Bombay High Court
Smt. Jamila Gulfam Desai And Ors vs Shri. Jamir Abdulmujir Shiledar And Anr on 1 October, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:38716
FA 1354-16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 1354 OF 2016
1) Jamila Gulfam Desai ]
(Since deceased) deleted. ]
2) Kanij Fatima Alisaheb Mujawar, ]
(Since deceased Thr. LRs.) ]
2-a) Alisaheb Sikndar Mujawar, ]
Age - 72 years, Occupation - Business, ]
R/o. Opposite Old Jamkhandi Naka, ]
Electric Motor Rewinding Works, ]
At Post Banhatti, District - Bagalkot, ]
Karnataka. ]
2-b) Nayeem Alisaheb Mujawar, ]
Age- 41 Years, Occupation- Business, ]
R/o. Rockel Building, 100 ft. Road, ]
Sangli, Taluka- Miraj, District- Sangli. ]
2-c) Sayeem Alisaheb Mujawar, ]
Age-35 Years, Occupation- Business, ]
R/o. Opposite Old Jamkhandi Naka, ]
Electric Motor Rewinding Works, ]
At Post Banhatti, District- Bagalkot, ]
Karnataka. ]
2-d) Tajheen Sherkhan Pathan, ]
Age-38 Years, Occupation- Housewife, ]
R/o. Kasarwadi, Pune. ]
3) Ruksana Ghudulal Bandar, ]
Age-60 Years, Occupation-Business, ]
R/o. Faujdar Galli, Sangli, ]
Taluka -Miraj, District Sangli. ]
4) Juber Abdulmujir Shiledar, ]
Age-57 Years, Occupation- Household. ]
5) Jafrulla Abdulmujir Shiledar, ]
Age-54 Years, Occupation- Business, ]
6) Sayyad Abdulmujir Shiledar, ]
Age-47 Years, Occupation- Business, ]
7) Jaibunissa Abdulmujir Shiledar, ]
Age-77 Years, Occupation- Business, ]
Appellant Nos. 5 to 8 are R/o. Madina ]
Patil-SR (ch) 1 of 32
FA 1354-16
Mashid Galli, House No. 146. Nalbhag, ]
Sangli, Taluka Miraj, district Sangli. ]
Versus
1) Jamir Abdulmujir Shiledar, ]
Age 63 years, Occupation - Business ]
& Agriculture. ]
R/o. Madina Mashid Galli, ]
House No. 146, Nalbhag, Sangli, ]
Taluka Miraj, District Sangli. ]
2) Khalil Kamalso Shiledar, ]
Age 77 years, Occupation - Business, ]
R/o. Madina Mashid Galli, ]
House No. 146, Nalbhag, Sangli, ]
Taluka Miraj, District Sangli. ] ...Respondents.
------------
Mr. Chetan Patil i/b Mr. Ajit M. Savagave for the appellant.
Mr. Kuldeep Nikam, Mr. Prasad Avhad and Mr. Om Latpate for the Respondent
no.1.
------------
Coram : Sharmila U. Deshmukh, J.
Reserved on : September 6, 2024.
Pronounced on : October 1, 2024.
Judgment . :
1. The present appeal is filed under Section 96 read with Order 41
of the Code of Civil Procedure 1908 by the original Opponents against
the judgment dated 29th May 2014 passed by the Civil Judge (Senior
Division) Sangli, District Sangli in Miscellaneous Application No.67 of
2009 granting Probate of Will dated 30th July, 1956. For sake of
convenience parties are referred to by their status before the Trial
Court.
Patil-SR (ch) 2 of 32
FA 1354-16
FACTUAL MATRIX:
2. M.A. No.67 of 2009 was instituted under Sections 276 and 278 of
the Indian Succession Act, 1925 by the Applicant in respect of Will
dated 30th July 1956 of one Ibrahim @ Kamal Babaso Shiledar who
expired on 21st February 1975. The Applicant is the grandson of
deceased Ibrahim and Opponent Nos 5 10 are the family members
being brothers, sisters and mother of the Applicant. The Opponent
Nos 1 and 2 are children of the Applicant's deceased paternal aunt,
Opponent No. 3 and 4 are the paternal aunt and paternal uncle of the
Applicant respectively.
3. The case in the Application was that the deceased Ibrahim during
his lifetime had executed Will dated 30 th July 1956 in respect of
Annexure-A properties, which was registered at Serial No. 1249 with
the Joint Sub Registrar, Miraj-1 District Sangli and noted in Index-III. At
the time of death of said Ibrahim, Applicant was aged 4 years and was
not aware of the execution of Will. After the death of Ibrahim, the
Applicant's father and Opponent No 4 suppressed the original Will and
mutated their names in the property cards. On 29 th July 2005, the
Applicant's father expired and while going through his documents,
Applicant learnt about the registered Will dated 30 th July 1956.
Despite all efforts the original Will could not be found and on 15 th
September 2005 the Applicant obtained certified copy of the
Patil-SR (ch) 3 of 32
FA 1354-16
registered Will from the office of Sub Registrar, Miraj-1, District Sangli.
4. Subsequently, the Applicant applied to the circle officer for
mutating his name in the records in respect of properties mentioned in
the Annexure-A to the Will in which notices were issued to the
Opponents. The application came to be dismissed by the Circle Officer
and then the SDO holding that the Applicant has to seek his remedies
in the appropriate Court of law. As against this, Second Appeal No. 89
of 2008 was filed before the Collector which is pending.
5. The deceased Ibrahim while executing the last Will dated 30 th
July 1956 was of sound and disposing mind. The attesting witnesses
are Bapu Bala Jagtap and Sakha Hari Kulkarni who have signed in modi
script. On 17th March 1989 Bapu Bala Jagtap expired and the other
attesting witness Sakha Hari Kulkarni could not be found despite
search. In Annexure A, the property was described as land Survey
No.56/2, 56/1 which is now consolidated in Gat No. 233, Survey No.
80/7 consolidated in Gat No. 438 and Survey No. 341/5 consolidated in
Gat No.77.
6. The suit came to be resisted by the Opponent Nos.6 to 10
contending that the Applicant was residing with his father till 29 th July,
2005 and if the Will was in the custody of his father, in the year 1975
itself the Applicant's father would have propounded the Will and
mutated the name of Applicant in the revenue records. The Applicant's
Patil-SR (ch) 4 of 32
FA 1354-16
father had filed an application for legal heirship certificate which was
granted on 31st March 1979 without production of Will. Subsequent to
the death of Ibrahim in the year 1975, Mutation Entry No. 5059 was
certified on 2nd November, 1988 mutating the names of legal heirs in
revenue records without any objection from the Applicant's father and
the Applicant had challenged the Mutation Entry before the Revenue
Authorities after considerable delay about which the Deputy Collector
has expressed suspicion and appeal filed before the Additional
Collector has been dismissed. Since last 20 years the legal heirs of
deceased Ibrahim are in occupation and cultivation of the properties to
the knowledge of Applicant's father and without a declaration as to
the ownership, the Letters of Administration cannot be granted. In
respect of Gat No. 777 and Gat No. 898 Mutation Entry No. 2685 was
certified on 24th November, 1981 bringing on record the legal heirs
which has not been challenged by the Applicant's father. It was
contended that after a period of 27 to 28 years, on the basis of
suspicious and illegal Will no Letters of Administration can be granted
to the Applicant. The original Will has not been produced and the
application was opposed on ground of delay and laches.
7. Parties went to trial. The Applicant examined himself, the son of
the scribe of testamentary document, namely, Prakash Ramchandra
Kulkarni (AW-2) and Sou. Prabhavati Sadashiv Kadam (AW-3) the
Patil-SR (ch) 5 of 32
FA 1354-16
daughter of Bapu Bala Jagtap-deceased attesting witness. The
Opponents did not lead any oral evidence, however, filed on record
certified copies of the relinquishment deed of the maternal aunt and
the judgment and order passed by the revenue authorities in the
proceedings initiated by the Applicant for recording his name on the
basis of the Will.
8. The Trial Court framed and answered the following issues:
S.N. Points Findings.
1. Whether the testator was of sound and disposing Yes.
state of mind when he made the Will ?
2. Whether the Will was duly executed and attested ? Yes.
3. Whether Applicant is entitled for letters of No.
administration ?
4. What order ? Petition is partly allowed
as per final order.
9. Broadly summarised, the findings of the Trial Court are as under:
[A] On secondary evidence:
AW-1 has specifically deposed that the original Will was not
in his possession at any point of time, that he had no
knowledge as to in whose possession the original document is
and that he is not sure as to whether the Will has been lost or
destroyed. Secondary evidence by production of certified
copy of Will is allowed.
[B] On proof of execution of Will:
Patil-SR (ch) 6 of 32
FA 1354-16
a] The evidence of son of scribe and the daughter of
attesting witness proves the attestation and registration of
the Will.
b] AW-1 has specificially deposed that the other attesting
witness i.e. Sakha Hari Kulkarni could not be traced depsite
search. Even the Opponents could have traced the attesting
witness Sakha Hari Kulkarni to substantiate that the Applicant
has deliberately not examined him which has not been done.
c] When both the attesting witnesses are not available
the document has to be proved as it is an ordinary document.
[C] On the sound and disposing mind of testator:
Deceased Ibrahim had executed the Will in the year 1956. He
expired in the year 1975 and in the year 1972 he had applied
to the Tahsildar for deletion of the name of one Balekhan
Mahammad Shiledar from the record of rights of CS No.56/2.
Thus, till the year 1972 deceased Ibrahim was in fit state of
mind and was performing all ordinary functions. It can
therefore be concluded that at the time of execution of Will,
the deceased Ibrahim was in sound mental and physical state.
[D] On suspicious circumstances:
Delay:
Patil-SR (ch) 7 of 32
FA 1354-16
a] Till the year 1976 the Applicant was residing with his
father and thereafter from 1976 till 1992 he was residing
separately and again with the father from 1992 till 2005. The
Applicant has deposed that during this entire period his
father or uncle did not inform him about the existence of Will
nor they acted upon it.
b] The evidence of Applicant is that he learnt about the
execution of Will from the chit found in the records of his
father after his death in the year 2005.
c] Only because of delay, the Will cannot be ignored
when it was found to be a genuine Will and the long standing
possession of the heirs cannot come across the right of
legatee flowing from the testamentary document.
d] The possibility of deliberate suppression by the father
and uncle of the Applicant to secure their personal interests
and the interest of other legal heirs of deceased Ibrahim
cannot be ruled out.
Exclusion of other legal heirs:
The exclusion of other legal heirs without anything more
cannot be a suspicious circumstance especially when the
bequest is in favour of an offspring.
[F] On issuance of Probate :
Patil-SR (ch) 8 of 32
FA 1354-16
a] The relief of grant of Letters of Administration cannot
be granted as the properties have been administered by the
legal heirs since the death of testator.
b] The Applicant is not entitled to the relief of Letters of
Administration which will be in lieu of decree of possession.
SUBMISSIONS:
10. Mr. Chetan Patil, learned counsel appearing for the Appellant
would submit that the judgment is not sustainable on 3 counts. Firstly,
the original Will-Deed was not produced and the ingredients of Section
65(c) of the Indian Evidence Act were not satisfied. Secondly, the Will
is required to be proved as per Section 68 of the Indian Evidence Act
and the daughter of the deceased attesting witness was examined and
for the purpose of securing the presence of other attesting witness
there are no steps which are shown to have been taken. Thirdly, Will is
executed in suspicious circumstances as the properties are bequeathed
in favour of only one grandson which suspicious circumstances has not
been satisfactorily explained by the Applicant. Elaborating on his
submissions, he canvasses that the case of Applicant was that upon the
death of his father in the year 2005, while going through documents he
learnt about the Will executed by Ibrahim, dated 30 th July 1956 and
admittedly certified copy of Will is produced and not the original Will.
He would submit that in the cross-examination it was brought on
Patil-SR (ch) 9 of 32
FA 1354-16
record that the Applicant has not seen the original Will nor he has
called anybody to produce the same. He submits that clause (c) of
Section 65 of the Indian Evidence Act permits secondary evidence
where it is shown that the document is lost or destroyed. Pointing out
to the findings of Trial Court, he submits that the Trial Court has held
that the Applicant is not sure as to whether the Will has been lost or
destroyed. He submits that as the requirements of Section 65(c) of the
Indian Evidence Act are not met and it is not shown as to whether the
Will is lost or destroyed, no secondary evidence could have been led.
11. He would further submit that in respect of the attesting
witnesses, the Respondent No 1 has deposed that attesting witness
Sakha Hari Kulkarni was not found despite search. He submits that
there is no deposition as to the efforts taken to trace the other
attesting witness and in the absence of any such efforts being
demonstrated, the Will cannot be held to be proved by relying upon
the evidence of the daughter of deceased attesting witness.
12. He would further submit that the Will is in respect of 3
properties and the same have been bequeathed to one grandson. He
submits that the admitted position is that the wife of testator was alive
and was dependent upon the testator and that in the cross
examination the Applicant has admitted that there were other
grandchildren also. He submits that there is no explanation as to why
Patil-SR (ch) 10 of 32
FA 1354-16
the Applicant had been bequeathed the property to the exclusion of
wife and other heirs. He submits that it is admitted by the Applicant in
the cross examination that the deceased had affection for all his
children and grand children and in the year 1956, the deceased had 7 to
8 grand sons. He submits that it is further admitted that the deceased
Ibrahim has not executed the Will in respect of other properties.
13. He submits that in the application, relief sought was only about
the Letters of Administration or Letters of Administration with Will
annexed and no relief for Probate was sought. He submits that despite
thereof, the Trial Court has granted Probate after observing that the
Letters of Administration could not be granted. He submits that the
relief not prayed for cannot be granted. He relies upon following case
laws :
[a] Banga Behera v. Braja Kishore Nanda [(2007) 9 SCC 728;
[b] Rakesh Mohindra v. Anta Beri [(2016) SCC 483];
[c] H. Siddiqui v. A. Ramalingam [(2011) 4 SCC 240];
[d] Babu Singh v. Ram Sahai [(2008) 14 SCC 754];
[e] Kavita Kanwar v. Pamela Mehta [(2021) 11 SCC 209]; and
[f] Bharat Amratlal Kothari v. Dosukhan Samadkhan Sindhi [(2010)
1 SCC 234].
14. Per contra Mr. Kuldeep Nikam, learned counsel appearing for the
legal heirs of the deceased Applicant would submit that the present
case is in peculiar facts where there is considerable time gap of about
50 years from the date of execution of Will in the year 1956 till the
Patil-SR (ch) 11 of 32
FA 1354-16
application was filed upon discovery of the Will in the year 2005. He
would further submit that the Will has been duly proved in accordance
with Section 69 of the Indian Evidence Act as the legal heir of the scribe
has identified the handwriting and signature of the scribe as well as
the daughter of deceased attesting witness has identified the
signature of attesting witness. He would further submit that the Trial
Court has come to a specific finding that the testator was of fit and
sound disposing mind at the time of execution of Will which fact has
not been disputed by the Appellants.
15. On the aspect of secondary evidence, he submits that the Will
was a registered Will and the registration has not been disputed as
held by the Trial Court in paragraph 26. He submits that the Will of the
year 1956 was not traceable due to the time gap and therefore the
certified copy was procured and secondary evidence was led. He would
further submit that the suspicious circumstances put up by the
Opponents was as regards the delay and the exclusion of other legal
heirs. He submits that only 3 properties are given to the Applicant and
it is the specific case of Opponents that other properties are not
included on mentioned in the Will-Deed which shows that there are
other properties involved which did not form part of Will.
16. He submits that in the application the Applicant has prayed for
Probate as well as the Letters of Administration which word "Probate"
Patil-SR (ch) 12 of 32
FA 1354-16
appears to have been scored out in the compilation of documents
tendered.
17. He would further submit that the Apex Court in the case of
Kavita Kanwar v. Pamela Mehta (supra) relied upon by Mr. Patil has
held that only because the respondent therein was not included in the
process of execution of Will because of unequal distribution of assets
etc., it cannot be the reason for viewing the Will with suspicion and
what is required is the satisfaction of the Court that the document
propounded as Will indeed signifies the last free wish and desire of
testator and is duly executed in accordance with law and in such case
the Will shall not be disapproved merely for one doubtful circumstance
here or another factor there.
18. In rejoinder Mr Patil submits that Section 69 of the Indian
Evidence Act will not apply in the present case as it is only where the
attesting witness cannot be traced despite diligent search that Section
69 the Indian Evidence Act can be applied.
POINTS FOR DETERMINATION:
19. Following points arise for determination:
[i] Whether in the absence of deposition as regards the efforts
taken to search the second attesting witness, the Will dated 30 th
July, 1956 executed by deceased Ibrahim could not be said to be
proved.
Patil-SR (ch) 13 of 32
FA 1354-16
[ii] Whether the evidence of the legal heir of one deceased
attesting witness was sufficient to prove execution of the Will
dated 30th July, 1956.
[iii] Whether the foundation had been laid for leading secondary
evidence under Section 65(c) of Indian Evidence Act, 1872 and
thus Will was proved by production of certified copy of Will
dated 30th July, 1956 .
[iv] Whether the Applicant who is the propounder of the Will has
discharged the burden of removing the suspicious
circumstances surrounding the Will of deceased Ibrahim dated
30th July, 1956.
[v] Whether the Trial Court was right in granting Probate of the Will
dated 30th July, 1956.
AS TO POINT NOS (i) AND (ii):
20. Both the points are interlinked and are therefore considered
together. The Applicant has examined the son of the scribe and the
daughter of the one of the attesting witness to prove execution of the
Will, both of whom were deceased. The contention of Mr. Patil is that
the other attesting witness Shaka Hari Kulkarni was alive and there is
no deposition to show that efforts were made to trace him.
21. Section 68 of Indian Evidence Act, 1872 deals with proof of
execution of document required by law to be attested and Section 69
governs the situation where no attesting witness is found and reads
thus:
Patil-SR (ch) 14 of 32
FA 1354-16
"68. If a document is required by law to be attested, it
shall not be used as evidence until one attesting witness at
least has been called for the purpose of proving its execution,
if there be an attesting witness alive, and subject to the
process of the Court and capable of giving evidence."
"69. If no such attesting witness can be found, or if the
document purports to have been executed in the United
Kingdom, it must be proved that the attestation of one
attesting witness atleast is in his handwriting, and that the
signature of the person executing the document is in the
handwriting of that person."
22. The difference between Section 68 and Section 69 of Evidence
Act is that in the former if there is an attesting witness alive, at least
one attesting witness is required to be called to prove the execution
whereas in the latter case it is must be proved that the attestation of
one attesting witness at least is in his handwriting.
23. In the present case the Applicant has deposed that the Will has
been executed by his grandfather and has identified the signature of
his grandfather occurring on start of page 1, end of page 2 and middle
of page 3 of the Will. He has examined the son of scribe, i.e.,
Ramchandra Kulkarni who has admittedly expired. He has further
deposed that he obtained information about the persons who have
attested the Will in Modi script that one of the signature was of Sakha
Hari Kulkarni and the other was of Bapu Bala Jagtap. He has further
deposed that despite search he has not been able to obtain
information about Sakha Hari Kulkarni. In cross examination he has
deposed that he is not conversant with Modi script and obtained
Patil-SR (ch) 15 of 32
FA 1354-16
information about the signatures of the attesting witness from person
conversant with Modi script. He has further deposed that at that time
he became aware that both the attesting witnesses have expired.
24. In view of the deposition of the Applicant, it is evident that
Section 69 of Evidence Act applies as one attesting witness has expired
and other attesting witness cannot be found or is dead. It is not the
case of the Opponents in the cross examination that Section 68 applies
as the second attesting witness is alive. For satisfying ingredients of
Section 69, it is sufficient if it is proved that the attestation of at least
one attesting witness is in his handwriting. In case of Babu Singh vs
Ram Sahai(supra), the Apex Court was concerned with the issue of
Section 68 and Section 69 of Evidence Act where one attesting witness
was dead and the other attesting witness was admittedly alive. As no
efforts were made to compel the appearance of the second attesting
witness who was admittedly alive, the Apex Court held that the Will
was not proved. The facts of that case indicates that in that case
Section 68 of Evidence Act was applicable as one of the attesting
witness was admittedly alive. The Apex Court in that context
considered that Section 69 will not apply. The said decision does not
lay down any proposition of law sought to be canvassed by Mr. Patil
that details of the search taken to trace the attesting witness are
required to be deposed or established by the Respondent No 1. The
Patil-SR (ch) 16 of 32
FA 1354-16
facts of that case being clearly distinguishable are not applicable to the
present case.
25. Coming to the present case, the Will has been executed in the
year 1956 and it is nobody's case that the Applicant was acquainted
with the other attesting witness. The Applicant has proved the
document as required by Section 69 of Indian Evidence Act, 1872 by
examining the daughter of one attesting witness who has proved that
the signature of attesting witness is that of her father. It is the specific
case of the Applicant that despite search the other attesting witness
could not be found and in the cross examination he has deposed that
the other attesting witness has expired.
26. Admittedly one attesting witness has expired and the other
attesting witness was not known to the Respondent No 1 and it is
suffice to depose that the person could not be traced in spite of taking
efforts, in which case the provisions of Section 69 will be applicable
and the attestation of atleast one attesting witness must be proved. It
also needs to be noted that there was no reason for the Applicant to
not take efforts to trace the other attesting witness as it would have
made his task easier instead of examining the daughter of attesting
witness who has expired. If the whereabouts of other attesting witness
are not known to the Applicant, then it cannot be said that no efforts
had been made to trace the other attesting witness.
Patil-SR (ch) 17 of 32
FA 1354-16
27. Considering the applicability of Section 69 of Evidence Act to the
facts of the present case, in my view, the Will has been proved by
proving the attestation of one attesting witness to be in his
handwriting. Accordingly, I answer Point No (i) and (ii) in favour of the
Respondent No 1.
AS TO POINT NO (iii):
28. To address the objection of Mr. Patil that there is no foundation
laid for leading secondary evidence as contemplated by Section 65(c)
of the Indian Evidence Act, it will be necessary to take into
consideration the time gap. The Will was executed on 30 th July 1956
when the Applicant was about 4 years of age and in the application
filed in the year 2009, it is the specific case of the Applicant is that it is
only in the year 2005 upon the death of his father, while going through
his documents, he became aware of the Will dated 30 th July 1956. The
original Will-Deed has not been produced by the Applicant and it is
deposed that despite due search the original Will could not be found
and therefore the certified copy of Will from the office of Sub
Registrar Miraj No.1 District Sangli was obtained. Section 65 of Indian
Evidence Act, 1872 provides for the cases in which secondary evidence
may be permitted to be given of the existence, condition or contents of
a document. Sub Section (c) of Section 65 reads thus:
"(c) When the original has been destroyed or lost, or when
the party offering evidence of its contents cannot, for any other
Patil-SR (ch) 18 of 32
FA 1354-16
reason not arising from his own default or neglect, produce it in
reasonable time."
29. Mr Patil, would lay emphasis on the observations of the Trial
Court noting that the Applicant is not sure as to whether the Will is lost
or destroyed to oppose applicability of Section 65(c). In the evidence
the Applicant has deposed that after the death of his father on 29 th
July, 2005 while going through his documents he became aware of the
registered Will dated 30th July, 1956. He has further deposed that
despite due search the original Will was not found. It is therefore his
specific case that the Original Will is not traceable. In the cross
examination he has stated that he has not seen the Original Will or its
photocopy. The suggestion was given to the Respondent No 1 that he
has filed the present application on the basis that the original Will was
in existence and has been lost, which was accepted by the Respondent
No 1.
30. Mr. Patil has not pointed out from the cross examination any
admission of Applicant that he is not sure whether the original Will was
lost or destroyed. On the contrary in the cross examination, it is the
Opponents own case that the Applicant has filed the application on
basis of certified copy of Will on an understanding that the Original
Will is in existence and has been lost.
31. Apart from the above, another reason to uphold the applicability
Patil-SR (ch) 19 of 32
FA 1354-16
of Sub-Section (c) of Section 65 of Indian Evidence Act, 1872 is the
second clause of Section 65(c) which has been accepted by the Trial
Court to admit secondary evidence. Section 65(c) of the Indian
Evidence Act is not limited to cases only where the document is lost or
destroyed but also applies to the cases where for any other reason the
party is unable to produce the original document in reasonable time
before the Court which reason is not arising from his own default or
neglect. On a plain reading of Section 65(c), in my view, Section 65(c)
consists of two clauses, which are independent of each other. Where
the party seeking to tender secondary evidence is unable to tender the
original document as the same is lost or destroyed, the position is
governed by the first clause. The second clause covers cases where the
party offering evidence is unable to produce the original document
within a reasonable time for any other reason "not arising from his
own default or neglect". In event the first clause applies, the Court
may admit the certified copy of original document as secondary
evidence and where the second clause applies, the Court can allow the
certified copy of the original document to be admitted into evidence
on being satisfied that the non production of original document is not
a result of the party's own default or neglect. In my view, in the instant
case, both the clauses have been satisfied.
32. Admittedly, in the present case the Will was not within the
Patil-SR (ch) 20 of 32
FA 1354-16
knowledge of Respondent No 1 and it is nobody's case that he was in
possession of the original Will. In event the Applicant was in
possession of the original and thereafter proposes to lead the
secondary evidence then the burden would be upon him to show that
the original has been lost or destroyed. The Trial Court though holding
that the Applicant is not sure whether the Will has been lost or
destroyed has considered the latter part of Section 65(c) of Indian
Evidence Act and has permitted secondary evidence of the Original
Will.
33. In the case of Banga Behera v. Braja Kishore Nanda (supra) the
respondent No. 1 therein had not stated how the Will was lost and
after considering the provisions of Section 65(c) of the Indian Evidence
Act, the Apex Court held that it was obligatory on the part of party to
establish the loss of original Will beyond all reasonable doubt. The
distinguishing feature in that case is that the respondent No. 1 therein
had accepted in his evidence that he had obtained the registered Will
from the office of Sub Registrar and after receipt of the same, he had
shown it to one Sarujumani Dasi and thereafter had not tendered any
explanation as to how the Will was lost and in fact had admitted that
he cannot say as to where and how the original Will was lost. It was in
the facts of that case the Apex Court held that it was obligatory to
establish the loss of original Will beyond all reasonable doubt. In the
Patil-SR (ch) 21 of 32
FA 1354-16
present case it is the specific deposition that the Will was not traceable
and certified copy was obtained therefore the expression "for any
other reason" occurring in Section 65(c) of the Indian Evidence Act
permitting the leading of secondary evidence would also apply in the
present case.
34. In Rakesh Mohindra vs Anita Beri (supra) the Apex Court
considered Section 65 of the Indian Evidence Act and held that in cases
where the original documents are not produced at anytime nor has any
factual foundation been laid for giving secondary evidence, it is not
permissible for the Court to allow the party to adduce the secondary
evidence. What the Apex Court has held is that the secondary evidence
relating to the contents of document is inadmissible until non
production of the original is accounted for so as to bring it within one
or the other case provided for in the Section. As noted above the
Applicant has duly accounted for the non production of original Will
permitting the leading of secondary evidence.
35. In case of H. Siddiqui (dead) By Lrs vs A. Ramalingam(supra),
the Apex Court was considering the issue of secondary evidence in
context of denial of execution of power of attorney by one of the party
and as to whether the power of attorney has been proved. In that
context, the Apex Court held that mere admission of a document in
evidence does not amount to its proof and admissibility of the
Patil-SR (ch) 22 of 32
FA 1354-16
document in secondary evidence has to be decided before making
endorsement thereof. There is no quarrel with the said proposition of
law, however, its relevance has not been demonstrated in the present
case.
36. Accordingly, I answer Point No (iii) in the affirmative.
AS TO POINT NO (iv) :
37. The suspicious circumstances raised by the Opponents has been
summarised in paragraph 42 of the Trial Court's judgment i.e. delay of
almost 50 years as Ibrahim expired in the year 1975 and no steps were
taken by the Applicant or his father though they were residing
together to propound the Will, there is no reason mentioned in the
Will for excluding other heirs of deceased Ibrahim especially when
there were other grandchildren apart from the present Applicant and
that other properties are not included or mentioned in the Will.
38. On the aspect of delay, the Applicant has specifically deposed
that he became aware of the existence of the Will in the year 2005
after death of his father when he was going through his documents
and thereafter certified copy was obtained. From the cross
examination nothing has been pointed out to demonstrate that the
Applicant was aware of the existence of the Will prior to the year 2005.
39. Another circumstance which favours the acceptance of the
explanation for delay is that there is no reason for the Applicant's
Patil-SR (ch) 23 of 32
FA 1354-16
father to not propound the Will on death of Ibrahim as the same would
be more beneficial to the Applicant and his father by reason of bequest
in favour of the Applicant. The fact that the Applicant's father did not
propound the Will and instead permitted the properties to be mutated
in the names of other heirs would in fact rule out the allegation of
suspicious circumstances on ground of delay.
40. In so far as the exclusion of other legal heirs is concerned, the
properties bequeathed by the Will are Gat No 233, 438 and 77. In the
cross examination of Applicant, the case of the Opponents is that the
deceased owned properties bearing Survey No CTS No 959/1A, 959/1B,
668, 1978 and Gat No 308/1 and also CTS No 146, 446 and 680 and Gat
Nos. 233, 438 and 77. Considering the specific case of the Opponents
that the deceased was owner of several properties, the factum of
bequest of some of the properties in favour of the Applicant cannot
raise any suspicion as there were other properties for the benefit of
the other legal heirs and thus there is no exclusion of other legal heirs.
41. In Kavita Kanwar vs Pamela Mehta (supra), the Apex Court
noted the principles summarised in Shivakumar vs Sharanabasappa
(2021) 11 SCC 277 as under:
"12........12.1. Ordinarily, a Will has to be proved like any
other document; the test to be applied being the usual test of
the satisfaction of the prudent mind. Alike the principles
governing the proof of other documents, in the case of Will
Patil-SR (ch) 24 of 32
FA 1354-16
too, the proof with mathematical accuracy is not to be insisted
upon.
12.2. Since as per Section 63 of the Succession Act, a Will is
required to be attested, it cannot be used as evidence until at
least one attesting witness has been called for the purpose of
proving its execution, if there be an attesting witness alive and
capable of giving evidence.
12.3. The unique feature of a Will is that it speaks from the
death of the testator and, therefore, the maker thereof is not
available for deposing about the circumstances in which the
same was executed. This introduces an element of solemnity
in the decision of the question as to whether the document
propounded is the last Will of the testator. The initial onus,
naturally, lies on the propounder but the same can be taken to
have been primarily discharged on proof of the essential facts
which go into the making of a Will.
12.4. The case in which the execution of the Will is
surrounded by suspicious circumstances stands on a different
footing. The presence of suspicious circumstances makes the
onus heavier on the propounder and, therefore, in cases where
the circumstances attendant upon the execution of the
document give rise to suspicion, the propounder must remove
all legitimate suspicions before the document can be accepted
as the last Will of the testator.
12.5. If a person challenging the Will alleges fabrication or
alleges fraud, undue influence, coercion et cetera in regard to
the execution of the Will, such pleas have to be proved by him,
but even in the absence of such pleas, the very circumstances
surrounding the execution of the Will may give rise to the
doubt or as to whether the Will had indeed been executed by
the testator and/or as to whether the testator was acting of his
own free will. In such eventuality, it is again a part of the initial
onus of the propounder to remove all reasonable doubts in the
matter.
12.6. A circumstance is "suspicious" when it is not normal
or is 'not normally expected in a normal situation or is not
expected of a normal person'. As put by this Court, the
suspicious features must be 'real, germane and valid' and not
merely the 'fantasy of the doubting mind.'
12.7. As to whether any particular feature or a set of
features qualify as "suspicious" would depend on the facts and
circumstances of each case. A shaky or doubtful signature; a
feeble or uncertain mind of the testator; an unfair disposition
of property; an unjust exclusion of the legal heirs and
particularly the dependants; an active or leading part in making
of the Will by the beneficiary thereunder et cetera are some of
the circumstances which may give rise to suspicion. The
Patil-SR (ch) 25 of 32
FA 1354-16
circumstances above-noted are only illustrative and by no
means exhaustive because there could be any circumstance or
set of circumstances which may give rise to legitimate
suspicion about the execution of the Will. On the other hand,
any of the circumstance qualifying as being suspicious could be
legitimately explained by the propounder. However, such
suspicion or suspicions cannot be removed by mere proof of
sound and disposing state of mind of the testator and his
signature coupled with the proof of attestation.
12.8. The test of satisfaction of the judicial conscience
comes into operation when a document propounded as the
Will of the testator is surrounded by suspicious
circumstance(s). While applying such test, the Court would
address itself to the solemn questions as to whether the
testator had signed the Will while being aware of its contents
and after understanding the nature and effect of the
dispositions in the Will?
12.9. In the ultimate analysis, where the execution of a
Will is shrouded in suspicion, it is a matter essentially of the
judicial conscience of the Court and the party which sets up the
Will has to offer cogent and convincing explanation of the
suspicious circumstances surrounding the Will."
42. The guidelines summarised above would indicate that an unfair
disposition of property or unjust exclusion of the legal heirs and
particularly of the dependents would amount to suspicion which
depends upon the facts and circumstances of each case. In paragraph
28 the Apex Court has held as under:
"There is no doubt that any of the factors taken into account
by the Trial Court and the High Court, by itself and standing
alone, cannot operate against the validity of the
propounded Will. That is to say that, the Will in question
cannot be viewed with suspicion only because the appellant
had played an active role in execution thereof though she is
the major beneficiary; or only because the respondents were
not included in the process of execution of the Will; or only
because of unequal distribution of assets; or only because
there is want of clarity about the construction to be carried
out by the appellant; or only because one of the attesting
witnesses being acquaintance of the appellant; or only
because there is no evidence as to who drafted the printed
part of the Will and the note for writing the opening and
Patil-SR (ch) 26 of 32
FA 1354-16
concluding passages by the testatrix in her own hand; or only
because there is some discrepancy in the oral evidence led
by the appellant; or only because of any other factor taken
into account by the Courts or relied upon by the
respondents. The relevant consideration would be about the
quality and nature of each of these factors and then, the
cumulative effect and impact of all of them upon making of
the Will with free agency of the testatrix. In other words, an
individual factor may not be decisive but, if after taking all
the factors together, conscience of the Court is not satisfied
that the Will in question truly represents the last wish and
propositions of the testator, the Will cannot get the
approval of the Court; and, other way round, if on a holistic
view of the matter, the Court feels satisfied that the
document propounded as Will indeed signifies the last free
wish and desire of the testator and is duly executed in
accordance with law, the Will shall not be disapproved
merely for one doubtful circumstance here or another factor
there."
43. It is thus clear that individual factor may not be decisive but
after all the factors are taken together if the conscience of the Court is
not satisfied that the Will in question truly represents the last will of
Testator, the Will cannot get approval of the Court. What is thus
required is the satisfaction that the Will constitutes the last free wish
and desire of the testator.
44. In the present case, the Will has been executed in the year 1956
at the time when the Applicant was about 4 years of age and therefore
there is no question of any undue influence or coercion exerted by the
Applicant in execution of Will. It also cannot be stated that the
Applicant's father had exerted any influence in the execution of Will
for the simple reason that if that would have been the position, then
the Applicant's father would have the knowledge about the Will and
Patil-SR (ch) 27 of 32
FA 1354-16
would have propounded the same as the same would be beneficial to
the Applicant who was his son.
45. The evidence brought by the Applicant makes it clear that he had
no knowledge of the existence of the Will till the year 2005. The Will is
in respect of part of the property of the deceased which he bequeaths
to his grandson who at that time was about 4 four years of age. It is
perfectly normal for a person to have some special affection for a
particular grandson and would want to bequeath some part of his
property exclusively to that grandson. In this case, considering that
there were other properties left for the enjoyment of the other legal
heirs, it cannot be said that there has been an unfair bequest raising
suspicion about the authenticity of the Will.
46. I have perused the Will, which is registered and has been
attested by two witnesses. The testator has given the details of the
properties and has further stated that the Applicant is his grandson
and the property is bequeathed to him. As the Will speaks from the
death of testator, heavy duty is cast upon the Court to be satisfied that
the document propounded is the last Will and testament of the
departed testator. In the present case, I have no doubt that the Will
was the last Will and testament of the deceased Ibrahim who had made
the same while in sound and disposing mind and there are no
suspicious circumstances surrounding the Will. The Applicant has duly
Patil-SR (ch) 28 of 32
FA 1354-16
proved the execution of the Will by examining the son of the scribe of
the Will and the daughter of the attesting witness.
AS TO POINT NO (v):
47. The contention of Mr. Patil is that a relief not prayed for has
been granted by the Trial Court. Mr. Patil has tendered the certified
copy of the M.A. No 67 of 2009 filed by the Applicant. To appreciate
the submission of Mr. Patil, I have carefully perused the application.
The title of the application shows that the application is filed under
Section 276, 278 of Indian Succession Act. In paragraph 9, it is pleaded
that properties in respect of which the Probate or Letters of
Administration have been asked for are listed in the Annexure thereto.
In paragraph 15, it is pleaded that the Applicant is ready to pay the
Court fees for grant of Probate or Letters of Administration. In prayer
clause (a), some words appear to have been scored off by using
whitener and the prayer clause seeks letters of administration or
letters of administration with Will annexed.
48. In the impugned judgment, the Trial Court has observed that the
Petition is for probate and letters of administration. While deciding
Issue No 3, the Trial Court has considered whether probate or letters of
administration ought to have been granted and has thereafter granted
probate and rejected the prayer for Letters of Administration. The
pleadings in the application when read as a whole alongwith the
Patil-SR (ch) 29 of 32
FA 1354-16
impugned judgment does not support the submission of Mr. Patil that
no relief of grant of Probate was sought. There is nothing cogent
brought to the notice of this Court that the application was restricted
to grant of letters of administration. In light of the discussion above,
the reliance placed by Mr.Patil on the decision of Bharat Amratlal
Kothari vs Dosukhan Samdkhan Sindhi (supra) is clearly misplaced.
49. Despite the above, the relief of grant of Probate needs to be
interfered with for the reasons stated hereinafter. Chapter I of Part IX
of Indian Succession Act, 1925 deals with grant of probate and letters
of administration. The persons who can apply for grant of Probate and
for Letters of Administration are set out in Section 222 and Section 232
of the Indian Succession Act, 1925 which reads thus:
"222. Probate only to appointed executor.--(1) Probate shall be
granted only to an executor appointed by the will.
(2) The appointment may be expressed or by necessary implication."
"232. Grant of administration to universal or residuary legatees.--
When--
(a) the deceased has made a will, but has not appointed an executor, or
(b) the deceased has appointed an executor who is legally incapable or
refuses to act, or who has died before the testator or before he has
proved the will, or
(c) the executor dies after having proved the will, but before he has
administered all the estate of the deceased,
an universal or a residuary legatee may be admitted to prove the will,
and letters of administration with the will annexed may be granted to
him of the whole estate, or of so much thereof as may be
unadministered."
50. The expression "Executor" has been defined under Section 2(c)
as a person to whom the execution of the last Will of a deceased
person, is by the testator's appointment, confided. The deceased
Patil-SR (ch) 30 of 32
FA 1354-16
Ibrahim had not appointed an executor of his Will dated 30 th July, 1956.
As Section 222 of Indian Succession Act, 1925 restricts the grant of
Probate only to an executor granted by the Will, the Applicant was
entitled to letters of administration with the Will annexed.
51. In Vatsala Srinivasan v. Narisimha Raghunathan [AIR 2011 Bom
76], Division Bench of this Court held in paragraphs 17 & 18 as under:
"17. Under the Indian Succession Act, 1925 the effect of the
grant of letters of administration is to entitle the administrator
to all rights belonging to the intestate as effectually as if the
administration had been granted at the moment after his
death. Under the Act, probate of a will, when granted
establishes the will from the death of the testator and renders
valid intermediate acts of the executor as such. Where an
executor is named in the will probate can be granted only to an
executor named in the will. On the other hand where the will
does not appoint an executor a universal or residuary legatee
may be admitted to prove the will. .........
18. Both a proceeding for the grant of probate as well as
a proceeding for the grant of letters of administration with the
Will annexed is initiated for protecting the interest of the
legatees under the will. The essence of the enquiry in both the
proceedings is the same and relates to the genuineness and
authenticity of the will.........."
52. In the present case, the pleadings in the application seek both
Probate or Letters of Administration. The Trial Court has failed to
notice Section 222 and Section 232 of the Indian Succession Act, 1925
and has declined to grant letters of administration as the properties
were being administered by the legal heirs of the deceased, their
names have been recorded in record of rights and successive mutation
entries have been certified. In view of the restriction under Section
Patil-SR (ch) 31 of 32
FA 1354-16
222 of Succession Act, probate could not be granted to the Applicant.
The Applicant was entitled to grant of Letters of Administration with
Will annexed and therefore the impugned judgment will have to be
modified to grant Letters of Administration with Will annexed. The
Point No (v) is answered accordingly.
CONCLUSION:
53. Having regard to the discussion above, the impugned judgment
and order of the Trial Court is modified as under:
: ORDER :
(a) The impugned Judgment dated 29th May, 2014 is partly
modified.
(b) The Applicant is granted Letters of Administration
with Will annexed dated 30th July, 1956 of deceased Ibrahim
alias Kamal Babaso Shiledar.
(c) The matter is remitted to the Trial Court only for the
purpose of issuing the Letters of Administration with Will
annexed in favour of the Applicant.
(d) The First Appeal stands dismissed with the above
modification.
[Sharmila U. Deshmukh, J.]
54. At this stage, request is made for continuation of status quo
order which is operating in favour of the Appellant for a period of 6
weeks. The said request is opposed. As the status quo order is
operating in favour of the Appellant since long, I am inclined to
continue the status quo for a period of 6 weeks from today.
[Sharmila U. Deshmukh, J.]
Patil-SR (ch) 32 of 32
Signed by: Sachin R. Patil
Designation: PS To Honourable Judge
Date: 01/10/2024 15:29:49
