Bombay High Court
Eknath Mahadeorao Nimkar And 4 ... vs Deorao Raghoji Kasambe And 3 ... on 1 August, 2017
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL No.207 OF 2017
1. Eknath Mahadeorao Nimkar,
Aged about 42 years,
Occupation : Agriculturist.
2. Dilip Mahadeorao Nimkar,
Aged about 38 years,
Occupation : Lawyer.
3. Arun Mahadeorao Nimkar,
Aged about 35 years,
Occupation : Labour,
Appellant Nos.1 to 3, R/o. Ladkhed,
Tq. Darwha, Distt. Yavatmal.
4. Sau. Mangala Anil Datir,
Aged about 40 years,
Occupation : Household,
R/o. Mahagaon, Tq. Darwha,
Distt. Yavatmal.
5. Sau. Alka Khushal Aswar,
Aged about 33 years,
Occupation : Household,
R/o. Wani, Tq. Wani, Distt. Yavatmal. : APPELLANTS
...VERSUS...
1. Deorao Raghoji Kasambe,
Aged about 65 years,
Occupation : Agriculturist.
2. Ramrao Raghoji Kasambe,
Aged aobut 62 years,
Occupation : Agriculturist.
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3. Bahurao Raghoji Kasambe,
Aged about 60 years,
Occupation : Agriculturist.
4. Sau. Sumitrabai Sonbaji Dudhe,
Aged about 55 years,
Occupation : Household.
All respondents R/o. Ladkhed,
Tq. Darwha, Distt. Yavatmal. : RESPONDENTS
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Shri Anand Deshpande, Advocate for the Appellants.
Shri N.S. Bhattad, Advocate for the Respondents.
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CORAM : S.B. SHUKRE, J.
st
DATE : 1
AUGUST, 2017.
ORAL JUDGMENT :
1. Heard.
2. Admit. Heard finally by consent.
3. This is an appeal preferred under Section 299 of the Indian
Succession Act challenging the legality and correctness of the order dated
27.9.2016 passed by the Civil Judge, Senior Division, Darwha rejecting
the application filed under Section 373 of the Indian Succession Act for
grant of probate of the Will dated 10.1.2003 executed by deceased
Yashodabai in favour of deceased Mahadeorao Nimkar of whom the
present appellants are the legal heirs.
4. It was the contention of the appellants that the deceased
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Yashodabai had duly executed a Will in favour of deceased Mahadeorao,
thereby bequeathing to him her agricultural field bearing Gat No.143/1,
admeasuring 14 hectare 38 R situated at mouza Ladkhed, Taluka
Darwha, District Yavatmal. After her demise, deceased Mahadeorao filed
an application under Section 276 of the Indian Succession Act for grant
of probate for execution of the Will in question. During the pendency of
the application, Mahadeorao expired and, therefore, the proceedings
were continued by the legal heirs with the permission of the Court. The
evidence was led by the appellants. But, on merits of the case, the
Probate Court found that genuineness of the Will could not be proved by
the appellant and, therefore, by the impugned order rejected the
application filed for issuance of the probate.
5. Shri Anand Deshpande, learned counsel for the appellants
submits that the provisions of Section 71 of the Indian Evidence Act were
not appropriately considered and applied, though applicable to the facts
of the case, by the Probate Court. Learned counsel for the respondents
disputes the proposition put forward by the learned counsel for the
appellants. According to her, Section 71 of the Evidence Act comes into
picture only when there is a compliance with the provisions of Section 68
of the Evidence Act or it is not possible for the party interested in
obtaining a probate to comply with the same on account of
non-availability of the attesting witnesses.
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6. Section 68 read with Section 63 of the Indian Succession Act,
makes it mandatory that a document like a Will, which is required to be
attested by at least two witnesses under Section 63 of the Indian
Succession Act, must be proved in evidence by examining at least one of
the attesting witnesses for the purpose of proving the execution of the
Will. This procedure is mandatory and failure to comply with the same
would result in refusal to admit in evidence the will on which the parties
seek to place reliance and thus it would be considered as a failure to
prove the execution of the Will. In the instant case, it is an admitted fact
that at least one of the witnesses, who attested the Will in question
(Exh.-93) was alive and could have been called to the Court for the
purpose of proving the execution of the Will. But, he was not brought to
the Court for that purpose. So, the Will vide Exh.-93 could not be proved
by the appellant. Once it is found that the Will as required under Section
68 of the Evidence Act was not proved by the appellants, the question of
grant probate would not arise.
7. Section 71 of the Evidence Act is a provision which comes
into picture only upon fulfillment of the certain conditions mentioned
therein. The conditions are that there should be denial of execution of
the Will by the attesting witness or there should be non-recollection of
the execution of the Will by such a witness. In the instant case, the
attesting witness, though alive was not called to the Court for the
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purpose of proving the execution of the Will. Therefore, one does not
know what would have happened if the attesting witness called to the
Court might have deposed before the Court. Had he been called to the
Court, the relevant facts which constitute the necessary conditions of
Section 71 of the Evidence Act would have appeared on the record. But,
the attesting witness though alive was never called for the purpose of
proving the execution of the Will and, therefore, the occasion to consider
applicability of the provision of Section 71 of the Evidence Act never
arose before the Probate Court. The argument canvassed in this behalf
by the learned counsel for the applicant cannot be accepted.
8. In the result, I do not see any illegality or perversity in the
impugned order. The appeal deserves to be dismissed.
9. The appeal stands dismissed.
10. The parties to bear their own costs.
JUDGE
wadode
