Law Web: 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