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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
Second Appeal No. 309/2014
1. Smt. Sakwar W/o not known,
(Daughter of Narayan Wankhede),
Aged about 60 years, Occ. Household,
2. Rajesh S/o Hiraman Nitnaware,
Aged about 36 years, Occ. Business,
3. Kunal S/o Hiraman Nitnaware,
Aged about 32 years, Occ. Business
4. Smt. Pramita W/o Arun Chahande,
Aged about 34 years, Occ. Household.
All R/o Plot No. 40, Bharat Bhojnalaya, New
Cotton Market Layout, Near S.T. Stand,
Nagpur ..... Appellants
...Versus...
1. Smt. Manjulabai Wd/o Hiraman Nitnawre,
Aged about 76 years, Occ. Household,
R/o Ward No. 95, Jaitala, Nagpur
2. Deorao S/o Hiraman Nitnawre,
Aged about 52 years, Occ. Business
R/o Ward No. 95, Jaitala, Nagpur
3. Smt. Ramabai W/o Mahadeo Meshram,
Aged about 40 years, Occ. Household,
R/o Vaishali Nagar, Bhandara
4. Smt. Indirabai W/o Shrawan Waghmare,
Aged about 40 years, Occ. Household
R/o Godhani Railway, Nagpur
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5. Smt. Sunita Wd/o Rohit Choudhari,
Aged about 37 years, Occ. Household,
R/o Kawarapeth, Tah. Umrer, Dist. Nagpur
6. Nagpur Improvement Trust, Near Liberty
Talkies, Nagpur through its Chairman (Deleted) ..... Respondents
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Shri A.C. Dharmadhikari, Advocate for appellants
Shri A.K. Choube, Advocate for respondents
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CORAM : A.S. CHANDURKAR, J.
DATE : 14/09/2017 Oral Judgment
Admit. Heard finally with the consent of both the parties on the following substantial questions of law:-
"(i) Whether the appellate Court was right in interfering with the finding of fact recorded by the trial Court as regards the admissibility of Will when, no objection was raised at the time of exhibition of the said Will at Exhibit 120 and that too when the certified copy of the will was placed on record ?
(ii) Whether the relief with regard to the validity of the Will dated 12/09/1995 is barred by limitation ?"
2. The appellants are the original defendants in the suit filed by the ::: Uploaded on - 16/09/2017 ::: Downloaded on - 19/09/2017 01:25:08 ::: 3 SA309.2014.odt respondents herein. It is the case of the respondents that one Hiraman Nitnaware was married with Manjulabai and they had four issues. Said Hiraman Nitnaware expired on 25/09/1995 leaving behind him the aforesaid legal heirs. According to the plaintiff, Hiraman Nitnaware had married with defendant no. 2 and defendant nos. 3 to 5 were the children from the said marriage. After the death of Hiraman Nitnaware, the plaintiffs applied for having their names mutated as owners of the property. Initially, such an application was filed on 24/01/1996. Subsequently, another application was made but as there was no response from Nagpur Improvement Trust, the suit was filed seeking declaration that the plaintiff had lease hold rights over the suit property. This right was claimed along with defendant nos. 3 to 5.
3. The Nagpur Improvement Trust filed its written statement at Exh. 19. In this written statement which was filed on 16/03/1999, it was pleaded that on the basis of Will dated 12/09/1995 executed by Hiraman, the names of the defendants had been mutated. The defendant nos. 2 to 5 also filed their written statement and relied upon the aforesaid Will dated 12/09/1995 for claiming their entitlement to the suit property. After the written statements were filed, the plaintiff moved an application below Exh. 26 seeking to amend the plaint so as to challenge the Will dated 12/09/1995. This application was rejected by the trial Court. The plaintiff ::: Uploaded on - 16/09/2017 ::: Downloaded on - 19/09/2017 01:25:08 ::: 4 SA309.2014.odt approached this Court by filing C.R.A No. 825/2000. This Court on 15/03/2002 granted leave to the plaintiffs to file a fresh application for seeking amendment. Therefore, a fresh application was moved as per Exh. 35 and by order dated 21/02/2003, the trial Court allowed the amendment. Writ Petition No. 3770/2003 filed by the defendant nos. 3 to 5 came to be dismissed after observing that the said defendants could raise the plea of limitation in their written statement. The defendants accordingly amended their written statements and raised the defence of limitation.
4. The trial Court after considering the evidence on record held that the Will dated 12/09/1995 was not brought on record. The suit was filed within limitation. However, as the name of defendant no. 1 had been deleted, no relief could be granted. Hence, the suit was dismissed. The plaintiff filed an appeal being aggrieved by the aforesaid judgment. The appellate Court after reconsidering the evidence on record held that the Will propounded by the defendant nos. 2 to 5 was not duly proved. It also held that the suit was filed within limitation and hence decreed the suit. Being aggrieved, defendant nos. 2 to 5 have filed the present appeal.
5. Shri. A.C. Dharmadhikari, learned counsel for the appellants submitted that the certified copy of the Will at Exh. 120 had been placed on ::: Uploaded on - 16/09/2017 ::: Downloaded on - 19/09/2017 01:25:08 ::: 5 SA309.2014.odt record before the trial Court. No objection was raised by the plaintiffs when said document was exhibited. The appellate Court for the first time recorded a finding that the defendants were not entitled to rely upon the certified copy of the aforesaid Will. The appellate Court therefore held the said Will not to be proved. According to him, if such objection would have been raised before the trial Court, appropriate steps would have been taken by the defendants to prove the said Will. It was then submitted that the relief sought with regard to declaration of the Will dated 12/09/1995 as illegal was barred by limitation. Even if it was accepted that the plaintiff got knowledge about the said Will on 16/03/1999, the amendment was allowed by the trial Court on 21/02/2003 which was beyond the period of limitation. The relief of declaration as regards the said Will was not sought within a period of three years. This Court while dismissing Writ Petition No. 3770/2003 had permitted the defendants to raise a plea of limitation. Though such a plea was raised, the appellate Court did not consider the said question in the proper perspective. Relying upon the judgment of Hon'ble Supreme Court in case of Sampath Kumar vs Ayyakannu & another reported in (2002) 7 SSC 549, it is submitted that the amendment would not relate back to filing of the suit and it would take effect on the day when it was allowed. It was therefore submitted that the relief of declaration was barred by limitation.
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6. Shri A.K. Choube, learned advocate for original plaintiff supported the impugned judgment. According to him merely by placing the certified copy of the Will on record, its contents could not be said to be proved. It was submitted that though the defendants had propounded the aforesaid Will and custody of the Will was with the defendants, the same was not produced on record. As the defendants were relying on the said Will, same should have been duly proved by them. He therefore submitted that the appellate Court rightly held the said Will not to be duly proved. It was then submitted that the relief with regard to validity of the Will was sought within limitation. After the written statement was filed by the defendant no. 1, the amendment was sought on 17/02/2000. Merely because that application was withdrawn and a fresh application was filed, same would not have the effect of the relief being barred by limitation. He submitted that the appellate Court rightly held the suit to be within limitation.
7. I have heard the learned counsel for the parties at length and I have perused the records of the case. The plaintiff had initially sought a declaration that they along with defendant nos. 2 to 5 had inherited the property left by Hiraman Nitnaware. It was their case that Hiraman ::: Uploaded on - 16/09/2017 ::: Downloaded on - 19/09/2017 01:25:08 ::: 7 SA309.2014.odt Nitnaware expired intestate. In the written statement filed by the defendant no. 1, the stand was taken that the defendant nos. 2 to 5 had sought mutation of their names on the basis of Will dated 12/09/1995 executed by Hiraman Nitnaware. This stand was then also taken by the defendant nos. 2 to 5. It is thus clear that defendant nos. 2 to 5 were the propounders of the Will. In that regard, the defendants examined defendant no. 3 at Exh. 119. He deposed that the original Will was in his custody but he could not find the same despite searching for it. He failed to obtain permission for leading secondary evidence. He placed on record the certified copy of the said Will at Exh. 120. The trial Court without considering the fact that no permission had been sought for leading secondary evidence, accepted the certified copy of the said Will. It was further necessary for the said defendants to prove the contents of the said Will. The appellate Court after noticing these facts rightly held that mere production of a certified copy of the Will would not amount to proving the contents of the Will. Loss of the original Will was also not explained nor was any permission for leading secondary evidence obtained. There was also no evidence with regard to physical and mental state of Hiraman Nitnaware when the Will was executed. In other words, there was no evidence to indicate due execution of the said Will or its contents. The first appellate Court has rightly found that said Will could not have been accepted. Substantial question of law no. (i) is answered by ::: Uploaded on - 16/09/2017 ::: Downloaded on - 19/09/2017 01:25:08 ::: 8 SA309.2014.odt holding that the findings recorded by the appellate Court with regard to admissibility of the Will are legally correct.
8. As regards the aspect of limitation in seeking declaration about the validity of the Will, the record indicates that the defendant no. 1 filed its written statement at Exh. 19 on 16/03/1999. The plaintiff got knowledge about this Will on said date. An application for amendment seeking to challenge that Will was filed below Exh. 26 on 17/02/2000. This is within one year of getting knowledge of the Will. Though the trial Court rejected this application on 04/08/2000, in C.R.A No. 825/2000 this Court observed that the trial Court was not justified in refusing to permit the said amendment. This is clear from the observations made by this Court in order dated 15/03/2002 which reads as under:-
"The impugned order has been passed by the trial Court, without taking into account the fact that when the defendants 3 to 5 filed their written statement, that they are claiming right, title and interest on the suit property, on the basis of the Will, and therefore, the plaintiff was entitled to amend the plaint so as to challenge the Will. The impugned order is therefore quashed and set aside In the peculiar facts and circumstances of the case this Court is granting leave to this plaintiff to file a fresh application for amendment before the Trial Court. On such application being filed, the Trial Court would dispose it of in accordance with law. Fresh application be made within two weeks from the date of this order. C.R.A stands disposed off with no ::: Uploaded on - 16/09/2017 ::: Downloaded on - 19/09/2017 01:25:08 ::: 9 SA309.2014.odt order as to costs. "
9. Pursuant to the liberty granted, the plaintiff moved a fresh application on 13/03/2002 below Exh. 35. The trial Court allowed this amendment and this Court while rejecting the challenge made to that order observed that the trial Court did not commit any jurisdictional error. It however, permitted the defendants to raise the point of limitation by amending the pleadings. The aforesaid indicates that initially amendment was sought on 17/02/2000 and this Court was of the view that the trial Court should not have rejected the said amendment. Merely because leave was granted to file a fresh application, the same would not have the effect of wiping out the effect of the amendment having been sought as per the earlier application dated 17/02/2000. The amendment having been sought within a period of one year from 16/03/1999, the same was within limitation. The trial Court in para no. 23 of its judgment considered these aspects and held the suit to be within limitation.
10. Though it was urged on behalf of the appellants that the amendment as granted would not relate back to the date of the suit, said submission cannot be accepted. As held in case of Sampath Kumar (supra), the amendment when granted normally relates back to the date of the suit. However, the Court can direct that such amendment would operate from the ::: Uploaded on - 16/09/2017 ::: Downloaded on - 19/09/2017 01:25:08 ::: 10 SA309.2014.odt day when the application for amendment was made. This was not done while allowing the amendment. Even otherwise, it can be seen that the amendment was sought within a period of one year from the knowledge of the said Will. Accordingly, substantial question of law no. (ii) is answered by holding that the suit was filed within limitation.
11. In view of aforesaid, I find that the appellate Court has rightly decreed the suit. The said judgment does not call for any interference. The appeal is therefore dismissed with no order as to costs.
JUDGE Ansari ::: Uploaded on - 16/09/2017 ::: Downloaded on - 19/09/2017 01:25:08 :::