Ganpat Motiram Khawale & Another vs Sau Nalinikbai Gulabrao Tarar
2016 Latest Caselaw 4703 Bom

                                        1
                                                                          sa296.03.odt

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                   
                      NAGPUR BENCH, NAGPUR




                                                           
                        Second Appeal No.296 of 2003

      1. Ganpat s/o Motiram Khawale,
         Aged about 74 years.




                                                          
      2. Shrawan s/o Motiram Khawale,
         Aged about 70 years.

            Both R/o Malipura, Morshi,
            Tq. Morshi, Distt. Amravati.                     ... Appellants/




                                            
                                                             Ori. Defendants
                              ig                             on R.A.
            Versus

      Sau. Nalinibai w/o Gulabrao Tarar,
                            
      Aged 48 years,
      Resident of Warud,
      Taluka-Warud, Distt. Amravati.                         ... Respondent/
                                                             Ori. Plaintiff on 
                                                             R.A.
      


      Smt. S.W. Deshpande, Advocate for Appellants.
   



      Shri M.R. Rajan Pillai, Advocate for Respondent.


                   Coram : R.K. Deshpande, J.

Dated : 18th August, 2016

Oral Judgment :

1. The Trial Court passed a decree for possession of the suit

property on 7-8-1999 in Regular Civil Suit No.98 of 1993. The lower

Appellate Court has dismissed Regular Civil Appeal No.208 of 1999 on

15-3-2003. Hence, this second appeal by the original defendants.

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2. The respondent-plaintiff claimed the ownership over the suit

property on the basis of being the legal heir of one Bhimabai, whereas

the appellant-defendants claimed the ownership on the basis of the

Will dated 14-2-1987, said to have been executed by Bhimabai. The

title of Bhimabai over the suit property remains an undisputed fact.

Similarly, the plaintiff-Nalinibai is the grand-daughter of Rukhmabai,

the first wife of Natthuji, whereas Bhimabai is the second wife of

Natthuji. The right of the plaintiff to succeed to the estate of Bhimabai

in the absence of Will, is also not disputed. The Courts below have,

however, disbelieved the Will at Exhibit 87 in favour of the defendants

on the ground that the defendants were not related to Bhimbai in any

manner and that they have failed to enter the witness-box to remove

the suspicious circumstances brought on record. The Courts below

have also rejected the oral evidence of the attesting witness DW 2

Shrikrishna Kurhekar, and the another witness DW 3 Motiram

Wadnerkar, who was alleged to be present at the time of execution of

Will by Bhimabai, on the ground that their evidence appeared to be

that of the tutored witnesses.

3. In the light of the aforesaid findings recorded by the Courts

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below, this Court passed an order on 9-7-2003, admitting the matter

and framing the substantial questions of law as under :

"i) Is it always necessary that the beneficiary of a will has to

be examined for proving the will?

ii) Has the learned Judge of the Court below committed an error in observing that even if the entire document is held

formerly proved, that does not amount to a proof of truth of

the contents of the document, this observation in the background made by the learned Judge as regards document

not to be treated as proved because the son of the scribe has been examined as the scribe was not then alive?

iii) Has the learned Judge of the Court below committed an error in reaching to the conclusion that the evidence of the

attesting witness is not sufficient to prove the contents of the document?

iv) Is not the whole approach of the learned Judge of the Court below erroneous in the matter?"

4. It cannot be disputed that a Will is a document, which is not

required to be compulsorily registered, has to be proved in accordance

with Section 63 of the Indian Succession Act, 1925 read with Section

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68 of the Indian Evidence Act, 1872. One of the attesting witnesses

having been examined, it was not necessary to examine the

beneficiary to prove the Will. The substantial question of law at Serial

No.(i) is answered accordingly.

5. With the assistance of the learned counsels appearing for the

parties, I have gone through the evidence of the attesting witness DW

2 Shrikrishna Kurhekar and the another witness DW 3 Motiram

Wadnerkar, who was alleged to be present at the time of execution of

Will. The Trial Court, after considering the evidence of both these

witnesses in detail, has recorded the finding that their evidence

appeared to be that of the tutored witnesses. The alleged Will was

executed on 14-2-1987 and it was produced for the first time in the

rent control proceedings filed by the plaintiff against the defendants in

the year 1989-90. The lower Appellate Court has also concurred with

this view. The Trial Court had an occasion to note the demeanor of

the witnesses, and I do not find any reason to interfere with this

concurrent finding recorded by the Courts below on appreciation of

evidence to disbelieve the evidence of witnesses.

6. Apart from above, the Courts below have taken into

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consideration the suspicious circumstances. Bhimabai was staying at

Morshi, but the Will was executed at Nerpinglai. Immediately after a

period of fifteen days of the execution of Will, Bhimbai died. The

stamp paper on which the Will is executed was in the name of one

Chittha Bhutta Salame, which was scored out and the name of the

defendant No.1 was written. PW 3 Motiram Choudhary, the stamp

vendor, was examined, who stated that the stamp paper was issued on

12-2-1987 to one Chittha Bhutta Salame, and the writings, additions

and corrections were not made by him on the stamp paper. The son

of the scribe was examined merely to identify the signature and the

handwriting of the scribe. The Courts below have held that the

evidence is not sufficient to prove the contents of the document. The

defendants were not in any manner related to Bhimabai, so as to

exclude natural heir to succeed to her estate. In the background of

the fact that the Will was not registered, the Courts below have held

that the defendants ought to have entered the witness-box to explain

the circumstances. Though it was not necessary for the defendants to

have entered the witness-box to prove the Will, definitely it was

necessary for them to enter the witness-box to remove the suspicious

circumstances. The substantial question of law at serial No.1,

therefore, does not arise for consideration.

sa296.03.odt

7. Once the defendants fail to prove the Will by removing the

suspicious circumstances, the approach adopted by the Courts below

cannot be said to be erroneous, and none of the substantial questions

of law framed arise for consideration.

8. In the result, the second appeal is dismissed. No order as to

costs.

9. At this stage, Smt. Deshpande, the learned counsel for the

appellant-defendants, submits that the interim order passed by this

Court be continued for a further period of eight weeks from today so

as to enable the appellants to adopt further appropriate remedies

available in law. The request is opposed by Shri Pillai, the learned

counsel for the respondent-plaintiff. Keeping in view the fact that the

interim order is operating till this date, it shall continue to operate for

a further period of eight weeks from today; after expiry of the period,

the interim order shall stand vacated automatically without reference

to the Court.

JUDGE.

Lanjewar

sa296.03.odt

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