Bombay High Court

Smt. Sakwar W/O Not Known, ... vs Smt. Manjulabai Wd/O Hiraman ... on 14 September, 2017

Bench: A.S. Chandurkar

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                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               NAGPUR BENCH : NAGPUR.

                                       Second Appeal No. 309/2014



1.      Smt. Sakwar W/o not known,
        (Daughter of Narayan Wankhede),
        Aged about 60 years, Occ. Household,

2.      Rajesh S/o Hiraman Nitnaware,
        Aged about 36 years, Occ. Business,

3.      Kunal S/o Hiraman Nitnaware, 
        Aged about 32 years, Occ. Business

4.      Smt. Pramita W/o Arun Chahande, 
        Aged about 34 years, Occ. Household.

        All R/o Plot No. 40, Bharat Bhojnalaya, New
        Cotton Market Layout, Near S.T. Stand, 
        Nagpur                                                                              .....     Appellants


                                        ...Versus...



1.      Smt. Manjulabai Wd/o Hiraman Nitnawre, 
        Aged about 76 years, Occ. Household,
        R/o Ward No. 95, Jaitala, Nagpur

2.      Deorao S/o Hiraman Nitnawre, 
        Aged about 52 years, Occ. Business
        R/o Ward No. 95, Jaitala, Nagpur

3.      Smt. Ramabai W/o Mahadeo Meshram,
        Aged about 40 years, Occ. Household, 
        R/o Vaishali Nagar, Bhandara

4.      Smt. Indirabai W/o Shrawan Waghmare,
        Aged about 40 years, Occ. Household
        R/o Godhani Railway, Nagpur




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5.       Smt. Sunita Wd/o Rohit Choudhari,
         Aged about 37 years, Occ. Household, 
         R/o Kawarapeth, Tah. Umrer, Dist. Nagpur

6.       Nagpur Improvement Trust, Near Liberty
         Talkies, Nagpur through its Chairman (Deleted)                                     .....     Respondents

------------------------------------------------------------------------------------------------------------------
                                     Shri  A.C. Dharmadhikari, Advocate for appellants
                                     Shri A.K. Choube, Advocate for respondents
------------------------------------------------------------------------------------------------------------------


                                                              CORAM :  A.S. CHANDURKAR, J.

                                                              DATE     :  14/09/2017


Oral Judgment

Admit. Heard finally with the consent of both the parties on the

following substantial questions of law:-

"(i) Whether the appellate Court was right in interfering with the finding of fact recorded by the trial Court as regards the admissibility of Will when, no objection was raised at the time of exhibition of the said Will at Exhibit 120 and that too when the certified copy of the will was placed on record ?

(ii) Whether the relief with regard to the validity of the Will dated 12/09/1995 is barred by limitation ?"

2. The appellants are the original defendants in the suit filed by the

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respondents herein. It is the case of the respondents that one Hiraman

Nitnaware was married with Manjulabai and they had four issues. Said

Hiraman Nitnaware expired on 25/09/1995 leaving behind him the aforesaid

legal heirs. According to the plaintiff, Hiraman Nitnaware had married with

defendant no. 2 and defendant nos. 3 to 5 were the children from the said

marriage. After the death of Hiraman Nitnaware, the plaintiffs applied for

having their names mutated as owners of the property. Initially, such an

application was filed on 24/01/1996. Subsequently, another application was

made but as there was no response from Nagpur Improvement Trust, the suit

was filed seeking declaration that the plaintiff had lease hold rights over the

suit property. This right was claimed along with defendant nos. 3 to 5.

3. The Nagpur Improvement Trust filed its written statement at

Exh. 19. In this written statement which was filed on 16/03/1999, it was

pleaded that on the basis of Will dated 12/09/1995 executed by Hiraman,

the names of the defendants had been mutated. The defendant nos. 2 to 5

also filed their written statement and relied upon the aforesaid Will dated

12/09/1995 for claiming their entitlement to the suit property. After the

written statements were filed, the plaintiff moved an application below

Exh. 26 seeking to amend the plaint so as to challenge the Will dated

12/09/1995. This application was rejected by the trial Court. The plaintiff

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approached this Court by filing C.R.A No. 825/2000. This Court on

15/03/2002 granted leave to the plaintiffs to file a fresh application for

seeking amendment. Therefore, a fresh application was moved as per Exh. 35

and by order dated 21/02/2003, the trial Court allowed the amendment.

Writ Petition No. 3770/2003 filed by the defendant nos. 3 to 5 came to be

dismissed after observing that the said defendants could raise the plea of

limitation in their written statement. The defendants accordingly amended

their written statements and raised the defence of limitation.

4. The trial Court after considering the evidence on record held

that the Will dated 12/09/1995 was not brought on record. The suit was

filed within limitation. However, as the name of defendant no. 1 had been

deleted, no relief could be granted. Hence, the suit was dismissed. The

plaintiff filed an appeal being aggrieved by the aforesaid judgment. The

appellate Court after reconsidering the evidence on record held that the Will

propounded by the defendant nos. 2 to 5 was not duly proved. It also held

that the suit was filed within limitation and hence decreed the suit. Being

aggrieved, defendant nos. 2 to 5 have filed the present appeal.

5. Shri. A.C. Dharmadhikari, learned counsel for the appellants

submitted that the certified copy of the Will at Exh. 120 had been placed on

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record before the trial Court. No objection was raised by the plaintiffs when

said document was exhibited. The appellate Court for the first time

recorded a finding that the defendants were not entitled to rely upon the

certified copy of the aforesaid Will. The appellate Court therefore held the

said Will not to be proved. According to him, if such objection would have

been raised before the trial Court, appropriate steps would have been taken

by the defendants to prove the said Will. It was then submitted that the

relief sought with regard to declaration of the Will dated 12/09/1995 as

illegal was barred by limitation. Even if it was accepted that the plaintiff got

knowledge about the said Will on 16/03/1999, the amendment was allowed

by the trial Court on 21/02/2003 which was beyond the period of limitation.

The relief of declaration as regards the said Will was not sought within a

period of three years. This Court while dismissing Writ Petition No.

3770/2003 had permitted the defendants to raise a plea of limitation.

Though such a plea was raised, the appellate Court did not consider the said

question in the proper perspective. Relying upon the judgment of Hon'ble

Supreme Court in case of Sampath Kumar vs Ayyakannu & another reported

in (2002) 7 SSC 549, it is submitted that the amendment would not relate

back to filing of the suit and it would take effect on the day when it was

allowed. It was therefore submitted that the relief of declaration was barred

by limitation.

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6. Shri A.K. Choube, learned advocate for original plaintiff

supported the impugned judgment. According to him merely by placing the

certified copy of the Will on record, its contents could not be said to be

proved. It was submitted that though the defendants had propounded the

aforesaid Will and custody of the Will was with the defendants, the same

was not produced on record. As the defendants were relying on the said

Will, same should have been duly proved by them. He therefore submitted

that the appellate Court rightly held the said Will not to be duly proved. It

was then submitted that the relief with regard to validity of the Will was

sought within limitation. After the written statement was filed by the

defendant no. 1, the amendment was sought on 17/02/2000. Merely

because that application was withdrawn and a fresh application was filed,

same would not have the effect of the relief being barred by limitation. He

submitted that the appellate Court rightly held the suit to be within

limitation.

7. I have heard the learned counsel for the parties at length and I

have perused the records of the case. The plaintiff had initially sought a

declaration that they along with defendant nos. 2 to 5 had inherited the

property left by Hiraman Nitnaware. It was their case that Hiraman

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Nitnaware expired intestate. In the written statement filed by the defendant

no. 1, the stand was taken that the defendant nos. 2 to 5 had sought

mutation of their names on the basis of Will dated 12/09/1995 executed by

Hiraman Nitnaware. This stand was then also taken by the defendant nos. 2

to 5. It is thus clear that defendant nos. 2 to 5 were the propounders of the

Will. In that regard, the defendants examined defendant no. 3 at Exh. 119.

He deposed that the original Will was in his custody but he could not find

the same despite searching for it. He failed to obtain permission for leading

secondary evidence. He placed on record the certified copy of the said Will

at Exh. 120. The trial Court without considering the fact that no permission

had been sought for leading secondary evidence, accepted the certified copy

of the said Will. It was further necessary for the said defendants to prove the

contents of the said Will. The appellate Court after noticing these facts

rightly held that mere production of a certified copy of the Will would not

amount to proving the contents of the Will. Loss of the original Will was

also not explained nor was any permission for leading secondary evidence

obtained. There was also no evidence with regard to physical and mental

state of Hiraman Nitnaware when the Will was executed. In other words,

there was no evidence to indicate due execution of the said Will or its

contents. The first appellate Court has rightly found that said Will could not

have been accepted. Substantial question of law no. (i) is answered by

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holding that the findings recorded by the appellate Court with regard to

admissibility of the Will are legally correct.

8. As regards the aspect of limitation in seeking declaration about

the validity of the Will, the record indicates that the defendant no. 1 filed its

written statement at Exh. 19 on 16/03/1999. The plaintiff got knowledge

about this Will on said date. An application for amendment seeking to

challenge that Will was filed below Exh. 26 on 17/02/2000. This is within

one year of getting knowledge of the Will. Though the trial Court rejected

this application on 04/08/2000, in C.R.A No. 825/2000 this Court observed

that the trial Court was not justified in refusing to permit the said

amendment. This is clear from the observations made by this Court in order

dated 15/03/2002 which reads as under:-

"The impugned order has been passed by the trial Court, without taking into account the fact that when the defendants 3 to 5 filed their written statement, that they are claiming right, title and interest on the suit property, on the basis of the Will, and therefore, the plaintiff was entitled to amend the plaint so as to challenge the Will. The impugned order is therefore quashed and set aside

In the peculiar facts and circumstances of the case this Court is granting leave to this plaintiff to file a fresh application for amendment before the Trial Court. On such application being filed, the Trial Court would dispose it of in accordance with law. Fresh application be made within two weeks from the date of this order. C.R.A stands disposed off with no

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order as to costs. "

9. Pursuant to the liberty granted, the plaintiff moved a fresh

application on 13/03/2002 below Exh. 35. The trial Court allowed this

amendment and this Court while rejecting the challenge made to that order

observed that the trial Court did not commit any jurisdictional error. It

however, permitted the defendants to raise the point of limitation by

amending the pleadings. The aforesaid indicates that initially amendment

was sought on 17/02/2000 and this Court was of the view that the trial

Court should not have rejected the said amendment. Merely because leave

was granted to file a fresh application, the same would not have the effect of

wiping out the effect of the amendment having been sought as per the earlier

application dated 17/02/2000. The amendment having been sought within a

period of one year from 16/03/1999, the same was within limitation. The