Bombay High Court
Devisingh S/O Balaramsingh ... vs Smt. Shailabai Wd/O Rajendrasingh ... on 24 April, 1994
Equivalent citations: 1996(2)BOMCR183
JUDGMENT H.W. Dhabe, J.
1. Both these appeals preferred by the contesting parties, feeling aggrieved by the judgment and decree of the learned Civil Judge, Senior Division, Washim, in Special Civil Suit No. 8 of 1980 which is partly against them, can be disposed of by this common judgment. Since both the contesting parties have preferred the instant appeals, they are conveniently referred to in this judgment as either the plaintiff or the defendants as the case may be.
2. The facts are that the plaintiff and the defendants 1 to 5 formed a joint Hindu family. Their geneological tree is as follows :
Lalsingh | Balramsingh Deft. No. 1 (since died) Hirabai (wife) Deft. No. 2 | | Devising Deft. No. 3 Vijaysingh Deft. No. 5 Rajendrasingh Died on 13-10-1979 | | Surjitsingh (Deft. No. 4) Shailabai (wife) (plff.) | Jagjitsingh died on 11-8-1979 The above geneological tree shows that common ancestor Lalsingh had one son Balramsingh who was the original defendant No. 1 and had died during the pendency of the suit. Since all his legal representatives were on record except his daughter Sudhabai, her name was only brought in his place as his legal representative in the suit. Hirabai the defendant No. 2 is the wife of Balramsingh, the original defendant No. 1. The said Balramsingh had three sons viz. Devisingh (defendant No. 3), Vijaysingh (defendent No. 5) and Rajendrasingh who died on 13-10-1979. The plaintiff is the wife of Rajendrasingh. They had one son by name Jagjitsingh who pre-deceased his father as he died on 11-8-1979.
3. The relevant facts, according to the plaintiff, leading to the filing of the instant suit by her are that on 1-10-1952 there was a partition of the joint Hindu family between Balramsingh, the defendant No. 1, and his sons Devisingh, Vijaysingh and Rajendrasingh and his wife Hirabai. In the said partition the deceased Rajendrasingh, the husband of the plaintiff, was allotted the property, which was in his possession at the time of his death. The particulars of the said property given by the plaintiff in paras 2, 3 and 5 of the plaint are as follows :
(A) Fields : Fields of village Ambapur, Tq. Mangrulpir, District Akola.
S. No. Sub-Dn. A.G. Assess Share Well. 5 - 27.36 25 Whole 29 2 8.26 8 Whole 0 - 23.39 15 Whole 30 - 3.30 3.50 Whole 38 - 3.75 2.27 Whole (B) Houses :
House of Mangrulpir, Tq. Mangrulpir, Dist. Akola, Two storied house the bricks walls and with corrugated iron steel falling north and door to the south Length : 40 feets.No. in Municipal record 74
No. in Nazul record Breadth: 60 feet. Price Rs. 5000/-
(C) Plot near Motor Stand with Shop and Hotel of Shankarrao Shinde, Dube Cycle Stores, Hariram Maharaj, Ratilal Sangani, and Shaligramsingh, Mohamad Ismail.
Length : 150 feet.
Breadth : 175 feet.
No. In Municipal record 36, 36/1, 36/2, 36/3, 36/4, 36/5.
No. in Nazul record. Price : Three Thousand.
(D) Kotha of village Ambapur. Price 200/- only.
4. Rajendrasingh died on 13-10-1979 and his family at that time owned the following moveables :
Moveables : 1) Bullock : One Thousand Agricultural implements 1) Iron plough 2 : Two Hundred 2) Wooden Ploughs 2 3) Tiphan 2 : Two Hundred 4) Daware dunde 6 x 6 = 12 5) Oil engine 1 : Two Thousand, fixed in well in S. No. 29/2. 6) Electric Motor Pump Set 2 : Three Thousand, fixed in thewell in S. No. 5. Total : 6400/-
5. As per plaintiff, she was married to deceased Rajendrasingh on 21-5-1972 and in the marriage the following presents were received by her worth Rs. 3500/-.
1. Almirah : Rs. 700/-
2. Radio Philips : Rs. 700/-
3. Rally Table Fan : Rs. 300/-
4. Sofa set : Rs. 300/-
5. Steel Cot : Rs. 200/-
6. Hot-water bumb : Rs. 500/-
7. Pital Bumb : Rs. 200/-
8. Utensils : Rs. 600/-
Total : Rs. 3500/-
6. It is the case of the plaintiff that after her marriage with Rajendrasingh on 21-5-1972, their son Jagjitsingh was born on 11-3-1974 and he predeceased her father as he died on 11-7-1979 whereas his father Rajendrasingh died on 13-10-1979. It is thus the case of the plaintiff that after the death of Rajendrasingh and son Jagjitsingh, she became the exclusive owner of the property which was allotted to the share of her husband Rajendrasingh as described above including the presents received by her whose particulars are also given hereinabove.
7. The grievance of the plaintiff in the suit is that after the death of her husband Rajendrasingh the original defendant No. 1 Balramsingh, his wife Hirabai i.e. the defendant No. 2, the defendants 3 and 5, the brothers of her husband Rajendrasingh and the defendant No. 4, the son of the defendant No. 3, had colluded to defeat her lawful right over the above property which had fallen to the share of her husband and which was in his possession at the time of his death. According to her the above defendants 1 to 5 illegally took possession of the immovable property as well as movable property belonging to her husband after his death. The defendants 1 and 3 also started receiving rent from the shops situated upon the plot near the motor stand. She was, therefore, constrained to file the instant suit.
8. The plaintiff has prayed inter alia for the following reliefs in the suit :
a) Possession of the fields described in para 3(A) above and the immovable property described in para 3(B) and 3(D) above,
b) Declaration of ownership in respect of the immovable property described in para 3(c) above.
c) Possession of movables as described in para 3 of the plaint (para 4 above) or for their prices.
d) Possession of articles received by the plaintiff as presents at the time of her marriage and presently in possession of defendants 1 to 5 and described in Schedule A in the plaint (see para 5 above) or their prices.
e) Declaration to her title to the recurring deposit standing in the name of her deceased son Jagjitsingh who died on 11-1-1979,
f) Accounts of the profit of the fields for the year 1979-80 valued at present at Rupees Twenty thousand against the defendants Nos. 1 to 5,
g) Decree for arrears of rent in respect of house No. 2 recovered by the defendant Nos. 1 to 5 and against the defendants 6 to 11 if they have not paid same to defendant No. 1 to 5.
h) Enquiry of into accounts of the profits of the fields described in para 14 against the defendant No. 1 to 5 under Order 20, Rule 12 from the date of suit till actual delivery of possession, to plaintiff.
i) Accounts of the rent of houses in respect of house No. 2 from the date of suit till final decree in the suit,
j) Equitable relief which may be necessary according to the alienate having and as directions given in the decree.
k) If plaintiff is not entitled to possession of the whole properties, Decree for partition which is lessor relief of her 5/6th share or 1/2 share as found entitled to may be passed,
l) Decree for partition of houses by appointment of Commissioner.
m) Suitable direction under Order 20, Rule 18 for enquiry into profits of houses and fields.
n) Possession of residential house for residence in favour of plaintiff.
o) If plaintiff is not entitled to possession immediately of S. No. 9, 30/2 and 38/2, possession of the same after the deaths of defendants 1 and 2 may be passed.
9. The plaintiff has alleged in her plaint that after the inspection of the revenue records she came to know that the defendant No. 4 Surjitsingh i.e. the son of the defendant No. 3 Devisingh, had claimed the property of her husband Rajendrasingh as a legatee under the Will (Exh. 265) dated 10-10-1979 alleged to be executed by him. The plaintiff has challenged the existence, the legality and the validity of the said Will (Exh. 265) on various grounds. The plaintiff has also challenged the maintenance arrangement alleged to be made in favour of the defendants 1 and 2 i.e. the in-laws of the plaintiff by her deceased husband Rajendrasingh. According to the plaintiff, there was no question of any of his fields being given by her husband Rajendrasingh for maintenance of his parents i.e. the defendants 1 and 2 because in the family partition effected on 1-10-1952, hereinbefore referred to, more than 200 acres of land was allotted to the share of the defendant No. 1 whereas the extent of the lands allotted to the share of the deceased Rajendrasingh was much less. It is her case that the parents of the deceased Rajendrasingh were not in need of any maintenance and therefore, there was no question of making any maintenance arrangement in their favour by the deceased Rajendrasingh. It is, therefore, denied that any such maintenance arrangement was made by her deceased husband Rajendrasingh.
9A. It is alleged in the plaint that the entries in the revenue records showing the fields S. Nos. 9, 30/2 and 38/2 of Village Ambapur in the name of the defendants 1 and 2 are manipulated and are collusive. It is then alleged that the possession of the above fields alleged to be given for maintenance of the defendants 1 and 2 was always with her husband Rajendrasingh before his death and it is only after his death that the defendants 1 to 5 had illegally taken possession of the said fields. It is further alleged that after partition of the family property on 1-10-1952, there was no legal or moral liability upon the deceased Rajendrasingh to maintain his parents i.e. defendants 1 and 2. As such, since there was no consideration for making the maintenance arrangement, the said maintenance arrangement was void. At any rate, it is alternatively alleged that the said maintenance arrangement was void as it was made to avoid the effect of the Amending Act No. XXI of 1975 by which the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 was extensively amended, the Amended Act being referred to hereinafter as the 'Ceiling Act', and the ceiling on agricultural lands was drastically lowered. It is thus her case that since the joint family had disrupted when the partition of the joint family property took place on 1-10-1952, the other members of the joint family had no right, title or interest in the property allotted to the share of her deceased husband Rajendrasingh.
10. As regards the open plot near the motor stand upon which there are tenanted shops and a Hotel described in para 2(b) of the plaint as house No. 2 which was owned and possessed by her husband Rajendrasingh, it is her case that after his death, she being the owner of the said open plot, she is entitled to recover the rent of the tenanted shops and Hotel therein from the defendants 6 to 11 who are tenants thereof from the time of her deceased husband Rajendrasingh. However, it is her grievance that since the time of the death of her husband Rajendrasingh, the defendants 1 to 5 are illegally recovering the rent of the said tenanted premises from the defendants 6 to 11 because of which she is claiming the declaration in respect of her right to claim and receive the rent from the defendants 6 to 11 from the time of death of her husband i.e. from 13-10-1979. The plaintiff has also claimed Rs. 20,000/- from the defendants 1 to 5 for appropriation of standing crops in the fields of her husband Rajendrasingh during the year 1979-80 after his death on 13-10-1979.
11. What is then material to be seen from the plaint is that according to the plaintiff she alone is entitled to succeed to the property of her deceased husband Rajendrasingh as his legal heir under the Hindu Succession Act, 1956 unless his alleged Will (Exh.265) is held valid in respect of the whole of his property. It is then alleged by her that even if the defendant No. 2 Hirubai, the mother of the deceased Rajendrasingh is entitled to share in his property as Class-I heir under the schedule to the Hindu Succession Act, 1956 her share would only be 1/6th share in his property because on the death of her son Jagjitsingh on 11-8-1979, if there is a notional partition as envisaged by section 6 of the said Act in the branch of her deceased husband Rajendrasingh i.e. amongst Rajendrasingh, her son Jagjitsingh and herself, each would get 1/3rd share in the property of Rajendrasingh. On death of her son Jagjitsingh, she would alone be entitled to succeed to his share as his Class-I heir under section 8 of the Hindu Succession Act, 1956 with the result that her share would be 2/3rd and that of Rajendrasingh would be 1/3rd in his ancestral property. Further, according to her, after the death of Rajendrasingh, his 1/3rd share would be divided between herself and his mother Hirubai with the result that each would get 1/6th share therein. Thus her share would be 5/6th whereas the share of Hirubai would be 1/6th in the ancestral property in the hands of her husband Rajendrasingh.
12. As regards the Will (Exh. 265) alleged to be executed by her husband Rajendrasingh in favour of the defendant No. 4 Surjitsingh i.e. the son of defendant No. 3 Devisingh, the said Will is challenged upon various grounds as enumerated in para 18 of the plaint. According to the plaintiff, the said Will is inter alia not genuine, is not executed by her husband Rajendrasingh and is brought about by collusion and by practising fraud by the defendant No. 3 in favour of his then minor son Surjitsingh the defendant No. 4, with a view to grab the property of the deceased Rajendrasingh illegally and thus to deprive the plaintiff of her right and interest in the said property. Besides the above ground, the said Will (Exh. 265) is also challenged on the ground that her husband Rajendrasingh had no authority to make any Will in respect of the joint family property. At any rate, it is alleged that his power to execute the Will (Exh. 265) would be restricted to his own share in the property in his possession i.e. 1/3rd share and since he has executed the said Will (Exh. 265) in respect of the whole of his ancestral property by giving specific shares therein to the defendant No. 4 and the plaintiff (only life-estate to the plaintiff), the said Will is void for uncertainty.
13. The original defendant No. 1 and the defendant No. 2 filed a common written statement. In their written statement, they admitted the family partition made on 1-10-1952 but they denied that the fields mentioned in para 2(a) of the plaint were in possession of Rajendrasingh. They also denied the possession of Kotha at Ambapur with Rajendrasingh. According to them, it was allotted to the share of the defendant No. 1. Although they admitted the death of Rajendrasingh, they denied that he left the movable property as mentioned in Schedule A of para 3 of the plaint except the oil engine, electric motor pump and utensils. As regards the presents alleged to be received by the plaintiff, they denied the list of the presents except for one Radio of Philips Company. They denied that the Will executed in favour of Surjitsingh by their deceased son Rajendrasingh was not genuine or was not validly executed by him.
14. In specific pleadings the defendants 1 and 2 alleged that they had no source of maintenance in the year 1969 because in the family partition of 1952 the lands which were put to the share of the defendant No. 1 were Izara lands the rights in which were abolished. It is then alleged that no land was allotted to the defendant No. 2 in the said partition as a result of which there was no means of livelihood for the defendants 1 and 2. It was thus, according to them, the responsibility of their sons to maintain them legally and morally because of which his deceased son Rajendrasingh and his son Vijaysingh, the defendant No. 5, decided to make permanent arrangement for their maintenance. As a result, the deceased Rajendrasingh gave fields S. No. 9 and S. No. 30/2 to the defendant No. 2 for her maintenance during her life time. Similarly, according to them, he gave field S. No. 38/2 to the original defendant No. 1 for his maintenance during his life time and the defendant No. 5 Vijaysingh also gave field S. No. 2 of Ambapur to him for his maintenance during his life time. It is thus their case that they were given right to take usufruct of the fields for their maintenance and accordingly the possession of the said fields was delivered to them. It is then their case that the above oral arrangement had taken place in November, 1969 and there was mutation entry made thereof on 29-11-1969 which mutation entry was duly verified and incorporated in the record of rights by the Naib Tahsildar on 20-12-1969. It is further their case that the deceased Rajendrasingh and the defendant No. 4 Vijaysingh had in 1972 orally relinquished in their favour all their rights in the above fields given to them for their maintenance during their life time by reason of which they had become the absolute owners thereof.
15. Further, according to the defendant No. 2, the original defendant No. 1 died on 17-3-1985. Therefore, after his death, by amendment of the written statement, it is alleged by the defendant No. 2 that before his death he had made a Will (Exh. 256) in her favour on 17-12-1984 which was duly executed and attested and was registered. It is further alleged by her that the said Will (Exh. 256) is his last Will and by that Will (Exh. 256) he had bequeathed field S. No. 38/2 of village Ambapur given to him for his maintenance during his life time by the deceased son Rajendrasingh to her and as such she has after his death become its absolute owner.
16. It is then alleged by the defendants 1 and 2 by way of amendment of their written statement that certain gold ornaments whose particulars are given in para 27-A of their written statement and which belonged to the deceased Rajendrasingh were in possession of the plaintiff but were not brought by her in the common hotch-pot in the suit for partition and hence her suit was not maintainable. It is alternatively claimed that if the property of the deceased Rajendrasingh does not devolve upon the defendant No. 4 Surjitsingh in accordance with the Will executed by him, the defendant No. 2 Hirabai will have 1/2 share in the property of her deceased son Rajendrasingh as per law.
17. The defendants 3 and 4 also resisted the suit by filing a separate written statement. They admitted the relationship between the parties. They denied that the immovable and movable property in the suit was in possession of Rajendrasingh at the time of his death. They alleged in their written statement that the plaintiff was not pulling on well with her husband Rajendrasingh and that she had no affection for him. Further, according to them Rajendrasingh did not have any liking for her after the death of their only son Jagjitsingh who died at a young age due to blood cancer. It is thus the case of the defendants 3 and 4 that since the relations between Rajendrasingh and the plaintiff were strained, he had executed the Will (Exh. 265) in favour of the defendant No. 4 i.e. the son of the defendant No. 3 bequeathing in his favour all his property except one field and a plot having shops which property was given as per his Will (Exh. 265) to the plaintiff with a view to make arrangement for her maintenance during her life-time and the same also was thereafter to vest in the defendant No. 4. They have denied that the Will (Exh. 265) executed by Rajendrasingh in favour of the defendant No. 4 was not genuine and that it was brought about by collusion and by practising fraud so as to deprive the plaintiff of her right and interest in the property of Rajendrasingh. As regards the other fields viz. the field S. No. 9, 30/2 and 38/2, it is stated in their written statement that the said fields were given by way of maintenance arrangement to the original defendant No. 1 and the defendant No. 2 who became their absolute owner as per oral relinquishment of their title in the said fields by the said Rajendrasingh and the defendant No. 5 i.e. his brother Vijaysingh in respect of field S. No. 26 alleged to be given by him to his father Balramsingh, the original defendant No. 1, by way of maintenance arrangement.
18. The defendant No. 5 Vijaysingh, the brother of Rajendrasingh, has filed his written statement by which he has adopted the written statement of the defendants 1 and 2. As regards the defendants 6 to 11 who are tenants, they remained absent, although served, and did not even choose to file any written statement. The defendant No. 12, who is the Manager, State Bank of India, Branch at Mangrulpir, district Akola, has, however, filed his written statement. He has admitted the recurring deposit in the amount of Rs. 2250/- in R.D. No. 210 in the name of Jagjitsingh i.e. the son of the plaintiff. He has stated in his written statement that the Bank is prepared to give this amount to the legal representative/s of the deceased Jagjitsingh i.e. the son of the plaintiff. After the death of the original defendant No. 1 Balramsingh, the name of his daughter Sudhabai was brought on record and she has also filed her written statement adopting the written statement of the defendant No. 2.
19. The learned trial Court, on the basis of the pleadings of the parties, framed necessary issues in the suit. Parties led evidence, oral as well as documentary, in the suit. It is material to see that the Principal issue in the suit was the issue about the validity of the Will (Exh. 265) alleged to be executed by the deceased Rajendrasingh, the husband of the plaintiff. The plaintiff examined four witnesses on her behalf including herself and the handwriting expert Shri Joshi who was examined on commission. The defendants 1, 2 and 5 also examined four witnesses including the defendant No. 2 Hirabai, Suresh Kangle and Manohar Tatwar who are respectively the scribe and the attesting witness on the Will (Exh. 256) executed by the deceased Balramsingh, the original defendant No. 1 in favour of his wife Hirabai i.e. the defendant No. 2. The defendants 3 and 4 i.e. Devisingh and his son Surjitsingh examined five witnesses including the defendant No. 3 Devisingh, Shankarsingh and Jairam who are attesting witnesses to the Will (Exh. 265) alleged to be executed by the deceased Rajendrasingh in favour of the plaintiff and the defendant No. 4. The scribe of the said Will Girdharsingh is also examined as a witness on their behalf to prove the said Will Exh. 265. They also examined the Handwriting Expert Chandrakant Bhange to prove the signature of Rajendrasingh upon the said Will Exh. 265.
20. The learned trial Court, on the basis of the evidence on record, held that the relationship between the parties as per the geneological tree given in para 1 of the plaint is admitted by the defendants. As regards the family partition alleged to be effected on 1-10-1952 between the original defendant No. 1 Balramsingh and his sons Devisingh (defendant No. 3), Vijaysingh (defendant No. 5) and the deceased Rajendrasingh, it held that the said partition was admitted in their oral evidence by the defendant No. 2 Hirabai, the defendant No. 3 Devisingh and the defendant No. 5 Vijaysingh. It further held that the oral evidence as regards the share allotted to the deceased Rajendrasingh in the aforesaid family partition effected on 1-10-1952 described as given by the plaintiff in para 2 of her plaint, was not challenged in the evidence led on behalf of the defendants and, therefore, it answered the said issue in favour of the plaintiff. As regards the movable property in possession of the deceased Rajendrasingh at the time of his death described in Schedule "A" of para 3 of the plaint, it held that the said property was necessary to an agriculturist including motor pump and engine if the land was to be irrigated from the well water. It also found that there was no challenge from the defendants to the above property described in Schedule A of Para 3 of the plaint being in possession of the deceased Rajendrasingh. As regards the claim of the plaintiff about the Stridhan property, it held that the plaintiff had failed to prove the presents which she had received at the time of her marriage. It, however, held that she had only proved the following property as Stridhan property particularly in view of the admission of the defendant No. 3 Devisingh in his evidence :
i) Philips Radio, ii) Table Fan, iii) Steel Cot & iv) Utensils.
21. The most important issues in the suit were about the proof and the genuineness of the Will Exh. 265 alleged to be executed by the deceased Rajendrasingh and about the alleged maintenance arrangement made by him for his parents i.e. the original defendant No. 1 Balramsingh and his wife Hirabai, the defendant No. 2. As regards the execution of the Will Exh. 265 by the deceased Rajendrasingh, the learned trial Court, on the basis of the evidence of the Handwriting Expert as well as the evidence of the other witnesses viz. scribe, attesting witnesses etc. who had deposed that they were present at the time of the execution of the Will (Exh. 265) by the deceased Rajendrasingh, held that the signature of the deceased Rajendrasingh on the said Will was proved. It also held that the deceased Rajendrasingh was in a disposing mind and was fully conscious to understand what he was doing. It then held that the deceased Rajendrasingh had love and affection for the defendant No. 4 Surjitsingh who was beneficiary under the Will. On the other hand, according to it, his relations with his wife i.e. the plaintiff were strained. It further found that by his Will (Exh. 265) he had made arrangement for the maintenance of the plaintiff also. It rejected the submissions on behalf of the plaintiff that the propounder of the Will viz. Devisingh, the father of the defendant No. 4 Surjitsingh who is the beneficiary under the Will (Exh. 265) had influenced the deceased Rajendrasingh who used to remain ill. As regards the question of execution and attestation of the Will (Exh. 265) and its genuineness, it held that the evidence of witnesses Shankarsingh, Girdharsingh and Jairam cannot be disbelieved only because Shankarsingh and Girdharsingh are related to the defendant No. 3. It thus accepted the Will (Exh. 265) and the arrangement made therein by the deceased Rajendrasingh about the disposition of his property after his death.
22. Dealing with the question about the alleged maintenance arrangement made by Rajendrasingh in favour of his parents i.e. the original defendant No. 1 Balaramsingh who had died during the pendency of the suit, and the defendant No. 2 Hirabai, the learned Trial Court did not accept their case that the three fields i.e. F.S. Nos. 9, 30/2 and 38/2 were given to them by the deceased Rajendrasingh, F.S. Nos. 9 and 30/2 to the defendant No. 2 and F.S. No. 38/2 to the original defendant No. 1 and that one field S. No. 26 was also given by their son Vijaysingh, the defendant No. 5, to his father the original defendant No. 1. According to him, the defendant No. 3 Devisingh was an unreliable witness on this question because although the two brothers Rajendrasingh and the defendant No. 5 Vijaysingh are alleged to have given the above fields to their parents for their maintenance, the said Devisingh did not give any property for their maintenance, but had on the contrary got F.S. No. 26 belonging to the defendant No. 5 Vijaysingh exchanged with his F.S. No. 24 in favour of his wife from his father Balaramsingh.
23. Further, as regards the said maintenance arrangement, the learned trial Court held that in the family partition effected on 1-10-1952, the original defendant No. 1 had received a substantial share for him and the defendant No. 2 and there was no evidence that no compensation was paid to him for his alleged Ezara lands, the rights in which according to the original defendant No. 1 were abolished. It then found that the original defendant No. 1 was himself managing the property of the deceased Rajendrasingh and also the defendant No. 5 Vijaysingh and, therefore, there was no reason for making any maintenance arrangement in his favour and in favour of the defendant No. 2. As regards the plea that the deceased Rajendrasingh made the maintenance arrangement to circumvent the effect of the Ceiling Act, the learned trial Court found that if the fields under the maintenance arrangement were taken into account, the total holding of the original defendant No. 1 would also exceed the ceiling limit. It thus rejected the case of the original defendant No. 1 and the defendant No. 2 about the maintenance arrangement alleged to be made by the deceased Rajendrasingh orally in 1969 by transferring to them F.S. Nos. 9,30/2 and 38/2 for their life time but thereafter in 1972 by conferring full rights of ownership upon them by orally relinquishing his title and interest in the said fields. In view of its aforesaid finding, he further held that the original defendant No. 1 Balramsingh had no right, title or interest to make disposition of the above fields in favour of his wife i.e. the defendant No. 2 as per his Will Exh. 256.
24. As regards the claim for the price of the agricultural produce to the tune of Rs. 20,000, the learned trial Court held that the income from the agricultural fields belonging to the deceased Rajendrasingh was about Rs. 10,000/- in 1979 i.e. the year of his death. It, therefore, decreed the said claim against the defendants 1 to 5 who were in possession of the said property belonging to deceased Rajendrasingh.
25. As regards the plot upon which the defendants 6 to 11 are the tenants even as per the Will of the deceased Rajendrasingh Exh. 265, the said plot was given to the plaintiff by him. The learned trial Court, therefore, held that the plaintiff was entitled to recover rent from the defendants 6 to 11 after the death of deceased Rajendrasingh. However, as regards her case that she is entitled to get back the arrears of rent recovered by the defendants 1 to 5 from the above tenants i.e. defendants 6 to 11 after the death of Rajendrasingh, the learned trial Court held that the plaintiff had failed to prove that the defendants 1 to 5 had recovered the rent from them and that she could not also tell the exact amount of the rent alleged to have been recovered by the defendants 1 to 5. It, therefore, did not grant the decree for recovery of the arrears of rent from the defendants 1 to 5.
26. As a result of its above findings, the learned trial Court has partly allowed the suit of the plaintiff. It directed the defendants 1(a) and 2 to hand over the possession of field S. No. 9, 30/2 and 38/2 to the plaintiff forthwith. It also directed the defendants 1 to 5 to pay Rs. 10,000 to the plaintiff towards the price of the agricultural produce for the year 1979. It then directed the defendants 3 and 4 to hand over the articles mentioned in para 2 of the plaint forthwith or the price of Rs. 6700/- to the plaintiff. It also directed the defendant No. 12 to pay Rs. 2250/- which was in deposit in R.D. No. 110 with his Bank in the name of the son of the plaintiff i.e. the deceased Jagjitsingh and the amount of Rs. 129.37 ps. which was standing in the name of the deceased Rajendrasingh to the plaintiff with interest if any. It directed inquiry into the mesne profit under Order 20, Rule 12 C.P.C. in respect of the income from the field S. Nos. 9,30/2 and 38/2 from the date of the suit till its possession. It further directed that the amount of maintenance paid to the plaintiff during the pendency of the suit should be adjusted in inquiry in regard to future mesne profit. It then directed the defendants 6 to 11 to pay the rent of their respective tenements to the plaintiff restraining the defendants 1 and 2 from recovering the same. It dismissed the suit of the plaintiff in respect of her claim for possession over F.S. No. 5 and house mentioned in para 1(b). It also dismissed her claim for the articles claimed as Stridhan property. It further dismissed the alternative claim of the plaintiff for partition. It awarded proportionate costs to the plaintiff from the defendants 1 to 5.
27. Feeling partially aggrieved by the judgment and decree of the learned trial Court, the defendants 1 to 5 have preferred F.A. No. 348/1989 and the plaintiff has preferred F.A. No. 212/1990 in this Court.
28. On the basis of the rival submissions of parties, the following questions arise for consideration in these appeals :
a) What is the share of the plaintiff in the suit property i.e. the property which came to the share of her deceased husband Rajendrasingh in the family partition effected on 1-10-1952.
b) Is the Will (Ex. 265) dated 10-10-1979 executed by the deceased Rajendrasingh valid to the extent of the share of the plaintiff in the joint family property, which came to the share of her deceased husband Rajendrasingh in the family partition effected on 1-10-1952?
c) Is the Will (Ex. 265) dated 10-10-1979 made by the deceased Rajendrasingh legally and validly executed by him and is genuine and can be accepted as conscious and valid disposition of his property?
d) Is the Will dated 10-10-1979 (Ex. 265) invalid in the light of the provisions of section 30 of the Indian Succession Act, 1956?
e) Has the defendants 1(a) and 2 proved the maintenance arrangement alleged to be made by the deceased Rajendrasingh by giving the Field Survey Nos. 9, 30/2 and 38/2 orally to the original defendant No. 1 and the defendant No. 2 for their maintenance initially for their life time and thereafter by conferring right of absolute ownership in the said fields upon them by orally relinquishing his right, title and interest in the said fields?
f) Is the plaintiff entitled to a decree of Rs. 20,000/- for the agricultural produce taken by the defendants 1 to 5 from the standing crops in field survey Nos. 5 and 29/2 for the year 1979 after the death of Rajendrasingh on 13-10-1979?
g) Is the plaintiff entitled to a decree for recovery of articles mentioned in para 2 of the plaint or price of Rs. 6700/- in lieu thereof against the defendants 3 and 4?
h) Is the plaintiff entitled to R.D. deposit of Rs. 129.37 with interest, if any, from the defendant No. 12 Bank?
i) Is the plaintiff entitled to get the decree for future mesne profits under Order 20, Rule 12 C.P.C. in respect of income of field Survey Nos. 9, 30/2 and 38/2 on an application to that effect from the date of the suit till the possession of the said fields is given to her?
j) Is the plaintiff entitled to a decree for partition in the instant suit?
29. Before we consider the rival submissions upon the above points, we shall refer to the undisputed facts in the suit. It is not in dispute that the suit property is an ancestral property. There was a family partition on 1-10-1952 between the original defendant No. 1 Balramsingh, his wife Hirabai and his sons Devisingh (plaintiff No. 3), Vijaysingh (defendant No. 5) and the deceased Rajendrasingh. In the said family partition the deceased Rajendrasingh was allotted the property immoveable as well as moveable as described in paras 2, 3 and 5 of plaint (see also paras 3 to 5 of this Judgment) consisting inter-alia of certain agricultural fields, house property and also the agricultural equipments. It may be seen that the deceased Rajendrasingh and the defendant No. 5 Vijaysingh were minor at the time of the aforesaid partition and their property allotted in the said family partition effected on 1-10-1952 was looked after by the original defendant No. 1 Balramsing their father. However, after the deceased Rajendrasingh became major, he started looking after his property which was in his possession till his death on 13-10-1979. His property is thereafter in possession of the defendants 1 to 5.
30. It is first necessary to consider the question whether the plaintiff is entitled to get the whole of the property of her husband Rajendrasingh because if she is not, she can press for her alternative relief of partition and separate possession of her share in the said property. Further, the above question has bearing upon the legal capacity of the deceased Rajendrasingh to make the Will of the whole of property allotted to him in the family partition of the ancestral property effected on 1-10-1952.
31. In considering the question whether the plaintiff is entitled to get the whole or the part of the property of her deceased husband Rajendrasingh, it is necessary to see that the plaintiff was married to deceased Rajendrasingh on 21-5-1972 and there was a son born to them by name Jagjitsingh on 11-3-1974. He, however, unfortunately died of blood cancer on 11-7-1979 i.e. prior to the death of his father Rajendrasingh who died on 13-10-1979. It has to be borne in mind that the property which came to the share of the deceased Rajendrasingh in the family partition on 1-10-1952 was ancestral property in which his son Jagjitsingh had an interest by birth, which is a well settled principle of Mitakashara Law relating to coparcenery property. See Article 223(4) of Mulla's Principles of Hindu Law, Fifteenth Edition by S.T. Desai at page 291, from which it is clear that a share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue/s whether they are in existence at the time of partition or are born subsequently.
32. It may then be seen that when Jagdishsingh, the son of the deceased Rajendrasingh died, Hindu Succession Act, 1956 had come into force. Section 6 of the said Act envisages devolution of interest in coparcenery property of a male Hindu who dies after the commencement of the said Act. Explanation 1 to said section 6 provides for determination of his interest in the coparcenery property at the time of his death. According to it, his interest in the coparcenery property is deemed to be his share in the said property which would have been allotted to him, had the partition of the property taken place immediately before his death. It is further necessary to see that when the notional partition takes place amongst the coparceners i.e. between the deceased Rajendrasingh and his son Jagjitsingh, the plaintiff would get share equal to the share of her son Jagjitsingh, although she may not have right to claim partition (see para 14 of the judgment of the Supreme Court in the case of Lakshmi Chand v. Ishroo Devi, . Thus, in the property allotted to the deceased Rajendrasingh in the family partition on 1-10-1952, the deceased Rajendrasingh, his son Jagjitsingh and the plaintiff i.e. the wife of Rajendrasingh had equal shares i.e. 1/3rd each. On death of Jagjitsingh on 11-7-1979, his 1/3rd share would devolve on the plaintiff i.e. his mother being his only Class-I heir under the Schedule to the Hindu Succession Act, 1956 as per the proviso to section 6 of the said Act.
33. The above construction of section 6 of the Hindu Succession Act, 1956 is supported by the judgment of the Full Bench of this Court in the case of Shushilabai v. Narayan Gopalrao, 1975 Mah.L.J. 682 which had approved the ratio of the judgment of this Court in the case of Rangubai Lalji v. Laxman Lalji, 1966 Mah.L.J. 240. The above judgments of this Court are approved by the Supreme Court which has taken a similar view in the case of Gurupad v. Hirabai, . The said decision of the Supreme Court is followed in its judgment in the case of Smt. Shyama Devi & others v. Mrs. Manju Shukla and another, also.
34. The judgment of the Supreme Court in the case of W.T. Commr. v. Chander Sen, is, however, entirely on different facts because as held in the said case the assets of the father could not be inherited by his existing son's, son who was not included in Class-I heir in the Schedule under the Hindu Succession Act, 1956. The said case was concerned with the general rule of inheritance under section 8 of the said Act. We are however concerned in the instant case with the operation of section 6 of the said Act because the share of Jagjitsingh in the ancestral property in the hands of his father Rajendrasingh has to be determined on notional partition between them just before his death.
35. Thus after the death of the son Jagjitsingh the share of the plaintiff in the suit property would be 2/3rd as against 1/3rd share of Rajendrasingh therein. When Rajendrasingh died on 13-10-1979, but for the Will, which is under challenge before us, his property i.e. his 1/3rd share in the suit property i.e. allotted to him in the family partition on 1-10-1952 would devolve upon his Class-I heirs under the Schedule to the Hindu Succession Act, 1956 viz. the plaintiff i.e. his widow and his mother i.e. the defendant No. 2 in equal shares i.e. 1/6th each. Therefore, but for the Will the share of the plaintiff in the suit property by non-testamentary succession would be 2/3rd + 1/6th = 5/6th and the share of the defendant No. 2 therein would be 1/6th.
36. The submission on behalf of the plaintiff that in the absence of the Will, she is entitled to claim the whole of the suit property i.e. the whole of the joint family property allotted to the share of her deceased husband in the family partition effected on 1-10-1952 cannot be accepted. However, in the absence of the Will she would be entitled to 5/6th share in the said property by claiming partition and separate possession thereof, the remaining 1/6th share going to the defendant No. 2.
37. It is, however, clear that Rajendrasingh the husband of the plaintiff had interest in the coparcenery property allotted to his share in the family partition dated 1-10-1952 to the extent of 1/3rd share in the same only, after the death of his son Jagjitsingh which alone he could dispose of by Will or other testamentary disposition as provided in section 30 of Hindu Succession Act, 1956. Since the explanation to the said section makes it clear that the interest of a male Hindu in Mitakshara Co-parcenery property is property capable of being disposed of by him by Will or other testamentary disposition. His Will (Ex. 265) to the extent of the 2/3rd share of the plaintiff in the suit property i.e. the co-parcenery property allotted to him in the family partition effected on 1-10-1952 is thus clearly invalid. The question whether the said Will (Ex. 265) can be maintained as valid disposition of his 1/3rd share in the said property will be considered when we consider the general question of the legality or the validity of the said Will (Ex-265).
38. Turning to the Principal question about the legality or validity of the Will (Exh. 265) alleged to be executed by the deceased Rajendrasingh on 10-10-1979, it may be seen that the law relating to the same is well settled. The leading judgment of the Supreme Court on the question of proof of Will, its legality or validity is in the case of H. Venkatachala v. B.N. Thimmajamma, which has been followed in its latter judgments. It will be, however, useful to refer to the proposition culled out from the above judgment in para 10 of the judgment of the Supreme Court in the case of Smt. Jaswant Kaur v. Smt. Amrit Kaur, .
39. The said propositions in para 10 of Smt. Jaswant Kaur's, case cited supra are as follows:
"1. Stated generally, a Will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of Wills, one cannot insist on proof with mathematical certainty.
2. Since section 63 of the Succession Act requires a Will to be attested, it cannot be used as evidence until, as required by section 68 of the Evidence Act, 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.
3. Unlike other documents, the Will speaks from the death of the testator and therefore the maker of the Will is never available for deposing as to the circumstances in which the Will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last Will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the Will.
4. Cases in which the execution of the Will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the Will. The suspicion cannot be removed by the mere assertion of the propounder that the Will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the Will was made, or that those like the wife and children of the testatory who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the Will excite the suspicion of the Court, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator.
5. It is in connection with Wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the Court is the last Will of the testator, the Court is called upon to decide a solemn question and by reason of suspicious circumstances the Court has to be satisfied fully that the Will has been validly executed by the testator.
6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas the very circumstances surrounding the execution of the Will may raise a doubt as to whether the testator was acting of his own free Will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
40A. The above propositions also flow from the following judgments of the Supreme Court:
i) Purnima Debi v. Khagendra Narayan, .
ii) Ramchandra v. Champabai, .
iii) Kalyan Singh v. Chhoti, .
iv) Ram Piari v. Bhagwant, .
v) Smt. Guro v. Shri Atma Singh & others, .
It is thus clear from the above judgments of the Supreme Court that it is not enough for the propounder of the Will to prove its valid execution but it is also necessary for him to prove that it is the last Will of the testator and that when suspicious circumstances exist, initial onus is heavier upon him to remove all legitimate suspicions before the documents can be accepted as the last testamentary disposition of the testator.
41. The learned Counsel for the plaintiff has, while raising the question about legality or the validity of the execution of the Will and whether it is the last Will of the deceased testator Rajendrasingh, has also drawn our attention to the several suspicious circumstances surrounding the alleged making of the Will by him. The said circumstances are as follows :-
1. Will is not produced from the proper custody because the fact that how Balramsingh came into the possession of the Will is not proved.
2. The deceased Rajendrasingh was not physically and mentally fit to make the Will.
3. He died immediately after three days of the alleged execution of the Will by him.
4. The propounder of the Will viz. the guardian and father of minor Surendrasingh the defendant No. 4 who is a beneficiary in the Will (Exh. 265) played a prominent role in obtaining the Will.
5. Plaintiff-wife the legal heir of the deceased Rajendrasingh is given unfair share and inferior quality of property.
6. The delay of eight months in registration of the Will Exh. 265.
7. Fraud played by Devisingh defendant No. 3 upon his real brother deceased Rajendrasingh with the aid of his co-brother Girdharsingh D.W. 2 for defendants 3 and 4 and his friends in getting the Will executed by his brother, the deceased Rajendrasingh in favour of the son of Devisingh taking advantage of the absence of the wife of the deceased Rajendrasingh on the date of the alleged execution of the Will (Exh. 265).
8. Signature of deceased Rajendrasingh is forged or at least is not his normal signature.
9. Signature of Rajendrasingh, upon the Will, which is in English is not identified by the scribe of the Will (Exh. 265) i.e. Girdharsingh D.W. 2 for defendants 3 & 4.
42. Before actually dealing with the above suspicious circumstances, catalogued by the learned Counsel for the plaintiff, we first propose to consider the evidence leading to the alleged making and/or execution of the Will (Exh. 265) by the deceased Rajendrasingh. The following facts emerge from the evidence on record of both the parties which should help us in appreciating the evidence on record relating to the alleged making of the Will (Exh. 265) by the deceased Rajendrasingh.
43. The defendant No. 2 Hirabai, witness No. 1 for the defendants 1, 2 and 5 has stated in para 23 of her evidence that her deceased son Rajendrasingh was in habit of consuming liquor since his student life. Although she has denied the suggestion in the said para that because of consumption of liquor, he was not keeping good health, she has admitted that because of his ill-health, sometimes, they were taking him to Akola for treatment. She has further admitted in para 24 of her evidence that she used to have correspondence with the plaintiff about the ill-health of her deceased son Rajendrasingh. Although she has denied the suggestion that the deceased Rajendrasingh was bed-ridden before his death, she has ultimately admitted in para 26 of her evidence that one day prior to his death, the deceased Rajendrasingh had blood-vomiting because of which the local doctor at Mangrulpir had asked them to shift him to Akola for treatment.
44. As regards the mental condition of her son deceased Rajendrasingh, although the defendant No. 2 Hirabai has stated in para 6 of her examination-in-chief that her son deceased Rajendrasingh was never under the influence of evil spirit although his father-in-law used to say so, in para 25 of her cross-examination, she has admitted that she had written a letter (Exh. 210) to the plaintiff which would show that she was also thinking that he was under the influence of evil spirit. She has, however, clarified that her aforesaid impression was due to the impression of the father-in-law of the deceased Rajendrasingh that he was under the influence of evil spirit. She has then admitted that the father-in-law of deceased Rajendrasingh i.e. the plaintiff's father used to bring Mantrik by name Oza at Mangrulpir to free the deceased Rajendrasingh from the influence of the evil spirit. She has then admitted that because of her aforesaid impression, she had also twice or thrice tried to give treatment to her son deceased Rajendrasingh to remove the influence of evil power upon him.
45. As regards the relationship between the plaintiff and her husband deceased Rajendrasingh, the defendant No. 2 Hirabai has stated that their relations were never cordial and they used to often quarrel with each other. She has, however, stated in para 26 of her cross-examination that the relationship between the plaintiff and the deceased Rajendrasingh became quarrelsome after they started residing separately from them. It is, however, clear from her evidence that both used to take care of their 3 year old son who was suffering from blood cancer and sometimes she and the plaintiff and sometimes the plaintiff and her husband deceased Rajendrasingh used to take him to Bombay for treatment. However, after the death of their son, it appears from her evidence that whenever there were quarrels between the plaintiff and her husband deceased Rajendrasingh, the plaintiff used to go to her father's house and stay there for sometime. She has further stated that four to six days prior to the death of her son Rajendrasingh, the plaintiff had left the house after quarrelling with him and had come to Mangrulpir on the day when he had died. However, according to her, after his death she lived at Mangrulpir for about 13 days and thereafter went to her father's house.
46. As regards her relationship with the plaintiff, the defendant No. 2 Hirabai has stated in her evidence that she had no ill-will towards her and that she had not developed bad feelings for her because of her quarrels with her son Rajendrasingh. She has further stated that she had good relations with the father of the plaintiff also with whom she had correspondence also. She has admitted that she had written the letter (Exh. 215) to him.
47. As regards her relations with her son Devisingh the defendant No. 3, she has stated in para 27 of her evidence that her relations with him were good at that time. She has, however, denied the suggestion that with intention to deprive the plaintiff of her legal rights to the suit property, she had in conspiracy with Devisingh prepared the document like the Will etc.
48. Turning next to the evidence of the plaintiff Shailabai (P.W. 1), the wife of the deceased Rajendrasingh, she has stated in her evidence that she was married to Rajendrasingh on 21-5-1972 and that she was living with him till his death on 13-10-1979. She has also stated that she had one son, who died on 11-8-1979 due to blood cancer, when he was 51/2 years old. She has stated in her evidence that her relations with her husband were cordial and that there was absolutely no dispute between them. She has further stated that her husband Rajendrasingh was addicted to liquor and although for the initial period of 2 or 3 years of her marriage his drinking was moderate, it increased particularly after the death of her son due to blood cancer. She has then stated in her evidence that because of the alcoholic effect on the body of her husband Rajendrasingh, he had become weak. She has also stated in para 8 of her deposition that under the influence of liquor, her husband used to exhibit that he was under the influence of evil spirit, because of which, all his family members and relatives used to give him treatment to ward off the alleged influence of evil spirit upon him. She has further stated that after the death of her son, her husband had stopped going to the Agricultural fields as he was not well, mentally and physically. She has stated in para 9 of her deposition that he had then developed cramps in his body. She has also stated in her evidence that during the ill-health of her husband, when they used to go outside Mangrulpir, they used to receive letters from the brothers of the deceased Rajendrasingh and his parents and even her father used to receive letters from the family of her husband. She has referred in this regard to Exh. 207 and has stated that it was a letter sent to her father by Sindhubai, the wife of the defendant No. 3 Devisingh. Similarly, she had also proved the letter (Exh. 208) dated 6-11-1978 sent to her father by her father-in-law, i.e. the original defendant No. 1 Balramsingh.
49. We shall now refer to the evidence of the defendant No. 3, witness No. 1 for himself and the defendant No. 4, who is the propounder of the Will (Exh. 265) as the major share of the suit property is bequeathed by the deceased Rajendrasingh to his son Surjitsingh, the defendant No. 4 who was then minor. However, at present we shall consider his evidence limited to the question of the health of Rajendrasingh and his relations with his wife. As regards the health of Rajendrasingh, he has deposed that prior to his death, according to him, he was never bed-ridden but he was somewhat weak and was in distressed condition. This was his condition, according to him, for about 8 to 15 days prior to his death. However, he has then volunteered to say that his such condition was since after the death of his son. Although he has stated that Rajendrasingh was not addicted to drinking liquor, he has admitted that he was not keeping good-health but he could not say whether it was due to consumption of liquor. Although he initially tried to deny the knowledge about his illness and the treatment taken by him, he, thereafter admitted that the above answer given by him was incorrect and that Rajendrasingh was telling him that he was having stomach pains and was having liver problem.
50. Devisingh, the defendant No. 3, has also admitted in his evidence that he knew about the ill-health of the son of Rajendrasingh and that he was required to be taken to Akola and Bombay for his treatment. He has further admitted that the plaintiff used to accompany her son to Akola and Bombay. He has then stated that the son of the plaintiff was ill for about two years and got motherly affection from the plaintiff during his illness for two years at Mangrulpir.
51. As regards the relationship between him, his mother and the plaintiff, and the plaintiff and the deceased Rajendrasingh, he has stated in his evidence that the relations between the plaintiff, his mother and his sister were cordial and there used to be correspondence between them. He has further stated that he had tried to tell his brother Rajendrasingh as well as the plaintiff not to have quarrels between them. He has then stated that about 8 to 10 days prior to the death of Rajendrasingh, he came to know that there was quarrel between Rajendrasingh and the plaintiff and when he and his mother had gone to Rajendrasingh, the quarrel had continued but he did not remember the reason for the said quarrel. When he had tried to intervene in the said quarrel, the plaintiff had asked him to call her father to whom he had given the message whereafter he had come and had taken her with him. He has further stated that the plaintiff used to leave Rajendrasingh after quarrel for about 5 to 10 times a year. He has then stated that within 8 days prior to the death of Rajendrasingh, he had gone to his house 2 or 3 times alone.
52 As regards the health of the deceased Rajendrasingh, there is correspondence on record i.e. the letter written by Sindhubai - the wife of the defendant No. 3 Devisingh to the father of the plaintiff Exh. 207, the letter written by the original defendant No. 1 Balramsingh i.e. father-in-law of the plaintiff to her father Exh. 208, letter written by the sister to the father of the plaintiff Exh. 209, letter written by the defendant No. 2 Hirabai to the plaintiff Exh. 210, letter written by the original defendant No. 1 Balramsingh to his son Rajendrasingh Exh. 211, letter written by the sister to the father of the plaintiff Exh. 212, letters written by sister to the father of the plaintiff Exhs. 213 and 214, and letters written by Rajendrasingh to the father of the plaintiff Exh. 216 and 217. From the evidence of the plaintiff, the defendant No. 2 as well as the defendant No. 3 and the above correspondence on record, it is clear that deceased Rajendrasingh was addicted to drinking liquor since his student days because of which he was not keeping good health. He had liver problem. Similarly it appears that his mental condition was not also sound particularly from the fact that he was given treatment by some Mantrik to improve his mental condition. It is because of his drinking habits that it appears that there used to be quarrels between him and his wife for which reason his wife used to live for some days with her father after such quarrels. However, it has come on record that both of them took care of their son by taking him to Akola and Bombay for treatment.
53. It does not appear from the aforesaid evidence on record that the relations between the plaintiff and the deceased Rajendrasingh were irretrievably strained and that the plaintiff had forsaken her husband forever. The evidence on record shows that they were living together under the same roof although it is true that after their quarrels which used to take place because of excessive drinking habit of her husband Rajendrasingh, the plaintiff used to stay with her father for some time. It is further clear from the evidence on record that the relations between the plaintiff and her mother-in-law Hirabai i.e. the defendant No. 2 or other family members of the deceased Rajendrasingh were not very much strained so as not to be on talking terms with each other. In fact there used to be correspondence between the father of the plaintiff, the defendant No. 2 and other family members as referred to hereinabove particularly on the question of ill-health of Rajendrasingh and also about the quarrels taking place between the husband and the wife about which the family members on both sides were worried.
54. Although the defendants 2 and 3 have sought to underscore the seriousness of the illness of Rajendrasingh, as it appears from the evidence of the defendant No. 3 Devisingh who has merely stated that Rajendrasingh was some what weak and also in distressed condition 8 to 15 days prior to his death, it is pertinent to see that the defendant No. 2 Hirabai, who is interested in supporting the Will (Exh. 265) executed by Rajendrasingh, has stated in her evidence, as pointed out hereinbefore, that one day prior to his death Rajendrasingh had blood vomiting because of which the doctor at Mangrulpir had advised them to shift him to Akola. Further, the correspondence referred to above speaks volumes about the deteriorating physical and mental condition of Rajendrasingh. It is material to see in this regard that within 3 days of the execution of the Will (Exh. 265), Rajendrasingh had died which would show that his physical and mental condition was not sound at that time.
55. In the light of the above background of the health of Rajendrasingh and his relationship with his wife, we now proceed to examine the evidence about the making of the Will (Exh. 265) and its execution and the validity. The plaintiff had denied in her evidence that her husband Rajendrasingh ever executed any Will and even if any such document is found, it is false and bogus. The burden to prove the said Will (Exh. 265) was thus upon the propounder of the Will i.e. the defendant No. 3 Devisingh in favour of whose minor son at that time i.e. the defendant No. 4 the Will was principally made by the deceased Rajendrasingh. The defendant No. 3 Devisingh had produced the Will (Exh. 265) in the Court and had examined the following witnesses to prove the execution of the said Will viz. Girdharsingh witness No. 2 for the defendants 3 and 4, Jairam witness No. 3 and Shankarsingh witness No. 4 for them.
56. The defendant No. 3 Devisingh has stated in his evidence that the said Will (Exh. 265) was given to him by his father Balramsingh on 13th day after the death of Rajendrasingh. There is, however, no explanation given by him as to how the said Will came in possession of his father Balramsingh. He has, however, denied any prior knowledge that the deceased Rajendrasingh executed any Will in favour of his son i.e. the defendant No. 4 and that he was present at the time it was made. He has further stated that there was no discussion at all about the Will (Exh. 265) with anybody till it was read over by his father Balramsingh on the 13th day after the death of Rajendrasingh. As regards the registration of the said Will, he has stated that he did not feel it necessary to present the same for registration. However, according to him, when the father of the plaintiff tried to collect information and started preparation for filing suit against him and since the said Will (Exh. 265) was an important document in the suit, and considering the possibility that it might be misplaced, he presented the Will for registration before the Sub-Registrar by taking all the above witnesses concerned to the Registrar's office.
57. Although the defendant No. 3 Devisingh has denied that he had any knowledge that any Will was sought to be executed by the deceased Rajendrasingh till the said Will (Exh. 265) was read over by his father Balramsingh on 13th day after the death of Rajendrasingh, he has admitted in his evidence that he had gone to the house of Rajendrasingh two or three times alone within 8 days prior to his death. It is further necessary to notice that both the defendant No. 3 Devisingh as well as Girdharsingh, witness No. 2 for the defendants 3 and 4 have admitted in their evidence that they were related to each other since their wives were admittedly real sisters. Similarly, the defendant No. 3 Devisingh and Shankarsingh witness No. 4 for defendants 3 and 4 have admitted that Shankarsingh was uncle of Devisingh since their fathers were real cousin brothers. As regards Jairam-witness No. 3 for the defendants 3 and 4, the defendant No. 3 Devisingh as well as the said Jairam have admitted in their evidence that they were friends since last 20 years. It has, therefore, to be borne in mind while appreciating the evidence of these witnesses upon the execution of the Will, that the said witnesses are interested witnesses being either related to or friend of the defendant No. 3 Devisingh, the propounder of the Will. The above witnesses have, however, deposed that they were known to the deceased Rajendrasingh also and that they used to visit him.
58. Examining thus the evidence about the execution of Will (Exh. 265), the first witness relating to the same viz. Girdharsingh witness No. 2 for the defendants 3 and 4 has stated in his evidence that he had scribed the Will (Exh. 265) which was shown to him during his evidence. He has also admitted his signature thereon, as a scribe of the said Will. He has then stated that he had drafted the said Will in the house of Rajendrasingh four days prior to his death. At that time, according to him, Vitthal Patil, Jairam Patil and Shankarsingh were present and none else. He has stated in his evidence that the contents of the Will scribed by him were dictated to him by Rajendrasingh from his memory. He has then deposed that as per the Will (Exh. 265), Rajendrasingh had bequeathed his property to his wife Shailabai and nephew Surjitsingh the defendant No. 4, who was then minor.
59. As regards the procedure which he had followed in drafting the said document of Will (Exh. 265) Girdharsingh witness No. 2 of the defendants 3 & 4 has stated that he had done so as per the information given and dictated to him by Rajendrasingh. He has then stated that after the document was scribed by him, he had read over the same and had thereafter signed it. Further, according to him, Rajendrasingh, had also read the same and signed it. Thereafter, all the attesting witnesses signed it in his presence and Rajendrasingh had kept the said document of Will with him.
60. Girdharsingh, the witness No. 2 for the defendants Nos. 3 and 4 has stated in his evidence that he had told on the same day the above fact about the Will (Exh. 265) being executed by Rajendrasingh to his wife, to one Rambhau Sarjoshi and to one Pratapsingh Ganpatsingh. Thereafter he had opened the talk about the making of the Will by Rajendrasingh at the cremation ground at the time of funeral of Rajendrasingh. However, according to him, on the third day after the death of Rajendrasingh, it was actually read over by the original defendant No. 1 Balramsingh in the house of Devisingh in the presence of the plaintiff Shailabai, who was inside the house, Govindsingh, the father of the plaintiff and other guests. He has also stated that 7 or 8 months after the Will was scribed, Devisingh had told him that he should remain present in the office of the Sub-Registrar for registration of the said Will. He has further stated in his evidence that before his death, the mental and physical condition of Rajendrasingh was good.
61. The cross-examination of Girdharsingh, witness No. 2 for the defendants 3 and 4, shows that his house and the house of Devisingh, the defendant No. 3 are near to each other separated by one temple only. He has, however, denied the suggestion that his wife and the wife of Devisingh were visiting each other daily and that he and Devisingh were also meeting daily. But then he has admitted that generally within 2 or 3 days he and Devisingh used to meet whenever he was going to the temple for Darshan. He has also admitted that he had no occasion to scribe any document and that the Will (Exh. 265) was the only document he had scribed in his life.
62. Girdharsingh, witness No. 2 for the defendants 3 and 4 has then deposed that two months prior to the execution of the Will (Exh. 265) Rajendrasingh had told him two or three times about the preparation of the Will. Further, according to him, when this talk took place, none else except he himself and Rajendrasingh were present. He has then deposed that it was agreed to between them that the Will should be scribed by document writer i.e. Shri Rambhau Sarjoshi. However, he admitted that the said document writer was not consulted by Rajendrasingh in respect of the Will in his presence. Further, according to him when talks took place between him and Rajendrasingh about the drafting of the Will Rajendrasingh had told him the details about the property and to whom it was to be given. He had specifically told him that it was to be given to Shailabai and Surjitsingh. The reasons he told him for making the Will were (i) that he had lost his son (ii) that he was not in mood and (iii) he was not keeping well with his wife. He has however, admitted that Rajendrasingh never expressed to him that his wife should not get any property. However, according to him, when he had asked Rajendrasingh as to why he was thinking of making a Will when he had good health, Rajendrasingh told him that he wanted to make the Will.
63. As regards the question as to how the Will (Exh. 265) came to be executed on 10-10-1979, Girdharsingh, witness No. 2 for the defendants 3 and 4 had deposed that on that day, the servant of Rajendrasingh had come to his house at about 10.00 a.m. and that at about 10.50 a.m. he had gone to the house of Rajendrasingh where Vitthal Patil, Jairam Patil, were present and later on Shankarsingh came. Rajendrasingh had sent his servant to call Rambhau Sarjoshi, a document writer, for scribing the Will but he had sent the message that he would came within 15 minutes to the house of Rajendrasingh but when he did not come for about half an hour, Rajendrasingh has again sent his servant to call him. His servant brought the message from him that he was busy with the Court work and so he would come to Rajendrasingh's place at about 4 to 5 p.m. Rajendrasingh, however did not wait for him and had asked Shankarsingh witness No. 4 for the defendants 3 and 4 to write the document but since he had a bandaged finger, Rajendrasingh asked him to write the document.
64. Girdharsingh, witness No. 2 for the defendants 3 and 4, has admitted that Shankarsingh witness No. 4 for them, is related to him as he is husband of his sister. He has then stated in his cross-examination that Rajendrasingh went inside the house, brought some plain papers, pen and cardboard. He then told him to write the document as dictated by Shankarsingh witness No. 4 for the defendants 3 & 4. He has however, admitted that no draft of the Will was prepared. According to his cross-examination Rajendrasingh gave the details of the property and Shankarsingh witness No. 4 for the defendants 3 and 4 narrated the contents of the Will to him. He has then stated in his cross-examination that after thus preparing the Will, he had signed it as a scribe. After his signature, Rajendrasingh and the attesting witnesses had signed the Will in his presence. He has, however, admitted in his cross-examination that he cannot identify the signature of Rajendrasingh in English if the same is shown to him because he does not know English. He has denied the suggestion that in collusion with the defendant No. 3 Devisingh, false Will Exh. 265 was prepared and that he was deposing falsely to favour the defendant No. 3 Devisingh.
65. Jairam, witness No. 3 for the defendants 3 and 4, is an attesting witness upon the Will Ex. 265. He has corroborated in material particulars the above evidence of Girdharsingh, witness No. 2 for the defendants 3 and 4. In his cross-examination, he has stated that he is Police Patil of the village and that he was a friend of Devisingh and was visiting his house since last 20 years. He has then stated that he had met Rajendrasingh about 20 times before the day of the execution of the Will. He had then told him that his wife used to quarrel with him and used to leave his house for the house of her parents and therefore, he was intending to execute the Will. He has, however, denied that Rajendrasingh told him that his wife was not behaving well with him and therefore, he wanted that she should not get any property for which reason he wanted to execute the Will.
66. Jairam, witness No. 3 for the defendants 3 and 4 has admitted in his cross-examination that no draft of the Will was prepared before preparing the final Will (Ex. 265) signed by the scribe, the executant and the attesting witnesses. According to him, Girdharsingh has scribed the Will as per the dictation given by Shankarsingh. He has stated that there was no specific reason for not waiting for the arrival of document writer Rambhau Sarjoshi for writing the Will. He has then admitted that he does not know English and since, according to him Rajendrasingh had signed the Will Ex. 265 in English in his presence, he cannot identify his signature. It appears from his evidence that before the Sub-Registrar at the time of the registration of the Will, his statement was recorded and in the said statement he had stated that the Will was scribed as per the instructions from Rajendrasingh and in this regard when he was contradicted by his statement in his deposition in the Court, he affirmed his statement before the Court that Girdharsingh scribed the Will as dictated by Shankarsingh. However, when he was confronted with the fact that he had deposed falsely before the Sub-Registrar, he stated that what he told in the Court at the time of his evidence as well as what he had stated before the Sub-Registrar was correct. He has denied the suggestion that in collusion with the defendant No. 3 Devisingh, the false Will Exh. 265 was prepared and that he was deposing falsely to favour the defendant No. 3 Devisingh.
67. Shankarsingh, witness No. 4 for the defendants 3 and 4, is also an attesting witness upon the Will Exh. 265. He has also corroborated the evidence of Girdharsingh (D.W. 2) and Jairam (D.W. 3) witnesses for the defendants 3 and 4, on the question of execution of the Will Exh. 265, on material particulars. In his cross-examination, he has stated that he was educated upto Xth standard and was working as a clerk of a pleader for about 18 years during which he had occasion to see many documents of Will. He has, however, denied the suggestion that because of his knowledge about the Will, he was called. He has admitted that he and the original defendant No. 1 Balramsingh were real cousin brothers and that Devisingh was his nephew. He has also admitted that Girdharsingh is his brother-in-law since he is married to his sister. According to him Girdharsingh is educated upto 7th or 8th standard and that he knows reading and writing English. He has stated that he was not often visiting the deceased Rajendrasingh but he used to call upon him if required. He has then stated that after the death of his son, Rajendrasingh told him twice or thrice that he wanted to make a Will. At that time, according to him, there was no one else and the talk took place between him and Rajendrasingh only. Rajendrasingh had however, not told him at that time as to in whose favour the Will would be executed by him. He has further stated in his cross-examination that he did not know till he reached the house of Rajendrasingh that he was called by him for preparation of his Will.
68. Shankarsingh, witness No. 4 for the defendants 3 and 4, has stated in his cross-examination that before writing the Will, when he had asked Rajendrasingh also what the reason for making the Will War, Rajendrasingh gave him the following reasons (i) that his son was dead; (ii) that he was not keeping well; (iii) that he was in worried condition; and (iv) that his wife was not keeping well with him. He has, however, denied the suggestion that the deceased Rajendrasingh was intending to make the Will so as to deprive his wife from getting his estate. When it was pointed out to him that only three reasons for making the Will were mentioned in the Will Exh. 265, he replied that Rajendrasingh has told him that it was not necessary to mention all the four reasons in the Will.
69. Shankarsingh, witness No. 4 for the defendants 3 and 4, has then deposed that there was no talk about the registration of the Will on the day of its execution and that he had told Rajendrasingh that it was not necessary to register the Will on the same day. There was no talk also about registration of the Will on any other day, and it was for the first time after 7 or 8 months that the defendant No. 3 Devisingh had told him that he wanted to get the Will Exh. 265 registered. He has then stated that for the first time after its execution, he took the Will Exh. 265 in his hand in the office of the Sub-Registrar. He has also stated that he did not know how the Will Exh. 265 has gone in the hands of Balramsingh after the death of Rajendrasingh and thereafter from custody of Balramsingh in the hands of Devisingh. He has denied the suggestion that the Will Exh. 265 was fabricated and was a false document prepared in collusion with Devisingh, Vitthal Patil, Jairam Patil and Girdharsingh. He has however, admitted that except the document Exh. 265, no other document of the family of Rajendrasingh was prepared in his presence. He has denied the suggestion that he was deposing falsely because of his relations with Devisingh.
70. As regards the signature of Rajendrasingh upon the Will Exh. 265, the plaintiff has denied that it was the signature of her husband, and in support, she has examined the handwriting expert Vishwanath Bhaskar Joshi (P.W. - 1) who has given the opinion by examining the disputed signature upon the Will Exh. 265 and by comparing the same with other undisputed signatures of Rajendrasingh that the signature on the Will (Exh. 265) was not a genuine signature. He is cross-examined in detail by the advocate appearing for the defendants 3 and 4. The defendants 3 and 4 have also examined a handwriting expert Chandrakant Trimbak Bhanage, witness No. 6 for the defendants 3 and 4, who has given the opinion after comparing the disputed signature on the Will Exh. 265 with the undisputed signatures of the deceased Rajendrasingh that the signature on the Will Exh. 265 is a genuine signature. He is also cross-examined in detail by the learned counsel for the plaintiff.
71. This is all the oral evidence regarding the execution of the Will (Exh. 265) by Rajendrasingh. Turning at this state to the recitals of the Will (Exh. 265) it may be seen that the reasons given in the Will by the deceased Rajendrasingh for executing the Will are i) that he was not keeping good health; ii) that he had become weak and there was no certainty about his life &; iii) that two months before the date of making the Will, his son Jagjitsingh had died. It is then stated in the Will that his wife and his mother were his legal heirs. However, since he wanted the disposition of his property according to his wishes he was making the said Will. The details of his property were then given in the Will. Out of the said property, he had given to the plaintiff the agricultural field Survey No. 29/2 in village Ambapur and a plot in ward No. 20 in Mangrulpir where there were structures in occupation of the tenants i.e. the defendants 6 to 11 by creating a life estate in regard to the said property in her in the sense that she would not have any right to dispose of the said property or create any encumbrance upon the same and in the event of her death or after her remarriage, the said property would vest in his nephew Surjitsingh the defendant No. 4, with right of full ownership. It is, however, made clear in the said Will (Exh. 265) that the plaintiff had with her 30 tolas of gold which was her own property. He has further specified the property which would vest in his nephew by name Surjitsingh i.e. defendant No. 4 after his death with full rights of ownership besides the property which he might not have mentioned in the Will, but which might remain with him at the time of his death. It is then stated in the said Will that he was making the Will in fully conscious state and after understanding what he was doing.
72. In the light of the above evidence, what has to be first seen is whether the defendants 3 and 4 are the propounders of the Will (Exh. 265) upon whom the onus to prove the said Will (Exh. 265) would lie. There cannot be any dispute that the defendants 3 and 4 are the propounders of the Will (Exh. 265). It may be seen that the defendant No. 4 who was minor at the time of the execution of the Will (Exh. 265) is the Principal and substantial beneficiary under the Will (Exh. 265) because subject to maintenance arrangement made in favour of the plaintiff during her life time by Rajendrasingh, the whole property of Rajendrasingh would vest with full rights of ownership in the defendant No. 4 under the Will (Exh. 265). Being minor at the time of execution of the Will and death of Rajendrasingh, the whole property including even the share allotted to the plaintiff was taken possession of by the defendant No. 3 Devisingh, the father of the defendant No. 4 and the said Will (Exh. 265) had also come in his possession. The onus to prove the said Will (Exh. 265) was therefore upon the defendants 3 and 4.
73. The second question would be whether the defendants 3 and 4 have proved the said Will (Exh. 265) according to well established Principle of law. For valid proof and acceptance of the Will, they have to prove that the testator i.e. the deceased Rajendrasingh was in sound and disposing mind at the time of the execution of the Will. The execution of the Will has to be proved in accordance with the provisions of section 63 of the Indian Succession Act, 1925. Further, they have to prove that it is the last Will of the testator. It is then not enough to prove the valid execution of the Will but the propounder of the Will must remove all suspicious circumstances and he must satisfy the conscience of the Court that the testator has intended to dispose of his property in the manner as proposed in the Will by him.
74. As regards the question of the execution of the Will, although Girdharsingh, witness No. 2 for the defendants 3 and 4, scribe of the Will, and Jairam, witness No. 3 for the defendants 3 and 4 the attesting witness have stated that Rajendrasingh had signed the Will (Exh. 265) before them after it was written by Girdharsingh, they both have stated in their cross-examination that Rajendrasingh had signed the Will (Exh. 265) in English in their presence but they cannot identify his signature as it is in English. However, the third witness Shankarsingh, witness No. 4 for the defendants 3 and 4 who is another attesting witness upon the said Will (Exh. 265) has not only stated that Rajendrasingh had signed the Will before him but has clearly identified his signature upon the said Will (Exh. 265). The scribe Girdharsingh and the above attesting witnesses Jairam and Shankarsingh have all identified their own signatures upon the Will (Exh. 265).
75. As regards the question of identification of the signature of Rajendrasingh by Girdharsingh who did not identify it because it is in English, it is pertinent to see that according to the evidence of Shankarsingh, brother-in-law of Girdharsingh, Girdharsingh is educated upto VIIIth standard and that he knows reading and writing English. If so, it is so difficult to see why he should not identify the signature of Rajendrasingh upon the Will (Exh. 265). Now although in view of the identification of the signature of Rajendrasingh upon the Will (Exh. 265) by Shankarsingh it could be held that technically the execution of the Will is proved, the question really to be considered is whether the evidence of the above witnesses who as shown above are interested witnesses being either related to or being close friend of the defendant No. 3 Devisingh, considered in the light of the suspicious circumstances alleged by the plaintiff surrounding the execution of the Will (Exh. 265) can be believed particularly when there are contradictory opinions expressed by the handwriting experts examined by rival parties on the question whether the alleged signature of the deceased Rajendrasingh upon the Will (Exh. 265) is his genuine signature. It is therefore, necessary to consider the question whether there exists suspicious circumstances surrounding the execution of the Will in the instant case and whether the defendants 3 and 4 have removed all such suspicious circumstances so as to satisfy the conscience of the Court that the said Will (Exh. 265) can be accepted as a last testamentary disposition of the testator i.e. the deceased Rajendrasingh.
76. As regards the question whether the alleged Will (Exh. 265) is the last Will of the testator Rajendrasingh, none of the witnesses have categorically stated that it is his last Will. However, if the evidence of the above witnesses is accepted it will mean that the said Will (Exh. 265) executed just three days prior to the death of the Rajendrasingh may be his last Will, as no other Will alleged to be executed by him, if any is forthcoming.
77. Considering thus the crucial case of the plaintiff about the existence of the suspicious circumstances surrounding the execution of the Will (Exh. 265), we have already catalogued the said circumstances in para 40 of the Judgment. As regards the suspicious circumstances about the fitness of Rajendrasingh to execute the Will (Exh. 265) we have already shown hereinbefore on the basis of the oral evidence and the correspondence between both the parties and their family members that since a long time the deceased Rajendrasingh was seriously ill physically because of his habit of excessive drinking cultivated for a long time and was also not mentally sound. In fact, he died immediately three days after the execution of the Will (Exh. 265). Moreover, it is recited in the said Will (Exh. 265) itself that he was not keeping good health, that he had grown weak and that there is no certainty about his life. What is material to be seen is that no Doctor had examined him at the time of the execution of the Will (Exh. 265) so as to show that his physical and mental condition at that time was such that he was conscious and could properly understand as to what he was doing. In order to remove such suspicion, the learned Counsel for the defendants 3 and 4 has relied upon the evidence of the scribe Shri Ghirdharsingh the witness No. 2 and Jairam, the witness No. 3 and Shankarsingh, the witness No. 4 the attesting witnesses, examined by the defendants 3 and 4, to prove the execution of the Will (Exh. 265). He has brought to our notice that they have consistently stated in their evidence that the deceased Rajendrasingh had called them and that they had seen him moving in the house for bringing plain papers, pen and card board for the purpose of drafting the Will (Exh. 265) and that he gave the details about his property when the Will was being dictated to Girdharsingh, the scribe of the Will.
78. In appreciating the above evidence of these witnesses, it has to be remembered that these witnesses have admitted that Girdharsingh witness No. 2 and Shankarsingh, the witness No. 4 for defendants 3 and 4 are related to the defendant No. 3 Devisingh and Jairam witness No. 3 for them, the Police Patil, was a friend of the defendant No. 3 Devisingh and was visiting his house since last 20 years. They are thus witnesses interested in the defendant No. 3 Devisingh and therefore their evidence has to be considered with care and caution. As we shall hereafter show that although the defendant No. 3 Devisingh has stated in his evidence that he knew nothing about the execution of the Will (Exh. 265) by Rajendrasingh till it was read over by his father Balramsingh on the 13th day after his death, the defendant No. 3 Devisingh must have known about it and he must have in fact played a prominent role in influencing Rajendrasingh to make a Will of property in favour of his then minor son, the defendant No. 4 as we shall show while considering the suspicious circumstance about the role played by him in obtaining the Will (Exh. 265) in favour of his minor son.
79. Considering the intrinsic merit of their evidence also, it is not safe to hold on the basis of their evidence that at the time of making the Will (Exh. 265), the deceased Rajendrasingh was in sound disposing mind. The reasons for the same are as follows :-
i) No explanation is given why the deceased Rajendrasingh did not wait for the regular document writer Rambhau Sarjoshi to come for drafting his Will, particularly when a message was received from him that he would come after the Court work at about 4 to 5 p.m. In the absence of such explanation, it would mean that the health of the deceased Rajendrasingh was not so good as to wait till he would come. Instead of waiting for the regular document writer to come, when the Will (Exh. 265) was required to be drafted by Girdharsingh, who had never drafted any legal document, much less a Will, it would show that there was an emergency and presumably because the condition of the deceased Rajendrasingh was not good at that time. Unless, it was an emergency a man like Girdharsingh who could not identify the signature of Rajendrasingh because it was in English would not have been relied upon to draft the legal document of Will.
ii) Seeing the condition of his health at that time as is clear from the fact that within three days of making of the Will Exh. 265, Rajendrasingh died and that a day prior to his death, he had blood-vomiting, it is difficult to believe the evidence of the above witnesses that the deceased Rajendrasingh could dictate the details about his property from his memory which details are contained in the recitals of the Will (Exh. 265).
iii) It is also difficult to believe the evidence that even though the details of the property are given in the Will (Exh. 265), no draft of the Will was prepared and it was finally dictated and prepared particularly when apart from the details of the property, the Will contains technical language about the creation of life estate in favour of the plaintiff.
iv) In fact, normally, after prior consideration of the question of distribution of property some rough notes would be prepared on the basis of which the final draft of the Will would thereafter be prepared.
v) The Will is prepared when the plaintiff was not present in the house and at the time when his mind was disturbed because the plaintiff had left his house after quarrelling with him.
80. For all these reasons, it cannot be said that the defendants 3 and 4 have removed the suspicion about the deceased Rajendrasingh being physically and mentally fit to make the Will, particularly in the absence of any medical evidence to show that on the date of the execution of the Will (Exh. 265) he was fully fit to give minute details of his property which are contained in the said Will (Exh. 265). The circumstances narrated above cannot satisfy the conscience of the Court to accept the Will (Exh. 265) as a last testamentary disposition of the testator i.e. the deceased Rajendrasingh.
81. The next suspicious circumstance to be considered is about the prominent role played by the defendant No. 3 Devisingh in obtaining the Will in favour of his son Surjitsingh the defendant No. 4 who was then minor and is the real beneficiary under the Will Exh. 265. In appreciating the submissions made on behalf of the plaintiff what has to be Principally seen is that although the Will Exh. 265 itself shows that the deceased Rajendrasingh is aware of the share of the plaintiff in his property, he had created rights of full ownership in the whole of his property in favour of his nephew Surjitsingh i.e. the son of Devisingh creating only a life estate in the plaintiff for her maintenance in respect of the agricultural field and the plot referred to in the said Will Exh. 265. It may then be seen that the physical and mental condition of the deceased Rajendrasingh was very weak at that time so that he could be influenced by others and particularly his near relations. His mental condition was also disturbed at that time as there was quarrel at that time with his wife who had thereafter left him and gone to her father's house. When his wife had gone to her father's house, it is clear that he was looked after by his mother the defendant No. 2 and his brother Devisingh the defendant No. 3.
82. Although the defendant No. 3 Devisingh has stated in his evidence that he was not aware of the Will Exh. 265 until it was read over by his father Balramsingh on 13th day after the death of Rajendrasingh, it is difficult to believe him in that regard. He has himself admitted in his evidence that prior to the execution of the Will Exh. 265 when the wife of Rajendrasingh i.e. the plaintiff was not with him, he had visited him thrice. Further, it is clear from the evidence of Girdharsingh witness No. 2, Jairam witness No. 3 and Shankarsingh witness No. 4 for the defendants 3 and 4 that prior to the execution of the Will the deceased Rajendrasingh had a talk with them about the execution of the Will. If that is so, it is difficult to believe that they would not tell about the same to the defendant No. 3 Devisingh to whom admittedly they were very close. It is also difficult to believe that the defendant No. 3 Devisingh when he visited Rajendrasingh thrice prior to the execution of Will Exh. 265 would not talk with him about the Will which he proposed to make. Moreover, the principal and the substantial beneficiary under the Will is his son Surjitsingh and the distribution of property is very much unequal and unjust to the plaintiff, the wife of Rajendrasingh as we shall show when we consider the question of unequal and unjust distribution of his property under the Will. It can, therefore, safely be inferred that taking advantage of the weak, physical and mental condition of the deceased Rajendrasingh and the absence of his wife, the defendant No. 3 Devisingh must have influenced Rajendrasingh in obtaining the Will in favour of his son Surjitsingh.
83. The more important suspicious circumstance which is then pointed out on behalf of the plaintiff in regard to the execution of the Will Exh. 265 is the unequal and unjust distribution of property in the Will Exh. 265. It has to be borne in mind that the plaintiff was the wife of the deceased Rajendrasingh. Although, there were quarrels between them at times because of drinking habit of Rajendrasingh and the wife used to go to the house of her parents for some time, they had lived together as both had attachment for their ailing son. Further, it has to be seen that had no Will been executed by the deceased Rajendrasingh, his property would have been inherited by the plaintiff and the mother of the deceased Rajendrasingh i.e. Hirabai in equal shares, because they are Class-I heirs under the Hindu Succession Act, 1956. So far as this question is concerned, we are not at this stage referring to the actual interest the deceased Rajendrasingh had in the suit property as calculated by us hereinbefore and its effect upon making the Will Exh. 265. What we emphasise is that the perusal of the Will (Exh. 265) itself shows that the deceased Rajendrasingh was aware of the above fact.
84. Perusal of the Will (Exh. 265) would show that the deceased Rajendrasingh had known that his wife and mother were his legal heirs. He has not made any disposition in favour of his mother. However, we are not concerned with the same. As regard the plaintiff, the Will (Exh. 265) makes maintenance arrangement for her only during her life time although she had right of full ownership in the half portion of his property. Although it may be that out of his own desire to retain his property in his own family after his sole son had died, or being influenced by the defendant No. 3 to do so, he has created only a life-estate in two of his immoveable properties, viz. an agricultural field at Ambapur and a plot with tenanted portions fetching some meagre rent to her at Mangrulpir. However, the said disposition is wholly unjust because there is no arrangement made in the Will by giving her residential house or at least any portion thereof where she could reside even to look after the property which was given to her for her maintenance in the said Will (Exh. 265). It is pertinent to see that the deceased Rajendrasingh had bequeathed his residential house to the defendant No. 4 Surjitsingh without creating any right of residence therein in favour of the plaintiff during her life-time. The disposition of property in the Will (Exh. 265) is thus wholly unfair and unjust to the plaintiff who being the wife of the deceased Rajendrasingh was entitled to reside in his residential house and even otherwise in her own right when she had according to him, half share in his property.
85. The next suspicious circumstance brought to our notice is that the Will was registered eight months after the date of its execution by the defendant No. 3 Devisingh. If Rajendrasingh had desired that there should be a registered Will, he would have taken steps to have the registered document on the same day, either by calling the Sub-Registrar to his house because he was ill or by going to the Sub-Registrar's office for registration. Registration is not compulsory for the validity of the Will. However, the Will is got registered to give it authenticity. The defendant No. 3 Devisingh has, however, deposed that he got the Will (Exh. 265) registered after about 8 months, because the plaintiff's father started collecting information for filing the instant suit. However, the above circumstance of registering the Will after a long period of 8 months would create a suspicion as to whether the Will itself was prepared after the death of Rajendrasingh. In this regard, it may be seen that there are two opinions of rival hand-writing experts about the signature of deceased Rajendrasingh upon the Will (Exh. 265) which therefore creates a doubt whether the said signature upon the Will (Exh. 265) is of Rajendrasingh or not. Moreover, the said signature is not actually identified by Girdharsingh witness No. 2 and Jairam witness No. 3 for the defendants 3 and 4 on the ground that it is in English. Moreover, professionalism in drafting the Will (Exh. 265) the detailed description of the property therein coupled with the total inexperience of Girdharsingh in drafting any legal document much less a Will, would raise a doubt whether the Will (Exh. 265) was really prepared after the death of Rajendrasingh. It cannot be said that the said doubt is cleared or removed by any proper or cogent evidence led on behalf of the defendants 3 and 4.
86. However, as regards the reliance placed on behalf of the plaintiff upon the alleged suspicious circumstance that the Will (Exh. 265) is not produced from a proper custody, we do not find any merit in the said submission. What is urged is that since it is not proved as to how Balramsingh, the father of Devisingh and Rajendrasingh came in possession of the Will, the Will cannot be said to be produced from proper custody. The question of proper custody has been discussed in Sarkar's Law of Evidence, 13th Edition on page 769 to 771 under section 90 of the Evidence Act. It is observed at page 769 that while proving proper custody, it is not necessary to show the strictest legal custody (see per) Denman, C.J., in Doe v. Phillips, 8 C.B. 158, 160 and it is enough if the person be so connected with the deed that he may reasonably be supposed to be in possession of it without fraud, no such fraud being proved. Per Patteson, J., in Deo v. Samples, 8 Ad. and E. 151 p 154. Again as per Denman, C.J., in Doe v. Keeling, 11 C.B. 884, 889, the courts would be liberal in receiving documents and not refusing them on the ground that they are not produced from proper custody. It is then observed at page 770 by Sarkar on Law of Evidence that proper custody is custody proved to have a legitimate origin or an origin the legitimacy of which, the circumstances of the case can render probable. It is not necessary that the document shall be found in the best and most proper place of deposit. Relying upon Sharfuddin v. Govind, 27 B. 452 : 5 Bom.L.R. 144, it is observed that section 90 about ancient documents insists only on the satisfactory account of the origin of the custody and the history of its continuance. If the custody is such that judging from the document itself and the other circumstances, which would naturally be expected to reside then it ought to be treated as authentic.
87. In the instant case, it may be seen that at the time of alleged execution of the Will on 10-10-1979 and even thereafter till his death, the deceased Rajendrasingh was alone in his house as his wife had gone to the house of her parents. It is, therefore, natural that he would hand over the Will (Exh. 265) to his nearest relation viz. to his father Balramsingh before his death. Even if his wife were there at his house at the time of his death, the disposition of the property is principally in favour of his nephew, the deceased Rajendrasingh is most likely to hand over the custody of the Will to his father Balramsingh. At any rate, even if Balramsingh gets the custody of the Will after the death of Rajendrasingh, it cannot be said that his custody is not proper or legitimate. Unfortunately Balramsingh has died during the pendency of the suit and, therefore, no one can explain how the Will (Exh. 265) came in his custody. It is true that Balramsingh has not stated anything about the custody of the Will (Exh. 265) in his written statement but then it appears that since the said Will (Exh. 265) was made in the name of minor son of Devisingh, he and his wife Hirabai, the defendant No. 2, had not thought it necessary to traverse the said allegations of the plaintiff in their common written statement. However, because the said allegations are not traversed by them, no inference can be drawn that Balramsingh did not have either the custody of the Will (Exh. 265) or that his custody of the Will (Exh. 265) is illegal looking to the above facts and circumstances in the instant case. As regards the custody of the Will (Exh. 265) with Balramsingh, the defendant No. 3 Devisingh had deposed that Balramsingh had read over the Will (Exh. 265) on the 13th day after the death of Rajendrasingh and had thereafter handed it over to him which would show that before the Will (Exh. 265) came in custody of the defendant No. 3 Devisingh, the custody of the Will (Exh. 265) was with Balramsingh. It is but natural that Balramsingh would hand over the custody of the Will to the defendant No. 3 Devisingh because his minor son Surjitsingh the defendant No. 4 was the Principal legatee under the said Will (Exh. 265).
88. Even otherwise, even if the custody of the Will (Exh. 265) was of the defendant No. 3 Devisingh who has produced the same in the Court, unless it is otherwise held to be not genuine, the custody of the defendant No. 3 Devisingh cannot be held to be improper because since his minor son Surjitsingh is the Principal beneficiary under the Will (Exh. 265), it is most likely that Rajendrasingh would hand over the Will (Exh. 265) to him before his death. In any view of the matter custody of the Will (Exh. 265) of the defendant No. 3 Devisingh simpliciter either directly from Rajendrasingh or through Balramsingh, as the evidence on record shows, cannot be treated as improper or not legitimate and, therefore, the said circumstance by itself cannot be treated as a suspicious circumstance.
89. However, in view of our other findings herein before rendered it cannot be said that the defendants 3 and 4 have been able to remove the cloud of suspicion about the genuineness of the Will (Exh. 265) and its preparation and execution by the deceased. They are not thus able to satisfy the conscience of the Court in this regard. The Will (Exh. 265) cannot, therefore, be accepted as valid document and as the last testamentary disposition of the property of the testator Rajendrasingh. The Judgments of the Supreme Court cited supra support the view which we have taken and in particular the judgments in the case of Purnima Debi v. Khagendra Narayan, ; Kalyan Singh v. Chhoti, , Ram Piari v. Bhagwant, and in the case of Smt. Guro v. Shri Atma Singh & others, are nearer to the facts in our case.
90. If the Will (Exh. 265) is not accepted as a valid document, the interest of Rajendrasingh in the ancestral property in his hands would devolve upon his wife i.e. the plaintiff and his mother Hirabai i.e. the defendant No. 2 in equal shares. Thus, the specifications of shares given hereinbefore would show that in the ancestral property allotted to the share of Rajendrasingh in the family partition effected on 1-10-1952, the plaintiff will have 5/6th share and 1/6th share would go to Hirabai in the said property.
91. Apart from the above ground of challenge to the Will (Exh. 265) viz. about the valid execution of the Will and the suspicious circumstances surrounding the same, the learned Counsel for the plaintiff has challenged the Will (Exh. 265) as invalid also on the ground that the testator Rajendrasingh had an undivided interest in the coparcenery property governed by Mitakshara Law which he is not entitled to and which is not capable of being disposed by testamentary disposition by him. Even otherwise, he has contended that assuming that he can do so, in view of our finding that it is only his interest to the extent 1/3rd share in the property allotted to him on family partition effected on 1-10-1952 which is capable of being disposed of by him by testamentary disposition since he has disposed by Will (Exh. 265) the whole of the property allotted to his share in the aforesaid family partition effected on 1-10-1952, the said Will (Exh. 265) is illegal and cannot be sustained.
91A. As regards the first question, the contention urged on behalf of the plaintiff that the deceased Rajendrasingh is not entitled to dispose of his undivided interest in the coparcenery property governed by Mitakshara Law or the said property is not capable of being disposed of by testamentary disposition, cannot be upheld in view of the clear provision of section 30 of the Hindu Succession Act, 1956. Section 30 deals with the question of testamentary succession. It provides that any Hindu can dispose of by Will or other testamentary disposition any property, which is capable of being disposed of by him, in accordance with the provisions of the Indian Succession Act, 1925, or any other law for time being in force. The explanation to the said section particularly shows that the interest of a male Hindu in a Mitakshara coparcenery property is deemed to be property capable of being disposed of by him within the meaning of the said section 30. It is, therefore, clear that the deceased Rajendrasingh was entitled to dispose of his undivided interest in a Mitakshara coparcenery property by Will or other testamentary disposition.
92. As regards the question of Mitakshara coparcenery property, we have already pointed out that the property in the hands of Rajendrasingh allotted to him in the family partition effected on 1-10-1952 would be coparcenery property belonging to him and his son Jagjitsingh. We have also pointed out hereinbefore that after the death of Jagjitsingh share of Rajendrasingh in the said property would be 1/3rd and that of his wife i.e. the plaintiff would be 2/3rd in view of the provisions of section 6 of the Hindu Succession Act, 1956. Therefore, if at all, it is his aforesaid 1/3rd share in the property allotted to him on family partition effected on 1-10-1952 which the deceased Rajendrasingh can dispose of by his Will in view of the provisions of section 30 of the said Act. The disposition of the whole of the said property made by him as per his Will Exh. 265 in thus clearly illegal and cannot be sustained.
93. The next question which arises for consideration is whether the Will Exh. 265 can be held to be valid to the extent of the aforesaid 1/3rd share of the deceased Rajendrasingh in the property allotted to him on family partition effected on 1-10-1952. In considering the said question it has to be seen that the Rules enacted in the Indian Succession Act, 1925 are made applicable by section 30 of the Hindu Succession Act, 1956 to the Wills or other testamentary disposition of property made by any Hindu. It is a primary rule of construction of Will that it must be interpreted according to the intention of the testator which has to be primarily gathered from the words used by him in the Will. Section 81 of the Indian Succession Act, 1925 makes an extrinsic evidence to ascertain the intention of the testator inadmissible in case of patent ambiguity or deficiency on the face of a Will. Section 87 of the said Act requires that the intention of the testator should not be set aside because it cannot take effect to the full extent, but effect is to be given to it as far as possible. Section 89 of the said Act then provides that Will or bequest not expressive of any definite intention is void for uncertainty.
94. In the light of the relevant rules of construction of a Will, if we examine the Will (Exh. 265) made by the deceased Rajendrasingh, it is clear from the said Will that the deceased Rajendrasingh has disposed of by his testamentary disposition the whole of his property allotted to him on family partition on 1-10-1952 which as we have shown hereinbefore is a patent defect and illegality in the said Will. Further the testator Rajendrasingh had given specific shares in property to his nephew Surjitsingh the defendant No. 4 and his wife i.e. the plaintiff. However, as regards the specific shares given to his wife, he has created only a life estate in her and the property allotted by him to her in the said Will has to vest in his nephew Surjitsingh after her death or if she remarries. She cannot alienate the property bequeathed to her by him. The main purpose in allotting the property to her is to provide her maintenance during her life time. Thus ultimately under the Will it is his nephew Surjitsingh who becomes the owner of the entire property allotted to the share of the testator Rajendrasingh in the family partition effected on 1-10-1952. The allotment of shares to the said nephew Surjitsingh and to the plaintiff do not show in what proportions, if any, they are allotted.
95. It is material to see that the interest of Rajendrasingh in the coparcenery property to the extent of 1/3rd is not separated and is not defined. Further, he has made the disposition of the whole of the suit property in the above manner in his Will Exh. 265 on the footing that it is his separate property. From the recitals in the Will, it cannot be gathered how he would have made disposition of his property had he been aware that he is entitled to only 1/3rd undivided interest in the suit property. Even otherwise if he were to dispose of his 1/3rd interest in the suit property, it cannot be said how much share he would have given to his nephew and how much to the wife even as a life estate for her maintenance or whether he would have given at all any share to his wife because she had in her own right 2/3rd share in the suit property. It is also pertinent to see that from the Will (Exh. 265) itself, it is clear that the testator Rajendrasingh was aware that the plaintiff and his mother i.e. the defendant No. 2 Hirabai were his legal heirs. He has not made any provision for his mother in the said Will presumably because earlier he had made maintenance arrangement for her but if that maintenance arrangement is found to be illegal, as is done in our judgment, it is possible that he might have made provision for the mother instead of either the wife or the nephew. It is thus difficult to determine the intention of the testator Rajendrasingh from the recitals of the Will Exh. 265 and the circumstances surrounding it in the instant case. As we have pointed out above in fact any extrinsic evidence is inadmissible to determine the intention of the testator if there is an ambiguity or deficiency on the face of a Will.
96. We cannot, therefore, uphold the contention urged on behalf of the defendants 1 to 5 that the Will Exh. 265 should be held to be valid to the extent of 1/3rd share of the testator Rajendrasingh in the suit property. The said Will has thus to be set aside and declared invalid as a whole. The possession of the defendants 3 and 4 of the property belonging to Rajendrasingh under the Will (Exh. 265) is thus illegal and unauthorised.
97. The next question which we have to consider is whether there was any maintenance arrangement made by the deceased Rajendrasingh in favour of his father Balramsingh the original defendant No. 1 and his mother Hirabai i.e. the defendant No. 2. The case of the original defendant No. 1 and the defendant No. 2 is that in 1969, Rajendrasingh gave orally i.e. without there being any document, two fields to his mother, viz. field S. No. 9 admeasuring about 26 acres and 39 gunthas and the field S. No. 30/2 admeasuring 4 acres and 30 gunthas. Further, according to their case he also gave to his father Balramsingh at that time orally i.e. without there being any document, one field i.e. field S. No. 38/2 admeasuring about 15 acres out of which, according to the deposition of Hirabai the defendant No. 2, the land admeasuring 9 acres was acquired by the State in the ceiling case of the original defendant No. 1 Balramsingh. The above fields according to the original defendant No. 1 and the defendant No. 2 were given at that time i.e. in 1969 by Rajendrasingh for their maintenance during their life time. Similarly at that time, their another son Vijaysingh, the defendant No. 5 also gave orally i.e. without there being any document one field i.e. field Survey No. 2 to his father i.e. the original defendant No. 1 for his maintenance during his life time which field he exchanged with field Survey No. 26 belonging to Sindhubai, the wife of the defendant No. 3 Devisingh.
97A. It is further the case of the original defendant No. 1 and the defendant No. 2 that in 1972, the deceased Rajendrasingh and the said defendant No. 5 Vijaysingh had orally relinquished their rights in the said fields which they had given to them orally for their maintenance in 1969, with the result that the rights of full ownership stood conferred upon them in the said fields. The plaintiff has denied that any such maintenance arrangement was made by her deceased husband Rajendrasingh.
98. The learned trial Court has framed issue No. 18 upon the above question relating to the maintenance arrangement alleged to be made orally by the deceased Rajendrasingh and the defendant No. 5 Vijaysingh in favour of their parents. The burden of proof relating to the said issue about maintenance arrangement is obviously upon the original defendant No. 1 and the defendant No. 2. The material evidence led on their behalf consists of the evidence of the defendant No. 2 Hirabai (D.W. 1), the defendant No. 5 Vijaysingh (D.W. 4), and the defendant No. 3 Devisingh, the witness No. 1 for defendants 3 and 4.
99. In appreciating the evidence of the above witnesses, it has to be seen that from their evidence itself it appears that in the family partition effected on 1-10-1952 between the original defendant No. 1 Balramsingh and his sons, Devisingh, Vijaysingh and Rajendrasingh, the original defendant No. 1 Balramsingh was allotted the share of agricultural property to the extent, of about 150 to 175 acres of land. It appears from the evidence of the defendant No. 2 Hirabai (D.W. 1) that no separate share was allotted to her and her share was included in the share allotted to her husband Balramsingh. However, it is clear from her evidence itself that she was allotted the house property from which she received rent from the tenants who were in occupation of the said property. The evidence of the defendant No. 3 Devisingh and the defendant No. 5 Vijaysingh then shows that there was some house property and in particular temple property in the name of Balramsingh.
100. As regards the agricultural property which came to the share of Balramsingh, it is the case of the original defendant No. 1 and the defendant No. 2 that it was an Izara land which was acquired by the Government under the provisions of Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 which was thereafter distributed amongst the villagers. The defendant No. 2 Hirabai (D.W. 1) as well the defendant No. 5 Vijaysingh (D.W. 4), have deposed that no compensation was given by the Government for acquisition of the aforesaid Izara land. Since there was thus no agricultural property in his name and since he feared that his sons might separate the original defendant No. 1 Balramsingh asked his sons to give some agricultural property for maintenance from their shares in property from which he could earn his livelihood. The evidence of the defendant No. 5 Vijaysingh (D.W. 4) shows that when he came home 8 days prior to Diwali in 1969, his father Balramsingh had breached the subject of giving him maintenance to which he and Rajendrasingh agreed, but the defendant No. 3 Devisingh did not.
101. In appreciating the above case of the original defendant No. 1 and the defendant No. 2, it may be seen that the defendant No. 2 Hirabai and the defendant No. 5 Vijaysingh have admitted in their evidence that since at the time of the partition effected on 1-10-1952 the sons of Balramsingh viz. Devisingh, Vijaysingh and Rajendrasingh were minor, although their shares were separated by making mutations in their names, the whole property was actually managed even thereafter by Balramsingh. It is only when the defendant No. 3 Devisingh became major and married in 1955 that he became separate from his father and started managing his share in the property separately. As regards Vijaysingh, the defendant No. 5, he was appointed as Sub-Inspector in 1965 and was posted in Bombay. As such Balramsingh thus continued to manage his share in the property. As regards Rajendrasingh, the evidence on record shows that he started living separately from his father Balramsingh and also started managing his property separately since 1973. The evidence of the defendant No. 2 Hirabai (D.W. 1) thus shows that at the time the alleged maintenance arrangement was made in 1969 and even at the time when there was alleged oral relinquishment by the deceased Rajendrasingh and the defendant No. 5 Vijaysingh in favour of their parents of their right and title in the aforesaid fields in question in 1972, the original defendant No. 1 Balramsingh was managing the property of the deceased Rajendrasingh and the defendant No. 5 Vijaysingh and that Balramsingh, his wife i.e. the defendant No. 2 and the deceased Rajendrasingh were at that time living together. As already pointed out, it is only in 1973 that Rajendrasingh had started living and managing his property separately.
101A. It is then material to see that there is no evidence on record to show that out of 800 to 900 acres of land which according to the defendant No. 2 Hirabai (D.W. 1) was with the family, how much land had been acquired by the Government under the M.P. Abolition of Proprietory Rights Act referred to above. There is also no material to show whether Balramsingh was not entitled to any compensation at all under the said Act for acquisition of his land. On the other hand, perusal of Chapter III of the said Act and in particular section 8 thereof provides for payment of compensation to the proprietor for abolition of his proprietory rights under the said Act. The defendant No. 2 Hirabai (D.W. 1) has admitted in her cross-examination that the document No. 248 which she had filed was not in respect of the total Izara land of 800 to 900 acres. It is further necessary to see that the defendant No. 2 Hirabai (D.W. 1) has filed the order in the ceiling case of Balramsingh and has herself admitted that in this ceiling case he had given 9 acres of land as surplus land to the Government from field Survey No. 38/2 alleged to be given to him by Rajendrasingh which would show that Balramsingh was holding agricultural land more than the ceiling limit prescribed under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 which as per the amendment made to the said Act by the Maharashtra Amending Act No. 21 of 1975 is 54 acres of dry crop land.
102. The above material on record viz. that the original defendant No. 2 had their own house property as well as agricultural property and that even otherwise the original defendant No. 1 Balramsingh was himself managing the property of Rajendrasingh till 1973 and of Vijaysingh even thereafter, there was no reason for him to ask for making any arrangement for his maintenance particularly in 1969 when it is alleged that the said maintenance arrangement was made. Further, if the maintenance arrangement had to be made and originally if it was made in 1969 for the life time of the original defendant No. 1 and the defendant No. 2, it is difficult to see why the rights of full ownership in respect of the aforesaid agricultural lands were conferred upon the original defendant No. 1 and the defendant No. 2 respectively by the deceased Rajendrasingh and Vijaysingh, relinquishing their shares in the aforesaid fields. In fact, there is no justification at all for doing so, because, if the said property thereby vests in the original defendant No. 1 and the defendant No. 2, after their death their legal heirs, viz. their sons would be entitled to inherit the same, in which case the shares in the aforesaid agricultural fields would go to Devisingh, apart from other legal heirs also for which there is no justification. Since he had already received his share in the family partition effected on 1-10-1952 and since he had himself refused to part with any of his agricultural property for giving maintenance to his parents as is alleged to be done by Rajendrasingh and the defendant No. 5 Vijaysingh.
102A. In the face of all these facts and circumstances, it is difficult to see that there was any reason for the original defendant No. 1 and the defendant No. 2 to ask for, and for the deceased Rajendrasingh to make any arrangement for their maintenance. The learned trial Court has rightly disbelieved the evidence of the above witnesses and in particular the evidence of the defendant No. 3 Devisingh on this question of maintenance arrangement and the finding rendered by it in this regard on Issue No. 18 thus deserves to be and is affirmed.
103. It may be that there can be valid oral relinquishment as held by this Court in Ramdas Chimna v. Pralhad Deorao, 1964 Mah.L.J. 736 and Hivabai w/o Harji Ingale v. Babu Manika Ingale, 1980 Mah.L.J. 494 and there can be an oral maintenance arrangement but then such an oral arrangement must satisfy the requirements of a family arrangement as held by the Supreme Court in the case of Kale and others v. Dy. Director of Consolidation, , while holding that the family arrangement can be oral in which case no registration is necessary, the Supreme Court has inter alia held in the said case that the family arrangement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family and that it must be voluntary and should not be induced by fraud, coercion or undue influence. In the facts and circumstances narrated above it cannot be held that the maintenance arrangement in question satisfies the above tests. It cannot thus be held to be valid.
104. Since the maintenance arrangement is not proved and is otherwise also not valid, the Will (Exh. 254) executed by the original defendant No. 1 Balramsingh on 17-12-1984 in favour of his wife regarding the Field Survey No. 38/2, is itself invalid, because he had no authority to execute any Will in regard to the said field Survey Nos. 38/2 which belonged to deceased Rajendrasingh. The learned trial Court has rightly pointed out that this Will (Exh. 254) was executed during the pendency of the instant suit and was therefore, hit by the doctrine of Lis pendense.
105. The net result is that the plaintiff is entitled to possession of the field Survey Nos. 9, 30/2 and 38/2 of village Ambapur from the defendants 1 to 5. The order of the learned trial Court directing enquiry into the mesne profit under Order 20, Rule 12, C.P.C. about the income from the said field S. Nos. 9, 30/2 and 38/2 of village Ambapur from the date of the suit till their possession is handed over to the plaintiff on the application to that effect being made by her has also to be upheld.
106. The possession of the defendants 3 and 4 of the property belonging to Rajendrasingh under the Will Exh. 265 is illegal and unauthorised since as held by us above, the said Will cannot be held as a valid document and as the last testamentary disposition of Rajendrasingh. If the possession of the defendants 1 to 5 of the suit property belonging to Rajendrasingh after his death is illegal and unauthorised and since they had according to the plaintiff removed the standing crops from all the 5 fields in their possession belonging to Rajendrasingh after his death, the plaintiff has claimed an amount of Rs. 20,000/- towards the price of the agriculture produce from the defendants 1 to 5 for the year 1979-80 in which year prior to his death, Rajendrasingh had sown the crops in the said fields. One Janglu P.W. 4 is examined by the plaintiff to show that the income from the said fields belonging to the deceased Rajendrasingh was Rs. 80,000/- per year. The learned trial Court has rightly pointed out that there is nothing on record to show the actual details of the quantity produced and the price for which the same was sold. The defendants 1 to 5 have also not led any evidence to show what the quantity produced in the fields of Rajendrasingh was and price for which it was sold was. The learned trial Court has then held that even assuming for the same argument that prior to his death, the deceased Rajendrasingh was in possession of only two fields viz., F.S. No. 5 and F.S. No. 29/2 and not all the five fields as alleged by him, the said land comprised in field S. No. 5 and field S. No. 29/2 comes to about 37 acres and, therefore, it has estimated its income in 1979-80 at Rs. 10,000/-. The learned Counsel for the defendants 1 to 5 have not shown us how the said estimate made by the learned trial Court is erroneous. In fact they have not led any evidence on this question. Thus since the crops were sown by deceased Rajendrasingh in the said fields before his death and since after his death the possession of the said fields was taken by the defendants 1 to 5 who have reaped the benefit of the standing crops in the said fields by appropriating the agricultural produce in 1979-80 the decree passed by the learned trial Court in the amount of Rs. 10,000/- towards the net price of the said agricultural produce for the year 1979-80 has to be and is affirmed.
107. As regards the claim of the plaintiff for recovery of rent from the defendants 6 to 11 upon the plot of land belonging to the deceased Rajendrasingh of which even as per the Will (Exh. 265), he became the owner, it cannot be disputed that she is entitled to recover the rent from the defendants 6 to 11. However, so far as her claim for arrears of rent is concerned the learned trial Court has rightly held that there is no evidence to show that the defendants 1 to 5 had recovered the rent from the defendants 6 to 11 after the death of Rajendrasingh and therefore the plaintiff has failed to prove her claim of arrears of rent. Its finding on Issues No. 9 and 10 relating to the question of rent is, therefore, affirmed.
108. As regards the case of the plaintiff about return of the movable property described in Schedule A of the plaint, which, according to her, belonged to the deceased Rajendrasingh or was her Stridhan property, a finding is recorded by the learned trial Court in para 23 of its judgment. The learned trial Court has held that so far as the agricultural implements are concerned their existence and ownership of Rajendrasingh for use in his agricultural fields has naturally to be held as proved because the said implements are necessary for agricultural operation as for instance the electric motor and pump for drawing water from the well to irrigate the land. However, as regards the claim made by the plaintiff about the presentation of articles received by her at the time of her marriage, the learned trial Court has held that the said claim was not proved by her because according to her the list about the presentation articles was with the defendants 1 to 5 which list was not produced in the Court and, therefore, in its absence her oral evidence regarding the same cannot be accepted except to the extent that the defendant No. 3 Devisingh admitted in his deposition that one radio, table fan, steel cot owned by the deceased Rajendrasingh was with him. The learned trial Court has thus decreed the claim to the above extent only and in the absence of the return of the said articles, has estimated their price at Rs. 6,700/-. It is not shown to us how the said finding rendered by the learned trial Court is erroneous. Mere oral evidence of the plaintiff was rightly not accepted by the learned trial Court. Hence the said finding rendered by the learned trial Court is affirmed.
109. There is also hardly any ground to challenge the finding of the learned trial Court that the plaintiff is entitled to the R.D. deposit in the name of her deceased son Jagjitsingh as well as in the name of her husband in the amount of Rs. 2,250/- and Rs. 129.37 ps. respectively. The finding regarding the same also deserves to be and is affirmed.
110. The next question to be considered is whether the decree for partition can be passed which relief the plaintiff has claimed as an alternate relief in the suit. It is clear from the averments in the plaint that the plaintiff has claimed that she is entitled to the whole of the suit property which was allotted to the share of her deceased husband Rajendrasingh at the time of family partition effected on 1-10-1952. However, we have held above that the plaintiff is entitled to 5/6th share in the said property and the defendant No. 2 to the remaining 1/6th share in the same. The decree for partition of the immovable property will have, therefore, to be passed in the instant case. The learned Counsel for the defendants 1 to 5 has, however, urged that the plaintiff has not included the whole of the ancestral property in the instant suit and, therefore, the decree for partition cannot be passed. In this regard what is relied upon is that in the Will Exh. 265 the deceased Rajendrasingh has stated that 30 tolas of gold ornaments are in possession of the plaintiff. According to the learned Counsel for the defendants 1 to 5 it would mean that she was in possession of 30 tolas of gold which was joint family property and, therefore, for claiming partition, she should have included it in the partition suit for appropriate shares of the co-owners in the same.
110A. In appreciating the above submission made on behalf of the defendants 1 to 5, it is necessary to peruse the recitals in the Will (Exh. 265) carefully. What is stated therein in this regard by the deceased Rajendrasingh is that "besides this there are 30 tolas of gold with my wife. They are her's". The sentence "they are hers" would show that the said gold is owned by the plaintiff as her separate property. It cannot, therefore, on the basis of the recitals in the Will (Exh. 265) be treated as joint family property in which the defendant No. 2 can claim any share. The above submission made on behalf of the defendants 1 to 5, therefore, deserves to be and is rejected. The partition decree has thus to be passed to determine 5/6th and 1/6th share of the plaintiff and the defendant No. 2 respectively.
111. The next question to be considered is as to whether the possession of the immovable property allotted to the share of deceased Rajendrasingh in the family partition effected on 1-10-1952 should be delivered to the plaintiff exclusively or the defendant No. 2 should also be put in joint possession of the same. In our view since the defendant No. 2 has a very minor share in the aforesaid property and since she had been all through up-till-now in illegal possession of the said immovable property along with other defendants concerned, the equity requires that the possession of the whole of immovable should be given to the plaintiff pending drawing of the partition decree. It may be seen in this regard that since the defendant No. 2 has a meagre share in the immovable property in the hands of the deceased Rajendrasingh, she may even be granted a monetary claim in lieu of her share in the said immovable property in which case she may not be actually required to be given possession of any of the said immovable properties. However, if she is given any share in any of the said immovable properties in question, the same can be delivered to her after a final decree is passed in this regard
112. In the result, the appeal preferred by the plaintiff Shailabai is substantially allowed. The defendants 1 to 5 are directed to hand over possession of the immovable properties described in para 2 of the plaint to the plaintiff forthwith. It is declared that the plaintiff has 5/6th share and the defendant No. 2 has 1/6th share in the aforesaid immovable properties described in para 2 of the plaint. A decree for partition of the aforesaid immovable properties described in para 2 of the plaint is thus passed and it is directed that 1/6th share of the defendant No. 2 be determined and be separated and she should be put in separate possession of the same or alternatively the money value of her 1/6th share be given to her. The remaining decree passed by the learned trial Court is maintained. The appeal preferred by the defendants 1 to 5 is allowed only to the extent of the 1/6th share of the defendant No. 2 in the immovable properties described in para 2 of the plaint. Costs in first appeal No. 212 of 1990 are saddled upon the defendants 3 and 4 and the costs in first appeal No. 348 of 1989 shall be as incurred by the parties.