Bombay High Court
Hemlata Tanku Gandhari vs Ratan Tanku Gandhari And Others on 23 January, 2024
2024:BHC-AUG:3072
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 163 OF 1997
Hemalata d/o Tanku Gadhari
age 40 years, occ. Service
r/o Parola, Taluka Parola
Dist. Jalgaon .. Appellant
Versus
1. Ratan tanku Gadhari
age 50 years, occ. Service
r/o Jalgaon
Hari Vitthal Wadi, Jalgaon
2. Nirmalabai w/o Abhiman Gadhari } Deleted vide order
dated 09.01.2015
3. Anusayabai d/o Tanku Gadhari
age 55 years, occ. Service
r/o Pathak Galli, Parola
Dist. Jalgaon .. Respondents
Mr. Amol Joshi, Advocate for appellant.
Mr. A. I. Deshmukh, Advocate for respondent No. 1.
Ms. P. P. Deshmukh, Advocate holding for Mr. J. M. Murkute,
Advocate for respondent No. 3.
WITH
SECOND APPEAL NO. 164 OF 1997
Hemalata d/o Tanku Gadhari
age 40 years, occ. Service
r/o Parola, Taluka Parola
Dist. Jalgaon .. Appellant
Versus
1. Ratan tanku Gadhari
age 50 years, occ. Service
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sa163.97.odt
r/o Jalgaon
Hari Vitthal Wadi, Jalgaon
2. Nirmalabai w/o Abhiman Gadhari } Deleted vide order
dated 09.01.2015
3. Anusayabai d/o Tanku Gadhari
age 55 years, occ. Service
r/o Pathak Galli, Parola
Dist. Jalgaon .. Respondents
Mr. Amol Joshi, Advocate for appellant.
Mr. G. V. Wani, Advocate for respondent No. 1.
Mr. V. B. Patil, Advocate for respondent No. 3.
CORAM : R. M. JOSHI, J.
DATE : 23rd JANUARY, 2024.
JUDGMENT :
1. Appellant - original plaintiff has preferred these appeals
being aggrieved by judgment and decree dated 19 th April, 1997
passed in Regular Civil Appeals No. 210/1990 and 253/1990 arising
out of judgment and decree dated 28th August, 1990 passed in
Regular Civil Suit No. 125/1984.
2. Parties are referred to by their nominclature in original
proceeding for the sake of convenience.
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3. Plaintiff is the sister of defendant No. 1 and defendant No.
2 is her mother whereas other defendants are her sisters. As per the
case of plaintiff, her father Tanku died on 9 th August, 1983. It is
claimed by plaintiff that after his death, plaintiff came to know about
defendant No. 1 having obtained a will deed executed from Tanku.
There is allegation in the plaint that defendant No. 1 never took care
of his father and was out of village for last 7 to 8 years. It is also
alleged that he was not on visiting terms with him. According to
plaintiff, Tanku was keeping ill health for last 7 to 8 years and for one
year before death he was bedridden. It is alleged against defendant
no. 1 that by taking dis-advantage of illiteracy of Tanku and with the
help of witnesses will-deed was got executed. Plaintiff further claims
that properties allegedly bequeathed in the said will were purchased
from Stridhan of her mother as well as financial aid received from her
maternal grand father. Thus, plaintiff seems to contend that Tanku
had no right to bequeath those properties for being not owner
thereof. On the basis of these averments, the will-deed of Tanku was
challenged and injunction was sought in respect of the suit
properties.
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4. Defendant No. 1 by filing written statement at Exhibit 16,
denied allegations made by plaintiff. It is specific claim of this
defendant that Gat No. 23/1 was allotted by Government to his father
Tanku whereas Survey No. 2514, 2565, 2566 were purchased on 18 th
March, 1936, 27th January, 1961 and 23rd February, 1948
respectively. These are said to be self-acquired properties of Tanku.
It is contended by defendant that Tanku purchased properties
bearing Survey No. 3784, 3781, 2552, 2523, 2583 in the name of
plaintiff and other sisters and that those properties during the life
time of Tanku were taken over by them without his knowledge.
5. Issues were framed by learned Trial Court wherein
burden was cast upon plaintiff to prove that the will of Tanku is
obtained by playing fraud and taking dis-advantage of his illiteracy
and whether plaintiff was entitled for injunction as prayed for.
Plaintiff examined herself at Exhibit 47 whereas defendant No. 1
apart from examining himself at Exhibit 51, also led evidence of
Narayan (Exhibit 58) and Bhikan (Exhibit 59). These two witnesses
were examined as they were attesting witnesses to the execution of
will by Tanku.
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6. Learned Trial Court though has held that plaintiff has
failed to prove that the will of Tanku is by playing fraud or by taking
dis-advantage of his illiteracy, but proceeded to pass order of
injunction against defendant No. 1. Both plaintiff and defendant
challenged the said findings recorded against them in judgment by
preferring independent appeals. Appeal filed by plaintiff was
dismissed whereas appeal of defendant No. 1 came to be allowed with
dismissal of the suit.
7. Learned counsel for plaintiff submits that both Trial
Court as well as First Appellate Court have failed to take into
consideration the law on the point of proof of will. By relying on
judgment in case of Venkatachala Iyengar vs. B.N. Thimmajamma
and another, AIR 1959 Supreme Court 443, it is submitted that
irrespective of the fact whether the plaintiff takes any plea that there
are suspicious circumstances, burden is on the propounder of the
will to remove any suspicion surrounding will by leading proper
evidence. It is submitted that in the instant case, the evidence on
record clearly indicates that defendant No. 1 i.e. beneficiary of the will
has taken active participation in getting the will executed. Apart
from this, the attesting witnesses are friends/acquaintance of
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defendant No. 1. It is his contention that on both counts, execution
of will needs to be held as not voluntary will of testator. He further
argues that admittedly, Tanku was illiterate and there is no
endorsement on the will to the effect that contents of the will were
read over to him before execution thereof. It is also claimed that will
runs into three pages however thumb impression has been obtained
only on the last page which creates doubt about its genuineness.
Reference is also made to cross-examination of defendant No. 1
wherein he admits to have gone to the Sub-Registrar's office only
once whereas the attesting witness claims that preparation of will
and its registration were done on two different dates. It is thus his
submission that the findings recorded by Trial Court as well as First
Appellate court in this regard are perverse and hence deserve
interference. According to him, consequently, this appeal deserves to
be allowed by confirming injunction granted by the Trial Court. To
support his submissions, he placed reliance on following
judgments :-
i) H. Venkatachala Iyengar vs. B.N. Thimmajamma and others
AIR 1959 Supreme Court 443
ii) Yumnam Ongbi Tampha Ibemma Devi vs. Umnam Joykumar
Singh & others
(2009) 4 S.C.R. 157
iii) Shivakukmar & others vs. Sharanabasappa & others
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(2020) 6 S.C.R. 666
iv) Janki Narayan Bhoir vs. Narayan Namdeo Kadam
2003 (2) SCC 91
8. Learned counsel for defendant No. 1 supported the
impugned judgment and decree passed by the First Appellate Court.
It is his contention that on the basis of evidence on record, no
perversity is found in the findings recorded by the said Court.
According to him, the Trial Court, after holding that plaintiff has
failed to challenge execution of will, ought not to have granted
injunction and the suit ought to have been dismissed.
9. Substantial questions of law formulated by my learned
predecessor are recorded with findings against them as under :-
i) Whether the testator had legal incapacity to
execute will deed in respect of the suit properties ?
Ans. : Negative.
ii) Whether the will is free from suspicion and is the
last desire of the testator ?
Ans. : Affirmative.
iii) Whether the Trial Court has committed error in
granting relief of injunction inspite of accepting
validity of the will in question ?
Ans. : Affirmative.
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10. The Hon'ble Apex Court in case of Venkatachala (supra)
has in detail dealt with the law regarding proof of will. It is held that
the propounder would be called upon to show by satisfactory
evidence that the will was signed by testator and that at the relevant
time he was in sound state of mind. Evidence is also to be led that
he understands the nature and disposition of will and put signature
on the document on his own free will.
11. In the instant case, plaintiff has never claimed that at the
time of execution of will, the testator was not in fit mental or physical
condition for execution of the same. She stated in the plaint that
Tanku was keeping ill health for 7 to 8 years and for 1 year before he
died he was bedridden. In the instant case, the testator died after
more than 3 years of execution of will. Though plaintiff has not raised
any issue with regard to mental and physical incapacity of the
testator to execute the will, defendant No. 1 has led evidence of
himself as well as two witnesses who had attested the execution of
will by Tanku. Narayan (Exhibit 58) has categorically stated that the
contents of the will were dictated by the testator in his presence to
the scribe. He further deposed about thump impression being put by
testator on the will in his presence as well as in the presence of
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second attesting witness Bhikan. In the cross-examination, it has
come on record that the thump impression of testator was attested by
one Pimple. Except for questioning his presence at the office of Sub-
Registrar, nothing is brought on record to discard his testimony with
regard to preparation and execution of will by Tanku. Second
attesting witness Bhikan has also deposed on similar line. During
cross-examination of none of these three witnesses, it was suggested
that the testator was not in fit mental and physical condition in order
to execute will and hence there is no reason to doubt capacity of
testator to execute will. Entire evidence shows that defendant No. 1
has successfully discharged the burden on him to prove that there
was execution of will in presence of attesting witnesses, the contents
of will were dictated by the testator himself to the scribe in presence
of attesting witnesses indicating disposition as per his desire.
Though it is sought to be argued on behalf of plaintiff that the
attesting witness claims that he was called by the testator as the
testator was not in a position to prepare the will, having regard to the
evidence of both attesting witnesses, it has come on record that the
contents of the will were dictated by the testator himself, and hence
merely because he had called attesting witness for this purpose, does
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not go to show that he was incapacitated in execution of will in any
manner.
12. Pertinently, challenge of plaintiff to will rests upon the
fact that the properties bequeathed by the testator i.e. suit
properties were purchased from Stridhan of her mother and from the
money received from her maternal grand father and as such he was
not competent to dispose these properties. Plaintiff has no personal
knowledge about this fact and the only surviving maternal aunt has
not been examined to prove the said contention. As against this,
there is specific averment made by defendant No. 1 with regard to
purchase of properties by his father in the year 1936, 1948 and 1961
from his own income from business. One of the properties is said to
have been allotted by the Government. In the backdrop of these
pleadings on record, defendant No. 1 has categorically deposed about
properties being self-acquired properties of his father and the years
in which the purchases were made. There is no cross-examination
on these points of defendant No. 1 and even no denial is sought.
Plaintiff, therefore, has failed to show any legal incapacity of testator
to bequeath the suit properties by executing will whereas defendant
No. 1 was successful in bringing on record that his father had
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purchased the properties out of his own earnings. He was also
successful to show that other than the suit properties, the properties
were purchased by his father in the name of plaintiff and other
sisters. In this regard cross examination of plaintiff shows that she
candidly admits purchase of properties before she was employed.
13. It is sought to be contended on behalf of learned counsel
for the plaintiff that the will excludes the daughters from the
properties of father, which according to him, is a suspicious
circumstance indicating that the will is not genuine. He further
submits that defendant No. 1 has admittedly taken active
participation in getting the will executed and since he is beneficiary
to the said will, the will deserves to be declared as illegal and void. In
this regard, it is pertinent to note that mere participation of the
beneficiary in execution of will by itself is not sufficient to discard the
validity of the will. However, in such circumstances, the propounder
is required to remove said suspicion by satisfactory evidence. As far
as exclusion of plaintiff and other sisters from the suit properties of
the father is concerned, there is evidence on record to indicate that
the father had purchased other properties in the name of daughters
and the said properties stand in their names. There is also
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admission of plaintiff to the extent that the shares purchased by her
father are distributed equally amongst the daughters and son. This
clearly shows that there is no total exclusion of daughters from the
properties of testator. Having regard to facts and attending
circumstances, the will does not appear to be unnatural, improbable
or unfair. The Court is expected to apply "armchair rule" in order to
ascertain the intention of testator in disposition of the properties.
Here is the case where the testator had purchased properties in the
name of his daughters and said properties still stand in their names.
These properties as well as shares were not included in the will.
Meaning thereby, the daughters were allowed to retain these
properites and shares are allowed to be distributed between the
children equally. All these facts clearly show that the testator had
consciously taken decision of bequeathing only suit properties to
defendant No. 1 against whom there was no any grievance of the
testator.
14. It is a general rule that High Court will not interfere
concurrent findings of courts below except where material on record
is ignored or wrong inference is drawn from proved facts. Having
regard to the facts and circumstances of the case, this Court finds no
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perversity in the findings recorded by the Trial Court as well as First
Appellate Court upholding validity of the will.
15. The Trial Court inspite of recording of finding that the
plaintiff has failed to prove that will is void and ineffective, proceeded
to grant injunction in favour of plaintiff. Once plaintiff has failed to
prove illegality of the will, consequent relief of injunction ought not to
have been granted. The said error has been rightly corrected by the
First Appellate Court.
16. In view of above discussion, the questions of law are
answered accordingly. Resultantly, both the appeals stand
dismissed.
17. Pending application, if any, does not survive and stands
disposed of.
( R. M. JOSHI)
Judge
dyb
