Bombay High Court
Shamrao Sahadeo Bhanage vs Kondiba Gopala Bhanage on 20 September, 2024
Digitally signed
by IRESH
IRESH MASHAL
2024:BHC-AS:37347
MASHAL Date:
2024.09.20
20:09:14 +0530
901.59.11 sa.docx
Iresh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 59 OF 2011
Shamrao Sahadeo Bhanage
age 65 years, Occ. Agriculture
residing at Kondhavali (rehabilitated)
Post Limb, Taluka and District Satara .....Appellant
Vs.
Kondiba Gopala Bhanage
since deceased by his heirs
1A) Ganpat Kondiba Bhanage,
Age 39 years, Occu: Agriculture,
1B) Shripat Kondiba Bhanage,
age 35 yrs, Occupation Service
both residing Kondhavali
(rehabilitated), Post: Limb,
Taluka and District Satara
1C) Ashalata Rajaram Shelar
age 31 years, Occu: Household,
r/o. Bhivandi, Post: Triputi,
Taluka: Koregaon, District: Satara .....Respondents
Mr. Drupad S. Patil a/w Mr. Rugwed R. Kinkar for the appellant
Mr. R. M. Haridas i/b Mr. Sachin V. Dhakephalkar for respondents
CORAM : GAURI GODSE, J.
RESERVED ON : 20th JUNE 2024
PRONOUNCED ON: 20th SEPTEMBER 2024
JUDGMENT:
1. This second appeal is preferred by the original plaintiff,
challenging the Judgment and Decree passed by the first Appellate
901.59.11 sa.docx
Court dismissing his suit. The appellant had filed a suit for declaration
of title based on a registered Will executed by the original owner, i.e.
Dagadu, in his favour. The Trial Court had decreed the suit declaring
the appellant as the owner of the suit properties based on the Will, and
the appellant was held entitled to recover the possession of the suit
land from the defendant. The defendant, i.e. Kondiba, is Dagadu's
brother. The appellant claims to be a distant relative of Dagadu. The
present respondents are Kondiba's heirs and legal representatives.
2. The second appeal was admitted on the following substantial
questions of law:
"A) Whether the learned Judge of the Appellate Court
was justified in holding that the will dated 26.10.1984
executed by deceased Dagdu in favour of the Appellant
which is at Exhibit 119, is not proved according to the
requirements of Indian Succession Act and Indian
Evidence Act.
B) Whether the circumstances considered by the learned
District Judge to reach the conclusion that the will dated
26.10.1984 is not a genuine Will, are sufficient to reach
such a conclusion and whether the findings of the
Appellate Court based on such circumstances, is
perverse.
901.59.11 sa.docx
H) Whether the learned District Judge was justified in
disbelieving the Will on the basis of recital in the last
portion of Adoption Deed at Exh. 51."
BASIC FACTS AS NARRATED ON BEHALF OF THE APPELLANT:
3. Dagadu was the exclusive owner of the suit properties as the
land was allotted to him under The Maharashtra Project Affected
Persons Rehabilitation Act 1999. Father of the Dagadu and Kondiba
expired at an early age in the village of Aakoshi. Thereafter, their
mother started residing in the village Kondhavali along with Dagadu
and Kondiba. Dagadu was in service in Mumbai, and out of his own
income, he purchased certain lands in Kondhavali. Kondiba was also
in service at Mumbai and purchased his independent lands at
Kondhavali. In the year 1958-59, Dagadu left Mumbai and joined
services at Sangli, and he worked there up to 1968-69. Thereafter, he
returned to village Kondhavali. In the year 1975, the entire Kondhavali
village was declared as a project affected site for Dhom Irrigation
Project. As per government policy, agricultural lands and residential
plots were allotted to the affected persons in the project. Dagadu and
Kondiba were allotted separate lands and residential plots in lieu of
their independent properties.
901.59.11 sa.docx
4. Dagadu's wife had deserted him, and they had no issues. The
plaintiff is Anusuya's son. Balaku was Anusuya's father. Dagadu and
Balaku, were maternal cousins. Thus, the appellant was related to
Dagadu through his mother. The appellant was working in the armed
forces, and while discharging his duties, he suffered serious injuries.
Due to the injuries, the appellant was rendered handicapped and had
partially lost his vision. In the year 1980, Dagadu sold some of his
properties at Kondhavali to one Genba Chorat. In the year 1983, the
appellant took voluntary retirement and started residing at village Limb,
where the suit properties are situated. Dagadu had requested the
appellant to shift his residence from village Aakoshi to village Limb as
Dagadu had love and affection towards the appellant. Hence, the
appellant shifted his residence to village Limb and started residing in
the suit house situated on plot number 36 at village Limb.
5. On 26th October 1984, Dagudu executed a registered will in
favour of the appellant with respect to the suit properties. On 30 th
September 1985, Dagadu executed a registered adoption deed for
adopting the appellant's son Ajit; hence, the villagers were unhappy.
Thus, on 15th February 1986, the villagers had called for a meeting
901.59.11 sa.docx
known as "Devkashi" through Sarpanch. In the said meeting, the
appellant and the persons who had signed as witnesses to the Will
were boycotted, and the appellant was directed to pay a fine ₹700.
6. The second Devkashi meeting was called on 16 th May 1986, and
the two witnesses to the Will, i.e. Ganpat Chorat and Maruti Chorat,
were directed to pay a fine of ₹500 and ₹300, respectively. In the year
1986-87, chapter cases were registered against Dagadu,
Ramchandra Chorat, Sadshiv, Ganpati and the appellant. Since there
was a dispute raised about the execution of the Will in favour of the
appellant and the adoption deed for adopting the appellant's son,
Dagadu was not invited to any of the functions of the defendant's
family. On 21st May 1986, the defendant's son got married. However,
Dagadu was not named as an invitee in the marriage invitation card.
On 31st March 1987, Dagadu incurred a loan for the construction of the
suit house property. Dagudu expired on 22 nd April 1988. Hence, the
appellant made an application on 14 th June 1988 to enter his name in
the revenue record based on the Will. On 20 th July 1988, defendant
Kondiba also filed an application to enter his name in the revenue
record as heir and legal representative of Dagadu.
901.59.11 sa.docx
7. The defendant's name was entered in the revenue records by
way of mutation entry no. 11441. Hence, the appellant instituted
R.C.S. No. 467 of 1988 for declaration of title based on the Will and
also prayed for possession of the suit land and prayed for injunction
and mesne profits. The original defendant, Kondiba, filed his written
statement denying the suit claim. The defendant filed a counterclaim to
challenge the Will in favour of the appellant and the adoption deed
executed for adopting the appellant's son Ajit. During the trial, the
appellant examined himself, the doctor who had certified the health of
the deceased Dagadu at the time of execution of Will and Sadashiv,
who was an attesting witness. The appellant also examined the
attesting witness to the adoption deed and the scribe who had drafted
the adoption deed. The suit was decreed by the Trial Court, declaring
the appellant as the owner of the suit property based on the Will and
held entitled to seek possession of the suit land. Prayer for injunction
was also granted, restraining the defendant from obstructing the
appellant's possession over the suit house.
8. Being aggrieved and dissatisfied by the Trial Court's Judgment
and Decree, the original defendant, Kondiba, filed an appeal before
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the District Court. By the impugned Judgment and Decree, Regular
Civil Appeal No. 368 of 1990, preferred by Kondiba, was allowed, and
the appellant's suit was dismissed by setting aside the Judgment and
Decree passed by the Trial Court. Hence, present the second appeal.
SUBMISSIONS ON BEHALF OF THE APPELLANT:
9. Learned counsel for the appellant relied upon the findings
recorded by the Trial Court. He submitted that the Will at Exhibit 119 is
duly proved by examining the attesting witness. It is not disputed that
Will bears the thumb impression of Dagadu. The evidence of attesting
witness reveals that Dagadu had put his thumb impression on the Will
in the presence of two attesting witnesses, and the attesting witnesses
had also put their signatures in the presence of Dagadu. Though the
defendant had raised a contention that there was a joint family of
Dagadu and Kondiba, there was no supporting evidence to that effect.
Admittedly, Dagadu had a separate ration card produced at Exhibit 39.
Thus, the documents produced on record showed that there was no
joint family of Dagadu and Kondiba, as sought to be contended by the
defendant. No supporting evidence was produced to prove that the
defendant had constructed the suit house. The oral evidence adduced
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by the appellant showed that Dagadu was residing with the appellant,
and the entire medical treatment was also taken care of by the
appellant. The appellant had produced on record all the documentary
evidence at Exhibit 58 in support of the contention that even the last
rites of Dagadu were performed by the appellant.
10. Learned counsel for the appellant further submitted that,
admittedly, the villagers held a Devkashi meeting as they were
displeased with the execution of the Will and adoption deed. Thus, the
defendant was aware of the execution of the adoption deed and the
Will by Dagudu. However, the defendant never disputed the Will or the
adoption deed. The action taken by the villagers of boycotting Dagadu
supports the contention of the appellant that Dagadu had affiliation
towards the appellant and that the defendant was not on cordial terms
with Dagadu. Admittedly, Dagadu's name was not mentioned in the
marriage invitation card of the defendant's son, which showed that
Dagadu and the defendant were never living together and there was
no joint family between them. The suit properties were self-acquired by
Dagadu, and he sold some of his properties in 1980, as per his own
will.
901.59.11 sa.docx
11. The learned counsel for the appellant, thus, submitted that there
was no substance in the contentions raised by the defendant that
Dagadu was not in proper mental health and was not capable of
executing the Will. The fact of taking the appellant's son in adoption
indicates the strong desire of Dagadu to bequeath all the properties to
the appellant's family. Dagadu had love and affection towards the
appellant and his family; hence, he executed a registered will and the
adoption deed. The oral evidence revealed Dagadu's relationship with
the appellant.
12. The learned counsel for the appellant further submitted that the
Trial Court had thus, after examining the oral as well as documentary
evidence, rightly decreed the suit by accepting the validity of the Will to
be genuine. Learned counsel for the appellant submitted that the first
Appellate Court confirmed the findings regarding the validity of the
adoption deed. However, the findings regarding the validity of the Will
were reversed by holding that Dagadu was not on cross terms with
villagers; hence, there was no reason for not calling any of the
villagers as witnesses to the Will. The relation of the attesting
witnesses with the appellant was held against the appellant for
901.59.11 sa.docx
doubting the genuineness of the Will. According to the learned counsel
for the appellant, the first Appellate Court got carried away with the
facts that the attesting witnesses were related to the appellant, and
that the defendant, i.e. Kondiba, was the real brother of Dagudu; thus,
there was no particular reason for Dagadu to execute the Will in favour
of the appellant, and exclude defendant from the Will, which created
suspicious circumstances in the opinion of the first Appellate Court.
13. The learned counsel for the appellant submitted that documents
produced by the appellant in support of his contention that even the
last rites of Dagadu were conducted by the appellant were also
doubted by the first Appellate Court by observing that there was no
reason for the appellant to maintain the receipts to prove that the last
rites were conducted by the appellant. The first Appellate Court further
held that only because lands were standing in the name of Dagadu
and some lands were standing in the name of the appellant did not
mean that the suit properties were independent and self acquired
properties of Dagadu. To hold the validity of the Will as executed under
suspicious circumstances, the first Appellate Court observed that
Dagadu not only took active part in getting the Will executed, but he
901.59.11 sa.docx
also avoided other villagers and other family members in the execution
of the Will.
14. Learned counsel for the appellant submitted that the appellant
had examined the attesting witness of the Will, the scribe of the Will
and the doctor who examined the testator. The appellant had also
examined himself as being the propounder of the Will. He submitted
that the Trial Court rightly accepted the documentary and oral
evidence for holding that Dagadu genuinely executed the Will. Thus,
only the exclusion of Kondiba from the will cannot be accepted as a
suspicious circumstance for not accepting the validity of the Will.
Learned counsel for the appellant thus submitted that supporting
evidence from the doctor who had examined Dagadu proves that
Dagudu was in a sound mental state at the time of executing the will.
15. Learned counsel for the appellant submitted that there was no
supporting evidence produced by the defendant to contend that there
was no joint family between Dagadu and his brother Kondiba. A
perusal of the cross-examination of the witnesses examined in support
of the execution of the Will did not raise any doubt that the Will was
executed under any suspicious circumstances. Learned counsel for
901.59.11 sa.docx
the appellant thus submitted that the first Appellate Court was not
justified in holding that the genuineness of the Will was not proved in
accordance with the requirements under the Indian Evidence Act. He
submitted that the circumstances considered by the first Appellate
Court for arriving at a conclusion that the Will was not a genuine Will
were not sufficient to reach to a conclusion that there were any
suspicious circumstances. Hence, the learned counsel for the
appellant submitted that the findings recorded by the first Appellate
Court amount to the misappreciation of evidence on record. The first
Appellate Court arrived at a perverse finding that was not supported by
any document or oral evidence.
16. Thus, according to the learned counsel for the appellant, the first
Appellate Court is not justified in disbelieving the Will by relying upon
recitals in the adoption deed at Exhibit 51. Both the Courts accept the
validity of the adoption deed. Thus, the execution of the adoption deed
for adopting the appellant's son by Dagadu supports Dagadu's
intention to always hand over his property to the appellant and his
family. Learned counsel for the appellant submitted that execution of
the adoption deed endorses the genuineness of the Will and the real
901.59.11 sa.docx
intention of Dagadu to bequeath the suit properties to the appellant.
17. Learned counsel for the appellant thus submitted that the
substantial questions of law as framed by this Court are required to be
answered in favour of the appellant. He thus submitted that the
findings recorded by the first Appellate Court, being perverse and
contrary to the evidence on record, deserve to be quashed and set
aside. Learned counsel for the appellant thus submitted that the
appeal be allowed by quashing and setting aside the first Appellate
Court's Decree and Judgment and Decree of the Trial Court be
confirmed.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS:
18. Learned counsel for the respondents submitted that the
propounder's action and conduct showed that he had taken an active
part in getting Will executed in his favour. The fact that the appellant
(propounder of the Will) had taken an active part in getting the Will
executed in his favour itself is a strongly suspicious circumstance as
he is the sole beneficiary under the Will. Learned counsel for the
respondents thus submitted that the first Appellate Court has rightly
901.59.11 sa.docx
considered the oral evidence on record to hold that the Will was
executed in suspicious circumstances. The perusal of the pleadings
does not reveal any supporting circumstances regarding the
genuineness of the Will. The Trial Court held that the appellant did not
have good relations with the villagers. Hence, the appellant's close
relatives were selected to be attesting witnesses to the Will. The
reason for not including Dagadu's name in the marriage invitation card
of the defendant's son was only due to the execution of the adoption
deed of Dagadu for adopting the appellant's son, and thus, the same
could not be the reason to hold that selecting the appellant's close
relative as attesting witnesses would not create suspicious
circumstances. Learned counsel for the respondents further submitted
that both the attesting witnesses were interested witnesses and the
fact that no independent witness was taken for execution of the Will
itself creates a suspicious circumstance.
19. Learned counsel for the respondents submitted that the
execution of the adoption deed for adopting the appellant's son shows
the conduct of the appellant that under any circumstances, the
appellant intended to grab Dagadu's property. Learned counsel for the
901.59.11 sa.docx
respondents submitted that the first Appellate Court has thus correctly
appreciated the oral evidence for holding that the Will was executed in
suspicious circumstances. The first Appellate Court also took into
consideration the circumstances regarding the Devkashi meeting,
which showed that the appellant and villagers had no good relations.
Hence, the appellant got the Will executed with the help of his close
relatives. Thus, the Appellate Court, after taking into consideration the
factual aspects and the circumstances revolving around the execution
of the Will as well as the adoption deed, has taken a view that the Will
was not a genuine Will as suspicious circumstances surrounded it.
Hence, according to the learned counsel for the respondents, the
submissions made on behalf of the appellant would require
reappreciation of the evidence. All the findings recorded by the first
Appellate Court are based on evidence. Hence, in the second appeal,
the first Appellate Court's findings cannot be reversed on the ground
that some other view is possible.
20. In support of his submissions, learned counsel for the
respondents relied upon the decision of the Hon'ble Supreme Court in
the case of Shivakumar and Others vs. Sharanabasappa and Others 1.
1 (2021) 11 Supreme Court Cases 277
901.59.11 sa.docx
Learned counsel relied upon paragraph 21 of the said decision. He
submitted that mere proof of execution of a document in accordance
with the requirements of section 68 of the Indian Evidence Act is not
final and conclusive for acceptance of the document as a genuine Will.
He submitted that the Apex Court, in the said decision, held that when
suspicious circumstances exist and the suspicion has not been
removed, the document in question cannot be accepted as a valid Will.
Learned counsel for the respondents thus submitted that the first
Appellate Court had referred to suspicious circumstances in detail.
Hence, mere execution and registration of the Will would not amount
to conclusive proof towards the genuineness of the Will. Once it is held
that suspicious circumstances exist, the appellant would not be entitled
to any declaration of title based on the Will as the Will is rightly held by
the first Appellate Court as not a genuine Will.
21. Learned counsel for the respondents thus submitted that the
question of law as framed in the present second appeal would amount
to reappreciation of the evidence on record for taking a different view,
which is not permissible under Section 100 of Code of Civil Procedure,
1908 ('CPC'). He thus submitted that the first Appellate Court's Decree
901.59.11 sa.docx
dismissing the appellant's suit does not require any interference by this
Court in the exercise of powers under section 100 of CPC.
SUBMISSIONS IN REJOINDER ON BEHALF OF THE APPELLANT:
22. Learned counsel for the appellant submitted that the ground that
the appellant, who was the propounder of the Will, had taken an active
part in the execution of the Will was never a ground raised in the
written statement. Hence, the same cannot be taken into consideration
for the first time at this stage. The respondent's pleading and the
contentions in the Trial Court clearly revealed that the respondent's
case was that Dagadu had taken an active part in the execution of the
Will. The first Appellate Court also accepts the said case by recording
findings in paragraph 18 of the impugned Judgment. Thus, the
suspicious circumstances held by the first Appellate Court are not
supported by any evidence.
23. In support of the submissions, learned counsel for the appellant
relied upon the legal principles settled by the Apex Court in the case of
Shivakumar and Others. He submitted that in paragraph 12 of the
decision in the case of Shivakumar and Others, the Apex Court has
901.59.11 sa.docx
summarised the legal principles for adjudicating the proof of a Will.
Relying upon the principles laid down in the said decision, learned
counsel for the appellant submitted that as per section 68 of the Indian
Evidence Act, the Will is required to be attested, and once the
appellant's attesting witness has been examined, the Will is required to
be accepted as a genuine Will. So far as the suspicious circumstances
are concerned, the same stand on a different footing. Thus, when
suspicious circumstances pleaded to oppose the genuineness of the
Will are not supported by any evidence, there would be no onus on the
propounder of the Will to rebut the suspicious circumstances. So far as
the suspicious circumstance is concerned, it is specifically explained in
the said decision which supports the appellant's case.
24. In support of his submissions, learned counsel for the appellant
also relied upon the decision of the Hon'ble Supreme Court in the case
of Kavita Kanwar Vs. Pamela Mehta and Ors 2. He submitted that as
held by the Hon'ble Supreme Court in the said decision, the necessity
of removing the legitimate suspicion by cogent and convincing
explanation, once explained by the propounder by leading oral
evidence, the genuineness of the Will has to be accepted.
2 (2021) 11 SCC 209
901.59.11 sa.docx
25. Learned counsel for the appellant also relied upon the decision
of the Apex Court in the case of Santosh Hazari Vs. Purushottam
Tiwari (deceased) by LRs3 and submitted that while reversing the
finding of fact, the first Appellate Court must first come into close
quarters with the reasoning assigned by the Trial Court and then
assign its reasons for arriving at a different finding. He thus submitted
that as held by the Apex Court in the case of Santosh Hazari, the first
Appellate Court is the final court of fact and law in the sense that its
decision on the question of law, even if erroneous, may not be
vulnerable in the High Court in the second appeal as the jurisdiction of
the High Court is not available to correct the errors of law or erroneous
findings of the first Appellate Court unless such questions of law is a
substantial one. Hence, if the first Appellate Court does not discharge
the duty cast on it as a court of the last fact-finding court, the High
Court, having noticed the failure on the part of the first Appellate Court
in not discharging the statutory obligation, the jurisdiction of the
second appeal under section 100 of CPC is required to be exercised to
correct the errors committed by the first Appellate Court. In the present
case, according to the learned counsel for the appellant, the first
3 (2001) 3 SCC 179
901.59.11 sa.docx
Appellate Court, being a final court of law as well as the last fact-
finding court, has arrived at an erroneous finding and reversed the
findings recorded by the Trial Court. Hence, the impugned Judgment
does not reflect a conscious application of mind, and thus, this court's
intervention is warranted.
CONSIDERATION OF THE SUBMISSIONS AND FINDINGS:
26. It is necessary to note the admitted facts to examine the rival
submissions made on behalf of both parties. Though the defendant
contended that the suit properties were joint family properties, it is not
disputed that the suit properties were allotted to Dagadu under The
Maharashtra Project Affected Persons Rehabilitation Act 1999. The
basic facts, as narrated by the learned counsel for the appellant
regarding the relationship between the parties, Dagadu and Kondiba,
having their own independent income, they residing separately and
they acquiring their independent properties are not disputed. Though it
was sought to be contended by the defendant that Dagadu was living
with him, it is not disputed that Dagadu and Kondiba were allotted
separate lands and residential plots in lieu of their independent
properties, and they had constructed their independent houses.
901.59.11 sa.docx
Execution of the registered will in favour of the appellant and execution
of a registered adoption deed for adopting the appellant's son Ajit is
also not disputed. Holding the meetings by the villagers known as
"Devkashi", boycotting Dagadu and the appellant and imposing a fine
on the appellant and witnesses to the Will and adoption deed are also
not disputed. The other circumstances regarding Dagadu not being
invited to any of the functions of the defendant's family and Dagadu
not being named as an invitee in the marriage invitation card of the
defendant's son are also not disputed.
27. It is important to note that the defendant was aware of the
execution and registration of the Will and the adoption deed by
Dagadu. However, it was only when a suit was filed by the appellant to
declare his absolute title to the suit properties based on the Will that
the defendant challenged the validity of the Will and the adoption
deed. The Trial Court accepted the genuineness of the Will. However,
the first appellate court reversed the findings and held the Will to be
invalid on the ground of suspicious circumstances. Thus, the question
of law to be decided in this second appeal is on the correctness of the
reasons recorded by the first appellate court.
901.59.11 sa.docx
28. The first appellate court disbelieved the genuineness of the Will
on the ground of suspicious circumstances. The Will executed by
Dagadu is a registered will. The plaintiff, i.e. the propounder of the Will,
examined the attesting witness, the doctor who examined the testator
before executing the Will, and the scribe to support the genuineness of
the Will. The defendant's objections to the validity of the Will can be
summarized on the grounds that (i) the testator was not in a sound
mental state of health for the last few years before his death (ii) though
the suit properties were self acquired properties of the testator, there
was a joint family of the testator and the defendant (iii) testator's wife
had deserted him and he had no children (iv) the testator was looked
after by the defendant who was his brother (v) there was no partition
between the brothers (vi) the plaintiff was resident of the different
village and was not concerned with the testator (vii) the plaintiff by
taking undue advantage of the unsound mental health of the testator
got executed the Will and adoption deed (viii) in view of the traditions
of their village the adoption of plaintiff's son was objected.
29. Therefore, in view of the nature of the objections raised by the
defendant, the first appellate court held that there was suspicion on the
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genuineness of the Will as (i) none of the relatives of the testator
attested the Will, (ii) there was no reason to exclude the defendant
who was real brother of the testator, (iii) plaintiff's action of securing
the receipts of funeral expenses creates doubt as normally such
receipts are not secured (iv) only because some lands were standing
in the name of the testator and some in the name of the defendant
would not mean that the lands were self acquired property of the
testator, (v) the testator has not only taken an active part in getting the
Will executed, but he ingeniously avoided intervention of others,
especially from defendant's side who has an undivided share in the
suit properties (vi) even if the testator was entitled to dispose of the
suit property by Will, the plaintiff would not get anything on testator's
death and at the most the plaintiff's son can claim half share by virtue
of the adoption deed. The first appellate court further accepted the
testator's right to execute the adoption deed and also held that
execution of the adoption deed would not revoke the Will. However,
the first appellate court held that suspicious circumstances surrounded
the execution of the Will, and thus, the Will cannot be accepted as a
genuine will. Though the first appellate court held that the suit
property was joint family property, there are no reasons recorded
901.59.11 sa.docx
based on any supporting evidence.
30. Both the courts referred to the documentary as well as the oral
evidence showing that Dagadu independently acquired the suit
properties. Admittedly, Dagadu and the defendant were in service in
Mumbai and had their own source of income. There is nothing on
record to show that there was any joint family nucleus or any joint
family income. The defendant did not dispute the acquisition of the suit
properties by Dagadu and his independent source of income. Thus, in
the absence of any cogent evidence to support the defendant's theory
of joint family nucleus, the first Appellate Court erroneously held that
since there was no partition between the brothers Dagadu's will was
illegal.
31. A perusal of the impugned judgment indicates that the first
Appellate Court has discussed the suspicious circumstances based on
assumptions. The learned Judge of the first Appellate Court assumed
that (i) the villagers were not on cross terms with Dagadu; hence, there
was no reason for Dagadu not to call any villager as an attesting
witness, (ii) it was necessary for the plaintiff to call someone from
Dagadu's family as an attesting witness; instead the plaintiff chose his
901.59.11 sa.docx
father-in-law and his brother as attesting witness, (iii) there was no
reason for Dagadu to exclude the defendant, his real brother, from the
Will, and there was no special reason to execute the Will in favour of
the plaintiff, (iv) since defendant's son's marriage took place after the
execution of the Will, it was natural to exclude Dagadu's name from
the defendant's son's marriage invitation card, (v) plaintiff securing
receipts of Dagadu's funeral expenses was not normal. The first
appellate court, thus, concluded that these circumstances created
suspicion about Dagadu's intention to bequeath his whole property
only to the plaintiff.
32. The first Appellate Court completely ignored the pleadings and
evidence on record indicating the circumstances supporting Dagadu's
intention to bequeath the suit property to the plaintiff. It is necessary to
refer to the essential findings of facts recorded by the Trial Court. The
Trial Court, after examining the pleadings and evidence on record,
held that: (i) Plaintiff and his family were residing with Dagadu; (ii)
Plaintiff produced on record documents to show that he had
constructed the house on the suit property belonging to Dagadu; (iii)
Dagadu had no other close relatives, and he had developed love and
901.59.11 sa.docx
affection for the plaintiff since beginning and particularly after the
plaintiff met with an accident in 1976; (iv) After the plaintiff retired from
military service, he continuously lived with Dagadu and the plaintiff's
family, i.e. his wife and children were already residing with Dagadu
even when the plaintiff was in military service; (v) Plaintiff retired in
1984 and thereafter Dagadu executed the Will on 26 th October 1984 in
favour of the plaintiff; (vi) Thereafter, Dagadu executed registered
adoption deed on 30th September 1985 and adopted plaintiff's son.
Dagadu had incurred a loan for purchasing a cow and was dealing
with the transactions; (vii) all the documents with regard to the
documents of loan, repayment of the loan incurred by Dagadu were
produced on record by the plaintiff; (viii) All the medical treatment
documents of Dagadu were also produced on record by the plaintiff;
(ix) attesting witness to the Will, the scribe and the doctor who
examined Dagadu at the time of execution of the Will and issued the
certificate were examined; (x) Admittedly Dagadu had sold one of his
lands in the year 1980 which indicated that Dagadu was in sound state
of mind; (xi) considering the disputes raised by the defendant
regarding Dagadu executing the Will and adoption deed, the plaintiff's
action of securing the expenses of the Dagadu's funeral was natural.
901.59.11 sa.docx
33. Thus, after thoroughly examining the pleadings and evidence,
the learned Trial Court concluded that Dagadu was in a sound state of
mind, and there was no reason to believe the defendant's contention
that Dagadu was insane. The Trial Court has also referred to the
defendant's witness, who admitted that the witness had filed a chapter
case against Dagadu, and Dagadu also attended the proceedings. The
Trial Court had further referred to the admissions given by the
defendant that the plaintiff had constructed the house in Dagadu's plot
in the year 1982, and the plaintiff's family was residing with Dagadu
when the plaintiff was in military service.
34. Thus, in view of the above referred facts and circumstances, the
Trial Court accepted the genuineness of the Will by holding that
Dagadu had developed love and affection towards the plaintiff and
there were no circumstances seen which would create any doubt or
suspicion of Dagadu's intention to bequeath the suit property to the
plaintiff. The Trial Court considered another important aspect regarding
the execution of an adoption deed to adopt the plaintiff's son by
Dagadu. The Trial Court held that the execution of the adoption deed
also indicated Dagadu's intention to bequeath all his property to the
901.59.11 sa.docx
plaintiff and his family. Thus, execution of the registered adoption deed
was also held to be a supporting circumstance to conclude that
Dagadu was in a sound state of mind at the time of execution of the
Will. The Trial Court has also referred to notices issued on the behest
of the defendant calling for a Devkashi meeting to boycott Dagadu and
the plaintiff's family objecting to Dagadu's decision to execute the Will
and adoption deed. Two Devkashi meetings were attended by
Dagadu. The Trial Court has thus referred to notices issued by the
defendant raising objections to the execution of the Will and adoption
deed, which did not raise any objection regarding Dagadu's alleged
insanity. Thus, the Trial Court held that none of the circumstances
pleaded by the defendant would either indicate that Dagadu was not in
a sound state of mind or that there were any suspicious circumstances
to doubt Dagadu's intention to bequeath the suit property to the
plaintiff. A perusal of the reasons recorded by the Trial Court indicates
that all the oral evidence adduced by the plaintiff in support of the
execution of the Will was unshattered. The reasons recorded by the
Trial Court do not indicate any reason to disbelieve Dagadu's intention
to bequeath the suit property to the plaintiff. All the aforesaid
circumstances are specifically examined and considered by the Trial
901.59.11 sa.docx
Court to record the reasons to accept the Will as a genuine Will is not
even referred to by the first Appellate Court. Thus, the findings
recorded by the first Appellate Court disbelieving the genuineness of
the Will are neither supported by any valid reasons nor have the first
Appellate Court recorded any reasons to reverse the findings recorded
by the Trial Court as referred to hereinabove.
35. Thus, the facts and circumstances examined and accepted by
the Trial Court are in conformity with the legal principles settled by the
Hon'ble Apex Court in the decision of Shivakumar and Others. The
Hon'ble Apex Court has interpreted the parameters to consider the
suspicious circumstances concerning the proof of a Will. The relevant
extract of the legal principles summarised by the Hon'ble Apex Court
relevant to the present case are as under:
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
901.59.11 sa.docx
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
circumstances abovenoted 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 circumstances
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".
36. Thus, by applying the test to examine the suspicious
circumstances as alleged by the defendant, the reasons recorded by
the Trial Court indicate satisfaction of the judicial conscience to accept
the genuineness of the Will. Thus, the reasons the first Appellate Court
recorded to hold the Will as executed under suspicious circumstances
are unsustainable.
901.59.11 sa.docx
37. Therefore, in view of the clear findings of facts recorded by the
Trial Court, the reasons recorded by the first Appellate Court would not
be sustainable. The first Appellate Court's conclusions are mainly
based on assumptions and completely ignore the relevant and
important circumstances indicating Dagadu's intention to execute the
Will in favour of the plaintiff. Thus, the findings recorded by the first
Appellate Court based on assumptions are perverse findings and
cannot be sustained. Therefore, the decision in the case of Satya
Gupta, relied upon by the learned counsel for the respondents, is of no
assistance to the arguments raised on behalf of the respondents.
38. The learned counsel for the appellant has rightly relied upon the
legal principles settled by the Hon'ble Apex Court in the decision of
Kavita Kanwar. As held by the Hon'ble Apex Court in the said decision,
the suspicious features must be 'real germane and valid' and not
merely the 'fantasy of the doubting mind'. The trial court's findings
indicate satisfaction of the judicial conscience by addressing all the
important aspects of the testator's wishes, he being aware of its
contents and his intention to bequeath the property to the plaintiff. As
held by the Hon'ble Apex Court in the decision of Santosh Hazari,
901.59.11 sa.docx
while reversing a finding of fact, the appellate court must come into
close quarters with the reasoning assigned by the trial court and then
assign its own reasons for arriving at a different finding. For the
reasons recorded above, I am of the opinion that the first appellate
court did not discharge the duty cast on it as a court of first appeal.
Hence, for the reasons recorded above, questions of law framed in this
second appeal are answered in support of the genuineness of the Will.
39. Hence, the second appeal is allowed by passing the following
order:
ORDER
(i) The impugned Judgment and Decree dated
12th December 2001 passed by IV Additional District
Judge, Satara is quashed and set aside.
(ii) Regular Civil Appeal No. 368 of 1990 is dismissed.
(iii) The Judgment and Decree dated 20 th July 1990
passed by the Jt. Civil Judge, J.D. Satara in Reg. Civil
Suit No. 467 of 1988 is confirmed.
[GAURI GODSE, J.]
