Friday, 30 August 2019

Whether evidence of attesting witness can be discarded if he has not read the content of will?

I have gone through the evidence of Mr. Ghadage, attesting witness and I found it reliable, cogent consistent and stood to the test of cross examination. Thus, there is a compliance of provisions of Section 68 of the Evidence Act. However, evidence of this witness has been disbelieved by the learned appellate Court, only on the ground that, this witness did not read the contents of the Will and put his signature at the instance of Mr. Salunke (scribe). The learned appellate Court thus held that since the attesting witness knew nothing about the contents of the Will, his evidence was falling short of the requirements of Section 68 of the Evidence Act.

19. In my view, the reasons for discarding the evidence of this attesting witness are unfounded and not acceptable. The requirement of Section 68 of the Evidence Act is to prove the execution of document, which is required by law to be attested. Therefore, what is to be proved, is execution of the Will and not the contents of it. Thus, the learned Appellate Court has committed an error by discarding the evidence of this witness.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 538 of 2015 and Civil Application No. 353 of 2012

Decided On: 01.03.2019

 Chandrakala Krishna Dhole Vs.  Bhimrao Dattu Kadam and Ors.

Hon'ble Judges/Coram:
Sandeep K. Shinde, J.

Citation: 2019(4) MHLJ 949


1. With the consent of both the parties, the appeal is taken up for the final hearing at admission stage and were directed to file paper-book.

2. This appeal is preferred by the defendant No. 2 and I will refer the parties as per their status in the suit.

3. Appellant has raised the following substantial questions of law.

(i) Whether the Appellate Court could have gone into validity of the Will executed by the deceased in favour of the Appellant herein especially when the Trial Court has held that the Will was duly executed and proved and which finding have not been challenged by filing cross objection?

(ii) Whether the Appellate Court failed to consider the case of the Appellant that she has become owner of the suit property, pursuant to the Will and in view of categorical finding that Respondents were not ready and willing to perform his part of agreement? Could the Appellate Court have refused the relief of possession which was claimed by the Appellant by way of counter claim?

(iii) Whether the appellate Court was justified in law in dismissing the counter claim for possession of suit land, in view of the categorical finding that plaintiff was not ready and willing to perform his part of the contract?

4. Heard learned Counsel for the parties.

5. Appellant-Chandrakala, was the defendant No. 2 in Special Civil Suit No. 20 of 2003. The suit was filed by Bhimrao for specific performance of the contract dated 26th December, 1991, allegedly executed by Indumati Wani (now deceased). The appellant is a grand-daughter of Indumati. Since the suit land was of a new tenure, prior permission was required and as such, the balance consideration was payable after obtaining the requisite permission. Indumati executed a Will on 18th August, 1993 in favour of the appellant-defendant No. 2. After demise of Indumati, plaintiff requested the appellant to execute the sale-deed in terms of the suit agreement dated 26th December, 1991. The defendant No. 1 is daughter of Indumati and mother of defendant No. 2 - appellant herein. The suit was resisted by the appellant, inter-alia contending that since Indumati died on 17th September, 1993, the suit was barred by limitation. Besides, execution of the suit agreement was also denied. The suit was resisted also on the ground that for the want of requisite permission, Indumati could not have execute the suit agreement and therefore, the plaintiff has had no right to seek the performance of it.

6. Appellant would assert her title on the ground that she became owner of the suit land on the basis of Will dated 18th August, 1983 executed by Indumati in her favour.

7. Appellant had also filed a counter claim, seeking possession of the suit land and for mesne profit.

8. This counter claim was resisted by the plaintiff on the ground that claim was time barred and Indumati was not in sound and disposable state of mind when she executed the Will in favour of the appellant.

9. The learned trial Judge framed seven issues and answered as under:

(i) plaintiff has proved the suit agreement dated 26th December, 1991;

(ii) that plaintiff was ready and willing to perform his part of the contract;

(iii) that plaintiff has proved that Indumati handed over possession of the suit property to him;

(iv) that appellant-defendant No. 2 has proved that she became owner of the suit property on the basis of Will dated 18th August, 1993 executed by Indumati;

(v) that the appellant-defendant No. 2 proved that Indumati was in sound and disposable state of mind at the time of execution of the Will;

(vi) that the counter claim was not barred by limitation;

(vii) that the appellant-defendant No. 2 is not entitled to relief claimed in the counter claim.

10. Thus, the trial Court recorded the finding on issue Nos. (i), (ii) and (iii) in favour of the plaintiff and held that he has proved the suit agreement; his readiness and willingness to perform his part of the contract; that possession was handed over to him in pursuant to suit agreement dated 26th December, 1991 and as such, granted the decree for specific performance, in favour of the plaintiff.

11. The learned trial Judge granted the decree for specific performance and dismissed the counter claim on the ground that having granted decree for the specific performance, a decree of possession cannot be granted as sought in the counter claim.

It may also be stated that though the learned trial Judge declined the decree of possession in the counter claim, it was held that the appellant-defendant No. 2 has proved the Will dated 18th August, 1993 executed by Indumati in her favour. The trial Court has also held that Indumati was in sound and disposable state of mind when she had executed the will in favour of defendant No. 2. Therefore, issue Nos. (iv) and (v) (as reproduced in paragraph 10 herein above) were answered in favour of the appellant.

12. Aggrieved by the decree for the specific performance and dismissal of the counter claim, the appellant-defendant No. 2 had preferred Regular Civil Appeal No. 119 of 2007 in the Court of District Judge, Pandharpur. Admittedly, the plaintiff did not prefer appeal against the findings recorded in favour of the appellant on issue Nos. (iv) and (v) (as reproduced in paragraph 10 herein above), whereby, the trial Court recorded the finding that the appellant-defendant No. 2 has proved the execution of Will in her favour and Indumati was in sound and disposable state of mind.

13. The learned appellate Court after appreciating the evidence, recorded the finding that the plaintiff was not ready and willing to perform his part of contract and also that the suit for specific performance was not within limitation. However, it held that Indumati had handed over possession of the suit property to the plaintiff on 26th December, 1991. The learned appellate Court thus reversed the decree for specific performance passed by the trial Court.

14. The learned appellate Court not only reversed the decree for the specific performance, passed by the trial Court in favour of the plaintiff, but also held that the appellant-defendant No. 2, had not proved the Will dated 18th August, 1993 and further held that Indumati (testatrix) was not in sound and disposable state of mind when the Will was executed. Resultantly, the appellate Court held that the appellant-defendant No. 2 did not become owner of the suit property on the basis of will dated 18th August, 1993.

In other words, the appellate Court reversed the findings recorded by the learned trial Judge on the issue Nos. (iv) and (v) (as reproduced in paragraph 10 herein above) in absence of counter claim and/or challenge to such findings.

15. The plaintiff being aggrieved by the decree passed by the appellate Court had preferred Second Appeal No. 368 of 2011 before this Court. On 15th January, 2014, the second appeal was dismissed, having found that the plaintiff remained totally inactive and silent for a period of more than eight years, the suit was barred by limitation. In other words, the findings recorded by the appellate Court as against point Nos. 2 and 6 were affirmed by this Court in Second Appeal No. 368 of 2011.

16. Being aggrieved by the judgment and decree passed by the learned District Judge-3, Pandharpur in Regular Civil Appeal No. 119 of 2007, this Second Appeal is preferred by the defendant No. 2.

17. Mr. Shah, learned Counsel for the appellant submits that the finding recorded as against point No. (iv), which relates to the factum of proving the will is perverse being inconsistent to the evidence on record. That, in support of this submission the learned Counsel has taken me through the evidence of; DW-1 Krishna Dagadu Dhole - husband of the appellant; Mr. Mahadeo Pandurang Ghadage attesting witness; Dr. Snil Atmaram Garade-DW-4 and Mr. Salunke - son of scribe as DW-2.

Mr. Shah would submit that, one of the requirements of due execution of will is its attestation of two or more witnesses, which is mandatory. He submits that Section 68 of the Evidence Act speaks as to how a document required by law to be attested can be proved. An attesting witness if alive and capable of giving evidence and subject to the process of the Court, has to be necessarily examined before the document required by law to be attested, can be used as an evidence.

18. I have gone through the evidence of Mr. Ghadage, attesting witness and I found it reliable, cogent consistent and stood to the test of cross examination. Thus, there is a compliance of provisions of Section 68 of the Evidence Act. However, evidence of this witness has been disbelieved by the learned appellate Court, only on the ground that, this witness did not read the contents of the Will and put his signature at the instance of Mr. Salunke (scribe). The learned appellate Court thus held that since the attesting witness knew nothing about the contents of the Will, his evidence was falling short of the requirements of Section 68 of the Evidence Act.

19. In my view, the reasons for discarding the evidence of this attesting witness are unfounded and not acceptable. The requirement of Section 68 of the Evidence Act is to prove the execution of document, which is required by law to be attested. Therefore, what is to be proved, is execution of the Will and not the contents of it. Thus, the learned Appellate Court has committed an error by discarding the evidence of this witness.

20. The appellant-defendant No. 2 examined Dr. Sunil Garade, who had certified that Indumati was in sound and disposable state of mind. The learned appellate Court discarded his evidence only on the ground that Dr. Garade had certified her state of mind on 18th June, 1992, one day prior to the Will-deed and he did not produce examination notes. The learned appellate Court thus found the Will was suspicious.

Next witness was son of the scribe, Mr. Salunke. It appears, this witness was examined since Mr. Suresh Salunke - scribe (father of this witness) was bed ridden due to paralytic attack. The evidence of this witness was disbelieved on the ground that defendant did not produce the medical certificate of Suresh Salunke.

I have gone through the evidence of these witnesses and I found the same reliable, cogent and consistent. The reasons assigned for discarding the evidence of attesting witness and of doctor are untenable and findings are inconsistent with the evidence and thus perverse.

21. Thus, after going through the evidence of attesting witness Dr. Garade, son of the scribe, in my view, the findings recorded by the learned appellate Court as against point Nos. 4 and 5 are not consistent with the evidence on record. Therefore, I hold that;

(i) the appellant-defendant No. 2 has proved that Indumati had executed Will-deed dated 18th August, 1993 in her favour and;

(ii) that Indumati was in sound and disposable state of mind as on the date of execution of Will.

22. Mr. Shah, learned Counsel for the appellant submitted that the appellate Court has committed a jurisdictional error by reversing the findings recorded by the learned trial Court on the issue Nos. (iv) and (v) (reproduced in paragraph 10 herein above), in absence of challenge thereto.

23. Mr. Shah, learned Counsel for the appellant would argue that the plaintiff had not preferred Regular Civil Appeal against the findings recorded by the learned trial Judge in respect of validity of execution of Will which were in favour of the appellant-defendant No. 2, and having not preferred appeal against such findings, the appellate Court has had no jurisdiction to reverse such findings in absence of a challenge thereto. Learned Counsel Mr. Shah has relied upon the provisions of Order 41 Rule 22 of the Code of Civil Procedure, 1908, which reads as under:

"22. Upon hearing respondent may object to decree as if he had preferred a separate appeal. - (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree to the decree which he could have taken by way of appeal provided he has Sled such objection in the Appellant Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to follow.

(2) Form of objection and provisions applicable thereto. - Such cross-objection shall be in the form of a memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.

(4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks St.

(5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule."

24. He submitted that after amendment, provisions of Order 41 Rule 22 enables the decree holder to prefer an appeal even against the findings recorded against him by preferring the cross objection. He further submitted that the amendment inserted by 1976 is clarificatory in nature which enables the decree holder to prefer the cross objections against the findings recorded against him. He further submitted that in absence of any challenge to such findings, the appellate Court could not have examined the legality and the correctness of such findings unless challenged by filing cross objection. Mr. Shah, learned Counsel for the appellant has relied on the judgment of the Hon'ble Supreme Court in the case of Biswajit Sukul Vs. Deo Chand Sarda and others reported in MANU/SC/1037/2018 : (2018) 10 SCC 584.

25. In the Biswajit Sulul case, suit was filed by the plaintiff - landlord to claim arrears of rent and eviction of respondent as defaulter in payment of rent, the trial Court held that defendant was plaintiffs tenant but not a defaulter in payment of rent. Plaintiff appealed against the said order but did not challenge the findings recorded in its favour while defendants did not file any cross-objection against any of the findings recorded by trial Court against them. The Apex Court thus held, first appellate Court committed jurisdictional error in deciding the legality and correctness of the issues and the findings recorded in favour of the plaintiff.

26. Admittedly, in the case in hand, the trial Court at the first instance held that the appellant-defendant No. 2 has proved the Will dated 18th August, 1993 executed by Indumati in her favour in sound and disposable state of mind. These findings were not challenged by the plaintiff though he could have challenged it, in view of the enabling provisions of Order 41 Rule 22 of the Code of Civil Procedure, the appellate Court fell in error by assuming the jurisdiction in absence of challenge to it by the plaintiff. Thus, the first appellate Court has committed a jurisdictional error by reversing the finding rendered by the trial Court as against issue Nos. (iv) and (v).

27. Be that as it may, even otherwise, I have held that the findings recorded by the learned trial Judge as against issue Nos. (iv) and (v) i.e. relating to the validity of the Will was perverse.

28. Mr. Bodake, learned Counsel for the respondent-plaintiff would urge that the appellate Court was justified in reversing the findings in absence of cross objections, in view of the powers under Order 41 Rule 33 of the Code of Civil Procedure, and thus, preferring the cross objections against the findings is not mandatory.

29. Mr. Bodake relied on the judgment of the Apex Court in the case of Banarsi and others Vs. Ram Phal reported in MANU/SC/0147/2003 : (2003) 9 SCC 606.

In fact, in the said judgment it is held thus;

"where plaintiff in his suit sought two separate and independent reliefs and Court refused one but granted the other, in appeal preferred by defendant against grant of latter relief, held, appellate Court cannot grant the former relief in favour of the respondent-plaintiff in exercise of power under Rule 33 when no appeal or cross-objection Sled."

In the said cited judgment, in paragraph 10, the Apex Court held thus:

10. The CPC amendment of 1976 has not materially or substantially altered the law except for a marginal difference. Even under the amended Order 41 Rule 22 sub-rule(1) a party in whose favour the decree stands in its entirety is neither entitled for obliged to prefer any cross-objection. However, the insertion made in the text of sub-rule (1) makes it permissible to file a cross-objection against a finding. The difference which has resulted we will shortly state. A respondent may defend himself without Sling any cross-objection to the extent to which decree is in his favour; however, if he proposes to attack any part of the decree he must take cross-objection. The amendment inserted by the 1976 amendment is clarificatory and also enabling and this may be made precise by analysing the provision. There may be three situations:

(i) The impugned decree is partly in favour of the appellant and partly in favour of the respondent.

(ii) The decree is entirely in favour of the respondent though an issue has been decided against the respondent.

(iii) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent.

30. Thus, after going through the judgments cited by the learned Counsel for the parties, in my view, in absence of the challenge to the findings, the appellate Court could not have reversed it by taking recourse of the provisions of Order 41 Rule 33 of the Code of Civil Procedure. I therefore reject this contention of Mr. Bodake.

31. Mr. Bodake would further urge that the appellant-defendant No. 2 cannot seek decree of possession, inasmuch as plaintiffs possession is protected under Section 53A of the Transfer of Property Act. He would urge that the cross objections filed by the appellant-defendant No. 2, seeking possession of the suit property was not maintainable, inasmuch she had failed to establish execution of Will in her favour by Indumati.

This contention is to be rejected for the following reasons;

(i) That plaintiff cannot protect his possession under Section 53-A of the Transfer of Property Act, inasmuch as the first Appellate Court and this Court in Second Appeal No. 368 of 2011 has held that the plaintiff remained totally inactive for a period of more than eight years and since the correct steps were not taken by the plaintiff, suit was surely barred by limitation. Therefore, it is to be held that the plaintiff was not ready and willing to perform his part of contract which is one of the essential conditions to seek protection of possession under Section 53-A of the Transfer of Property Act.

(ii) That, I have recorded the findings that the appellant-defendant has proved the will executed by Indumati in her favour in disposable and sound state of mind.

Thus, for the reasons aforesaid the appellant-defendant No. 2 is entitled to claim the possession of the land.

32. Mr. Bodake, learned Counsel for the plaintiffs would submit that the appellant-defendant cannot claim decree of possession without following due process of law and a decree of possession cannot be passed in the counter claim preferred by the appellant.

As against this, it is submitted by Mr. Shah, learned Counsel for the appellant that "due process of law" stands satisfied the moment rights of parties are adjudicated upon by a competent Court. He submitted that in this case rights of the parties are adjudicated and therefore fresh proceedings are neither contemplated nor required. He relied on a judgment of the Supreme Court in the case of Maria Margarida Sequeria Fernandes and others Vs. Erasmo Jack De Sequeria (Dead) through LRs reported in MANU/SC/0225/2012 : (2012) 5 SCO 370.

I have gone through the aforesaid judgment (supra). Paragraph 80 of the said judgment reads thus:

"80. The High Court of Delhi in a case Thomas Cook (India) Ltd. v. Hotel Imperial held as under: (DRJ p.

566, para 28)

"28. The expressions 'due process of law', 'due course of law' and 'recourse to law' have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed 'forcibly' by the true owner taking law in his own hands. All these expressions, however, mean the same thing -- ejectment from settled possession can only be had by recourse to a court of law. Clearly, 'due process of law' or 'due course of law', here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner.

Now, this 'due process' or 'due course' condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. What is important is that in either event it is an action before the court and the court adjudicates upon it. If that is done then, the 'bare minimum' requirement of 'due process' or 'due course' of law would stand satisfied as recourse to law would have been taken. In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e., for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not. In any event, the 'recourse to law' stipulation stands satisfied when a judicial determination is made with regard to the first party's protective action. Thus, in the present case, the plaintiffs failure to make out a case for an injunction does not mean that its consequent cessation of user of the said two rooms would have been brought about without recourse to law."

33. In the case in hand the rights of the appellant-defendant No. 2 were adjudicated upon by the competent Court at the first instance and now such rights and the findings are confirmed in this appeal. Therefore, in my view, the appellant-plaintiff No. 2 is entitled to decree of possession and thus the counter claim is allowed. Thus, I record my findings on the following points:

(a) that the appellate Court has committed a jurisdictional error by reversing the findings recorded by the trial Court in favour of the appellant-defendant No. 2 as against issue Nos. (iv) and (v). Therefore, first question of law is answered accordingly.

(b) that, for the reasons stated herein above, the plaintiff is not entitled to protect his possession in the suit land under Section 53-A of the Transfer of Property Act.

(c) The appellant-defendant No. 2 has proved the will dated 18th August, 1993 executed by Indumati in her favour.

(d) The appellant-defendant No. 2 become owner of the suit land on the basis of the will and the plaintiff-respondent has no right to hold the possession of the suit land.

(e) Counter claim of the appellant-defendant No. 2 is granted.

Hence, the following order:

(i) The Second Appeal is allowed.

(ii) The decree of the first appellate Court in Regular Civil Appeal No. 119 of 2007 is hereby set aside.

(iii) The counter claim filed by the appellant-defendant No. 2 is allowed and therefore, decree be drawn in terms thereof.

(iv) The Second Appeal and Civil Application are disposed of accordingly.

(v) Decree be drawn accordingly.


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