Dave submitted that the objectors have not come out with any evidence either in oral or by way of documentary evidence so as to establish that at any point of time, they had done anything for the testator and his wife. Mr. Dave submitted that one of the relatives of the testator, named Shri Ambalal, who was examined by the applicants, has given evidence indicating that the mother of the objector who was real sister of the testator had snapped ties of her relations with the testator and the objectors also did not keep any relation nor looked after the testator and his wife. Mr. Dave submitted that evidence on record clearly go to show that execution of the Will by the testator in favour of the applicants was a natural conduct of the testator and his wife who always remained close with the family of the applicants.
9.5. Mr. Dave submitted that it is not open to the objectors to take contention as regards jurisdiction of the Appellate Court in deciding the appeal in favour of the applicants. Mr. Dave submitted that learned Trial Judge had acted as delegate of learned District Judge and under the provisions of law, it was the learned District Judge who was competent to hear the appeal. Mr. Dave submitted that learned District Judge having appreciated the evidence on record and having found that the applicants have remained successful in proving execution of the Will and removing suspicious circumstances, this Court may not interfere in such findings of fact recorded by learned Appellate Judge while exercising the powers under Section 100 of the Code of Civil Procedure.
9.6. In support of his submission, learned senior advocate Mr. Dave has relied on following judgments:-
(1) In the case of Ishwardeo Narain Singh Vs. Smt. Kamta Devi and others, reported in AIR 1954 SC 280;
(2) In the case of Ramchandra Shankar Khaire and others Vs. Sarjerao Bajirao Jagtap reported in AIR 1985 Bombay 113;
(3) In the case of Dhane Ali Mia and others Vs. Sobhan Ali and others reported in AIR 1978 Calcutta 399;
(4) In the case of P.V. Annaswami Vs. R. Janaki Ammal and Another reported in 1951 Travancore- Cochin 229;
(5) In the case of Savithri and Others Vs. Karthyayani Amma and others reported in AIR 2008 SC 300;
(6) In the case of Meenakshiammal (deceased by LRs) and others Vs. Chandrasekaran and Another reported in AIR 2005 SC 52;
(7) In the case of Smt. Indu Bala Bose and others Vs. Manindra Chandra Bose and Another reported in AIR 1982 SC 133;
(8) In the case of Janki Narayan Bhoir Vs. Narayan Namdeo Kadam reported in AIR 2003 SC 761;
(9) In the case of Beni Chand (Since Dead) now by LRs. Vs. Smt. Kamla Kunwar and others reported in AIR 1977 SC 63;
(10) In the case of Mathew Jacob and others Vs. Ms. Salestine Jacob and Another reported in AIR 1998 Delhi 390;
(11) In the case of Liladhar Karunashankar Trivedi Vs. Minaxiben Bhagwandas Trivedi reported in 2008(1) GLR 75;
(12) In the case of Oskar I. Rathod Vs. Minaxi Florence Semual Parmar reported in 2007(1) GLR 876;
(13) In the case of Lallubhai Chhotabhai by LRs. and others Vs. Vithalbhai Parshottambhai reported in AIR 1982 Gujarat 222;
(14) In the case of Kamalamma (Defendant) Vs. Somasekharappa (Plaintiff) reported in AIR 1963 Mysore 136;
(15) In the case of Inder Chand Nayyar Vs. Sarvadeshik Arya Pratinidhi Sabha and Another reported in AIR 1977 Delhi 34;
(16) In the case of Kochu Govindan Kaimal and others Vs. Thayankoot Thekkot Lakshmi Ammaa and others reported in AIR 1959 SC 71;
(17) In the case of Leo Sequiera Vs. Magdalene Sequiera Bai and others reported in AIR 1971 Mysore 143.
10. Having heard learned advocates for the parties and having perused the judgment and order passed by the Courts below with the Record and Proceedings, it appears that mother of applicant Nos.2 and 3 had gifted the land admeasuring 2 acres of Survey No.90/1 in favour of the testator as guardian of applicant Nos.2 and 3 by executing a registered gift deed dated 2.2.1961, which is found at Exh.24. She had also executed sale deed at Exh.25 on the same day as guardian of applicant Nos.2 and 3 for land admeasuring 11 acres and 33 gunthas in favour of the testator. The gift deed recites that after the death of the father of applicant Nos.2 and 3, since the testator was looking after the land of the donor and was helping in the agricultural activity of the donor, the donor had developed love and affection towards donee (testator) and the donor, therefore, gifted the land and handed over possession of the land to the donee (testator) and made him owner of the land. From recital of the sale deed, it is found that the land was sold for Rs.3,000/- to the testator and that the testator was allowed to pay the said amount by yearly installment of Rs.500/-. It is stated that till the entire amount is paid, testator shall not transfer the land to anybody and shall pay interest at the rate of 4%.
11. From the above two documents, it appears that the testator had good relations with the family of the applicants and after death of the father of applicant Nos.1 to 3 and grandfather of rest of the applicants, the testator had helped out the family of the applicants in carrying out the agricultural activities on their land. Thus, it appears that from 1961 onwards, family of the applicants and testator and his wife had good relations.
12. In the background of the above facts emerging from two documents on record, if we examine document of Will at Exh.15, it is found that at the time of execution of the Will, the testator was 75 years of age and his wife Suryaben was aged 70 years of age. It is stated that they had no issue. It is further stated that the testator had good relations with the family of the applicants right from his childhood and it is further stated that from childhood, he was serving with the family of the applicants. Family of the applicants had treated him as a member of the family and looked after him well. It is stated that they had become old and they were not in a position to do anything for them. Since they had been well looked after by the family of the applicants, they had decided to give away all their properties to the applicants after their death. The applicants have examined applicant No.3 as witness, who has given out facts as regards execution of the Will by the testator and his wife at Vadodara and also stated about the relationship of his family with the testator. One more witness Shri Ambalal Karsandas Tadvi at Exh.18 examined by the applicants, who was in fact cousin (son of brother-in-law) of the testator has deposed that the testator and his wife had been always looked after by the family of the applicants. This witness belongs to the same village where the testator and his wife resided. He has stated that the testator had no relation with his real sister and objectors are sons of sister of the testator and they had no relation with the testator. This witness stated that they had never looked after the testator and his wife. Therefore, it appears that the family of the applicants was main source of care and help to the testator and his wife. As stated above, the documents of gift and sale deed also reveal that the family of the applicants had love and affection towards the testator and his wife. Therefore, it was natural conduct on the part of the testator and his wife to prefer the applicants as against the objectors. It appears from the contents of the Will that the testator and his wife both wanted that after their death, their properties in all circumstances should go to the applicants and therefore, they have not only given out names of all the applicants in the Will but also stated that such Will would remain binding to their heirs also. It appears that the testator has also taken enough care to see that after his death and death of his wife, nobody except the applicants get their properties and for that very reason, the testator got thumb impression of his wife affixed at the time of execution of the Will by him. At this stage, it is required to be noted that as against the evidence of the witnesses examined by the applicants, revealing good relations of the applicants with the testator and his wife, the objectors have not come out with any evidence to establish that they had ever looked after the testator and his wife or even kept any relations with the testator and his wife. The objectors are in fact not the heirs of the testator by blood. As rightly pointed out by learned senior advocate Shri Dave, they are heirs by default. Therefore, even if the testator has not mentioned anything about his relatives in the Will and has excluded them from the Will, same could be taken as suspicious circumstances. Such suspicion raised by the objectors has been duly removed by the applicants by evidence of the witnesses examined by them.
13. Learned advocate Mr. Shah for the objector however, seriously contended that since the testator was signing all documents and was also functioning as member of the Panchayat, he would never have executed Will by putting thumb impression and therefore, the Will is got-up and fabricated. He also contended that two witnesses stated to be attesting witnesses are not examined and even the Notary is also not examined and person who is examined, named Umedbhai Vallabhbhai at Exh.14 was not attesting witness and therefore, execution of the Will cannot be said to have been proved.
14. At this stage, Section 63 of the Indian Succession Act, 1925, which provides for mode of execution of the Will, requires to be referred, which reads as under:-
63. Execution of unprivileged Wills.- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at seal, shall execute his Will according to the following rules:-
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
Section 63 of the Indian Succession Act itself makes a provision that the testator shall sign or shall affix his mark to the Will. Therefore, even if the testator was in habit of putting signature, law permitted him to affix mark to the Will. However, usually, when a person who is in habit of putting his signature wherever required, is found to have put his thumb mark, it creates a suspicion in the mind of anybody and therefore, in given case, it becomes necessary to know the circumstances for which thumb impression is put by such person. It is undisputed fact that the testator on the date of execution of the Will was 75 years of age and his wife was 70 years of age. It has come in evidence that the testator had also undergone cataract operation. Therefore, in old age and with lack of vision in eyes, the testator if decided to put his thumb mark, it would not raise any suspicion against genuineness of the Will. Putting of thumb impression by testator was witnessed by three witnesses and the Notary, as could be found from the evidence of witness Umedbhai Vallabhbhai examined at Exh.14 by the applicants. Therefore, simply because the testator had put his thumb mark is no ground to doubt execution of the Will by the testator.
15. In the case of Misrilal (Dead) By LRs. And Another Vs. Daulati Devi (Smt) and Another reported in 1997(7) SCC 133, the Hon'ble Supreme Court has observed that it was not unnatural for an old person to prefer to put thumb mark instead of signature. Though learned advocate Mr. Shah has pointed out that subsequent to the Will, the testator had signed consent agreement in the year 1993 and, therefore, it is not believable that the testator would have put his thumb mark on the Will. However, as noted above, because of old age and of weak vision on account of cataract operation in the year 1991, if the testator had selected to put thumb impression, the same could not give rise to any doubt against the execution of the Will by him.
16. As regards proof of the Will is concerned, it has come in evidence that two attesting witnesses were not alive when evidence was taken in the probate proceedings. However, third witness Umedbhai at Exh.14 in whose presence the testator and other two witnesses had signed, has given evidence stating in unequivocal terms that the testator and his wife had put their thumb impression in his presence and he had identified their thumb impression. He has further stated that two attesting witnesses also put their signatures in his presence and the Will was read over by the Notary to the testator and the Notary put her seal and signature also. This witness stated that he and other witnesses had signed in presence of the testator. As per the settled principles of law, any of the witnesses signing the Will in presence of the testator can prove due execution of the Will. Section 68 of the Indian Evidence Act, reads as under:-
68. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.
[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, nor being a Will, which has been registered in accordance with the provisions of the India Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.] 16.1. As per the provision of Section 68 of the Evidence Act, if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving execution of the Will, if there be an attesting alive and subject to the process of the court and capable of giving evidence. In the present case, two persons who signed the Will as witnesses were not alive and therefore, third person, named Umedbhai, who has also put his signature for identifying the thumb impression of the testator and his wife and who stated that he was present at the time of execution of the Will by the testator, was examined by the applicants to prove the Will and by his evidence, Will was proved. When the Will could be said to be proved by evidence of Umedbhai, even if Notary was not examined, it will not make any difference as witness Umedbhai has deposed that the Notary and other witnesses had put their signatures on the Will.
16.2. At this stage, reference to a judgment in the case of Beni Chand (supra),cited by learned senior advocate Mr. Dave is required to be made on the issue about examination of the attesting witness and who could be said to be attesting witness. The Hon'ble Supreme Court in the said case has held and observed in para 8 as under:-
8.
There is no substance in the grievance that the proof of the will in this case is incomplete for want of an attesting witness's evidence. Section 68 of the Evidence Act deals with proof of the execution of documents required by law to be attested. It provides that such documents shall not be used as evidence until at least one attesting witness has been called to prove the execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence. Since by Section 63 of the Succession Act, 1925 a will has to be attested by two or more witnesses, Section 68 of the Evidence Act would come into play and therefore it was incumbent on the propounder of the will to examine an attesting witness to prove due execution of the will. But this argument overlooks that Dwijendra Nigam in himself one of the three persons who made their signatures below the thumb impression of Jaggo Bai. None of the three is described in the will as an attesting witness but such labelling is by no statute necessary and the mere description of a signatory to a testamentary document as an attesting witness cannot take the place of evidence showing due execution of the document. By attestation is meant the signing of a document to signify that the attestor is a witness to the execution of the document; and by Section 63 (c) of the Succession Act, an attesting witness is one who signs the document in the presence of the executant after seeing the execution of the document or after receiving a personal acknowledgment from the executant as regards the execution of the document. Nigam's evidence shows that he and the other witnesses saw the testatrix putting her thumb-mark on the will by way of execution and that they all signed the will in token of attestation in the presence of the testatrix, after she had affixed her thumb-mark on the will.
In the case on hand, Umedbhai, who is examined as witness at Exh.14 by the applicants, in his evidence, has stated that after thumb impression put by the testator, he identified the thumb impression and in his presence, other witnesses had put signatures and the Will was executed before the Notary and before execution of the Will, the Notary had read over the contents of the Will to the testator and thumb impression as also the signatures were put before the Notary. Therefore, in absence of two other attesting witnesses, Umedbhai could be said to be attesting witness and requirement of Section 63 of the Succession Act read with Section 68 of the Evidence Act could be said to be satisfied.
17. One of the suspicious circumstances pointed out by learned advocate Mr. Shah is that below the typed portion of the Will, handwritten portion is found and who has made such writing is not disclosed and therefore, the Will cannot be said to be genuine one. However, on both the sides of handwritten portion, Notary has signed and just below the handwritten portion, thumb impression of testator is found on the left side and the same is identified by Shri Umedbhai Vallabhbhai and on the right hand side, two persons, named Patel Jethabhai Motibhai resident of Hanumanpura and Patel Ghanshyambhai, resident of Hanumanpura have signed as witnesses. Then further on back portion of the last page, thumb impression of wife of the testator is found, which is again identified by Patel Umedbhai Vallabhbhai. Below the thumb impression, Notary has put his seal and signed. Further below, Notary made below mentioned endorsement and signed the same on 13.6.1991:-
Contents are read over and explained to the executant by witness and myself.
Therefore, it clearly appears that handwritten portion is part of the Will duly executed so as to establish awareness of the testator as regards contents of the Will. For such handwritten portion, genuineness of the Will cannot be doubted.
18. Contention of Mr. Shah for the objector that the prayer made in the application for probate is not for grant of probate in respect of the alleged Will but a declaration sought as regards genuineness of the Will which is not permissible, cannot be accepted for the simple reason that the applicants have consciously followed the procedure for getting probate of the Will in question. Application is titled as Probate Application . Contents of the application are only concerning the execution of the Will by the testator and on the application, order is invited by the applicants from the learned Judge for publication of notice in respect of the Will. With probate application, Will is annexed, copies of death certificates of the testator as also the wife of the testator are also annexed. Thereafter, copy of the public notice given in newspaper is also placed on record. Therefore, for all intent and purpose, the application made by the applicants was for grant of probate. Simply because in the prayer clause, relief asked is for declaration, it would not render the application as suit for declaration especially when the relief asked for is to declare that the Will annexed with the application is genuine. Therefore, what was prayed for was for grant of probate in respect of the Will annexed with the probate application.
19. For the first substantial question of law whether Will can be made for restricted tenure of the agricultural land by virtue of Section 73-AA of the Bombay Land Revenue Code, it is required to be noted that in the probate proceedings, validity or otherwise as regards transfer of title of such restricted tenure land is not required to be gone into.
Section 73AA prohibits transfer of the land without permission of the Collector. In respect of any such land, if competent authority finds transfer in breach of the statutory provision, it is for such authority to declare such transaction of transfer as invalid and contrary to the statutory provisions and it is thereafter for such competent authority to deal with the land. But, so far as the objectors are concerned, they are not entitled to raise any such plea, that too in the proceedings for grant of probate. Probate proceeding is for limited purpose and it is for proving the genuineness of the Will. Therefore, the question as to whether the applicants can acquire a restricted tenure land without permission of the competent authority under the Will cannot be the subject matter of the issue of the probate proceedings. The question of transfer of restricted tenure land in breach of Section 73AA could be gone into under different Act and not in the proceedings for probate under the provisions of the Succession Act where the only question is whether the Will is genuine or not.
19.1. In the case of Ishwardao Narain Singh (supra), the Hon'ble Supreme Court has held that the Court of probate is only concerned with the question as to whether document put forward as the last Will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution, the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court.
19.2. In the case of Ramchandra Shaknar Khaire (supra), Bombay High Court has held that whether the testatrix could or could not bequeath the property in question to a deity in view of the mandate of Section 63(1) of the Bombay Tenancy and Agricultural Lands Act cannot be a matter which can be gone in probate proceedings. In context of grant of letters of administration under the Succession Act, Calcutta High Court in the case of Dhane Ali Mia (supra), has held that in a proceeding for grant of letters of administration, it is not for the court to decide question of title. The Court s duty is precisely to consider whether the Will had been genuinely made by the testator out of his free volition and it had been properly executed and attested in accordance with law and the testator had testamentary capacity to execute the Will.
19.3. Learned senior advocate Mr. Dave has also cited many judgments on the principles laid down by the Hon'ble Supreme Court in the matter of grant of probate and principles of law as could be found from those judgments are stated as regards the propounder s duty to establish execution and genuineness of the Will and to remove suspicious circumstances and onus of the objectors to establish fraud, coercion, etc. They are not required to be separately referred.
20. Some of the decisions cited by learned advocate Mr. Shah laying down the principles in respect of Will need to be considered. Decision in the case of Girja Datt Singh (supra), cannot be of any help to the facts of the case as in that case, the Court, as a matter of fact, found that the person who appended the signature at the foot of the endorsement of the registration of the Will cannot be called as witness to prove due execution and attestation of the Will.
20.1. In the case of Rani Purnima Debi (supra), the Hon'ble Supreme Court has held that where there were suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before the Will could be accepted as genuine and if caveator alleged undue influence, fraud, coercion, the onus would be on him to prove the same. It is further laid down that even where there were no such pleas but the circumstances gave rise to doubts, it was for the propounder to satisfy the conscience of the Court.
In the case on hand, the propounders of the Will have duly discharged their obligation to remove suspicious circumstances by examining witnesses.
20.2. Again, in the case of Shashi Kumar Banerjee (supra), the Hon'ble Supreme Court has laid down the principle for proving of the Will.
According to the said principles, this Court finds on the basis of evidence that the Will has been duly proved.
20.3. Judgment in the case of Jaimal and Another (supra), will have no application to the facts of the case.
20.4. In the case of Smt. Indubala Bose (supra), the Hon'ble Supreme Court has laid down that the suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator s mind, dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the Will to show that the testator s mind was not free. In such a case, the Court would naturally expect that all legitimate suspicious should be completely removed before document is accepted as a last Will of the testator. If the propounder succeeds in removing the suspicious circumstances, Court would grant probate even if the Will might be unnatural and might cut off wholly or in part near relations. Any and every circumstance is not suspicious circumstance. A circumstance would be suspicious when it is not normal or is not normally expected in a normal situation or is not expected of a normal person.
20.5. In the case on hand, thumb impression put by the testator is found to be genuine. Condition of mind of the testator is also found to be good. It is also found that the testator bequeathed his property in a natural way and there is nothing unnatural in excluding relatives by the testator in his Will. As discussed earlier, it is found on the basis of documentary and oral evidence that the family of the applicants and the testator and his wife both had love and affection towards each other. Therefore, it was normal and natural for the testator to lean towards the applicants rather than the objectors who have not established that they had ever looked after or maintained any relations with the testator and his wife.
20.6. Other judgments relied on by learned advocate Mr. Shah are on such similar issues and, therefore, not considered separately.
21. It is required to be noted that in every case for grant of probate in respect of a Will, the Court is to go into issue about execution of the Will, genuineness of the Will, circumstances under which the Will is made by the testator, whether the Will is reflecting wish of the testator. Each such case is to be decided on the basis of the available evidence before the Court. Propounder of the Will is to satisfy the conscience of the Court by proving execution of the Will, genuineness of the Will and by removing suspicion raised against genuineness of the Will. This Court has gone into all the above issues keeping in mind the principles of law settled by Hon ble the Apex Court.
22. Then remains last question about the jurisdiction of the Appellate Court. It is required to be noted that under the provisions of the Succession Act, probate application is required to be decided by the District Judge in contentious or by his delegate. After filing objection before learned delegate of learned District Judge making the matter contentious, the objectors continued to participate in the proceedings and got ultimate decision in their favour. Against the decision of delegate Judge, appeal before the learned District Judge was maintainable in view of the provisions of Section 299 read with Section 24 of the Gujarat Civil Courts Act, 2005. This Court in the case of Liladhar Karunashankar Trivedi (supra) relied on by learned senior advocate Mr. Dave, while deciding the question about the maintainability of the Second Appeal under Section 100 of the Code of Civil procedure, has held that by virtue of Section 24 of the Gujarat Civil Courts Act, 2005, first appeal was maintainable before learned District Judge against the order passed by the subordinate judge. In any case, when learned District Judge has appreciated the evidence available on record and decided the case finally, it is not open to the objectors to make grievance about the jurisdiction of the District Judge in appeal.
23. For the reasons stated above, the appeal is required to be dismissed.
24. In the result, the appeal is dismissed. Judgment and order passed by learned first Appellate Judge is hereby confirmed.
25. Record and proceedings to be sent back forthwith.
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(C.L. SONI, J.) After the judgment is pronounced, learned advocate Mr.Hardik Jani for learned advocate Mr.A. Y. Kogje for the appellant requests to continue the interim order of status-quo which has remained in operation till the final disposal of the appeal.
Considering the fact that the interim order of status-quo has all throughout remained in operation, interest of justice would meet if such interim order of status-quo is allowed to continue for a further period of four weeks from today. Hence, the interim order of status-quo shall remain in operation for further a period of four weeks from today.
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(C.L. SONI, J.) omkar Page 28 of 28