Namdeo S/O Sitaram Kutarmare And ... vs Smt. Raibai Wd/O Bapurao Gaurkar ...
2017 Latest Caselaw 7293 Bom

377-SA-J-426-09                                                                  1/11




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

                          SECOND APPEAL NO.426 OF 2009



1.  Namdeo s/o Sitaram Kutarmare,
     aged about 63 years, 

2. Netaji s/o Namdeo Kutarmare,
    aged about 23 years, 
    Both residents of Chikhalgaon, 
    Tahsil Wani, District Yavatmal.                      ... Appellants. 
    
-vs- 

1.  Raibai wd/o Bapurao Gaurkar,
     aged about 65 years, 
     Occupation Cultivation, 
     Resident of Kuchana, 
     Tahsil Bhadrawati,  
     District Chandrapur 

2.  Sakhubai w/o Nanaji Kakde,
     aged about 61 years,  
     Occupation Cultivation 
     resident of Kuchana, 
     Tahsil Bhadrawati,  
     District Chandrapur   

3.  Narendra s/o Shantilalji Nagarwala,
     aged about 57 years, 
     resident of Near Saibaba Temple, 
     Tavatmal Road, Wani, 
     Tahsil Wani,  District Yavatmal.                    ... Respondents.  


Shri M. P. Khanjanchi, Advocate for appellants. 
Shri M. A. Sable, Advocate for respondent Nos.1 and 2.
Respondent No.3 served. 




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 377-SA-J-426-09                                                                                2/11




                                 CORAM  :  A. S. CHANDURKAR, J. 

DATE : September 19, 2017

Oral Judgment :

The appellants are the original defendants who are aggrieved by

the decree passed by the first appellate Court by which the claim for partition

and separate possession of portion of the suit property has been allowed.

It is the case of the original plaintiffs that one Sitaram had two

daughters and one son. Said Sitaram was the owner of field survey No.12/1-

B, 12-3 and 28/3. According to the plaintiffs these properties were self

acquired properties of Sitaram. The same were in possession of his son

Namdeo after the death of Sitaram on 02/02/1993. Hence the sisters filed

suit for partition and separate possession of said fields. During pendency of

the suit, the plaint was amended. It was pleaded that in addition Sitaram

was the owner of field bearing Gat Nos.29/3, 71/1 and 71/2. These fields

were ancestral properties having character of joint family estate. Partition of

these properties was also sought. In the alternate it was pleaded that if the

suit properties were found to be ancestral, equal share be given to the legal

heirs of Sitaram.

2. Namdeo filed his written statement in which it was pleaded that

on 12/01/1993, a Will came to be executed by Sitaram bequeathing the

property in his favour. It was not denied that the properties described in

377-SA-J-426-09 3/11

paragraph 1 of the plaint were self acquired properties of Sitaram. It was

denied that the properties described in paragraph 1-A were ancestral

properties and therefore it was pleaded that the plaintiffs had no share in the

same.

The parties led evidence before the trial Court. By judgment

dated 17/06/2004, the trial Court held that the Will executed by Sitaram

was duly proved. It further held that the plaintiffs had not proved that the

properties described in paragraph 1-A were ancestral properties. On that

basis the trial Court dismissed the suit. The first appellate Court however

found that the Will dated 12/01/1993 was not duly proved. After recording

a finding that properties described in paragraph 1-A belonged to the

defendants, the suit was partly decreed with regard to properties described

in paragraph 1 of the plaint. Being aggrieved, the defendant Nos.1 and 2

have filed this appeal.

3. While admitting the second appeal, the following substantial

questions of law were framed :

" (1) Whether the Will executed by deceased Sitaram in favour of defendant No.2 could have been disbelieved by the learned lower appellate Court when the said Will was proved in accordance with the provisions of Sections 61 and 63 of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872 ?

377-SA-J-426-09 4/11

(2) The respondents having pleaded that the Will is a sham and bogus document and affected by undue influence, whether the onus to prove such forgery or fraud is on appellants ? "

4. Shri M. P. Khanjanchi, learned counsel for the appellants

submitted that the appellate Court was not justified in reversing the finding

recorded by the trial Court that the Will in question was not duly proved.

According to him, as it was the case of the plaintiffs that the said Will was a

sham and bogus document, the burden was on the plaintiffs to prove the

same. He referred to the evidence of the Scribe as well as the attesting

witness to indicate that the Will was duly proved as required by Section 68 of

the Evidence Act. It was submitted that the appellate Court took into

consideration irrelevant circumstances for coming to the conclusion that the

Will was not duly proved. He also referred to the pleadings in the plaint to

indicate absence of reference to any suspicious circumstance so as to cast a

doubt on the execution of the Will. In support of his submissions, reliance

was placed on the decisions in Vimal Chand Ghevarhand Jain and ors. vs.

Ramakant Eknath Jadoo (2009) 5 Supreme Court Cases 713, Pentakota

Satyanarayana and ors. v. Pentakota Seetharatnam and ors. (2005) 8

SCC 67, Panna Surendra Mehta vs. Purnima Latik Shah 2017 (2) ALLMR

278 and Hazara Bradri and ors. vs. Lokesh Datta Multani (2005) 13 SCC

278.

377-SA-J-426-09 5/11

It was then submitted that the pleadings in the plaint were

inconsistent and self destructive. While in paragraph 1 it had been pleaded

that the suit properties mentioned therein were self acquired properties of

Sitaram, in paragraph 1-A it was pleaded that said fields were ancestral

properties of Sitaram. This position continued despite the plaint being

amended. According to him it was not permissible for the plaintiffs to raise

such inconsistent pleas and on that count no relief was liable to be granted in

favour of the plaintiffs. He therefore submitted that judgment of the trial

Court deserves to be restored.

5. Shri M. A. Sable, learned counsel for the respondents on the other

hand supported the impugned judgment. He submitted that the appellate

Court rightly found that there was a doubt as to the manner in which the

Will was said to be executed by Sitaram. Said Sitaram was aged about 80

years and was suffering from leprosy. It was not possible for him to have

gone to Wani which was at a distance of 1 km from his residence for having

the Will executed. He referred to the evidence on record and submitted that

the appellate Court rightly held the Will to be not proved. He further

submitted that the attesting witnesses were related with the defendant No.1

and they were therefore interested in supporting the said defendant. The

suspicious circumstances were appropriately considered by the appellate

Court.

377-SA-J-426-09 6/11

As regards the pleadings of the plaintiff, it was submitted that the

decree as passed is only with regard to self acquired properties of Sitaram

and no relief has been granted in respect of the properties that are alleged to

be joint family properties in paragraph 1-A of the plaint. Hence no prejudice

was caused to the defendants. He therefore submitted that the appeal was

liable to be dismissed.

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

have also perused the evidence on record. While it is the case of the

plaintiffs that they were entitled to succeed to the properties described in

paragraphs 1 and 1-A of the plaint, it is the case of defendant No.1 that in

respect of the properties described in paragraph 1 of the plaint, Sitaram had

executed a Will dated 12/01/1993 in his favour. According to defendant

No.1 the properties described in paragraph 1-A of the plaint were his

individual properties. If the pleadings are examined, it can be seen that in

paragraph 1 of the plaint it is pleaded that the properties described therein

were self acquired properties of Sitaram. In paragraph 2 it is further stated

that the suit properties were owned by Sitaram being his self acquired

properties. In the written statement at Exhibit-10 filed by both the

defendants, the contents of paragraphs 1 and 2 are not disputed. In other

words, it is admitted by defendant Nos.1 and 2 that properties described in

paragraph 1 of the plaint were self acquired properties of Sitaram.

377-SA-J-426-09 7/11

7. Though it is true that in paragraph 1-A of the plaint it has been

stated that the fields mentioned in paragraph 1 of the plaint were ancestral

properties, considering the clear stand taken by defendant Nos.1 and 2 that

those properties were self acquired properties of Sitaram, nothing much can

turn on the basis of the amended pleadings. In that view of the matter, the

ratio of the decision in Vimal Chand Jain (supra) does not assist the case of

the said defendants. In any event it has been held by both the Courts that

properties described in paragraph 1-A are not proved to be ancestral

properties and said finding has not been challenged by the plaintiffs. Hence

it is only the properties described in paragraph No.1 of the plaint that are

required to be adjudicated by proceeding on the basis that it is an admitted

position between the parties that those properties are self acquired properties

of Sitaram.

8. The Will dated 12/01/1993 was propounded by defendant No.1

and hence the burden was on him to prove its execution. In his deposition

at Exhibit-90, it was pleaded that his father was residing with him and he

was taking care of him. On that basis his self acquired properties were

bequeathed in favour of defendant No.1 on 12/01/1993. In his cross-

examination, he stated that he was not aware about the manner in which the

Will was executed and he was not present at that point of time. He was

also not aware about is contents. In short, he was not a witness to its

377-SA-J-426-09 8/11

execution. The Scribe-Waman Dhengle has been examined at Exhibit-91. He

has stated that he worked as a Scribe at Wani and on 12/01/1993 said

Sitaram had come to him for executing the Will along with two attesting

witnesses. He stated that he had scribed the said Will. In his cross-

examination he stated that he had not met Sitaram earlier but he was aware

that Sitaram was residing at Chikhalgaon as his agricultural fields were

located there. He stated that the condition of Sitaram's fingers while

executing the Will was good. He denied the suggestion with regard to the

delicate health of Sitaram.

One attesting witness Nago Thengne has been examined at

Exhibit-92. He has deposed about the manner in which the attestation was

carried out. In his cross-examination he stated that the distance between

Chikhalgaon and Wani was about 1 km. and Sitaram had come to Wani

alone. He further admitted that Sitaram was taking treatment at Anandwan

since last 10-15 years as his fingers were affected. He admitted that

Namdeo was his brother-in-law.

8A. From the evidence on record, it can be seen that Sitaram was aged

about 80 years when the Will was executed on 12/01/1993. This age can be

gathered from the document at Exhibit-109. In fact, the witness at Exhibit-

92 has stated that he was aged 90 years when the Will was executed. He

was residing at Chikhalgaon along with defendant No.1. The will was

scribed and executed at Wani which is at a distance of about 1 km from

377-SA-J-426-09 9/11

Chikhalgaon. The defendant No.1-his son was not aware about the manner

in which Sitaram had gone to Wani. As per the deposition of attesting

witness, Sitaram was undergoing treatment at Anandwan for last 10-15

years. Judicial notice can be taken of the fact that Anandwan is a place

where leprosy patients are treated. If this entire evidence is considered, the

manner in which Sitaram reached at Wani at the age of 80 years without any

assistance has not been explained by the propounder of the Will. The

evidence in that regard does not appear to be sufficient to record a finding

that Sitaram on his own had gone to Wani for having the Will executed. The

appellate Court in paragraph 21 of its judgment has considered these aspects

and has therefore concluded that a doubt was created about the manner in

which the Will was got executed. This was in the backdrop of the fact that

the attesting witnesses were relatives of defendant No.1 who was the

beneficiary of the Will. The Scribe-PW-2 has stated that he had not met

Sitaram earlier but was only aware that he was residing at Chikhalgaon.

These circumstances which are unexplained have been rightly taken into

consideration by the appellate Court for arriving at a finding that the

execution of the Will in question has not been duly explained by the

propounder.

9. Though it is true that the suspicious circumstances are sought to

be relied upon as factors against the valid execution of the Will are required

377-SA-J-426-09 10/11

to be pleaded, the relevant factors as to the state of health of the testator, the

distance between his residence and the place where the Will was executed

and the manner in which the testator reached said place have not been

satisfactorily explained by the propounder. The pleadings of the plaintiffs

in that background of denying due execution of the Will would have to be

taken into consideration. In paragraph 4 of the plaint it was pleaded that

Sitaram was aged about 80 years and that since last 4-5 years prior to his

death he was not mentally fit and conscious. He was not aware of things

happening around him. On these pleadings it was sought to be canvassed

that the said Will was bogus and having no legal sanctity. When these

pleadings are considered along with the entire evidence on record, I find the

same are sufficient so as to put forth the case of the plaintiffs in denying

execution of the Will. The ratio of the decisions in Pentakota

Satyanarayana and ors., Panna Surendra Mehta as well as Hazara

Bradri and ors. (supra) cannot be made applicable to the facts of the case

on the aforesaid premise. I therefore find that the appellate Court was

justified in arriving at the conclusion that the execution of the Will was not

duly proved. On that basis the decree passed with regard to the partition of

the self acquired properties of Sitaram as described in paragraph 1 of the

plaint is justified. The substantial questions of law are answered

accordingly and against the appellants.

377-SA-J-426-09 11/11

10. As a result of aforesaid discussion, the judgment of the appellate

Court stands confirmed. The second appeal is dismissed with no order as to

costs.

11. As per the interim order dated 02/02/2010, the appellants have

been depositing a sum of Rs.20,000/- per year as security towards the stay

granted for executing the decree. It was directed that these amounts so

deposited would be subject to the final adjudication of the appeal. As the

appeal has been dismissed and the original plaintiffs have been held entitled

to 1/6th share each while the defendant No.1 has been granted 2/3rd share,

the entire amount deposited along with accrued interest shall be permitted to

be withdrawn in the following manner :

The appellants would be entitled to receive 2/3rd of the total

amount so deposited along with accrued interest. The respondent Nos.1 and

2 would be entitled to receive the balance amount in equal share. It is

clarified that if respondent Nos.1 and 2 initiate proceedings for grant of

mesne profits, the aforesaid amounts so received by them shall be taken into

consideration.

JUDGE Asmita