Bombay High Court
Anadrao Maruti Chougale vs Dhondiba Doulu Vanganekar on 6 February, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:6155
28-SA-817-2017.doc
Harish
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.817 OF 2017
WITH
CIVIL APPLICATION NO.1612 OF 2017
IN
SECOND APPEAL NO.817 OF 2017
Anadrao Maruti Chougale ...Appellant/
Applicant
Versus
Dhondiba Doulu Vanganekar ...Respondent
--------------------
Mr. Rajesh B. Parab for the Appellant/Applicant.
Mr. Ruturaj P. Pawar for the Respondent.
---------------------
CORAM : SHARMILA U. DESHMUKH, J.
DATE : FEBRUARY 6, 2024
P. C. :
1. Being dissatisfied by the judgment dated 14 th September, 2016
passed by the Appellate Court in Regular Civil Appeal No. 47 of 2005 by
which the Appeal of the Defendant came to be dismissed confirming the
judgment and decree of the Trial Court dated 27 th August, 2004, passed
in R.C.S. No. 45 of 1995, the original Defendant is before this Court. For
the sake of convenience, the parties are referred by their status before the
Trial Court.
2. Regular Civil Suit No. 45 of 1995 was instituted by the Plaintiff
28-SA-817-2017.doc
seeking declaration that the alleged Will deed executed by Housabai in
favour of the original Defendant is null and void and for a declaration
that the Plaintiff is the owner of the entire property and for perpetual
injunction. It was pleaded by the Plaintiff that the suit property was the
ancestral property of one Appa Vanganekar who had two sons Doulu and
Sakharam. The Defendant claimed through the Will of Housabai who
belongs to the branch of Sakharam being the wife of Yashwant i.e. son of
Sakharam. The case of the Plaintiff was that Housabai never resided at the
matrimonial house and after the death of Yashwant and Krishna i.e. sons
of Sakharam the name of Housabai should not have been mutated in the
Revenue records. It was the case of the Plaintiff that upon the death of
Sakharam, and Yashwant and Krishna, the Plaintiff's father i.e. Doulu
received the property being ancestral property by survivorship and as
such, Housabai had no right to execute Will deed in respect of the suit
property. The Defendant resisted the suit and submitted that Housabai
was the full owner of half portion of the suit property which has been
bequeathed in his favour by Will of 8th April, 1994.
3. The parties went to trial and the Trial Court answered the issues in
favour of the Plaintiff and decreed the suit. The Trial Court held that the
Defendant has failed to prove the Will deed and as such, permanently
restrained the Defendant from obstructing the possession of the Plaintiff
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over the suit property. As against this, the original Defendant filed
Regular Civil Appeal No. 47 of 2005. The Appellate Court considered
the evidence and held that the Defendant has failed to prove the Will and
as such, the Defendant had no claim over the suit properties and
dismissed the Appeal.
4. Heard learned counsel for the partied.
5. Learned counsel for the Appellant would submit that the
substantial question of law which arises in the present case is that the
burden of proof has been wrongly cast upon the Defendant to prove the
genuineness of the Will considering that it was the Plaintiff who had
sought relief as regards the Will deed. He would further submit that both
the Courts have held that by virtue of a partition deed which has been
executed in the year 1950 and which was marked as Exhibit 95, Housabai
had become the absolute owner of the suit property under the provisions
of the Hindu Succession Act and being the owner was fully entitled to
dispose of the property on the basis of the Will deed. He submits that it
was for the Plaintiff to prove that the Will deed is not genuine and is null
and void. He submits that the provisions of Section 101 of the Indian
Evidence Act cast burden upon the Plaintiff to prove the same.
6. Per contra, learned counsel for the Respondent would submit that
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the document Exhibit 95 came to be exhibited in view of Section 90 of
the Evidence Act. He would further submit that mere exibiting of the
document would not lead to the contents being proved. He submits that
the document prima facie is doubtful inasmuch as, the documents is
stated of the year 1950 by which it is claimed that Housabai had received
half share in the property upon partition at time when her husband i.e.
Yashwant was alive who is stated to have expired in the year 1952. He
submits that there is no substantial question of law which arises in the
present case.
7. Considered the submission and perused the record.
8. The concurrent findings of the Court as regards the half of the
share property belonging absolutely to Housabai have not been
challenged by any cross-objection and as such, it is not necessary for this
Court to go into the said issue. The submission of learned counsel for the
Appellant is that the burden of proof has been wrongly cast upon the
Plaintiff to prove the genuineness of the Will. It is well settled that the
burden is upon the propounder of the Will to prove that the Will has
been duly executed.
9. In the present case the findings of the Trial Court is that the
Defendant had not even entered into the witness box nor examined any
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of the witnesses. That being the case the Defendants have failed to prove
the genuineness of the Will and that the same was executed by Hausabai
in his favour. Considering the evidence which has been brought on
record, the Trial Court as well as the Appellate Court has rightly decreed
the suit. Considering the settled position in law as regards the burden
being upon the propounder of the Will to establish the execution of the
Will, no substantial question of law arises in the present case.
10. Appeal is devoid of merits and stands dismissed.
11. In view of dismissal of Second Appeal nothing survives in the
pending Applications filed therein for consideration and the same are also
disposed of as such.
(SHARMILA U. DESHMUKH, J. )
