Bombay High Court
Gayabai Zagadu Patil Dead Lrs & Ors vs Yuvraj Sandu Mahajan & Ors on 23 June, 2016
Bench: T.V. Nalawade
SA Nos. 533, 534/03
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
SECOND APPEAL NO. 533 OF 2003
Gayabai Zagadu Patil (Dead)
through her legal heirs :
1A. Shivram Zagadu Patil,
Age 25 years, Occu. Agri.,
1B. Arjun Zagadu Patil,
Age 23 years, Occu. Agril,
Both residents of Pimpalgaon-
Hirashwar, Taluka Pachora,
Dist. Jalgaon.
1C. Kamalabai w/o. Sitaram Mahajan,
Age 22 years, Occu. Household,
R/o. Varuli, Tq. Pachora,
Dist. Jalgaon.
1D. Sunita Ravindra Patil,
Age 24 years, occu. Household work,
R/o. Gujar Mohalla, Erandol,
Dist. Jalgaon. ....Appellants.
(Ori. Plaintiffs)
Versus
1. Sayabai w/o. Sandu Mahajan (Dead)
through her legal heirs;
1A. Yuvraj Sandu Mahajan,
Age 55 years, R/o. Varuli,
Tq. Pachora, Dist. Jalgaon.
1B. Jivram Sandu Mahajan,
Age 50 years, Occu. Private Business,
R/o. Shirpur,Tq. Shirpur,
Dist. Dhule.
2. Narmadabai w/o. Raghunath,
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SA Nos. 533, 534/03
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Age Major, Occu. House-hold,
R/o. Jamner Pura, Jamner,
Dist. Jalgaon.
(Dismissed as per Court's Order
dated 19.11.2010).
3. Malanbai w/o. Shankar Patil,
Age 63 years, Occu. Agril.,
R/o. Khedgaon, Nandiche,
Tq. Pachora, Dist. Jalgaon.
4. Neelabai w/o. Sonaji Patil (Dead),
A. Arun Sonu Patil, Age 48 years,
Occu. Agril, R/o. Erandol,
Tq. Jamner, Dist. Jalgaon.
B. Nivrutti Sonu Patil, Age 38 years,
Occu. Agril, R/o. Hiverkheda,
Tq. Jamner, Dist. Jalgaon.
(Dismissed as per Court's
order dated 19.11.2010.)
C. Alkabai w/o. Pundlik Mahajan,
Age 28 years, Occu. Household Work,
R/o. Balapur, Tq. Erandol,
Dist. Jalgaon.
5. Babulal Damu Patil,
Age 50 years, Occu. Service,
R/o. Varuli, Tq. Pachora,
Dist. Jalgaon.
(R.No. 5 dead, appeal to proceed
further vide Court's order dated
11.10.2011) ....Respondents.
(Res. 1 & 5 - Ori. Deft.
& Res. 2 to 4- ori.
Plaintiffs)
Mr. P.F. Patni, Advocate for appellants.
Mr. V.R. Dhorde, Advocate for respondent No. 1.
Mr. V.B. Patil, Advocate for respondent No. 5.
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SA Nos. 533, 534/03
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WITH
SECOND APPEAL NO. 534 OF 2003
Gayabai Zagadu Patil (Dead)
through her legal heirs :
1A. Zagadu Totaram Patil,
Age 75 years, Occu. Agril.,
R/o. Pimpalgaon-Hirashwar,
Tq. Pachora, Dist. Jalgaon.
1B. Shivram Zagadu Patil,
Age 45 years, Occu. Agri.,
R/o. As above.
1C.
Arjun Zagadu Patil,
Age 20 years, Occu. Agril,
R/o. As above.
1D. Kamalabai w/o. Sitaram Mahajan,
Age 22 years, Occu. Household,
R/o. Varuli, Tq. Pachora,
Dist. Jalgaon.
1E. Sunita Ravindra Patil,
Age 24 years, occu. Household work,
R/o. Gujar Mohalla, Erandol,
Dist. Jalgaon. ....Appellants.
(Ori. Appellants)
Versus
1. Yuvraj Sandu Mahajan,
Age 55 years, Occu. Agril,
R/o. Varuli Bk., Tq. Pachora,
Dist. Jalgaon.
2. Jivram Sandu Mahajan,
Age 50 years, Occu. Private Business,
R/o. Shirpur,Tq. Shirpur,
Dist. Dhule.
(Dismissed vide court's order
dated 1.11.2007)
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SA Nos. 533, 534/03
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3. Neelabai w/o. Sonaji Patil (Dead),
Through her L.Rs.
3-A. Arun Sonu Patil, Age 53 years,
Occu. Agril, R/o. Gujar Mohalla,
Tq. Erandol, Dist. Jalgaon.
(Dismissed vide court's order
dated 1.11.2007)
3-B. Nivrutti Sonu Patil, Age 51 years,
Occu. Agril, Occu. & R/o. As above.
(Dismissed vide Court's order
dated 1.11.2007.)
3-C. Alka w/o. Arun Patil,
Age 40 years, Occu. Household,
R/o. Gelepur, Tq. Erandol,
Dist. Jalgaon.
(Dismissed vide Court's order
dated 1.11.2007.)
4. Narmadabai w/o. Raghunath,
Age Major, Occu. House-hold,
R/o. Jamner Pura, Jamner,
Dist. Jalgaon.
(Dismissed vide Court's Order
dated 1.11.2007).
5. Malanbai w/o. Shankar Patil,
Age 63 years, Occu. Agril.,
R/o. Khedgaon, Nandiche,
Tq. Pachora, Dist. Jalgaon.
6. Sayabai w/o. Sandu Mahajan,
Age 50 years, Occu. H.H.,
R/o. Veruli, Tq. Pachora,
Dist. Jalgaon.
(Appeal is dismised vide Court's
order dated 1.11.2007)
7. The State of Maharashtra ....Respondents.
(Res. 1 & 7 - Ori. Respdt.
& Res. 6 -Ori. Petitioner)
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SA Nos. 533, 534/03
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Mr. P.F. Patni, Advocate for appellants.
Mr. V.R. Dhorde, Advocate for respondents.
Mr. S.P. Sonpawale, AGP for respondent/State.
CORAM : T.V. NALAWADE, J.
DATED : 23rd June, 2016.
JUDGMENT :
1) Second Appeal No. 534/2003 is filed against the
judgment and award of L.A.R. No. 19/1987. The said reference
was filed under section 30 of the Land Acquisition Act and the
reference was decided against the present appellants. It appears
that initially the appeal was filed against the decision of
Reference Court in this Court, but this Court, (other Hon'ble
Judge) had advised to file First Appeal in District Court and so,
the aforesaid First Appeal was filed in District Court. There is no
need to discuss and decide this point as the decision of the main
matter will decide everything. The dispute in Regular Civil Suit
No. 163/1985 which was filed for relief of partition and
possession is the main dispute. This dispute between the parties
includes entitlement in respect of the compensation paid by the
Government under Land Acquisition Act. Both the sides are
heard.
2) The appellants, plaintiffs are real sisters inter-se.
SA Nos. 533, 534/03
Defendant No. 1 is also their sister and she is the eldest amongst
the sisters. Defendant Nos. 2 and 3 are sons of defendant No. 1.
3) The suit was filed for partition of agricultural lands
bearing Gat Nos. 134 and 139 and house properties Nos. 30 and
31 situated at village Veruli. It is the case of plaintiffs that the
properties were owned by the father of plaintiffs and after the
death of father, the properties were mutated in the name of his
widow. It is contended that after the death of mother of
plaintiffs, the property was mutated in the name of defendant
No. 1, but due to this mutation, defendant No. 1 did not become
owner. It is contended that from mother of plaintiffs namely
Bhagabai, one will deed was got executed by defendant No. 1 in
favour of defendant Nos. 2 and 3, but the contents mentioned in
the will document were never complied with by defendant No. 2
and so, they cannot become owner of the suit properties under
said will. Will was executed on 3.1.1964. Equal share was
claimed by the plaintiffs in the suit properties as sisters of
defendant No. 1.
4) Defendant No. 2 filed written statement and
contested the matter. He contended that Bhagabai was absolute
owner of the property and under will of 1964, she has
SA Nos. 533, 534/03
bequeathed entire property to defendants and so, there is no
right to the plaintiffs or other daughter of Bhagabai to claim
share in the suit properties. Defendant No. 4 also filed written
statement and it appears that he is successor of one sister of the
plaintiffs. He supported the plaintiffs.
5) Issues were framed by the Trial Court on the basis of
aforesaid pleadings. The Trial Court decreed the suit by holding
that defendant No. 2 had failed to prove that there was due
execution of will in his favour. It was further observed that the
suspicious circumstances surrounding the will were not dispelled
by the defendants and due to that, it was not possible to infer
that the properties were really bequeathed by Bhagabai to
defendants. In all eight suspicious circumstances were
mentioned in the reasoning and the main circumstances were :-
(i) There was exclusion of Class I heirs.
(ii) Evidence of some attesting witnesses who were
probably alive was not given.
(iii) No evidence was given to show that Bhagabai
was in disposing state of mind and the contents of the
will were explained to her.
(iv) The will was not used for about 15 years.
SA Nos. 533, 534/03
6) The First Appellate Court has held that evidence for
due execution for will was given by examining one attesting
witness. Other circumstances are also considered like
registration of the will etc. and the judgment and decree of the
Trial Court is set aside by the First Appellate Court.
7) This Court admitted the Second Appeal No. 533/2003
on following substantial questions of law.
(i) Whether the will dated 3.1.1964 was duly proved
as required by provisions of sections 68 and 69 of
Indian Evidence Act ?, and
(ii) Whether Bhagabai was competent to bequeath
the properties in favour of defendant Nos. 2 and 3 to
the exclusion of others when the properties were
ancestral properties ?
8) It is not disputed that Keshav, the original owner died
in the year 1948. Bhagabai, the widow of Keshav was entitled to
succeed to the properties of Keshav though she was limited
owner as per the provisions of Hindu Law applicable to
Mitakshara school. In view of the provisions of the Hindu
Women's Right to Property Act, 1937 also she had become
limited owner of the properties left behind by Keshav. The
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properties were with her when Hindu Succession Act, 1956 came
in to force. In view of the provisions of section 14 of this Act, she
became absolute owner of these properties. There was no scope
to give other finding on this point. The learned counsel for
appellants also did not argue much on this point.
9) From the pleadings of plaint, which are quoted it can
be said that plaintiffs are admitting that Bhagabai had executed
will in favour of defendants. They were disputing the effect of
will by contending that the conditions laid down in the will were
not fulfilled by the defendants particularly by Yuvraj. This Court
has carefully gone through the certified copy of the said will.
Here only it needs to be observed that after following procedure,
after taking the permission, secondary evidence was given in
respect of will as the original will was lost and certified copy
issued by the office of Sub Registrar, where will was registered,
was produced and proved. In the will, it is mentioned that some
amount like amount of Rs. 1,000/- was to be given to two
daughters of Bhagabai. If it was not possible for Bhagabai to give
such amount to two daughters, the amount was to be paid by
Yuvraj and his brother as they were to get the properties of
Bhagabai. They were also to pay the mortgage money if
Bhagabai was not in position to pay debt in respect of one
SA Nos. 533, 534/03
property. There was no other condition in the will. By taking such
defence, the plaintiffs have indirectly admitted that Bhagabai
was in fit state of mind and she knew what she was doing.
10) One witness, son of attesting witness is examined by
defendant No. 2 to prove that the will was attested. On the will,
there are two signatures of attesting witnesses like Amrut and
Balchand. Yuvraj has given evidence on oath that the scribe and
attesting witnesses are dead. The will was executed on 3.1.1964.
When such substantive evidence was given by Yuvraj, even
suggestion was not given to him in the cross examination that
any of this witness was alive. Thus, there was compliance of the
provisions of the Evidence Act like sections 68 and 69 and
evidence was given by Yuvraj to show that the will was duly
attested. Further, the will was produced before the Sub Registrar
by Bhagabai herself and that can be seen from the will, Exh. 98.
11) Bhagabai died in the year 1979, after about 15 years
of the date of will. This circumstance is sufficient to create
probability in favour of Yuvraj that she was mentally fit though
he has admitted in cross examination that she was not moving
during her last days.
SA Nos. 533, 534/03
12) It appears that immediately after the death of
Bhagabai, the dispute started amongst daughters of Bhagabai
and proceeding for mutation was started. Admittedly, in that
proceeding, Yuvraj had immediately produce the will to oppose
the mutation in favour of plaintiffs and their sisters. Thus, after
the death of Bhagabai, immediately the will was used by Yuvraj.
13) It is true that Bhagabai did not give any property to
some daughters, but that single circumstance itself is not
sufficient to create suspicion about due execution of will. It is
also true that Bhagabai was living with Yuvraj and her mother.
But, she was living with them for all the years, of the life after
the death of her husband, till her death. This circumstance can
be used in favour of Yuvraj also as they were taking care of
Bhagabai. To some daughters, she had intention to give Rs.
1,000/- and this amount was big in the year 1964. Those sisters
could have used the will for recovery of amount from both Yuvraj
and his brother if they wanted to use the will. Due to this
condition, it cannot be said that the will cannot be used by
Yuvraj when the property is bequeathed to Yuvraj and his brother
by Bhagabai under the will.
14) The aforesaid circumstances are sufficient to show
SA Nos. 533, 534/03
that there was reason for Bhagabai to execute the will in favour
of defendant Nos. 2 and 3. There is nothing to create doubt
about her mental fitness. There is sufficient evidence to prove
due execution of the will. The learned counsel for appellant has
placed reliance on two reported cases like AIR 1977 SUPREME
COURT 63 [Beni Chand (Since Dead) now by L.Rs. Vs.
Smt. Kamla Kunwar and Ors.] and AIR 1982 SUPREME
COURT 133 [Smt. Indu Bala Bose & Ors. Vs. Manindra
Chandra Bose and Ors.]. In the first case, the Apex Court has
laid down that in view of section 63 of Succession Act, the
burden of proof of execution of will is on pre-pounder and
satisfactory explanation needs to be given by the pre-pounder
when circumstances surrounding execution are shrouded with
suspicion. There is no dispute over this proposition. The meaning
of 'attesting witness' for the purpose of section 68 of Evidence
Act is also given in this case and there is no need to discuss this
point as relevant evidence is quoted. Similar observations are
made by the Apex Court in the second case. In view of the facts
and circumstances of the present case, these cases are of no
use to the appellants.
15) As the properties were given only to defendant Nos.
2 and 3 and land was acquired from the property given to
SA Nos. 533, 534/03
defendant Nos. 2 and 3, they are entitled to get the entire
compensation. As the main matter is being decided in favour of
defendant Nos. 2 and 3, nothing remains in other appeal, filed
against the decision of Reference Court. So, the technicality that
First Appeal was filed in District Court by the present appellants
as per the directions given by this Court, cannot be used in their
favour and the submission that present proceeding needs to be
treated as First Appeal against the decision of Reference Court
cannot be considered. In the result, all the points are answered
against the appellants and both the appeals are dismissed.
[ T.V. NALAWADE, J. ]
ssc/
