Bombay High Court
Ruprao Vishwanathrao Fating & 2 ... vs Vasant Vishwanath Fating & ... on 23 August, 2017
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL No.27 OF 2001
1. Ruprao s/o. Vishwanathrao Fating,
aged about 65 years,
Occupation : Government Servant,
resident of Nava Nakasha, Lashkaribagh,
Dr. Ambedkar Marg, Nagpur.
Deleted as per 2. Prabhakar s/o. Vishwanathrao Fating, (dead)
Court's order aged about 40 years, occupation : Service,
dt.24.3.2015. Resident of Karuna Nagar, UJppalwadi, Nagpur.
Amendment carried
3. Smt. Vatsalabai w/o. Damaji Harde, (dead)
out as per Court's aged about 62 years, Occupation : Household,
order dt.13.9.2002. R/o. Khaperkheda, Tah & Distt. Nagpur.
Legal Heirs of deceased Appellant No.3. :
Deleted as per 3(a) Damaji s/o. Baijrao Harde, (dead)
Registrar (J) order aged about 70 years,
dt.19.7.2013.
Occupation : Retired railway employee,
Resident of Behind Railway Station,
Khaparkheda, Tah. & Distt. Nagpur.
3(b) Ramesh s/o. Damaji Harde,
aged about 42 years,
Occupation : Service,
Resident of behind Railway Station,
Khaparkheda, Tah. & Distt. Nagpur.
3(c) Srihari s/o. Damaji Harge,
aged 40 years, Occupation : Service,
Resident of near Ramana Maroti,
Uccha Jyoti Primary School,
Gadge Nagar, Nagpur.
3(d) Ravi s/o. Damaji Harde,
aged about 35 years, Occ. : Nil
Resident of behind Railway Station Khaparkheda,
Tahsil and District Nagpur.
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3(e) Smt. Malti @ Tai, w/o. Rajendra Kawale,
aged about 32 years, Occupation : Household,
Resident of behind Primary School,
Fawara Chowk, New Shukrawari,
Nagpur. : APPELLANTS
...VERSUS...
1. Vasant s/o. Vishwanath Fating, (dead)
Amendment carried
out as per order aged about 63 years, Occupation : Retired,
dt.1.3.2007. Resident of Plot No.103,
behind Jaiswal Restaurant,
Nava Nakasha, Lashkaribagh, Circle No.15/21,
Ward No.66, Dr. Ambedkar Marg, Nagpur.
Legal Heirs of deceased Respondent No.1 :
1(a) Smt. Prabhawati wd/o. Vasantrao Fating,
aged about 58 years,
R/o. Plot No.302, Hudkeshwar Road,
New Subhedar Layout, Hudkeshwar,
Opp. : Hanuman Mandir, Hudkeshwar Road,
Nagpur.
1(b) Smt. Pratibha w/o. Arun Peshne,
aged about 38 years, R/o. Plot No.6,
Kamlanagar, At Wadi, Amravati Road,
Nagpur.
1(c) Vijay Vasantrao Fating,
aged about 36 years, Plot No.302,
Hudkeshwar Road,
New Subhedar Layout,
Opp.: Hanuman Mandir, Hudkeshwar,
Nagpur.
1(d) Pradeep Vasanta Fating,
aged about 34 years,
Plot No.302, Hudkeshwar Road,
New Subhedar Layout,
Opp.: Hanuman Mandir, Hudkeshwar,
Nagpur.
1(e) Ku. Seema d/o. Vasanta Fating,
aged about 30 years, R/o. Plot No.302,
New Subhedar Layout, Hudkeshwar Road,
Opp.: Hanuman Mandir, Hudkeshwar, Nagpur.
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2. Yeshwant s/o. Vishwanathrao Fating (dead)
through L.Rs., aged about 68 years,
Amendment carried
out as per order Occupation : Business, Resident of Plot No.75,
dt.7.12.2012. Sunder Nagar, behind Sai Dhawale Hardware,
Umrer Road, Nagpur.
Through L.Rs.
2(a) Satyabhama Shakuntala wd/o. Yashwant Fating,
Aged 76 years, Occupation : Household,
R/o. Narsala Road, Behind P.M.B. College,
Plot No.37, Saibaba Nagar, Nagpur.
2(b) Shri Suresh s/o. Yashwant Fating,
Aged 60 years, Occupation : Retired Service,
R/o. Pragati Colony, Plot No.37,
New Kailash Nagar, Manewada, Road, Nagpur.
2(c) Sau. Shashikala Nimbaji Motghare,
Aged 55 years, Occupation : Household,
R/o. Shivsunder Nagar, Plot No.35,
Dighori, Behind South Indian Hotel,
Near Hanuman Mandir, Umred Road, Nagpur.
2(c) Sau. Shashikala Nimbaji Motghare, (dead)
aged 55 years, R/o. c/o. Manisha Thaware,
Laghu Patbhandhare Vasahat, Plot No.Qtr. No.8,
behind Tahsil office, near Water Tank Parsodi,
Umred, Tah. Umred, Distt. Nagpur.
Through L.Rs. of Respondent No.2(c) :
L.Rs. Of deceased
respondent No.2(c) 2(c)(i) Nimbaji Ramaji Morghade, aged 66 years,
brought on record as
2(c)(ii) Dinesh Nimbaji Morghade, aged 30 years,
per Court's order
dt.5.1.2015. Both residents of Laghu Pat Bandhare Quarter No.8,
behind Tahsil Office Parsodi, Umrer,
Tah. Umrer, District, Nagpur.
2(c)(iii) Sangita Surendra Randive,
aged 23 years, R/o. Naik Road,
Mahal, Nagpur.
2(c)(iv) Kalpana Kishore Kolte,
aged 26 years, R/o. Plot No.52,
Chaitanya Nagar, Near Magre Kirana Stores,
Lambat Hall Rod, Kharbi Road, Nagpur.
2(d) Shri Manohar s/o. Yashwant Fating,
Aged 50 years, Occupation : Service,
R/o. Saibaba Nagar, Plot No.37,
Behind P.M.B. College, Narsala Road, Nagpur.
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2(e) Mangala Babanrao Tidke,
Aged 40 years, Occupation : Household,
R/o. Prem Nagar, Zenda Chowk, Nagpur.
2(f) Chhaya Nanduji Bhandarkar,
Aged 35 years, Occupation : Household,
R/o. Narsala Road, Near Dhote College,
Near Nala, Dighori, Nagpur.
2(g) Sunita w/o. Raju Aadmane, Aged 30 years,
Occupation : , R/o. Besa Road,
Benwadi, Nagpur.
2(h) Smt. Durga wd/o. Ramesh Fating,
Aged 44 years, Occupation : Vegetable vendor.
2(i) Ganesh s/o. Ramesh Fating (Predeceased son of Yashwant),
Aged 14 years.
2(j) Vrushali Ramesh Fating (Predeceased son of Yashwant),
Aged 12 years.
Nos.2(i) to 2(j) R/o. Naya Nakasha,
Behind Jaiswal Hotel, Lashkaribagh, Nagpur.
Nos 2(i) to 2(j) minor, through G.A.L. mother
Smt. Durga wd/o. Ramesh Fating the non-applicant No.2(h).
(Original non-applicant No.2/appellant No.2,
Smt. Laxmibai wd/o Vishwanathrao Fating died
during the pendency of the proceedings
in the trial Court,
Hence, she is not made party to this appeal). : RESPONDENTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Shri Nitin Vyawahare, Advocate for the Appellants.
None for the Respondents.
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CORAM : S.B. SHUKRE, J.
rd
DATE : 23
AUGUST, 2017.
ORAL JUDGMENT :
1. Heard Shri Nitin Vyawahare, learned counsel for the
appellant. Nobody appears on behalf of the legal heirs of the deceased
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respondents, although they are duly served on merits.
2. This is an appeal preferred against the judgment and order
dated 14.11.2000, passed in Probate Case No.100/1995, by 4 th Joint Civil
Judge, Senior Division, Nagpur. The deceased respondent No.1 Vasant
Vishwawanath Fating filed an application under Section 276 of the
Indian Succession Act, 1925 for grant of Probate in respect of a Will
dated 30.11.1972, claimed by him to be executed in his favour by the
owner of the property mentioned in the Will, deceased Vishwanath
Fating. Deceased Vishwanath Fating was the father of the original
applicant i.e. deceased respondent No.1 Vasant as well as of the other
children, namely, Yeshwant, Ruprao and Prabhakar and Vasatlabai. It
was the contention of the deceased Vasant that under Will dated
30.11.1972, which was registered one, the property mentioned in the
Will was bequeathed to him and Yeshwant (respondent No.2) equally.
Vishwanath died on 20.12.1975 and thereafter an attempt was made by
the deceased Vasant to get the property which was the subject matter of
the Will (hereinafter referred to as, "subject property"), mutated in his
name in the record of the Nagpur Municipal Corporation. But, the
application for mutation of the subject property in the name of deceased
Vasant was rejected by the authorities of the Nagpur Municipal
Corporation on 26.11.1976. Thereafter, about 19 years later, deceased
Vasant filed an application for grant of Probate under Section 276 of the
Indian Succession Act. The other children of the deceased Vishwanath
were joined as respondents parties and all of them resisted the claim of
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the deceased Vasant. Evidence was also led by the rival parties. On
merits of the case, the Probate Court found that the Will was validly
executed and proved in accordance with law before it and, therefore, by
the impugned order it granted Probate in favour of deceased Vasant in
respect of the subject property. Not being satisfied with the same, the
other children, who are the appellants in this appeal preferred the
present appeal.
3. After having heard Shri Nitin Vyawahare, learned counsel for
the appellant-Ruprao s/o. Vishwanathrao Fating who has now been left
as the sole appellant, after the original appellant No.2, Prabhakar sold his
share in the property to the appellant No.1-Ruprao and name of
appellant No.3-Smt. Vatsalabai was deleted from the array of appellants
as per the order passed by this Court on 13.9.2002. I have gone through
the record of the case including the impugned judgment and order.
4. The only point which arises for my determination :
Whether the Will dated 30.11.1972 was duly proved
by deceased Vasant through his legal heirs in
accordance with law ?
5. Shri Nitin Vyawahare, learned counsel for the appellant
submits that the Will in question was not duly proved in accordance with
law and, therefore, no Probate in respect of Will could have been granted
by the Probate Court. He submits that the attesting witness examined in
this case, PW 2 Dayaram, has clearly admitted the fact that he had not
seen the testator Vishwanath sign the Will and that he also did not sign
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the Will in the presence of the testator Vishwanath. He submits that this
admission clearly shows that the Will was not proved in accordance with
Section 63 of the Indian Succession Act read with Section 68 of the
Indian Evidence Act. He places his reliance in the case of Shobha
Madhusudan Sheth vs. Sandeep Shyam Bhanushali, reported in
2013(2) Mh.L.J. 139.
6. Section 63 of the Indian Succession Act requires that a Will
shall be attested by two or more witnesses and each of the attesting
witnesses must have seen the testator sign the Will or at least some other
person sign the Will in the presence and by the directions of the testator
and that each of the attesting witnesses must also sign the Will in the
presence of the testator. Section 68 of the Indian Evidence Act prescribes
that when a document is required by law to be attested, it cannot be used
as evidence until one of the attesting witnesses at least has been called
and the execution of the Will is proved through such attesting witness.
The combined effect of these provisions of law would be that a document
like Will is compulsorily attestable and so its execution must be proved
by one of the attesting witnesses in the manner prescribed under the law.
This would mean that there is no option for the attesting witness other
than his deposing before the Court that he had seen the testator sign the
Will or had seen some other person sign the Will on the instructions of
the testator and in the presence of the testator and that he had also
signed the Will as an attesting witness in the presence of the testator. If
he does not depose before the Court in such a specific manner, the
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execution of the Will cannot be proved in evidence in terms of Section 63
of the Indian Succession Act and then it would follow that it can also not
be admitted in evidence in terms of Section 68 of the Indian Evidence
Act. In fact, this is also the view taken by the learned Single Judge of
this Court in the case of Shobha (supra) relied upon by the learned
counsel for the appellant and the view commends to me.
7. Now, if the evidence of PW 2 Dayaram is seen, one would at
once come to the conclusion that the Will in question in the instant case
has not been proved in accordance with law. PW 2 Dayaram clearly
admits that as he was not present at the time when the Will was signed
by deceased Vishwanath, he did not see deceased Vishwanath sign the
Will. He also admits that at the time when he attested the Will by
putting his signature thereon, deceased Vishwanath, the testator, was not
present. He also states that he was not present at the time when the
other attesting witness affixed his signature to the Will in question.
These admissions are a clear pointer to the fact that the execution of the
Will in question has not been proved as required by the provisions of
Section 63 of the Indian Succession Act read with Section 68 of the
Indian Evidence Act. So, the Will in question ought not to have been
admitted in evidence. But, it has been admitted by the Probate Court,
albeit erroneously and contrary to the mandatory provisions of law
discussed earlier. The Probate Court has not at all considered the
mandatory requirements of law governing the proof of execution of a
Will and has only considered the effect of the cross-examination of one of
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the attesting witnesses PW 2 Dayaram, for recording a finding that his
evidence has gone virtually unchallenged and therefore execution of Will
was proved. The question of believing in the testimony of a witness
would arise only after the mandatory requirements of law, which are
firmly embedded in the provisions of Section 63 of the Indian Succession
Act and Section 68 of the Indian Evidence Act, are first met by such a
witness. Since those requirements, which are the pre-requisites of
admission of a Will in evidence have not been fulfilled in the instant
case, the question of further appreciation of the evidence of PW 2
Dayaram would never arise in the instant case. But, this was all ignored
by the Probate Court.
8. It appears that there was other attesting witness, one
Deokinandan Mishra, who could have been examined as witness. But, he
was not examined in the present case by the original applicant.
Therefore, there was also no question of considering the possibility of
admission of Will in evidence through the evidence of other attesting
witness.
9. There is one more aspect which needs consideration at this
stage. The Will in question was a registered document. But, the
registration of Will itself was only optional, in view of the provision of
Section 18 of the Registration Act. The attestation of the Will, however,
was not optional, in view of the provision of Section 63 of the Indian
Succession Act. This would mean that there is no question of drawing of
any presumption of due execution of a document that usually goes with a
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registered document, which is compulsorily registrable.
10. In view of above, I find that Will in the instant case was not
duly proved and so it could not have been admitted in evidence. It
would then follow that no Probate of the Will could have been granted
by the Probate Court. The impugned order is illegal, it being contrary to
law.
11. In the result, I find merit in this appeal. The appeal deserves
to be allowed and is allowed accordingly.
12. The impugned order is quashed and set aside.
13. The Probate application stands dismissed.
14. The parties to bear their own costs.
JUDGE
okMksns
