Kailash Jagatnarayan Pande And ... vs Ashok Jagatnarayan Pande And 4 ...
2016 Latest Caselaw 2252 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                                                  
                            NAGPUR BENCH, NAGPUR.

                                   FIRST APPEAL NO. 418 OF 2013




                                                                   
    1. Kailash Jagatnarayan Pande, 
         aged about 51 years, Occupation
         Business, R/o Plot No.22, Baxi
         Layout, Deonagar, Nagpur.




                                                                  
         (Original Defendant No.1)

    2. Omprakash Jagatnarayan Pande,
         aged 54 years, Occupation Business,
         R/o Plot No.22, Bakshi Layout,




                                               
         Deonagar, Nagpur.
         (Original Defendant No.2)
                              ig                                     ... APPELLANTS

                                              VERSUS
                            
    1. Ashok Jagatnarayan Pande,
         aged about 59 years, Occupation
         Service, R/o Plot No.29, Nehru
         Nagar, Khamla Road, Nagpur.
         (Original Plaintiff).
      


    2. Kamal Jagatnarayan Pande,
   



         aged about 52 years, Occupation
         Business, R/o Suyash Co-operative 
         Housing Society, Near Munda
         Temple, Sitabuldi, Nagpur.





    3. Krishna Jagatnarayan Pande,
         aged about 50 years, Occupation
         Business, R/o Suyash Cooperative
         Housing Society, Near Munda
         Temple, Sitabuldi, Nagpur.





    4. Smt. Shamlata Rajesh Tiwari,
         aged 49 years, Occupation Household,
         R/o Behind Mela Ground, Trimurti
         Nagar, Nagpur.

    5. Narendra Jagatnarayan Pande,
         aged about 45 years, Occupation
         Business, R/o Suyash Cooperative




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         Housing Society, Near Munda 




                                                                                                 
         Temple, Sitabuldi, Nagpur. 
         (Original Defendant Nos.4 to 7).                         ... RESPONDENTS




                                                                  
                                          ....
    Shri P.P. Kothari, Advocate for the appellants.
    Shri S.G. Karmarkar, Advocate for the respondents.
                                          ....




                                                                 
                                            CORAM : PRASANNA B.VARALE, J.

    DATE OF CLOSING THE JUDGMENT  : 10TH JULY, 2014.




                                              
    DATE OF PRONOUNCING THE JUDGMENT : 04TH MAY, 2016.


    JUDGMENT : 

By way of present appeal, the appellants challenge the

judgment and order dated 31.01.2013 passed by the learned 3rd Joint Civil

Judge, Senior Division, Nagpur in Special Civil Suit No. 102 of 2012 (Old

Regular Civil Suit No. 610 of 2009).

2. The brief facts, which give rise to filing of the present appeal,

can be summarized as under :-

The appellants are the original defendant Nos.1 and 2 and the

respondent No.1 is the original plaintiff. The suit was instituted by the

respondent No.1/original plaintiff for declaration and permanent

injunction. It is the case of the respondent No.1/plaintiff that the plaintiff

Ashok and the defendants in the suit are the sons and daughter of Smt.

Geetabai Jagatnarayan Pande, who expired at Nagpur on 21st January, 2009

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leaving behind the plaintiff and the defendants as her legal heirs. Geetabai

had purchased certain property by way of registered sale deed dated

04.11.1984. It is the case of the plaintiff that Geetabai, mother of the

plaintiff was residing with the plaintiff and the defendants and Geetabai,

out of her free will, executed a will dated 31.02.2008 in respect of the suit

property in favour of the plaintiff and the defendants. It is submitted that

the property, consisting of various flats, was distributed in favour of her

sons by the will of Geetabai. One Chandikaprasad who was holding high

esteem in the family was attested witness. It is further submitted that

Geetabai executed another will on 02.02.1009 in respect of a shop located

at Yashwant Stadium, Dhantoli, Nagpur in favour of defendant No.4. This

will deed was attested by Chandikaprasad Mishra and the plaintiff. It is

submitted that these two wills were not disputed by any of the family

member. It is further submitted that except these two wills, no other will

was executed by Geetabai.

It is further submitted that the defendant Nos.1 and 2, with ill

intention and motive, propounded a will dated 06.12.2008. It is submitted

that the said will was bogus and fabricated one. It is also submitted that

Geetabai not signed the said will deed as alleged by the defendants. It is

further submitted that though the will was shown to be a registered

document, Geetabai never visited the office of the Sub Registrar, Nagpur

and some person must has signed the will. It is submitted that when the

plaintiff smelt some foul play in the alleged sale deed, the plaintiff, on his

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own, referred the document to Handwriting Expert namely Shri Sanjay

Kotwal seeking the opinion. It is also submitted that the plaintiff though

approached the police authorities lodging a report that the defendants

have committed an offence by preparing false and fabricated documents,

no cognizance was taken by the police authorities. On these submissions,

the suit was presented with the material prayers, namely Nos.(ii) pass a

decree declaring that will dated 06.02.2008 is forged and fabricated and

void ab initio; (iii) pass a decree declaring that the will executed by

Geetabai dated 31.12.2008 is valid and genuine and actual declaration of

Geetabai and is binding upon all concerned; and (vii) pass a decree

restoring the possession of the plaintiff on the suit premises thereby

directing the defendant Nos.1 and 2 to restore the possession of the

plaintiff on the suit premises which was in possession of the plaintiff at the

time of filing of suit and restore back the position as was existing on the

date of filing of suit and passing of order below Exh.5.

The learned 3rd Joint Civil Judge, Senior Division, Nagpur, vide

judgment and order dated 31.01.2013 was pleased to decree the suit partly.

It was further declared that the document of will dated 31.12.2008

(Exh.108) executed by late Geetabai wd/o Jagatnarayan Pande is valid and

genuine will and it is binding on the plaintiff and defendants. It was

further directed that the defendant Nos.1 and 2 to handover peaceful and

vacant possession of the portion of the suit property (i.e. suit premises) to

the plaintiff which is bequeathed to him by late Geetabai wd/o

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Jagatnarayan Pande vide will dated 31.12.2008 within the stipulated period

of two months. In view of the controversy involved in the present appeal,

this Court is dealing with the only material evidence which would be

required to consider in stead referring all over evidence.

3. Shri Kothari, the learned Counsel for the appellants, in

challenge to the judgment and order passed by the Court below,

vehemently submits that the judgment and the order is unsustainable and

is required to be quashed and set on more than one ground. The learned

Counsel further submits that firstly the learned Court below failed to

appreciate that the will dated 31.12.2008 on which a reliance was placed by

the plaintiff itself was not a valid will as the same was not beyond

suspicious circumstances. It is further submitted by Shri Kothari that a will

dated 06.12.2008 which is a registered will and the same was in favour of

the appellants and rest of the brothers were excluded from the will by the

executor of the will. Shri Kothari, the learned Counsel for the appellants

further submits that the learned Court below, in clear and unambiguous

terms, held that the plaintiff failed to prove that the will dated 06.12.2008 is

forged and fabricated document. In that case, the learned Court below

ought not to have granted the relief of handing over the possession to the

plaintiff. He further submits that it was also not the case of the plaintiff

initially that the plaintiff was in possession of the suit property but the

plaintiff by seeking an amendment to the plaint, put up a theory of

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dispossession of the plaintiff during the pendency of the suit. It is the

submission of the learned Counsel for the appellants that on the backdrop

of these facts, the learned Court below ought not to have granted the relief

in favour of the plaintiff which was not prayed by the plaintiff and as such

the learned Court below travelled beyond the jurisdiction conferred upon

it.

4. Shri Kothari, the learned Counsel further submits that the

learned Court below failed to appreciate the material placed on record as

well as the evidence led by the parties. It is further the submission of Shri

Kothari that as the plaintiff has not challenged the finding on the issue that

the will dated dated 06.02.1998 is a genuine will deed, the learned Court

below erred in granting relief in favour of the plaintiff. He further submits

that the learned Court below ought to have considered that the plaintiff

has brought a very limited evidence in support of the will on which the

reliance was placed. The witnesses were either interested witnesses or the

beneficiary of the will. As such, the evidence of these witnesses ought to

have been considered with care and caution, but the learned Court below

mechanically accepted the version of these witnesses. The learned

Counsel for the appellants further submits that the learned Court below

also failed to consider the aspect that the witnesses give a contrary version

to each other and each witness gives a different version. He also submits

that though it was brought on record that there are appearing two different

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dates in the will relied upon by the plaintiff and in such a situation it was

for the plaintiff to bring the material before the Court either by examining

the officer from the Registrar office or bringing record before the Court, the

learned Court below only on assuming that there was a mistake in

referring to the dates and accepted the version of the plaintiff.

5. Shri Kothari, the learned Counsel for the appellants further

submits that the learned Court below on the factual aspect i.e. on the sale

deed relied upon by the plaintiff namely one of its attesting witnesses was

expired, the other witness was the beneficiary ought to have considered

the testimony of the scriber Rajendra Sable. He further submits that

though the appellants brought certain material admissions in the cross-

examination of the said witness, the trial Court lightly brushed aside those

admissions. It is the submission of Shri Kothari that these admissions

were going to the root of the matter and as such the learned trial Court

ought to have considered these admissions in proper perspective. It is

further the submission of Shri Kothari that a specific plea was raised by the

appellants that this Geetabai was not knowing Marathi language and on

the backdrop of the two will deeds which were in Hindi, the alleged will

deed which was in Marathi, ought to have been considered with more

scrutiny by the Court below. Shri Kothari, the learned Counsel further

submits that it was revealed from the record and the oral evidence that on

instructions given to the witness Rajendra Sable, the will deed was

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prepared through the computer print. This aspect namely the person, who

made the version of computerized print as per the instructions, is not

examined. The learned Counsel submits that a plea was raised before the

Court below that this being an electronic evidence, the Court ought to

have assessed the evidence but the Court below failed to assess that

evidence in proper perspective. It is also submitted by the learned Counsel

for the appellants that the sale deed dated 31.12.2008 is not proved as the

contents of the deed are not proved.

6. Shri Kothari, the learned Counsel for the appellants, in support

of his submission, places heavy reliance on the various judgments, namely,

in the cases of Dattusing Giridharsing Rajput (Thakur) .v. Bhagwant

Devasthan Barshi and others (reported in 2004 (4) Civil LJ, 179); Banti

and others .v. Darshan Singh and others (reported in 2005 (4) Civil LJ,

345); Daya Subhash Tiwari .v. Kashinath Lalta Tiwari adn others

(reported in 2013 (6) Mh.L.J., 535); Dayanandi .v. Rukma D. Suvarna and

others (reported in 2012 (3) Mh.L.J., 182); and Kasturibai Dadarao

Wankhade .v. Sheshrao Pandhari Zamre and others (2006 (5) Mh.L.J.,

330).

7. Per contra, Shri Karmarkar, the learned Counsel for the

respondents supports the judgment and order passed by the learned lower

Court. It is the submission of Shri Karmarkar that the plaint was amended

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with the permission of the Court. He further submits that the plaintiff in

his evidence clearly submitted that the premises was being occupied by

the plaintiff. In support of the submission in respect of the possession, it is

also submitted that the plaintiff has placed on record the documents

namely the electricity bills, telephone bills and passport. The learned

Counsel further submits that during the pendency of the suit, the

defendants/appellants herein made an attempt to forcefully dispossess the

plaintiff and accordingly the complaint was lodged at the police station. It

is the submission of Shri Karmarkar, the learned Counsel for the

respondents that the oral evidence led by the plaintiff in the form of the

witness supported the case of the plaintiff. He also submits that by playing

mischief, the appellants prepared a will deed. The learned Counsel further

submits that even the witness Rajendra Sable, scribe of the will deed,

submitted that the draft of the will deed was read over to Geetabai and the

attesting witness of the will was examined. As such, the admissions in the

evidence of the scribe Rajendra Sable may not have any bearing. The

learned Counsel for the respondents further submits that the evidence of

the witnesses also shows that Geetabai was knowing Marathi language and

as such there is no substance in the contentions of the appellants that

Geetabai was knowing only Hindi language. It is further submitted that no

material was brought on record by the appellants to submit that on

31.12.2008, Geetabai was unfit. As such, no doubt can be raised on the will

dated 31.12.2008. The learned Counsel also submits that the reasonings of

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the trial Court about the will deed dated 31.12.2008 are well founded and

by appreciating the evidence on record and in such a situation, no

interference at the hands of this Court in the judgment and order passed

by the learned lower Court is warranted. Shri Karmarkar, the learned

Counsel for the respondents placed reliance on the judgment of the Apex

Court in the case of Madhukar D. Shende .v. Tarabai Aba Shedage

(reported in AIR 2002 SC, 637).

8.

Heard the learned Counsel appearing on behalf of the

respective parties at length and with the assistance of the learned Counsel,

I have gone through the record.

9. As referred to above, there are three will deeds involved in the

instant appeal. The will deed dated 31.12.2008 is in Marathi language. The

gist of the will deed can be summarized as, the executant Geetabai Pande

submitted that she is in her advanced age and ailing. As such, it is

necessary for her to make arrangements of the distribution of her property.

She states that she is having seven sons and one daughter who is married.

She further states that the couple i.e. Geetabai and her husband made

provisions for the daughter in her marriage and made available three

separate flats for her three sons. She is not willing to bequeath any

property to three sons and one married daughter. She wants to distribute

the property between four sons namely Rajendra Pande, Ashok Pande,

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Omprakash Pande and Kailash Pande. Then she gives the description of

the properties. The said document refers to one Shri R.V. Sable as the

scribe and attesting witnesses Shri Chandikaprasad Mishra, Shri Narendra

Jagatnarayan Pande and Krishna Jagatnarayan Pande. A will deed dated

06.12.2008 is in Hindi language. It is stated that she is having seven sons

and one daughter. The daughter is married. She states that she is in her

advanced age and her physical and mental health is not so good. As such,

she wants to make arrangements for distribution of her property in her

heirs. Then the property is described and she distributes the property in

her three sons namely Rajendra Jagatnarayan Pande, Omprakash

Jagatnarayan Pande and Kailash Jagatnarayan Pande. The two attesting

witnesses referred to in the will deed are one Shri V.S. Khedikar and

Kailash Jagatnarayan Pande. A will deed dated 02.01.2009 is in Marathi

language. It is stated in the said will deed that she is aged and ailing and

due to old age, she is facing constant health issues. Then she states that

the property is distributed in her sons by herself and her deceased

husband. Her married daughter is leading happy marital life. She then

states that her deceased husband was running optical business and after

the death of the husband, her son Kamal Pande is maintaining the optical

business and as per the will deed of her deceased husband, he is making

provisions of Rs.500/- out of his earning, for his mother i.e. executant

Geetabai. She then states that after her death, her son i.e. Kamal

Jagatnarayan Pande would be the owner and possessor of the said optical

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shop.

10. Now coming to the judgment and order passed by the learned

3rd Joint Civil Judge, Senior Division, Nagpur. On the rival contentions of

the parties, the learned Judge has framed the issues namely, issue No. (1) -

Does the plaintiff prove that Wills purportedly executed by deceased Smt.

Geetabai wd/o Jagatnarayan Pande as on 31.12.2008 and 02.01.2009 are the

genuine and valid Wills ? The said issue is answered in affirmative and the

finding is, "Will dated 31.12.2008 is genuine and valid Will of late Geetabai

Pande". Issue No. (2) - Does the plaintiff prove that will dated 06.12.2008

purported to have been executed by said Smt. Geetabai is a false and

fabricated document ? The said issue is answered in negative and the

finding is, "no". The learned Court below arrived at a conclusion that will

deed dated 31.12.2008 is genuine and valid and the plaintiff failed to prove

that the will deed dated 06.12.2008 executed by Smt. Geetabai is false and

fabricated document. Thus, the learned lower Court found no fault with

the will deed dated 06.12.2008.

11. On the backdrop of the submissions of Shri Kothari, the

learned Counsel for the appellants that the learned Court below found that

the will deed dated 06.12.2008 was not a fabricated document and the

learned Court below failed to appreciate that the will deed dated

31.12.2009 was not beyond suspicious circumstances. The suit ought not

13 fa418.13

to have been partly decreed by the learned Judge. It would be necessary to

refer to certain material.

12. The learned Counsel Shri Kothari vehemently submits that

insofar as the will deed dated 31.12.2008 relied upon by the plaintiff was

not properly appreciated by the Court below is concerned, the attesting

witnesses to the said will deed were Chandikaprasad Mishra, Narendra

Pande and Krishna Pande. Chandikaprasad Mishra expired during the

pendency of the suit and Narendra Pande and Krishna Pande being the

interested witnesses, the evidence of the scribe Rajendra Sable assumes

importance. Perusal of the evidence shows that witness Rajendra Sable

states that on 29.12.2008, Geetabai called him and directed him to prepare

the will deed. On her instructions, the draft will deed was prepared. The

draft was read over to Geetabai Pande. He states that he purchased the

stamp paper on 29.12.2008 and the draft approved by Geetabai was then

finally prepared on a computer. The person, who prepared the final will

deed on computer, is not examined, In the cross-examination, he denies

the suggestion of referring the address in his examination-in-chief as the

false address. He states that when he came in acquaintance with Geetabai,

she was residing at Deonagar and when he approached Geetabai for

preparation of the will deed, Geetabai was residing in the house situated at

Sitabuldi, Nagpur. In the cross-examination, he states that the stamp was

purchased on the direction of Ashok Pande and further admits that the

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affidavit was prepared by one Advocate and the same was not prepared as

per his directions. In the cross-examination, he further admits that

Geetabai gave him direction in Hindi and on her directions, he prepared

the draft in Marathi. He then stated in the cross-examination that the said

document was then typed by one Shri Kolarkar in his computer and the

print was obtained. He then admits that the print and the draft were not

verified in presence of Smt. Geetabai. He then admits that the date of the

registration before the notary is 02.01.2008.

13. If the evidence of the witness Narendra Pande is perused, it

reveals that Narendra in his evidence states that before her death Geetabai

was residing with him for last three months. He then stated that on

06.12.2008 Geetabai was present in the house. He then states that

Geetabai never visited the office of the Sub Registrar No.3, Nagpur.

Narendra, in his evidence, states that Geetabai was residing with him at

the time of her death; whereas Rajendra Sable has stated that when the

draft was prepared on the directions of Geetabai, she was residing in the

area i.e. Munda Temple, Suyash Cooperative Society, Sitabuldi, Nagpur. It

would be interesting to note that another witness Kailash Pande states that

on 10.12.2008, he along with his mother, had been to the office of the

Registrar. Perusal of the material shows that the will deed dated 06.12.2008

is a registered will deed; whereas the will deed dated 31.12.2008 is an

unregistered will deed. The submission of the learned Counsel Shri

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Kothari that there is a difference about the factum of the residence of

Geetabai in the evidence of Narendra and the scribe Rajendra Sable. There

is also no explanation coming forward on the record that if the will deed

dated 06.12.2008 which is a registered sale deed what prevented Geetabai

and the plaintiff to get the will deed dated 31.12.2008 registered. The

witness Rajendra Sable admits that the draft of the will deed dated

31.12.2008 was prepared on the directions of Geetabai and then it was

prepared through one Kolarkar by computer typing. Shri Kolarkar is not

examined as a witness.

14. The learned Court below on the basis of the material presented

before it, found that the plaintiff failed to prove that the will deed dated

06.12.2008 is forged and fabricated. Though it was the submission of the

plaintiff that the present appellants i.e. defendants by way of forged

signature of Geetabai prepared will deed dated 06.12.2008 and though the

opinion of the Handwriting Expert was sought for and the Handwriting

Expert Shri Sanjay Kotwal was examined as witness, the Court below could

not find favour with the submission of the plaintiff that the will deed dated

06.12.2008 is a fabricated will. Perusal of the evidence also shows that

there were the material admissions given by the witness in their oral

evidence. But, these admissions were not appreciated in proper

perspective by the learned Court below. The material on record also

shows that a specific stand was taken by the appellants that Geetabai was

16 fa418.13

not knowing Marathi language. The said stand of the appellants gets

support from the evidence of scribe Rajendra Sable who states that for

preparing the draft of the will deed, Geetabai gave directions to him in

Hindi and as he was not conversant with Marathi language, he prepared

the draft in Marathi. There is also an admission in the evidence of

Rajendra Sable that he made no attempts to get verification from Geetabai

about the computer print of the will deed is in accordance with the draft.

15.

Thus, merely the submission of scribe Rajendra Sable that

Geetabai was knowing Marathi and Hindi languages, the plea of the

appellants that Geetabai was knowing only Hindi language and will deed

dated 31.12.2008 prepared in Marathi, raises doubt, is not countered by

probable and sufficient evidence. On perusal of the material more

particularly the evidence of the witnesses, it reveals that the learned Court

below erred in holding that the signatures of Geetabai at Exhs.66 and 69/1

were admitted. The material shows that the appellants have not admitted

the signatures of Geetabai. The learned Court below, on appreciation of

the material, while deciding the issue No.(3) i.e. Does the plaintiff prove

that the defendant No.1 and 2 unlawfully dispossessed the plaintiff of the

suit property, as alleged, recorded in negative finding and in spite of such a

negative finding, the suit was decreed partly by directing the appellants to

handover the possession of the portion of property within stipulated

period. On perusal of the material, it reveals that the plaintiff failed to

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prove that the will deed dated 31.12.2008 was proved by them beyond

suspicion and on the contrary, the finding was in favour of the appellants

that the will deed dated 06.12.2008 was a genuine one and it was not forged

and fabricated one. The learned Court below could not have granted the

relief in favour of the plaintiff thereby directing the appellants to handover

the possession of the property.

16. Shri Kothari, the learned Counsel for the appellants was right in

placing reliance on the judgment of this court in the case of Dattusing

Giridharsing Rajput (Thakur) .v. Bhagwant Devasthan Barshi and others

(cited supra) wherein it is observed that the first registered Will admitted

by plaintiff and its revocation neither pleaded nor proved and the suit

based on subsequent Will liable to fail because first Will cannot be ignored

unless, its revocation is proved. A reliance is also placed in the matter of

Banti and others .v. Darshan Singh and others (cited supra). It is observed

by the Punjab and Haryana High Court that the propounder of Will is

legally required not only to prove teh due execution of the Will but also to

dispel all suspicious circumstances which may have existed in the due

execution of the Will. On the similar lines, a reliance was placed on the

judgment of this Court in the case of Daya Subhash Tiwari .v. Kashinath

Lalta Tiwari and others (cited supra), wherein it is observed that once the

caveator has disputed the execution of the Will, the onus is on the

propounder of the Will and in that case the alleged executor to prove the

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execution and attestation of the said alleged Will in accordance with law.

17. The submission of Shri Karmarkar, the learned Counsel for the

respondents that the plaintiff has amended the suit and sought the prayer

of dispossession of the appellants and accordingly the suit was partly

decreed by the learned Court below. Perusal of the record shows that the

plea of dispossession was raised, subsequent to filing of the suit. It is not

in dispute that the learned Court below found no fault with the will deed

dated 06.12.2008. It was the conclusion of the learned Court below that the

plaintiff failed to prove that the will deed dated 06.12.2008 is a forged and

fabricated document. On the backdrop of this fact, the learned Court

below erred in decreeing the suit partly and thereby directing the

appellants to handover the possession to the plaintiff.

19. Considering all the above referred aspects, I find considerable

merit in the submission of Shri Kothari, the learned Counsel for the

appellants. In the result, the appeal is allowed. The order passed by the

learned 3rd Joint Civil Judge, Senior Division, Nagpur to the effect that the

appellants to handover the possession of the property to the plaintiff, is

quashed and set aside.

JUDGE

*rrg.