Tuesday, 3 July 2018

How to appreciate evidence regarding proof of execution of will?

Once it is found that the plaintiffs and especially the
plaintiff no.2 – Ramesh who was the propounder of the Will had
not discharged the burden of proving the due execution of the will

and   had   failed   in   removing   the   suspicious   circumstances
surrounding the same, the burden to disprove the said will did not
shift   on   the   defendants.   On   that   count   merely   because   the
defendant examined the power of attorney holder – Vitthal who
was not fully aware about the facts of the case would not affect the
case of the defendant.  It was only if the valid execution and due
attestation of the will at Exhibit­41 would have been proved as
required by Section 63 of the Indian Execution Act, that burden
would have shifted on the defendant. At that stage, the aspect of
the defendant not examining herself and instead examining her
power   of   attorney   holder   would   have   been   a   relevant   factor.

However, as it has been found that the will propounded by the
plaintiffs has not been duly proved the aspect of the defendant
examining   her   power   of   attorney   holder   is   not   of   much
consequence.  In that view of the matter, the decisions relied upon
by   the   learned   Counsel   for   the   appellants   in  Janki   Vashdeo
Bhojwani and another  as well  Man Kaur through her legal heirs
(supra)  does   not   take   the   case   of   the   plaintiffs   any   further.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO. 167 OF 2004

 Ramesh Tanbaji Satpute Vs  Smt.   Tulsabai   Wd/o   Laxmanrao Bhanose 
CORAM: A.S. CHANDURKAR, J.

DATED:  22­-06-­2018   




1. The   appellants   are   the   original   plaintiffs   who   are
aggrieved by the dismissal of the suit filed for declaration that they
are   the   owners   of   the   suit   property   with   a   further   prayer   for
possession of the same.

2. The facts in brief  giving rise to the present appeal are
that   Tanbaji   and   Ramaji   were   two   brothers   who   had   jointly
purchased field Survey Nos.75, 76 and 77 on 30­9­1963.   Both
brothers were having half share each in the said property.  Tanbaji
had a son Ramesh.     Ramaji had two wives Bhagirathibai and
Parvatibai. He also had a daughter Tulsabai. According to Tanbaji
and   his   son,   Ramaji   had   executed   a   will   dated   28­5­1982
bequeathing his half share from the aforesaid lands in favour of
Ramesh.  Ramaji expired on 10­1­1986.  According to Tanbaji and
his son, they were in possession of the said half portion that was
owned by Ramaji. However, Ramaji's daughter Tulsabai and her
husband   sought   to   interfere   with   their   possession   and   hence
Tanbaji and his son Ramesh filed Regular Civil Suit No.1100/1991
for declaration that they were the owners of the suit field as well
as for perpetual injunction seeking to restrain the defendants from
disturbing   their   possession.   During   pendency   of   the   suit,   the
plaintiffs   claimed   that   they   were   dispossessed   and   hence   after
amending the plaint, a prayer for possession was also added.
3. The defendants filed their written statement at Exhibit­
13 and denied the execution of Will dated 28­5­1982.   It was
claimed that the defendant was in possession since the life time of
Ramaji and it was denied that the plaintiffs had been forcibly

dispossessed. A counter claim was filed seeking declaration that
the alleged Will dated 28­5­1982 was null and void.  A prayer was
also made so as to protect their possession.
4. The parties led evidence before the trial Court.  After
considering the same the trial Court held that the plaintiffs had
failed to prove that Ramaji had executed Will dated 28­5­1982 in
favour of Ramesh.   It was held that the plaintiffs had only half
share in the suit property. The suit was therefore dismissed and
the counter claim seeking declaration as regards invalidity of the
Will was decreed. The appeal filed by the original plaintiffs was
dismissed by the appellate Court and hence the plaintiffs have filed
the present second appeal.
5. While   admitting   the   second   appeal,   the   following
substantial questions of law were framed:
(1) When   the   Will   is   registered   and   it   is   proved   by
examining one attesting witness is it not the compliance of rules of
execution of attestation as per Section 63 of Indian Succession
Act?
(2) Was the onus of proof to prove the Will fabricated not
shifted   on   the   Defendant/Respondent,   once   the   plaintiff   has
discharged his burden of proving the execution of Will?
(3) Can evidence be given on the basis of unregistered

Power of Attorney which does not speak about case no. or the
specification as to conferment of powers?
6. Shri Anjan De, learned Counsel for the appellants –
original plaintiffs submitted that both the Courts committed an
error in discarding the Will at Exhibit­41.  It was submitted that
the plaintiffs by examining the Scribe – Baburao Purohit, his son
Madhukar   and   the   attesting   witness   Narayan   Ghoradkar   had
proved   the   due   execution   and   attestation   of   the   Will.   The
circumstances relied upon by both the Courts could not be termed
as suspicious for casting a doubt on the case of the plaintiffs.
Merely because the Will was got executed on the next day and till
that   period   the   document   of   Will   remained   in   custody   of   the
Scribe, the same would not be a justification for discarding the
same.  Further the fact that the Scribe happened to be the landlord
of Tanbaji was also not a relevant circumstance.  In absence of any
dispute between the family members, it was not felt necessary on
the part of Ramesh to disclose about execution of the Will after the
death   of   Ramaji.     The   same   was   relied   upon   only   when   the
defendant sought to disturb the possession of the plaintiffs.  There
were no pleadings in the written statement alleging any suspicious
circumstances and merely on the basis of surmises, the Will has
been discarded.  The fact that the widows of Ramaji were alive and

that he had a daughter would not be sufficient to label the Will as
suspicious.  In that context, he referred to the legal notice issued
on   behalf   of   the   defendant   at   Exhibit­158   to   urge   that   even
according to the defendant the plaintiffs were taking care of the
widows.  Both the Courts committed an error by holding that the
Will was not executed in terms of Section 63 of the Succession Act,
1925.  Moreover, the evidence given by the defendant's son on the
basis of an unregistered power of attorney could not have been
relied upon. It was thus submitted that both the Courts committed
an error in dismissing the suit.  The  Will dated 28­5­1982 ought to
have been held to be duly proved and the suit ought to have been
decreed. In support of his submissions, the learned Counsel placed
reliance on the following decisions:
(1) Janki Vashdeo Bhojwani v. Indusind Bank Ltd. (2005)
2 SCC 217.
(2) Man  Kaur  vs.  Hartar  Singh Sangha  (2010)  10  SCC
512.
(3) Savithri and others vs. Karthyayani Amma and others
(2007) 11 SCCC 621.
(4) M. K. Rappai and others vs. John and others (1969) 2
SCCC 590.
(5) Ram Saran and another vs. Smt. Ganga Devi (1973) 2
SCC 60.
(6) Mahesh Kumr vs. Vinod Kumar and others 2012 (4)
SCC 387.

(7) Pentakota Satyanarayana vs. Pentakota Seetharatnam
2005 (8) SCC 67.
7. Shri   K.   B.   Ambilwade,   learned   Counsel   for   the
respondent   Nos.1   and   2   on   the   other   hand   supported   the
impugned   judgments.   He   submitted   that   both   the   Courts   had
rightly found that the plaintiffs had failed to prove the validity and
execution of the Will at Exhibit­41. Though it is stated that the
Will was scribed on 27­5­1982, no signatures were obtained on
said date.   The Will was not read over to Ramaji when it was
registered on the next day. The witnesses present were not known
to   the   executant   and   there   were   various   contradictions   in   the
depositions of PW­2, PW­3 and PW­4. There was no reason for
Ramaji to exclude his two wives as well as daughter from any
benefit under the Will.   Parvatibai, the wife of Ramaji was not
examined though she was alive during pendency of the suit.  The
notice at Exhibit­158 issued at the instance of the defendant could
not be construed in favour of the plaintiffs and in fact, it had been
stated by the defendant that the two widows were subjected to
pressure by the plaintiffs.  Reference was made to the document at
Exhibit­38 which was a sale deed to indicate that the same was
bearing the thumb impression of Ramaji and not his signature. It
was   also   submitted   that   Ramaji   during   his   life   time   had   not
obtained any loan and that the Scribe – Baburao did not place on

record his registers to indicate that the Will was got executed in
the normal course of his activities.  Merely because the document
of the power of attorney was not registered, the same would not
be a justifiable reason to discard the deposition of DW­1 Vitthal. It
was thus submitted that in the light of various concurrent findings
recorded by both the Courts there was no reason to interfere with
the   impugned   judgments.     In   support   of   his   submissions,   the
learned Counsel placed reliance on the following decisions:
(1) Guro  vs. Atma Singh and others (1992)2 SCC 507.
(2) Bhagwan Kaur v. Kartar Kaur (1994) 5 SCC 135.
(3) Kalyan Singh v. Smt. Chhoti and others AIR 1990 SC
396.
(4) Smt. Indu Bala Bose and others vs.. Manindra Chandra
Bose and another (1982) 1 SCC 20.
(5) Clarence Pais vs. Union of India 2001 Law Suit (SC)
335.
(6) Mudigowda   Gowdappa   Sankh   vs.   Ramchandra
Revgowda Sankh 1969 Law Suit (SC) 5.
8. Shri S. Chauhan, learned Counsel for the respondent
Nos.3 to 5 adopted the contentions raised by the learned Counsel
for the respondent Nos.1 and 2 and submitted that the appeal was
liable to be dismissed.
9. I have heard the learned Counsel for the parties at
length and with their assistance I have gone through the records of
the case.   Substantial question of law Nos.1 and 2 relate to the

proof with regard to the  Will dated 28­5­1982.  Those questions
may   be   considered   first.   According   to   the   plaintiffs,   the   suit
property was jointly purchased by Tanbaji and Ramji on 30­9­
1963.  Both the brothers had half share therein.  According to the
plaintiffs on 27­5­1982, Ramaji had got the will scribed through
one Bapurao Purohit.   Ramaji was shown to be aged about 72
years and in the will at Exhibit­41 it has been stated that he was
not keeping good health. The stamp paper on which the will was
scribed had not been purchased by Ramaji.  Ramaji was also not
acquainted   with   the   Scribe.   The   said   Scribe   was   the   landlord
whose premises were let out to plaintiff No.1 – Tanbaji.  According
to him,  though the will was scribed on 27-­5­-1982 as per the say of
Ramaji, it  could  not  be  registered on  the  same  day as  it  was
prepared in the late hours of the day. The document remained in
the custody of the Scribe and on the next date it was got registered
through his son – Madhukar.   Said Madhukar admitted in his
cross­examination   that   the   will   in   question   was   read   over   to
Ramaji by his father and that he had not read it over to Ramaji in
the office of the Sub Registrar.  This version has been found to be
in conflict with the version of the attesting witness – Narayan
Ghoradkar. Said witness has deposed that the Sub Registrar had
read over the contents of the Will to Ramaji after which his thumb

impression   was   obtained.   This   attesting   witness   has   again   not
deposed about attestation by the other attesting witness – Devaji.
It has also been found that there was nothing brought on record to
indicate that the document registered on 28­-5­-1982 was the same
document which was stated to have been prepared on 27-­5­-1982
on the instructions of Ramaji as it was in the custody of the Scribe
and his son.
In  the  light  of this evidence  of the witnesses, both
Courts   recorded   a   finding   that   the   there   were   material
contradictions in the evidence of PW­2, PW­3 and PW­4 on the
point of execution of the will.  This conclusion in my view is based
on   appreciation   of   evidence   by   the   trial   Court   and   its   reappreciation
  by   the   appellate   Court.     That   finding   cannot   be
termed to be perverse warranting interference. 
10. As regards suspicious circumstances surrounding the
preparation of the will, it is admitted position that Ramaji was
survived by his two wives and his daughter Tulsabai. No provision
whatsoever was made by Ramaji in the said Will for them.  There
is no reason that can be found from the record for Ramaji to
exclude   his   family   members   from   any   benefit   under   the   Will.
Though much emphasis was sought to be placed by the appellants
on the legal notice issued on behalf of the defendant No.1 to the

plaintiff   no.1   at   Exhibit­158,   a   careful   perusal   of   the   same
indicates that it does not support the case of the plaintiffs that
because the plaintiffs were taking care of the widows, Ramaji did
not find it necessary to make any provision for them. It was also
submitted   that   there   were   no   sufficient   averments   as   regards
suspicious circumstances raised by the defendant.  In the Will at
Exhibit­41, it was stated by the testator himself that he was not
keeping good health.  It was for the propounder – Ramesh to bring
on record such material that would remove doubts surrounding
the execution of the Will.  Though Dr. Khobragade was examined
at Exhibit­115, his deposition by itself is not sufficient to take the
case of the plaintiffs any further. The Scribe though examined did
not complete the execution of the document on 27­5­1982 nor did
he produce the registers maintained by him while discharging his
duties as a Scribe. The stamp papers have not been purchased in
the name of Ramaji and the document said to be prepared on the
previous  day remained with the Scribe and his son  till it was
registered on the next day. The various circumstances surrounding
the preparation and subsequent execution of the Will at Exhibit­41
are of such nature that do not inspire confidence in the mind of
the   Court   to   accept   the   version   of   the   plaintiffs.   These
circumstances outweigh the case of the proponder that Ramaji had

executed the Will in free mind.  The explanation that the plaintiffs
were taking care of the widows is also not sufficient to conclude
that there was some justification  for excluding them from any
benefit under the Will.   In that view of the matter, the finding
recorded that the propounder has not been able to remove various
suspicious   circumstances   surrounding   the   preparation   and
execution of the will have not been removed.
11. The decisions relied upon by the learned Counsel for
the   appellants   as   regards   the   principles   applicable   while
considering the validity of a will and a challenge raised thereto do
not admit of any doubt. However, while applying those principles
to the case in hand, it is found that the case of the plaintiffs has
not been duly proved and the conclusion recorded by both Courts
does not deserve to be interfered with. Substantial question of law
Nos.1 and 2 are answered by holding that the plaintiffs have failed
to prove proper attestation of the will dated 28­5­1982 (Exhibit­
41) as required by Section 63 of the Indian Succession Act.  The
plaintiffs as preponders have failed to prove due execution of the
Will.
12. Once it is found that the plaintiffs and especially the
plaintiff no.2 – Ramesh who was the propounder of the Will had
not discharged the burden of proving the due execution of the will

and   had   failed   in   removing   the   suspicious   circumstances
surrounding the same, the burden to disprove the said will did not
shift   on   the   defendants.   On   that   count   merely   because   the
defendant examined the power of attorney holder – Vitthal who
was not fully aware about the facts of the case would not affect the
case of the defendant.  It was only if the valid execution and due
attestation of the will at Exhibit­41 would have been proved as
required by Section 63 of the Indian Execution Act, that burden
would have shifted on the defendant. At that stage, the aspect of
the defendant not examining herself and instead examining her
power   of   attorney   holder   would   have   been   a   relevant   factor.
However, as it has been found that the will propounded by the
plaintiffs has not been duly proved the aspect of the defendant
examining   her   power   of   attorney   holder   is   not   of   much
consequence.  In that view of the matter, the decisions relied upon
by   the   learned   Counsel   for   the   appellants   in  Janki   Vashdeo
Bhojwani and another  as well  Man Kaur through her legal heirs
(supra)  does   not   take   the   case   of   the   plaintiffs   any   further.
Accordingly,   substantial   question   of   law   No.3   is   answered   by
holding that  the plaintiffs  having failed to prove  their case  as
preponder of the will at Exhibit­41, the examination of DW­1 on
the basis of an unregistered document of power of attorney does

not help the case of the plaintiffs. 
13. As a result of the foregoing discussion and the answers
given to the substantial questions of law, the judgment of the trial
Court and that of the first appellate Court does not deserve to be
interfered   with.     The   second   appeal   No.167/2004   is   therefore
stands dismissed with no order as to costs.
JUDGE

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