Thursday, 20 February 2014

Burden to prove that testatrix was of unsound mind is on defendant


2008(5)ALLMR639, 2008(5)BomCR653, 2008(6)MhLj386
IN THE HIGH COURT OF BOMBAY (PANAJI-GOA BENCH)
S.A. No. 27 of 1999
Decided On: 19.06.2008
Appellants: Janardan @ Govind Vassudeva Bhat and Ors.
Vs.
Respondent: Mortibai Ramchandra Bhat since deceased through her unknown legal heirs and Ors.
Hon'ble Judges/Coram:
N.A. Britto, J.


Property - Will - Suit properties belonged to P - After his death, property allotted to his widow M, in inventory proceedings - M bequeathed them to plaintiff by Will - Upon death of M, plaintiff filed suit for declaration of ownership - Defendants contended that M was of unsound mind - Will was not executed in presence of five witnesses therefore, null and void - Trial Court accepted objection raised by defendant - Hence, present appeal - Held, defendants failed to prove that Will was executed by M when she was of unsound mind - Requirement of five witnesses now replaced with three witnesses - Plaintiff became owner of suit properties after death of M - Defendant had no title to the same - Appeal allowed


1. This is plaintiffs' Second Appeal arising from RCS No. 84/1990.
2. Heard Shri Sudin M.S. Usgaonkar, the learned Counsel on behalf of the plaintiffs. The respondents have chosen to remain absent.
3. The plaintiffs (the plaintiff No. 2 is deceased and is now represented by her legal heirs) had filed a suit for the following reliefs:
(a) that they be declared as the owners of the suit properties;
(b) for an order to the Survey Authorities to resurvey and demarcate the suit properties based on old cadastral survey and record the names of the plaintiffs as occupants of the suit properties;
(c) for an order of permanent injunction to restrain the defendants from carrying out any construction in the suit properties; and
(cc) that the deed of sale dated 28-7-1987 registered under No. 419/1987 be declared as null and void and upon it being so declared, it be delivered and cancelled.
(ccc) to direct the defendant No. 1 or any person or persons claiming through her to quit, vacate and hand over vacant and peaceful possession of the suit properties to the plaintiffs.
4. There is no dispute as regards the suit properties claimed by the plaintiffs. In any event, there is a clear finding given by the learned trial Court to that effect, namely, that the property surveyed under No. 1/5 corresponds to properties surveyed under cadastral survey Nos. 306, 307 and 308. The house situated in Survey No. 1/5 corresponds to cadastral Survey No. 308, regarding which the plaintiffs have no claim, their claim being restricted only to the remaining property of Survey No. 1/5 i.e. surveyed under cadastral Survey No. 306 and 307.
5. The case of the plaintiffs was that the suit properties i.e. surveyed under cadastral Survey No. 306 and 307 were allotted to Mathura Panduranga Prabhu alias Emuna Porbina, widow of Panduranga Prabhu, upon the death of the said Panduranga Prabhu in Inventory Proceedings bearing No. 18-628/70, filed upon his death and that by Will dated 23-7-1971, the suit properties were bequeathed to the plaintiffs, and upon the death of the said Mathura Panduranga Prabhu alias Emuna Porbina on 31-10-1984, the plaintiffs became the sole owners of the said properties as the said Mathura Panduranga Prabhu alias Emuna Porbina expired without leaving any ascendants or descendants.
6. There is no dispute that defendant Nos. 1 and 2 are one and the same person who was known as Mortibai Ramchandra Bhat @ Laximibai Parobo and who was the mistress of the said Panduranga Prabhu. She claimed that she was religiously married to him, outside Goa, but their marriage was not registered. It appears that the said Panduranga Prabhu had left a Will in her favour. She will be referred to as defendant, hereinafter.
7. There is also no dispute that subsequently, the suit properties along with the house having cadastral Survey No. 308 were sold by the defendant in favour of defendant No. 3 Ramesh Govind Chari. The plaint was amended after this fact was brought to the notice of the plaintiffs. It was also the case of the plaintiffs that the said house in which the defendant was residing was allotted to the defendant in the same Inventory Proceedings.
The case of the plaintiffs was that they were the owners in exclusive possession and enjoyment of the suit properties.
8. The defendant contested the suit and basically took three defences, namely, that the said Mathura who was also known as Sitabai and who was the first wife of said Panduranga Prabhu was abandoned by him because she was of unsound mind and the said Panduranga thereafter married Emuna. The second defence was that the Will was not executed in the presence of five witnesses (as required by Article 1912 of the Civil Code, 1867) and therefore null and void. The third plea taken was that they had become owners by prescription. Defendant No. 3 adopted the defences taken by the defendant.
9. The learned trial Court accepted the first two defences taken by the said defendants. The third defence was not accepted and the plea in terms thereof that they had become the owners by prescription was rejected. The plaintiffs having filed the first appeal, the learned first appellate Court upheld the first defence taken by the said defendants. As regards the second defence, the learned first appellate Court did not give much importance to it, notwithstanding the fact that the provisions of Decree law 8.373 dated 18-9-1922 were brought to its notice.
10. This appeal was admitted on 13-8-1999 on several substantial questions of law including whether the findings in respect of issue No. 7 could be reversed by the appellate Court without any cross objections. This second appeal can be conveniently disposed off on the following two questions:
(1) Whether the Courts below erred in holding that the Will was bad as there was a cloud cast on it, when no evidence thereto was lead by the Respondent challenging the Will and the Registrar had taken all the care under the law to satisfy himself about the mental status of the testator.
(2) Whether the Will dated 23-7-1971 was null and void in the absence of five witnesses at the time of its execution.
11. As regards the first question, it may be stated that the first appellate Court was much influenced that testatrix Mathura was influenced by the plaintiffs since they had told her what would be written in the Will. The testatrix Mathura was none other than the maternal aunt of the said Janardan alias Govind Vassudeva Bhat and if at all she had come on the previous day from Canacona and stayed with them before the execution of the Will at Panaji, one certainly could not jump to the conclusion that she was influenced to execute the said Will by the said Janardan alias Govind Vassudeva Bhat and, more so, in a case where the defendant herself had not pleaded any undue influence. She was bound to be told as to what would be written in the Will.
Section 12 of the Indian Contract Act, 1872 provides that:
A person is said to be of sound mind for the purpose of making a contract, if, at the time when he makes it, he is capable of understanding it and of forming a rational judgment as to its effect upon his interests.
A person who is usually of unsound mind, but occasionally of sound mind, may make a contract when he is of sound mind.
A person who is usually of sound mind, but occasionally of unsound mind, may not make a contract when he is of unsound mind.
12. As regards the mental status of the said Mathura, a vague plea was taken. There was no whisper in the evidence of the defendant regarding the unsoundness of mind of Mathura. The said plea has been decided by both the Courts below on hearsay evidence of PW2/Shri Anant Varik who had stated that Panduranga Prabhu had driven her out since she was mentally unsound. Was she driven out so that the said Panduranga Prabhu could live with the defendant? The plea, on its proper construction, was that the Will was null and void, because Pandurang Porob had abandoned her because she was of unsound mind and sent to her father's house at Loliem. It was not the case of the defendant that Mathura was of unsound mind at the time of execution of the Will. The defendant had not specified as to when she was sent to her father's house. A person is presumed to be sane until the contrary is proved. To prove the contrary at least some evidence of conduct precedent, attendant and subsequent to the act done under alleged unsoundness, must be proved. There was absolutely no such evidence led by the defendants. There was also no evidence whatsoever that even in the near or remote past Mathura had been treated for any unsoundness of mind and in such a situation, the conclusions drawn by both the Courts below that the said Mathura was of unsound mind at the time of execution of the Will, are perverse and therefore need to be reversed. If the said Mathura was mentally unsound one fails to understand how she initiated the inventory proceedings upon the death of her husband, the said Panduranga Prabhu. Again, one fails to understand, in case she was of unsound mind, the public notary in the Will executed by her in the presence of three witnesses recorded that she was of sound mind. As already noted, it was not the case of the defendant that she was of unsound mind at the time of execution of the Will. The Will in question was a public document. It is to be noted that the notary public is a public official who had recorded the proceedings of the Will and there was a presumption that what he had recorded was correct and such presumption could be rebutted only by some convincing evidence and such evidence was not produced by the defendant at all. It is quite possible that the plaintiff No. 1 was unable to understand the nature of proceedings which had taken place before the notary public and because of that the correctness of the proceedings before the notary public could not be doubted. The learned trial Court observed, referring to certain statements made by PW1/Janardan alias Govind Vassudev Bhat that execution of the public Will was under cloud and therefore there was every reason to believe that his Will was executed under influence and not in accordance with law. These observations are wholly erroneous considering that the defendants had not set up a plea of undue influence nor a specific plea that at the time of execution of the Will the said Mathura was of unsound mind. Even assuming PW2/Shri Anant Varik was to be believed that the said Mathura was driven out of the house and sent to her mother's house earlier, there was no evidence produced to show that at the time of execution of the Will the said Mathura was not in a fit state of mind to execute the Will. In the absence of any plea taken by the defendants, that at the time of execution of the Will on 23-7-1971, the said Mathura was not of a sound mind and in the absence of the defendants proving any attending circumstances to suggest the unsoundness of mind, of the said Mathura, both the Courts grossly erred in coming to the conclusion that Mathura was of unsound mind at the time of execution of the Will.
13. As regards the second question, it may be noted that Article 1912 of the Civil Code, 1867 did provide for five witnesses at the time of execution of the Will and in the case at hand there is no dispute that three witnesses were present. The public notary certainly would have been the best person to know as to how many witnesses were required for the execution of a Will. If at all the public notary ensured that three witnesses were present, it was because there was a change of law as to the requirement of number of witnesses by virtue of Decree law 8.373 dated 18-9-1922 which in terms of Article 77 thereof provided that:
In public Wills and acts of approval of closed Wills the intervention of three witnesses is indispensable, in other documents authentic and extra official excluding protest of bills of exchange, two are sufficient.
The said Decree law 8.373 related to public notaries and, inter alia, enumerates what are their public functions and certain procedures which they were required to follow. Although no specific reference has been made in Decree law No. 8.373 to Article 1912 of the Civil Code, 1867, Shri Usgaonkar, learned Counsel on behalf of the plaintiffs has placed reliance on two judgments of the Apex Court and has submitted that this is a case of implied repeal, and, there is no reason why the said submission ought not to be accepted. Admittedly, the Civil Code is of the year 1867 and the Decree came in force subsequently.
The Apex Court in the case of State of Orissa and Anr. v. M.A. Tulloch and Co. and Anr. MANU/SC/0021/1963: [1964]4SCR461 observed that:
The entire theory underlying implied repeals is that there is no need for the later enactment to state in express terms that an earlier enactment has been repealed by using any particular set of words or from of drafting but that if the legislative intent to supersede the earlier law is manifested by the enactment of provisions as to effect such supersession, then there is in law a repeal notwithstanding the absence of the word 'repeal' in the later statute.
Again in Yogender Pal Singh and Ors. v. Union of India and Ors. MANU/SC/0736/1987 : (1987)ILLJ337SC , the Apex Court has stated:
It is well settled that when a competent authority makes a new law which is totally inconsistent with the earlier law and that the two cannot stand together any longer it must be construed that the earlier law had been repealed by necessary implication by the later law.
14. The law laid down by the Apex Court is squarely applicable to the facts of the case at hand. Needless to say, Article 1912 of the Civil Code, 1867 which prescribed five witnesses to be present at the time of the execution of a Will can no longer stand in the light of Article 77 of the Decree law No. 8.373 dated 18-9-1922 which provides for the minimum of three witnesses and therefore it is but obvious that the previous requirement of Will being executed in the presence of five witnesses, has now been replaced with the requirement that it should be executed with the minimum of three witnesses.
15. What follows from the above discussion is that the defendants had failed to prove that the said Will was executed by Mathura when she was of unsound mind or that it was null and void because it was not executed in the presence of five witnesses. Both the substantial questions of law are answered in favour of the plaintiffs. In conclusion it may be stated that the suit properties belonged to Pandurang Prabhu and were allotted to his widow Mathura, upon his death, in inventory proceedings. Mathura bequeathed them to plaintiff No. 1 by Will dated 23-7-1971 and thus upon the death of Mathura, the legally wedded wife of Pandurang Prabhu, the plaintiff No. 1 became the owner thereof. The defendant had no right or title to sell the same to defendant No. 3 and therefore the sale deed dated 28-7-1987 has got to be considered as null and void.
16. The second appeal therefore succeeds. Consequently the judgments of both the Courts below deserve to be set aside. As a result, the suit filed by the plaintiffs shall stand decreed in terms of prayer Clauses (a), (cc) and (ccc) with costs throughout in favour of the plaintiffs.


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