Bombay High Court
Smt Venutai Pundlik Bondre vs Smt Tanabai And One Another on 24 March, 2017
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.349 OF 2004
Smt. Venutai w/o Pundlik Bondre,
Aged about 60 years,
Occupation: Household work,
R/o Sayatkharda, Tq. Ghatanji,
District Yavatmal. ....... APPELLANT
...V E R S U S...
1] Smt. Tanabai w/o Ramaji Dhale,
Aged about 65 years,
Occupation: Agriculturist.
2] Vitthal s/o Ramaji Dhale,
Aged about 40 years,
Occupation: Agriculturist.
Both R/o Dahegaon, Post Shiroli,
Tq. Ghatanji, District Yavatmal. ....... RESPONDENTS
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Shri Anand Deshpade, Advocate for Appellant/Plaintiff.
Shri A.V. Bhide, Advocate for Respondent No.1/ Defendant
No.1.
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CORAM: R.K. DESHPANDE, J.
th MARCH, 2017.
DATE: 24
ORAL JUDGMENT
1] The appellant is the original plaintiff who filed
Regular Civil Suit No.55/1998 (old No.86/1997) for partition and
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separate possession. The plaintiff also challenged Will dated
27.05.1993 said to be executed by one Sakhubai, the owner of the
property and the declaration was sought that it is null and void.
The Trial Court passed a decree on 07.08.1999 for partition and
separate possession and declaration was granted that the Will
dated 27.05.1993 executed by Sakhubai is cancelled. The lower
Appellate Court allowed Regular Civil Appeal No.75/2002 (old
No.88/1999) on 27.02.2004. The judgment and decree passed by
the Trial Court was set aside and the suit was dismissed.
The original plaintiff is before this Court in this second appeal.
2] The lower Appellate Court recorded the finding that
Will dated 27.05.1993 at Exhibit 23 was proved and Sakhubai
being the exclusive owner of the suit property was competent to
bequeath the same by way of Will in favour of defendant Nos.1
and 2. The plaintiff as well as defendant No.1 both are the
daughters of Sakhubai, whereas the defendant No.2 is the son of
defendant No.1 and the grand-son of Sakhubai. The Trial Court
recorded the finding that the Will was not proved as per the
requirement of Section 63 of the Indian Evidence Act read with
Section 68 of the Indian Evidence Act. This Court passed an order
on 11.07.2006 admitting the second appeal and framing the
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substantial question of law as under:
"Whether Will Exh.23 is proved in terms of
Section 68 of the Indian Evidence Act."
3] It is not in dispute that if the finding of the Trial
Court that the Will at Exhibit 23 was null and void is confirmed,
then the plaintiff would be entitled to a decree for partition and
separate possession, as the exclusive ownership of Sakhubai over
the suit property was not in dispute. Since the plaintiff claimed a
declaration that Will dated 27.05.1993 executed by Sakhubai was
illegal, false, and therefore, needs to be cancelled, the certified
copy of the Will at Exhibit 23 produced by the defendants was
admitted in evidence without any objection. It was, therefore, the
burden upon the plaintiff to establish that the Will produced on
record was a false document or that there existed suspicious
circumstances to reject the claim for title of the defendants on the
basis of Will. Obviously, the plaintiff has chosen to call
P.W.2-Shankar Shindurkar at Exhibit 26 an attesting witness who
was examined. The defendant examined another attesting witness
D.W.4-Dnyaneshwar Raimal at Exhibit 39 and the scribe D.W.3-
Wasudeo Rajurkar at Exhibit 38.
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4] With the assistance of the learned counsels appearing
for the parties, I have gone through the copy of the plaint, written
statement, the evidence of witnesses examined by the parties and
certified copy of Will dated 27.05.1993 at Exhibit 23.
The averments in para 6 of the plaint to challenge the Will at
Exhibit 23 need to be seen. The plaintiff has alleged that Sakhubai
executed a false Will in favour of the defendant Nos.1 and 2,
which is illegal, for the reason that Sakhubai had no authority to
execute such a Will. She was not the only exclusive owner of the
suit property, but her husband Lahanu Babaji Dhavle was the
owner of the suit property. It is further alleged that at the time of
execution of the Will, Sakhubai was aged about 90 years, her
vision was impaired, she was unable to write or read due to old
age, her memory was reduced, and she was unable to hear
properly. Taking advantage of such situation, her thumb
impression must have been taken on the Will, and therefore, the
Will be declared as null and void.
5] Perusal of his oral evidence of P.W.2-Shankar an
attesting witness examined by the plaintiff shows that he knows
the parties very well. He states that the Will at Exhibit 23 bears his
signature as an attesting witness. At the time of execution of this
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Will, Sakhubai was aged about 80 to 90 years. He states that the
Will was not scribed before him and he did not read the contents
of it. He states that he had gone to Tahsil Office and at the
instance of the defendants, he attested the Will. He states that at
that time, another attesting witness Dyaneshwar Raimal put his
signature on the Will in his presence, but the attestor Sakhubai
had not signed the Will in his presence. According to him, when
he attested the Will, it was already bearing a thumb impression
and he does not know whether it was of Sakhubai. This witness
describes the condition of the attestor and states that she was not
ill, but it was not possible for him to tell whether she had a vision.
He denies the suggestion that Sakhubai put her thumb impression
in his presence and thereafter the witnesses put their signature.
6] The defendants have examined D.W.4-Dyaneshwar
Raimal, another attesting witness at Exhibit 39. In his
examination-in-chief, he states that he was knowing Sakhubai and
he was present in Tahsil Office, where Sakhubai was also present.
He states that D.W.3-Wasudeo Rajurkar scribed the Will and
Sakhubai put her thumb impression on it. He further states that he
himself and Shankarrao Shindurkar (P.W.2) put their signatures
on the Will, as attesting witnesses. He further states that Sakhubai
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put her thumb impression in his presence and both the attesting
witnesses put their signatures on the Will. Surprisingly, he denied
his signature on the Will at Exhibit 23 and turned hostile to
support the case of the plaintiff in cross-examination.
7] The scribe Wasudeo Rajurkar, D.W.3, was examined
at Exhibit 38 by the defendants, who fully supports the case of the
defendants by stating that Sakhubai had approached him to scribe
the Will, which was written by him as per the oral instructions of
Sakhubai. He states that at that time, the physical and mental
condition of Sakhubai was good. After scribing the Will, it was
read over to Sakhubai and her thumb impression was obtained on
it. He states that P.W.2-Shankar Shindurkar and
D.W.4-Dnyaneshwar Raimal put their signatures as attesting
witnesses on the Will, after Sakhubai placed her thumb impression
on it. He states that the Will was thereafter taken to the office of
Sub-Registrar for registration.
8] It does not appear from the entire evidence on record
that the plaintiff pursued her case that Sakhubai had no authority
to execute the Will. The Will at Exhibit 23 was produced on record
by the defendants at the instance of the plaintiff. It has been
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proved and its admissibility is not questioned. No doubt, Sakhubai
was aged about 90 years at the time of executing the Will, but
there is no evidence brought on record to show that her vision
was impaired and she was unable to hear properly and
understand what was read over to her. There is no evidence
brought on record to establish that the memory of Sakhubai was
lost. It was for the plaintiff to bring on record the suspicious
circumstances, if any.
9] Shri Deshpande, the learned counsel appearing for
the appellant/plaintiff, invited my attention to the provisions of
Section 63 of the Indian Succession Act, 1925 and Section 68 of
the Indian Evidence Act, 1872. He submits that the lower
Appellate Court has taken the recourse to Section 71 of the
Evidence Act to hold that the Will is proved on the basis of the
other evidence. He further submits that there was no case made
out to dispense with the requirements of the aforesaid provisions
of the Succession Act and the Evidence Act. He has invited my
attention to the decision of the Apex Court in the case of Janki
Narayan Bhoir v. Narayan Namdeo Kadam, reported in (2003) 2
SCC 91, and particularly para 11 thereof, in which it is held that
Section 71 of the Evidence Act is in the nature of a safeguard to
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the mandatory provisions of Section 68 of the Evidence Act, to
meet a situation where it is not possible to prove the execution of
the Will by calling the attesting witnesses, though alive.
The Section provides that if an attesting witness denies or does
not recollect the execution of the Will, its execution may be
proved by other evidence. Aid of Section 71 can be taken only
when the attesting witnesses, who have been called, deny or fail
to recollect the execution of the document to prove it by other
evidence. Section 71 has no application to a case where one
attesting witness, who alone had been summoned, has failed to
prove the execution of the Will and other attesting witnesses
though are available to prove the execution of the same, for
reasons best known, have not been summoned before the Court.
10] In the present case, both the attesting witnesses are
examined. P.W.2-Shankar Shindurkar, an attesting witness, was
examined by the plaintiff, who has denied the execution of the
Will by the testator Sakhubai. The other attesting witness
D.W.4-Dyneshwar Raimal, examined by the defendants, proves
the execution of the Will in clear terms, but takes a somersault to
state that the Will does not bear his signature. The witness has
been treated as hostile, and relying upon that part of the evidence
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of witness where he states that the attestor Sakhubai put her
thumb impression in presence of both the attesting witnesses and
the attesting witnesses have put their signatures, obviously to
attest the Will, the requirements of Section 63 of the Succession
Act and Section 68 of the Evidence Act are fully complied with.
No suspicious circumstances are brought on record to challenge
the validity of Will. The substantial question of law is, therefore,
answered, holding that the Will has been proved.
11] In view of above, the findings of fact recorded by the
lower Appellate Court are in the realm of appreciation of evidence
of attesting witnesses. Since D.W.4-Dyneshwar denied his
signature on the Will, the evidence of D.W.3-Scribe Wasudeo is
considered to corroborate the evidence of D.W.4. The provision of
Section 71 of the Evidence Act was clearly attracted. In fact, in my
view, the evidence of D.W.4-Dyneshwar as has been appreciated
has established the will and the evidence of Scribe which remain
unchallenged pertains to the fitness of medical-physical and
mental condition of the testator Sakhubai. On the basis of the
other evidence available on record, the lower Appellate Court has
held that the Will has been proved. The view taken cannot,
therefore, be faulted with.
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12] In the result, the second appeal is dismissed.
JUDGE
NSN
