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7. Shri K.B. Zinzarde, the learned counsel for the respondent, on the other hand, supported the impugned judgment. He submitted that both the Courts had rightly discarded the will dated 28.10.1982 by holding that due attestation as required by Section 63(c) of the Indian Succession Act, 1925 was not duly proved. The witnesses had not stated that the testator had signed the will in their presence after which it was signed by them. Referring to various suspicious circumstances, he submitted that the plaintiff in the plaint had specifically averred that the testator was suffering from paralysis and asthma. The will was also vitiated by misrepresentation inasmuch as the testator belongs to Marwadi community while the defendant belonged to another caste. The SA 397/04 5 Judgment defendant being the servant was in a fiduciary relationship which by itself was a circumstance that was required to be taken into consideration. In that regard, he placed reliance on the decision reported in AIR 2012 Bombay 1971 (Public Information Officer Versus Manohar Parrikar & Others). As regards the plea of misrepresentation and undue influence, the learned counsel referred to the decision reported in AIR 1963 SC 1279 (Ladli Prashad Jaiswal Versus Karnal Distillery Company Limited). It was then urged that the defendant had taken active part in the execution of the will which aspect was clear from the evidence on record. The earlier will at Exhibit 48 not being cancelled, the subsequent will did not deserve acceptance. It was thus submitted that as both the Courts had concurrently held that the will at Exhibit 49 was not proved, no interference was called for in the second appeal.

9. The defendant was working as a servant with the testator. The evidence on record indicates that the testator was suffering from paralysis and was living alone. The Division Bench in Public Information Officer (Supra) has held that there are various instances of fiduciary relationship between the parties. It has been observed that the relationship between a director of a company and the company, a lawyer and his clients, a doctor and his patients as well as an executor and the beneficiary under a will are the examples of fiduciary relationship. The defendant as a beneficiary under the will was having fiduciary relationship with the testator Sonibai. In addition, the defendant was also her servant.

SA 397/04 7 Judgment

10. In the plaint, it was specifically pleaded by the plaintiff that the testator was not keeping good health and that she was suffering from paralysis. Some of her relatives were residing nearby though she did not have any issues. The fact with regard to the testator suffering from paralysis has been admitted by DW2-Baburao Kokate in his deposition when he stated that Sonibai was suffering from paralysis and that she could not move around. This witness was the attesting witness to the will at Exhibit 49 on which the defendant has claimed title to the suit property. The evidence on record further indicates that the health of the testator due to her suffering from paralysis was not up to the mark. The defendant no.1 in his deposition has also admitted that fact. It can be further seen that the testator was taken to the office of the Sub-Registrar by the defendant and the attesting witness. In his cross-examination the defendant has admitted that he had given all details with regard to the house property and the agricultural lands to the scribe. That scribe has not been examined. When the entire evidence on record is perused, it can be seen that the defendant as propounder of the will dated 28.10.1982 has not been able to explain these circumstances. In view of the fact that there was a fiduciary relationship between the testator and the defendant, this burden was required to be discharged by the defendant. Both the Courts have found that the defendant has failed to disprove the suspicious circumstances and it is found that this conclusion SA 397/04 8 Judgment is arrived at after appreciating the evidence on record. That appreciation of evidence cannot be termed as perverse for being interfered with.