Bombay High Court
Patruji Adkuji Karkade vs Jairam S/O Adkuji Karkade And 2 ... on 7 July, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.423 OF 2001
Patruji Adkuji Karkade,
Aged about 71 years,
Occ: Cultivator, R/o Shankarpur,
Tah. Chimur, Dist. Chandrapur. ....... APPELLANT
...V E R S U S...
1] Jairam s/o Adkuji Karkade
Aged about 57 years,
Occ: Teacher, R/o Nagpur,
Tah. & Dist. Nagpur.
2] Sakharam s/o Adkuji Karkade,
Aged about 61 years,
Occ: Cultivator.
3] Sitaram s/o Adkuji Karkade,
Aged about 53 years,
Occ: Cultivator.
No.2 and 3 are R/o Shankarpur,
Tah. Chimur, Dist. Chandrapur (M.S.). ....... RESPONDENTS
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Mrs. Ratna Singh, Advocate holding for Shri Amol Mardikar,
Advocate for Appellant.
None for Respondents.
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CORAM: R.K. DESHPANDE, J.
th JULY, 2016.
DATE: 7
ORAL JUDGMENT
1] The trial Court passed a decree in Special Civil Suit No.197
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of 1992 granting a declaration that the plaintiff has established
ownership over the suit property on the basis of Will dated 17.12.1951 at
Exhibit 25 executed by his father namely, Adkuji. The defendant, who is
the real brother, is directed to handover the possession of the suit
property to the plaintiff, and inquiry into the mesne profit was also
ordered by the trial Court by its judgment and order dated 28.12.1995.
In Regular Civil Appeal No.20 of 1996, the lower Appellate Court has
concurred with the finding of fact recorded by the trial Court and the
appeal has been dismissed on 29.09.2001.
2] The questions raised before the Courts below were that
(i) whether the suit property was purchased by the defendant benami in
the name of Adkuji, the father on 17.12.1951, (ii) whether the Will at
Exhibit 25 in favour of the plaintiff has been proved, and (iii) whether
the suspicious circumstances are brought on record and have been
dispelled by the plaintiff. All these questions are answered by the Courts
below in favour of the plaintiff.
3] This Court passed an order on 09.08.2002 admitting the
matter and framing substantial question of law as under:
Admit on the substantial question of law as to whether by a
Will correctness of which is disputed property not belonging to
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the testator can be given away ?
4] With the assistance of the learned counsel appearing for the
appellant, I have gone through the finding recorded by the trial Court on
the aspect of purchase of the suit property under sale-deed
dated 17.12.1951 in the name of father Adkuji by the defendant.
The learned counsel has urged that in the sale-deed at Exhibit 25 itself,
there is a recital that the consideration was paid by the defendant. I have
gone through the copy of the sale-deed at Exhibit 25 from the record and
proceedings received, and I find that there is no such statement/recital in
the sale-deed. Both the Courts below have considered this aspect of the
matter. It is held that in the year 1951 when the property was purchased,
the defendant had just passed the matriculation examination, and he
joined the service in the year 1954. He served in the private school
during 01.07.1954 to 30.04.1958. The defendant admitted that since
1958, he was residing separately from his father till the death of his
father. The father was doing the business of crushing oil. The property
was recorded in the name of father - Adkuji in the revenue record.
The defendant claimed that he was residing in the suit house right from
beginning and was paying Gram Panchayat taxes since 1960. In the light
of this evidence, it cannot be said that any substantial question of law
arises for consideration by this Court on the aspect of purchase of suit
property benami by the defendant in the name of his father.
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5] On the aspect of proof of Will, the Courts below have
recorded the finding that the witness P.W.2 Abdul Razzak has proved the
Will. He has stated that one Joshi of Chimur scribed the document and
the testator Adkuji admitted the contents of the Will and executed the
same in his presence. He further states that the attesting witnesses
including himself and other witnesses namely, Mahadeo Shende and
Dr. Manik Dhok, have also signed on the Will in the presence of Adkuji.
He states that the Sub-Registrar, Chimur was brought to the house and
he obtained the thumb mark of Adkuji and registered the document vide
Exhibit 50. He further states that Adkuji was in good state of health and
mind, and except old age, he had no other disease. Thus, the document
of Will dated 09.06.1988 at Exhibit 50 has been proved, and no
suspicious circumstances are brought on record by the defendant, which
is the concurrent finding recorded by both the Courts below. The trial
Court has held that the circumstances available on record shows that the
defendant Patru was not having cordial relation with his father since
1958-1960, and he was residing separately. It further held that mere fact
that the defendant was not present at the time of execution of Will-deed
would not be sufficient to raise any doubt on the execution of the Will.
The Court holds that there were no suspicious circumstances existing at
the time of execution of the Will.
6] In view of above, no substantial question of law arises.
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The second appeal is dismissed.
JUDGE
NSN
