Bombay High Court
Kusumbai Dharma Dedke And Ors vs Kashibai Dhondiram Waghmare on 27 August, 2021
Bench: V. V. Kankanwadi
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.437 OF 2013
with
CIVIL APPLICATION NO. 3525 OF 2008
1) Kusumbai w/o Dharma Bedke
and Ors. = APPELLANTS
(orig. Deft.Nos. 1 to 7
9 and 10)
VERSUS
1) Kashibai w/o Dhondiram Waghmare
(Died through her Legal heirs )
1A) Subrao Dhondiba Waghmare & Ors. = RESPONDENTS
(orig.plaintiff)
-----
Mr.SS Choudhari,Advocate for Appellants;
Mrs.MG Kasturkar,Adv. h/for Mrs. MA Kulkarni,Advocate for
Respondent Nos. 1-A to 1-E.
-----
CORAM : SMT.VIBHA KANKANWADI,J.
DATE : 27th August, 2021.
PER COURT :-
1. Present appeal has been filed by original
defendant Nos.1 to 7, 9 and 10, challenging
concurrent judgment and decree passed by both the
Courts below. Present respondent - Kashibai was
original plaintiff, who filed Regular Civil Suit
No.199/1985 before the learned Civil Judge, Junior
Division, Kallam, for declaration of ownership and
permanent injunction. The said suit came to be
decreed on 21.4.2003. The appeal filed by the
present appellants, being RCA No.109/2003, came to
be dismissed on 18.9.2007 by learned District
Judge-1, Osmanabad. Hence, the present Second
Appeal.
2. Heard learned Advocates appearing for
the respective parties. In order to cut short, it
can be stated that both of them have made
submissions in support of their respective
contentions.
3. It is to be noted that during pendency of
this appeal, appellant No. 2 - Sindhubai and
Respondent - Kashibai expired and their respective
legal representatives are brought on record.
4. It has been vehemently submitted on
behalf of the appellants that both the Courts below
have not properly considered the evidence and the
law points involved in the case. Both the Courts
below were not justified in placing reliance on the
Will alleged to have been executed by Rakhmabai w/
o Ganpati Bedke in favour of the plaintiff on
17.9.1977 though the plaintiff did not adduce
sufficient and cogent evidence in that regard. Both
the Courts below erred in holding that the Will was
executed by Rakhmabai in favour of the plaintiff
without any undue influence and without playing
fraud by the plaintiff in view of the fact that it
has come on record that Rakhmabai was under the
influence of the plaintiff and the plaintiff was
instrumental in prejudicing mind of the appellant
No.1 - Kusumbai, a daughter in law and appellant
No.2 - Sindhubai, a grand-daughter in law of
Rakhmabai by misleading them. When appellant No.1
Kusumbai; appellant No.2 - Sindhubai and plaintiff
are the legal heirs of original holder of the
property and they are entitled to receive share in
the property, determined as per the provisions of
Hindu Succession Act, 1956, both the Courts below
erred in decreeing the suit filed by the plaintiff
for declaration of ownership and perpetual
injunction and dismissing the appeal by appellants.
5. Per contra, learned Advocate appearing
for the respondents supported the reasons assigned
by both the Courts below and submitted that both
the Courts below, after having properly scanned the
evidence brought on record, arrived at the findings
which do not warrant interference by this Court
and, therefore, the appeal does not involve any
substantial questions of law and it deserves to be
dismissed.
6. At the outset, it can be seen that both
the Courts below have considered the facts and as
to what would have been the relationship between
the parties when Rakhmabai executed the Will.
Further, it appears that when to prove the Will
dated 17.9.1977, the plaintiff has examined
attesting witnesses, therefore, there is compliance
under Section 63 of the Indian Succession Act. PW
2 has categorically stated that Rakhmabai executed
the Will in his presence. The contents of the Will
were written by one Mullasaheb as per the
instructions of Rakhmabai and thereafter, she had
impressed her thumb impression in presence of PW 2
as well as PW 1 - Chitambar Kulkarni. Thereafter
those two attesting witnesses have signed the said
Will in presence of Rakhmabai. He has then stated
that all of them went to Kallam and registered the
said document. Therefore, there was total
compliance regarding proof of the Will. Merely
because Rakhmabai was looking after by the
plaintiff, it cannot be presumed that she would
have contaminated mind of Rakhmabai against
appellant Nos.1 and 2. For that purpose, the
history will have to be considered. It is to be
noted that originally the entire land belonged to
Ganpati Bedke. Deceased Dharma was son of Ganpati
and Rakhmabai. Ganpati expired on 22.11.1965.
Thereafter, Dharma died on 8.12.1966, leaving
behind defendant Nos.1, 2 as well as Rakhmabai -
the mother. Thereafter, all the properties were
jointly cultivated by them. However, differences
arose and defendant Nos.1 and 2 filed RCS No.
211/1966 for partition and separate possession
against Rakhmabai and the plaintiff. The said suit
came to be decreed on 29.11.1967 and defendant Nos.
1 and 2 got in all 8/27th share in the properties.
Rakhmabai got 1/9th share and plaintiff got 16/27 th
share. Thereafter, defendant Nos.1 and 2 got actual
possession in execution proceeding i.e. RD No.
56/1971. These facts would have definitely caused
strained relationship between Rakhmabai and
deft.Nos. 1 and 2. The plaintiff, being daughter of
Rakhmabai, would have had love and affection of
Rakhmabai and, therefore, possibility that due to
that love and affection, she executed the Will in
favour of the plaintiff, cannot be ruled out. The
proof has been given regarding execution of the
Will and, therefore, the suit was correctly decreed
and the appeal has been rightly dismissed.
7. No substantial questions of law, as
contemplated under Section 100 of CPC, are arising
in this case, requiring admission of the Second
Appeal. It deserves to be dismissed. Accordingly,
the Second Appeal is dismissed. Pending Civil
Application, if any, stands disposed of.
(SMT. VIBHA KANKANWADI)
JUDGE
BDV
