Anshul S/O Shrikant Wankhade vs Sau. Kanchan Ravi Sable
2021 Latest Caselaw 13874 Bom

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

                            WRIT PETITION NO. 3718 OF 2021
                              ( Anshul S/o. Shrikant Wankhade
                                             Vs.
                                  Sau. Kanchan Ravi Sable )

Office Notes, Office Memoranda                           Court's or Judge's orders
of Coram, Appearances, Court's
orders     or    directions and
Registrar's orders


                                  Shri S.S. Dhengale, Advocate for the petitioner.



                                  CORAM:          AVINASH G. GHAROTE, J.

DATED : 27th SEPTEMBER, 2021.

Heard Mr. Dhengale, learned counsel for the petitioner.

2. The petition raises challenge to the concurrent findings of the Courts below, regarding the claim made by the original defendant claiming to be in possession of the suit property, on the basis of the Will dated 06.05.2021 said to have been executed by Smt. Sumatibai Keshavrao Wankhade, in his favour. Sumatibai, passed away on 10.05.2021, as a result of which, the defendant claimed to have come into possession of the properties claimed to have been bequeathed to him by late Sumatibai under the Will dated 06.05.2021. It is materiel to note, the petitioner/defendant, is the son of the brother-in-law of the deceased Sumatibai, who has passed away issueless.

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                   3.           The       plaintiff/respondent,       who      is     the

granddaughter of the sister of late Sumatibai claims under an earlier will dated 28.09.2005, whereby the suit properties were bequeathed in her favour. Consequent to the demise of Sumatibai, the plaintiff/respondent filed a suit for declaration and injunction claiming that the Will dated 06.05.2021, alleged to have been executed by late Sumatibai in favour of the defendant/petitioner was illegal and falsely created. A declaration was claimed that the plaintiff/respondent, was the owner under the Will dated 28.09.2005, which was registered at Serial No. 2376/2005 at the Sub-Registrar office Warud. A specific averment, has been made in para-3 of the suit, that the plaintiff and her husband, used to regularly visit village Bahada and manage the agricultural field operations of the suit property and so also all other transactions regarding the agricultural produce therefrom and so also the bank transactions of Sumatibai. That consequent to the demise of Sumatibai, when the defendant started asserting claim on the basis of will dated 06.05.2021, the suit came to be filed as aforesaid, in which, an application for temporary injunction, claiming the plaintiff to be in possession, and to restrain the defendant from disturbing her possession was also sought.

4. The petitioner/defendant filed his reply and opposed the claim, in turn claiming himself to be in possession of the suit properties on the basis of the Will dated 06.05.2021.

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5. The learned trial Court, in its order dated 30.07.2021, prima-facie found that the plaintiff was already in possession of the suit property, even during the lifetime of Sumatibai, on the basis of various documents, as indicated in para-9 of the order dated 30.07.2021. The reliance was also placed upon the affidavits of one Vinod and Rangrao and a complaint lodged on 30.06.2021. One of the documents, on which the plaintiff had relied to indicate her possession, were agreement of sale of agricultural produce dated 10.09.2020, which was during the lifetime of Sumatibai.

6. The learned trial Court, also prima-facie found various inconsistencies, in respect to the Will dated 06.05.2021, as propounded by the petitioner. The proximity of the Will which was dated 06.05.2021 and the demise of Sumatibai on 10.05.2021, weighed with him. At the time of her demise Sumatibai was hundred years old, and therefore, it was necessary, to have prima- faicely established on record, that she was examined by a medical practitioner, who could have certified that she was capable of making a legal disposition of her properties by understating the nature of the bequest. Though there is an endorsement on the back side of the will dated 06.05.2021 by one Dr. Ranjeet Basavnathe, however, the same does not indicate the examination of Sumatibai regarding her capability to execute the Will. The Will bears the thumb impression, however, the same is on the last page, the earlier pages do not bear thumb impression. The Will is prepared on a stamp paper of the

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denomination of Rs. 500/-, which is claimed to have been purchased on 06.05.21 itself in the name of the deceased Sumatibai, however, through whom the same was purchased, is conspicuously undecipherable. There are as many as four witnesses to the Will. Though it is claimed to have been notarized, the notary has signed it twice for which the reasons are unexplained. The Will says that in her knowledge she has not executed any earlier Wills, which is contrary to the earlier two Wills of Sumatibai, both of which were registered and on both of which she has signed.

7. The written statement, does not disclose the person to whom, late Sumatibai, has asked to call the counsel for imparting instructions. It disclosed, that Dr. Ranjeet Basavnathe was not the family doctor, but was called for the first time to examine Sumatibai. The nature of the examination conducted by him has already been stated above and is also indicated by the endorsement on the reverse of the last page of the Will. It is stated that as per the opinion of the said doctor she was found to be mentally fit to execute a Will, which assertion is absent on the certificate by the said doctor at the reverse of the last page of the Will.

8. The learned trial Court held that the documents on which reliance was placed by the plaintiff, to claim to be in possession of the suit properties indicated, that the relations between the plaintiff and late Sumatibai were very thick inasmuch as, they had

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joint bank account with the Amravati District Central Cooperative Bank Limited, the sale transactions of the agricultural produce from the said properties were being done by the plaintiff, and therefore, on this basis granted an injunction. The appellate court also found suspicious circumstances associated with the Will propounded by the defendant and rendered a finding that the plaintiff was in cultivating possession by disbelieving the claim of the defendant of being in possession.

9. Mr. Dhengale, learned counsel for the petitioner submits, that the Courts below, were not required at the point of deciding Exh. 5 to conduct a mini trial and comment upon the validity of the Will dated 06.05.2021 propounded by the defendant/petitioner. He has placed reliance upon Uma Devi Nambiar & Others Vs. T.C. Sidhan (Dead), reported in (2004) 2 SCC 321 and Manmohan Singh & Anr. Vs. Joginder Kaur & Ors., reported in 2002 (64) DRJ 293, in support of the above contention. He further submits, that the neighbours of the agricultural fields had sworn affidavits stating that the defendant was cultivating the same, which ought to have been relied upon by the Courts below, and therefore, the impugned order and judgment are required to be quashed and set-aside for non consideration of the material on record.

10. It is no doubt true that while considering an application under Exh.5, the Courts are not required to conduct a mini trial. At the same time, it cannot be

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denied, that for arriving at a prima-facie finding, the nature of the document, the transaction enumerated therein, has to prima-faciely be tested upon the touch stones of the law as applicable. It is a settled position of law that in case there is any suspicious circumstance surrounding the Will it is for the propounder to explain them, even on a prima-facie basis.

11. The proximity of the said Will which is dated 06.05.2021 and the demise of Sumatibai, who was aged hundred years on the date of its creation, and her demise within four days of the execution of the Will, would certainly be a circumstance which would create a suspicion upon the genuineness of the Will. The examination and certificate issued by the Dr. Ranjeet Basavnathe instead of clearing the suspicion adds to it as the certificate does not dilate upon the mental fitness of the executor but only on the physical aspect, to say that she had no aliment on the said date. That apart, the Will runs into 8 pages, bears the thumb impression of Sumatibai only on the last page. As indicated above it is written on a stamp paper of Rs. 500/- and in case, the contention that it was drafted by and Advocate is accepted, it is inexplicable as to why the need for getting the said Will written on the stamp paper arose. There are as many as 4 witnesses, to the said Will, the Notary has signed and sealed it twice at the bottom of the last page. All these circumstances create a prima-facie suspicion upon the due execution of the Will dated 06.05.2021 and as such the Courts below were rightly justified in not

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placing any prima-facie reliance upon it, to support the claim made by the defendant.

12. In so far as the plea regarding possession is concerned the documents placed on record indicate that the deceased Sumatibai was having a joint account with the plaintiff, who was operating the same to her knowledge since quite some time earlier, and therefore, was a person, who obviously had the confidence of the deceased. The earlier Will dated 28.09.2005, was also executed by Sumatibai, in favour to the plaintiff. There is nothing placed on record to indicate any special love an affection, which the deceased would have had for the defendant, who was a distant relative, as opposed to the plaintiff, who was also distant relative, but with whom, the deceased was having a joint account. The documents, also indicate that the agricultural produce from the suit properties was being taken and sold by the plaintiff, which would indicate, that she would be the person who had better claim for being in possession even during the lifetime of Sumatibai, as against the defendant who admittedly, was never in possession, till the demise of Sumatibai. The affidavits placed on record by the defendant on which the reliance is sought to be placed are stereotype and do not indicate on which date, the said witnesses had seen the defendant doing any agricultural activity in the said field.

13. For all these reasons, I do not find any reason to interfere in the impugned judgment and order

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passed by the Courts below. The petition is therefore devoid of merits and it is dismissed.

JUDGE SD. Bhimte