Bombay High Court
Diwakar S/O Rajjana Bomkanthiwar vs Sau. Seema W/O Madam Regundawar And Anr on 23 January, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:1274
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO. 695 OF 2010
APPELLANT : Diwakar S/o. Rajanna Bomkanthiwar,
Aged about 59 years, Occ.: Service,
R/o. Ramnagar, Chandrapur, Tah. &
Dist. Chandrapur.
//VERSUS//
RESPONDENTS : 1. Sau. Seema w/o. Madan Regundwar,
Aged about 52 years, Occ.:
Household, R/o. Hospital Ward,
Chandrapur.
2. Wainganga-Krishna Gramin Bank,
Chandrapur Branch, Chandrapur,
through Branch Manager, Old Warora
Naka, Chandrapur, Tah. & Dist.
Chandrapur.
**************************************************************
Mr. Pushkar Ghare, Advocate h/f. Mr. A.M. Ghare, Advocate for
the Appellant.
Mr. S.M. Prasad, Advocate for Respondent No.1.
**************************************************************
CORAM : G. A. SANAP, J.
DATED : 23rd JANUARY, 2024.
ORAL JUDGMENT
. In this appeal, filed under Section 299 of the Indian
Succession Act, 1925 (for short, "the Act of 1925"), challenge is to
the judgment and order dated 29th June, 2010, passed by the
learned Civil Judge (Senior Division), Chandrapur, whereby the
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probate application made by respondent No.1 was allowed and the
probate of the Will Deed of testator Rangubai dated 6 th October,
2000 was issued in favour of respondent No.1.
02] BACKGROUND FACTS:
In this judgment, the parties shall be referred by their
nomenclature in the probate application. The appellant is non-
applicant No.1. Respondent No.1 is the applicant and respondent
No.2 is the non-applicant No.2. Deceased-Rangubai had two sons
and two daughters. It is the case of the applicant that her father
Rajanna, during his lifetime, made provision for the future life of
his wife Rangubai by keeping the amount of Rs.1,60,000/- in a
fixed deposit. It was kept in the joint names of Rangubai and non-
applicant No.1. Non-applicant No.1 did not maintain Rangubai.
She was driven out of the house by non-applicant No.1 and,
therefore, she was constrained to live with the applicant. Rangubai
died on 16th January, 2003. It is the case of the applicant that
during her lifetime, deceased-Rangubai on 6 th October, 2000
executed a Will Deed in favour of the applicant and bequeathed
both fixed deposits Rs.80,000/- each to her. The Will Deed was
executed in the presence of two attesting witnesses. The Will Deed
was notarized by advocate Mr. M.V. Deo. It is stated that after the
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death of Rangubai, the applicant, being her beneficiary under the
Will Deed, made the application for obtaining the probate of the
said Will Deed in her favour. She stated that, as per the Will Deed
after the death of Rangubai, she became entitled to the fixed
deposits.
03] The non-applicant No.1 contested the application. He
has admitted his relationship with the applicant. However, he
contended that the applicant was not entitled to get the amount of
fixed deposit as per the Will Deed. He contended that his father,
during his lifetime, sold the ancestral property, including
agricultural land. The sale price of the land was deposited in the
name of Rangubai during his lifetime, and after her death, it was
given to him. The fixed deposits were kept in their joint names
because non-applicant No.1 was not given any share in the
ancestral property. The non-applicant No.1 further contended that
the applicant took Rangubai to her house as a guest and got the
false Will Deed prepared. The Will Deed, according to the non-
applicant No.1, was false and fabricated. The deceased-Rangubai
had no right to execute the Will Deed in respect of two fixed
deposit receipts. The applicant took advantage of her illiteracy and
old age.
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04] The parties adduced evidence in support of their rival
contentions. The applicant examined herself as witness No.1. The
applicant examined three more witnesses in support of her
contention. The non-applicant No.1 examined himself as a sole
witness. The learned Judge, on the basis of the available evidence,
accepted the case of the applicant that the Will Deed executed by
Rangubai in her favour was legal and valid. Being aggrieved by this
judgment and order, the appellant/non-applicant No.1 is before
this Court.
05] I have heard Mr. Pushkar Ghare, learned advocate
holding for Mr. A.M. Ghare, learned advocate for the
appellant/non-applicant No.1 and Mr. S.M. Prasad, learned
advocate for respondent No.1/applicant. Perused the record and
proceedings.
06] The following point falls for my determination:
Whether the applicant has proved that the Will Deed
executed by Rangubai in her favour was legal and valid?
07] The learned advocate for non-applicant No.1 submitted
that the deceased-Rangubai had no right to execute the Will Deed
in respect of two fixed deposit receipts, inasmuch as the fixed
deposit receipts were in the joint names of Rangubai and non-
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applicant No.1. The learned advocate submitted that the Will Deed
produced before the Court prima facie appears to be a fabricated
document. The learned advocate pointed out that the original Will
Deed was not produced. The learned advocate submitted that the
learned judge, without considering the material on record, granted
permission to the applicant to produce a photocopy of the Will
Deed as secondary evidence. The learned advocate submitted that
the order was ex facie illegal. The learned advocate submitted that
the learned Judge has not properly appreciated the material on
record and has come to the wrong conclusion. The learned
advocate submitted that the defence of non-applicant No.1 with
regard to his equal right in the fixed deposits was not properly
considered. The learned advocate submitted that the admissions
given by non-applicant No.1 in his cross-examination have been
considered out of context.
08] The learned advocate further submitted that the
application made for obtaining the probate of the Will Deed was
not maintainable in view of the provisions of Section 213 of the
Act of 1925. The learned advocate further submitted that the
learned Judge had no jurisdiction to entertain the application
because there was no notification in terms of sub-section (2) of
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Section 264 to empower the learned Judge to entertain the
application. In order to seek support to his submission, the learned
advocate has placed reliance on the decision in the case of
Prabhakar s/o. Chinappa Chavan Vs. State of Maharashtra
[2004(4) Mh.L.J. 886].
09] The learned advocate for the respondent No.1/applicant
submitted that the applicant has adduced ample evidence to prove
the Will Deed. The learned advocate submitted that the Will Deed
has been proved by examining the attesting witness and the scribe
of the Will Deed. The learned advocate submitted that the
applicant, on the basis of cogent evidence, has proved that the fixed
deposit receipts were the exclusive property of Rangubai, received
by her from her husband without any fetter. The learned advocate
submitted that it was her exclusive property and, therefore, she had
the right to dispose of the said property. The learned advocate
submitted that the movable property was bequeathed by a valid
Will Deed in favour of the applicant. The learned advocate
submitted that the evidence of the non-applicant No.1 is sufficient
to reject his contention that the amount of fixed deposits was with
a limited right during her lifetime, and it was not her absolute
property. The learned advocate further submitted that the issue of
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maintainability as well as jurisdiction was not raised before the
Trial Court. The learned advocate submitted that the submissions
advanced on the points of maintainability and jurisdiction cannot
be entertained. In order to seek support for his contention, the
learned advocate has relied upon a decision in the case of Balbir
Singh Wasu Vs. Lakhbir Singh and Others [(2005) 12 SCC 503].
10] It would be appropriate at the outset to consider the law
laid down in the case of Balbir Singh Wasu (supra). In this case, the
Hon'ble Apex Court has considered the applicability of Section
213 of the Act of 1925. The Hon'ble Apex Court has held that
Section 213 cannot be read as prohibiting the executor from
applying for probate as a matter of prudence or convenience to the
courts in other parts of the country not covered by Section 213.
The relevant observations are in paragraph 5. Paragraph 5 is
extracted below:
"5. The appellant's counsel then contended that Section 213
of the Succession Act which requires an executor to obtain
probate before establishing his claim under the Will was not
applicable outside the Presidency Towns of Calcutta, Madras
and Bombay. Assuming this to be correct, we do not read
Section 213 as prohibiting the executor from applying for
probate as a matter of prudence or convenience to the courts
in other parts of the country not covered by Section 213.
Those courts are competent to entertain such applications if
made."
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11] It is seen that Section 213 of the Act of 1925, particularly
sub-section (1), mandates the executor or legatee to obtain the
probate of the Will. Sub-section (2) is an exception to this general
rule under sub-section (1) of Section 213. In short, sub-section (2)
carves out an exception and provides the cases in which probate is
not necessary to establish the right as an executor or legatee. It
means that in these exceptional cases, without obtaining probate,
the right to the property can be established by the executor or
legatee. The decision relied upon by the learned advocate for the
non-applicant No.1 in the case of Prabhakar s/o. Chinappa Chavan
(supra) needs consideration in the backdrop of the above settled
legal position in the decision of the Hon'ble Apex Court in the case
of Balbir Singh Wasu (supra). The Bombay High Court in the case
of Prabhakar s/o. Chinappa Chavan (supra) has held that the Wills
of the nature covered by sub-clause (c) of Section 57 are not
covered by the general rule under Section 213, which requires a
probate or letter of administration to enable a person to raise a
claim to a right as an executor or legatee. The Legislature, by
exclusion, has not made the provisions of Section 213 applicable to
the Wills covered under the provisions of sub-clause (c) of Section
57. It is not ruled in this case that there is a prohibition for making
an application for obtaining probate of the Will, which is not
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covered by Section 213 of the Act of 1925. The perusal of this
section reveals that the testator or legatee, if so desired, outside the
area mentioned in Section 213 can make an application for
obtaining probate of the Will. In my view, therefore, there is no
substance in the submission advanced by the learned for non-
applicant No.1. The probate application was maintainable before
the Trial Court.
12] The jurisdiction has been conferred on the District Judge
as per the provisions of Section 264 of the Act of 1925 for granting
and revoking probates. Section 264 deals with the jurisdiction of
the District Judge and the procedure prescribed while exercising
the jurisdiction. The learned advocate was unable to point out that
the notification, as contemplated under sub-section (2) of Section
264 of the Act of 1925, was not at all issued. It is common
knowledge that the proceedings for issuance of succession
certificates, letters of administration, and obtaining probate are
entertained by the District Judge. There is a provision for
delegation of powers. The non-applicant No.1 was, therefore,
required to raise a specific ground in his reply and challenge the
jurisdiction of the Court. He did not challenge the maintainability
of the probate application or the jurisdiction of the Trial Court. In
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my view, therefore, on both counts, the submissions advanced by
the learned advocate cannot be accepted.
13] The next important question is as to whether the
applicant has proved that the deceased, during her lifetime,
bequeathed the movable property in her favour by a Will Deed
dated 6th August, 2000. It is the case of the applicant that, after the
sale of the ancestral property by her father, the amount of
Rs.1,60,000/- was given to her mother. It is her case that her
mother was illiterate and, at the relevant time, was taken care of by
the husband and the non-applicant No.1. The amount was kept in
the fixed deposit in the joint names of her mother and non-
applicant No.1. It is her contention that the fixed deposit receipts
were the absolute property of her mother and, therefore, during her
lifetime, she was entitled to bequeath the same as per her wish and
desire. The applicant has stated that the non-applicant No.1 did
not maintain the deceased during her lifetime. The deceased was
driven out of his house by him. She has further stated that the
deceased took shelter with her, and she maintained her till her
death. It is her contention that, due to love and affection, the fixed
deposits were bequeathed to her by her mother by executing the
Will Deed. The Will Deed has been proved by examining the
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attesting witness as well as the scribe of the Will Deed. PW-3 is the
scribe of the Will Deed. He has deposed about the execution and
attestation of the Will Deed by the deceased. He has deposed that
the deceased was in a good state of health and mind at the time of
the execution of the Will Deed. PW-3 has deposed that the Will
Deed was signed by the attesting witness in the presence of the
notary. PW-4 is the attesting witness to the Will Deed. The
execution of the Will Deed by the deceased has been proved on the
basis of the evidence of PWs-1, 2, 3 and 4.
14] The submission has been advanced that the original Will
Deed was not produced and, therefore, it creates doubt about the
genuineness of the Will Deed. It is submitted that the original Will
Deed was deliberately suppressed. The learned advocate submitted
that if the original Will Deed was produced, then the preparation
of the false Will Deed would have been established. It is submitted
that the leave granted to lead the secondary evidence by the Trial
Court was not in accordance with the law. It is seen that an
application was made to produce a photocopy of the Will Deed as
secondary evidence. It was contended in the said application that
the original Will was lost. It is further seen that, after the loss of the
original Will Deed, the report was lodged with the police. The
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learned Trial Judge, on being satisfied with the material on record,
recorded his finding that the case was made out for leading the
secondary evidence, and accordingly, leave was granted to lead the
secondary evidence.
15] In order to appreciate the submissions advanced by the
learned advocate, I have gone through the record and evidence. In
my view, there is no substance in the submission. The evidence and
material on record are sufficient to establish that the original Will
Deed was lost and, therefore, the Trial Court was right in granting
permission to lead the secondary evidence.
16] As far as the right of the non-applicant No.1 is
concerned, in my view, the same has been appropriately
appreciated and considered by the learned Trial Court. It is the case
of the non-applicant No.1 that the deceased-Rangubai was not the
absolute owner of the movable property, and as such, the Will
Deed was not a legal document. On perusal of the
cross-examination of non-applicant No.1, I am satisfied that the
answers given by him have caused a severe dent to the case of non-
applicant No.1. In his cross-examination, he has given numerous
important admissions. He has admitted that the money kept in the
fixed deposits was given to the deceased-Rangubai by her husband
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during his lifetime. He has also admitted that when his mother
died, he was residing at Chandrapur. He has admitted that the
deceased died while staying with the applicant. He has admitted
that the deceased resided with the applicant before her death for 2-
3 years. He has further admitted that when the money was kept in
the fixed deposits, the deceased was residing with him, and he had
not shown the amount in his income tax returns. He has further
categorically admitted that the amount of fixed deposits was given
to Rangubai by her husband during his lifetime. In my view, these
admissions have sealed the fate of non-applicant No.1. The learned
Judge has appreciated the entire material and recorded a finding
that the Will Deed was a legal and valid document. On re-
appreciation of the material on record, I do not see any reason to
disturb the findings of fact recorded by the learned trial Judge.
Accordingly, I record my finding on the above point in the
affirmative. As a result of this, I conclude that the appeal fails. The
appeal is, accordingly, dismissed.
17] The learned advocate for the appellant/non-applicant
No.1 submits that the amount of Rs.1,60,000/- (Rupees One Lakh
Sixty Thousand) has been deposited in this Court. He submits that
the stay granted earlier may be continued for six more weeks.
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18] The learned advocate for respondent No.1/applicant
submits that respondent No.1 is a senior citizen. It is submitted
that her claim has been accepted. He, therefore, opposes the prayer.
19] Considering the rights asserted by the parties and the
findings of fact, I am of the view that no stay, as prayed for, can be
granted. Therefore, the prayer is rejected.
(G. A. SANAP, J.)
Vijay
Signed by: Mr. Vijay Kumar
Designation: PA To Honourable Judge
Date: 01/02/2024 18:43:31
