Bombay High Court
Smt.Shivamma Shankar Wale vs Mr.Ramesh Virpakshappa Wale on 17 April, 2025
2025:BHC-AS:17468
901-FA-1272-2019.docx
rrpillai IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 1272 OF 2019
Shivamma Shankar Wale
Age : 80 years, Occ.: Nil,
R/o. Ishwar Nagar, Behind Samarth Building,
Akkalkot Road,
Solapur Appellant
RAJESHWARI
RAMESH
PILLAI
Versus
Digitally
signed by
Ramesh Virpakshappa Wale,
RAJESHWARI
RAMESH
PILLAI
Date:
2025.04.17
07:40:44
Age : 54 years, Occ. : Service
+0200
R/o. Vatvruksha Swami Samarth Mandir
Akkalkot, District Solapur Respondent
Mr. I. M. Khairdi for the Appellant.
Mr. Niranjan Shimpi for the Respondent.
CORAM: GAURI GODSE, J.
RESERVED ON: 16th JANUARY 2025
PRONOUNCED ON: 17 th APRIL 2025
JUDGMENT:
1. This first appeal is preferred by the original opponent to
challenge the cancellation of the Order appointing her as a guardian
of her husband under the Indian Lunacy Act, 1912 ("Lunacy Act").
By order dated 27th March 1980, the appellant's Civil Miscellaneous
901-FA-1272-2019.docx
Application No. 55 of 1977 filed under Section 62 of the Lunacy Act
was allowed, and the appellant was appointed as guardian of her
husband Shivshankar Wale ("Shivshankar"). The respondent filed
an application under Section 65 of the Mental Health Act, 1987 ("the
1987 Act") for cancelling the guardianship order issued in the
appellant's name and prayed for directing the appellant to submit
accounts of the properties of Shivshankar. Respondent's application
is allowed by the impugned order. The respondent is the son of
Shivshankar's brother.
Facts in brief:
2. The appellant is the wife of Shivshankar. Due to his insanity,
he was unable to look after himself and his property. Hence, the
appellant applied Section 62 of the Lunacy Act. Shivshankar's
mother and two brothers opposed the said application. After
considering the objections raised to the appellant's application, the
application was allowed on 27th March 1980, and the appellant was
appointed as guardian of the person and property of Shivshankar.
Based on the guardianship order, the appellant filed a suit for
partition and separate possession against Shivshankar's mother
901-FA-1272-2019.docx
and two brothers. The said suit was decreed, and Shivshankar was
granted his one-third share.
3. Shivshankar's mother and brothers had preferred an appeal
challenging the partition decree. The appeal was dismissed, and the
partition decree was confirmed. The decree was challenged in this
court by filing Second Appeal No. 260 of 1989. In the meantime,
Shivshankar expired in 1990. Hence, the appellants in the second
appeal had filed an application to bring on record the names of
Shivshankar's wife and two daughters as heirs and legal
representatives of Shivshankar. However, the said application was
allowed to be withdrawn with a clarification that if information
regarding Shivshankar was available, the appellants in the second
appeal were granted liberty to file a fresh application. Inspite of the
liberty granted, no such application was filed in the second appeal.
Hence, the second appeal stood abated. Thus, by Order dated 16 th
January 2025, the second appeal is dismissed as abated.
4. During the pendency of the second appeal, the respondent
filed an Application under Section 65 of the 1987 Act seeking
cancellation of the guardianship order. The respondent alleged that
by obtaining a forged death certificate of Shivshankar, the appellant
901-FA-1272-2019.docx
and her daughters sold some of Shivshankar's property without the
court's permission. The appellant contested the application and
denied all the allegations. She contended that Shivshankar expired
on 4th May 1990 and that the allegations against the appellant were
false and baseless.
5. The learned District Judge held that Shivshankar was alive
and that the appellant did not obtain permission to dispose of
Shivshankar's property. Hence, according to the learned District
Judge, in view of the provisions of Section 60 of the 1987 Act, it was
the bounden duty of the appellant to furnish inventory and annual
accounts of Shivshankar's property. By referring to the documentary
and oral evidence led by the respondent, the learned Judge
concluded that the appellant had not acted in the interest of
Shivshankar. Hence, the learned District Judge held that in view of
sub-section (1) of Section 69 of the 1987 Act, the appellant was
liable to be removed as guardian of Shivshankar. Thus, the learned
District Judge set aside the guardianship order issued on 27 th March
1980, appointing the appellant as Shivshankar's guardian. By the
impugned order, the appellant is directed to furnish accounts of
Shivshankar's property. Being aggrieved by this judgment,
Shivshankar's wife has preferred this first appeal.
901-FA-1272-2019.docx
Submissions on behalf of the appellant:
6. Learned counsel for the appellant submitted as under:
(a) The application is stated to have been filed under Section 65
of the 1987 Act with a prayer to set aside the order dated 27 th
March 1980 passed on an application filed by the appellant
under the Lunacy Act. The Civil Miscellaneous Application No.
55 of 1977 filed by the appellant under Section 62 of the
Lunacy Act was opposed by Shivshankar's brother
Virpakshappa who was opponent no. 6. The say filed by
opponent no. 6 was adopted by opponents nos. 8 and 9 in the
application i.e. Shrikant (Shivshankar's brother) and
Gurlingawwa Sangappa Wale (Shivshankar's mother).
Shivshankar's other brother, Swaminath Sangappa Wale, was
opponent no. 7; however, he did not file any reply.
Shivshankar's daughters were also added as parties to the
application filed by the appellant. The application was allowed
after necessary inquiry contemplated under Section 62 of the
Lunacy Act, and the appellant was appointed as
Shivshankar's guardian.
(b) Virpakshappa's son, Vijaykumar, had filed Miscellaneous Civil
901-FA-1272-2019.docx
Application No. 94 of 1989 under the Lunacy Act to cancel the
guardianship order issued to the appellant. The said
application was rejected on 31 st December 1991. Thereafter,
Ramesh, i.e. another son of Virpakshappa, filed the present
application in the year 2013 under the provisions of the 1987
Act for cancellation of the guardianship order issued in the
name of the appellant. The application was filed through
Vijaykumar as the power of attorney holder. Thus, only to
avoid the objection of the principles of resjudicata, the same
son of Virpakshappa filed the present application in the name
of another son of Virpakshappa.
(c) Thus, with an intention to defeat the appellant's right to claim
partition and get the property divided as per the partition
decree, the son of Virpakshappa, making false allegations,
applied for cancellation of the guardianship order.
(d) The oral evidence led by Vilas L Patil, i.e., the respondent's
witness, was not trustworthy. In the examination-in-chief,
vague statements were made that Shivshankar was seen
near a temple at Solapur; however, no particulars were stated
by the witness. The version of the witness that on seeing
901-FA-1272-2019.docx
Shivshankar, the witness telephonically informed the
respondent about the same and helped Shivshankar to get
onto a bus to go to Akkalkot was unbelievable, in as much as
it was unnatural, that though aware that Shivshankar was a
lunatic and was missing, the witness instead of bringing
Shivshankar to the respondent, telephonically intimated the
same to the respondent and permitted Shivshankar to travel
alone from Solapur to Akkalkot. Thus, the oral evidence relied
upon by the respondent to claim that Shivshankar was alive is
not trustworthy.
(e) Filing of an FIR making false allegations cannot be accepted
as a supporting evidence that Shivshankar was alive. The
criminal proceedings are pending before the Judicial
Magistrate First Class, Akkalkot, for filing the chargesheet.
Thus, the pendency of proceedings could not have been
relied upon by the learned District Judge to conclude that a
forged death certificate was obtained by the appellant.
(f) The execution of the sale deed by the appellant and her
daughters in respect of part of Gat No. 650 cannot be
interpreted to mean that the appellant had committed a
901-FA-1272-2019.docx
breach of any of the conditions of the guardianship order. In
view of the death of Shivshankar, the names of the appellant
and her daughters were entered into revenue records with
respect to Gat No. 650 as heirs and legal representatives of
Shivshankar. Thus, the execution of the sale deed could not
have been accepted as a ground for cancellation of the
guardianship order.
(g)The impugned order is based on bald and vague statements.
The missing complaint allegedly filed by the appellant could
not have been taken as a statement that Shivshankar was
alive. The impugned order is not in accordance with the
provisions of Section 69 of the 1987 Act in as much as the
learned Judge failed to appoint any other person as manager
or guardian of Shivshankar. Thus, the impugned order does
not satisfy the parameters of Section 69 of the 1987 Act. The
findings recorded by the learned Judge on the death of
Shivshankar are beyond the scope and jurisdiction of the
provisions of the Mental Health Act. Therefore, the impugned
order is illegal and is liable to be quashed and set aside.
901-FA-1272-2019.docx
Submissions on behalf of Respondent:
7. Learned counsel for the respondent supported the impugned
order and submitted as under:
(a)The scope of Section 69 of the 1987 Act would include the
powers to decide all the issues that were in the interest of a
mentally ill person. He relied upon the definition in Section
2(b) of the 1987 Act to submit that the definition would include
the powers and jurisdiction of a court to decide all the issues,
including the decision whether Shivshankar was alive or
whether he could have been considered as dead in view of
the certificate relied upon by the appellant. The learned
District Judge could have appointed the Collector or a
Manager in place of the appellant; however, not appointing
any other person as guardian cannot be a ground to set aside
the impugned order.
[
(b)In the earlier litigation, the appellant had defended the
proceeding personally. But in the present proceeding, she is
represented through her power of attorney holder, who is her
son-in-law. The appellant's power of attorney holder would
901-FA-1272-2019.docx
have no personal knowledge about the facts or the
whereabouts of Shivshankar or his death. Hence, the
evidence led by the appellant cannot be accepted as sufficient
evidence to support her contention that Shivshankar was
dead.
(c) Respondent filed the application for cancellation of the
guardianship order only considering the welfare of
Shivshankar, and the respondent had no interest in taking
away the appellant's property. The oral evidence led by the
respondent through his witness, Vilas Patil, is trustworthy. In
the cross-examination, none of the contentions submitted by
the witness are disturbed. He relied upon the complaint filed
by the appellant in 1999. According to the learned counsel for
the respondent, the complaint indicates that Shivshankar was
alive, according to the appellant, in 1999. The learned District
Judge has correctly appreciated the facts, circumstances, and
evidence on record by relying upon the presumption under the
Evidence Act. Thus, the appellant failed to discharge her
burden of Shivshankar's death.
(d)Therefore, the impugned order rightly sets aside the
901-FA-1272-2019.docx
guardianship order in the name of the appellant, in as much
as only with an intention to dispose of Shivshankar's property,
the appellant falsely contended that he was dead and got her
and her daughters' names inserted in the revenue record to
dispose of Shivshankar's property. Learned counsel for the
respondent thus supported the findings recorded in the
impugned order and submitted that the first appeal does not
raise any ground to set aside the impugned order.
Consideration of Submissions:
8. I have considered the rival submissions of the parties. I have
perused the record and proceedings of the first appeal. There is no
dispute that Shivshankar was a lunatic. Admittedly, the appellant
was appointed as a guardian and manager of the person and estate
of Shivshankar by an Order dated 27 th March 1980 on an
application filed by the appellant under the Lunacy Act.
Shivshankar's mother and two brothers opposed the application.
However, the appellant was appointed guardian and manager upon
making the necessary inquiry. Thereafter, the appellant, on behalf of
Shivshankar, filed a suit for partition and separate possession. The
suit was filed on 30 th March 1981, and was decreed on 30 th January
901-FA-1272-2019.docx
1984. Shivshankar's mother and brothers challenged the partition
decree. The first appeal was dismissed on 16 th August 1988.
9. The second appeal was preferred by the brothers and mother
of Shivshankar in 1989 in this court. It is pertinent to note that the
respondent's father, Virpakshappa, was appellant no. 1 in the
second appeal. After his death, his heirs and legal representatives,
including the present respondent, were added as party appellants in
the second appeal. The appellants in the second appeal, including
the respondent herein, filed an application to bring on record the
names of the appellant and her daughters as heirs and legal
representatives of Shivshankar. The partition suit was filed in the
name of Shivshankar through the present appellant as his guardian.
Hence, in view of the death of Shivshankar, appellants in the
second appeal, including the present respondent, filed an
application for bringing on record the names of Shivamma, i.e.
present appellant and her daughters as heirs and legal
representatives of Shivshankar in the second appeal. There is no
dispute that the said application was withdrawn, with the liberty to
file a fresh application in the event any information was received
regarding Shivshankar. The said application was thus disposed of
901-FA-1272-2019.docx
as withdrawn on 2nd April 2016. Admittedly, no fresh application was
filed by the appellants in the second appeal, contending that
Shivshankar was alive. Thus, in view of the facts on record of the
second appeal, Shivshankar was shown as deceased and in the
absence of heirs and legal representatives of Shivshankar, the
second appeal stood abated. Hence, this court dismissed Second
Appeal No. 260 of 1989 as abated by an order dated 16th January
2025.
10. After filing the second appeal in this court, the son of
Virpaksha, i.e. respondent's brother, Vijaykumar, filed Civil
Miscellaneous Application No. 94 of 1989 under the Lunacy Act for
cancelling the Order dated 27th March 1980 appointing the appellant
as guardian and manager. Vijaykumar contented that Shivshankar
was not traceable. Hence, by notice dated 1 st February 1989, he
called upon the appellant to provide the whereabouts of
Shivshankar. He contended that he did not receive any satisfactory
response; hence, he applied to cancel the order, appointing the
appellant as guardian and manager. The appellant appeared in the
said proceedings and contented that Shivshankar was missing, and
despite search he was not found. The appellant further contended
901-FA-1272-2019.docx
that she had filed execution proceedings for execution of the
partition decree. Hence, to stall the execution and deprive the
appellant and her daughters of getting Shivshankar's share,
Vijaykumar filed the application, making false allegations against the
appellant. The said application was dismissed on 31 st December
1991.
11. On 4th July 2013, the respondent filed the Civil Miscellaneous
Application No. 209 of 2013 under the 1987 Act. The respondent
filed the application through his brother Vijaykumar as his power of
attorney holder. The respondent examined Vijaykumar and one
Vilas Patil to support his contentions. Vilas Patil deposed that he
had seen Shivshankar in the month of Shravan of 2012 in a temple
at Solapur, and he dropped Shivshankar at a bus stand to take a
bus to Akkalkot. He further deposed that he accordingly informed
the said fact to the respondent and his brother on telephone. The
respondent's brother, Vijaykumar, filed a criminal complaint alleging
that the appellant had prepared a forged death certificate and an
FIR was registered on 16th December 2014. Thus, the respondent
relied upon the oral evidence and the criminal proceedings to
support his contention that the appellant obtained a forged death
901-FA-1272-2019.docx
certificate to dispose of Shivshankar's property. The appellant
examined her son-in-law as her constituted attorney to support her
contentions.
12. The proceedings under the 1987 Act were decided on 13 th
December 2017 during the pendency of the second appeal. The
order appointing the appellant as guardian and manager under the
Lunacy Act on 27th March 1980 is set aside by the impugned order
by accepting the respondent's contention that Shivshankar was
alive and that the appellant had acted against the interest of
Shivshankar.
13. The Order appointing the appellant as guardian and manager
of the person and estate of Shivshankar was passed by exercising
powers under the relevant provisions of the Indian Lunacy Act.
Under Section 62, the District Court was empowered to direct an
inquisition for the purpose of ascertaining whether the concerned
person is of unsound mind and incapable of managing himself and
his affairs. Chapter V of the Act deals with the proceedings for
holding an inquiry and the judicial powers over the person and
estate of the lunatic, including the powers of appointing and
removing managers and guardians. The Mental Health Act 1987,
901-FA-1272-2019.docx
came into force on 1st April 1993. Under Section 98 (1) of the 1987
Act, The Indian Lunacy Act 1912 was repealed. Under sub-section
(2) of Section 98 (1) of the 1987 Act, the action taken under the
Lunacy Act in so far as it is not inconsistent with the provisions of
the 1987 Act is deemed to have been done or taken under the
corresponding provisions of the 1987 Act. Chapter VI of the 1987
Act deals with the judicial inquisition regarding an alleged mentally
ill person possessing property, custody of his person and
management of his property. Chapter VI includes the powers of
appointing and removing managers and guardians and action to be
taken if the mental illness of the person has ceased.
14. In the present case, the learned District Judge inquired into
the allegation that the guardian and manager obtained a forged
death certificate and disposed of the lunatic's property. Thus, while
deciding the prayer for the appellant's removal as manager and
guardian of Shivshankar, the learned District Judge exercised
powers under Section 69 of the 1987 Act. While exercising the
powers under Section 69, the learned Judge disbelieved the death
certificate and held that Shivshankar was alive. It is also held that
the appellant sold Shivshankar's property without the court's
901-FA-1272-2019.docx
permission by making a false statement that Shivshankar was dead.
Therefore, the learned Judge held that the appellant is liable to be
removed as guardian as she acted against the interest of
Shivshankar. Thus, considering the scope of inquiry under the
provisions of Chapter VI of the 1987 Act, it cannot be said that the
findings recorded by the learned judge are beyond the scope of his
powers and jurisdiction. Considering the cause of action for filing the
application, the findings recorded in the impugned judgment on bar
of limitation and principles of resjudicata would not require any
interference. However, it is necessary to ascertain whether the
findings recorded in the impugned judgment are supported by valid
and sufficient evidence.
15. I have carefully perused the application filed under the Mental
Health Act. The respondent alleged that the appellant had filed a
false affidavit on 20th January 2011, stating that Shivshankar
expired on 4th May 1990. The respondent alleged that some
untoward incident had occurred with Shivshankar, and the appellant
intended to dispose of Shivshankar's properties. It was alleged in
the application that the appellant was responsible for the untoward
incident of Shivshankar. The respondent alleged that the appellant
901-FA-1272-2019.docx
failed to care for Shivshankar and his property. Since the appellant
and her daughters executed the sale deed and disposed of some of
Shivshankar's property, the respondent filed the application to
cancel the guardianship order. It is pertinent to note that the
respondent did not plead that Shivshankar was alive.
16. The appellant contested the application filed by the
respondent and denied all the allegations. The appellant contended
that the respondent had filed the application with false allegations
only to deprive the appellant and her daughters of getting the
property pursuant to the partition decree. The appellant contended
that after an exhaustive search done by her and her brother, she
learnt that Shivshankar had expired on 4 th May 1990. The appellant
contended that only to harass her and deprive her of the property in
her old age; the respondent made false and baseless allegations
against her.
17. The respondent examined his brother as his constituted
attorney to support the application. The respondent's witness
reiterated the allegations made in the application. It was alleged that
the appellant did not take any care and failed to protect Shivshankar
and his property. The respondent's witness alleged that a false
901-FA-1272-2019.docx
certificate was obtained by the appellant recording the death of
Shivshankar. He stated that the appellant obtained a forged death
certificate and executed a sale deed for one of the properties
belonging to Shivshankar, i.e. Gat No. 650. He stated that since the
appellant was appointed as guardian of Shivshankar, she was not
entitled to execute any sale deed without obtaining necessary
permission from the court. Thus, it was stated by the witness that
the appellant, with an intention to grab Shivshankar's property, had
obtained a forged death certificate and disposed of Shivshankar's
property. The respondent's witness produced on record copies of
the application filed by the appellant before the Talathi, the death
certificate attached to the application and the appellant's affidavit
affirmed before the Executive Magistrate.
18. The respondent examined a villager, Vilas Patil as his
witness, who deposed that Shivshankar was alive. He deposed that
he saw Shivshankar in a temple at Solapur in the month of Shravan
in 2012. He further stated that he helped Shivshankar board a bus
to go to Akkalkot and informed about it to the respondent and his
brother. It is pertinent to note that this oral evidence is not
supported by any pleading.
901-FA-1272-2019.docx
19. The respondent produced on record papers of a criminal
complaint filed by his brother alleging that the appellant obtained a
forged death certificate. The complaint registered by way of FIR No.
316 of 2015 was also produced on record. Thus, the respondent led
evidence to support his submissions that the appellant disposed of
Shivshankar's property by obtaining a fraudulent death certificate.
20. The appellant examined her son-in-law as her constituted
attorney in support of her contentions. He denied the allegation that
Shivshankar was alive. He also denied that they had obtained any
forged death certificate. In cross-examination, he deposed that
there was an entry in the crematorium about Shivshankar's death
on 4th May 1990. He admitted that criminal proceedings were
initiated against him and the appellant; however, he denied that the
death certificate was issued based on an affidavit filed by the
appellant. He denied the allegation that they had prepared any
forged death certificate.
21. The learned District Judge examined the rival contentions and
noted the admitted facts between the parties. The relations between
the parties are not disputed. The rejection of the earlier application
filed by the respondent's brother to cancel the guardianship order
901-FA-1272-2019.docx
was also not disputed. The learned District Judge examined the
affidavit filed by the appellant to confirm Shivshankar's death and
the death certificate. The sale of some part of Gat No. 650 by
executing a registered sale deed was also examined by the learned
District Judge.
22. The learned District Judge relied upon the oral evidence of
Vilas Patil that he saw Shivshankar in February 2012 to hold that
Shivshankar was alive. Learned District Judge referred to Section
107 of The Indian Evidence Act, 1872 ("Evidence Act") read with the
presumption under Section 108 of the Evidence Act. The learned
District Judge held that if a person is proved to have been alive
within 30 years, it is to be presumed that the person is alive, and
the burden would be upon the person alleging the death of the said
person. Thus, the learned District Judge held that since
Shivshankar was last seen in the year 2012, the burden would shift
upon the appellant to prove the death of Shivshankar.
23. The learned District Judge also referred to the criminal
proceeding initiated alleging the death certificate to be a forged
document. The respondent had produced on record a copy of the
complaint filed by the appellant on 22 nd February 1999. The
901-FA-1272-2019.docx
respondent interpreted the said complaint to mean that the
appellant herself had made a missing complaint, which indicated
that Shivshankar was alive on the date of filing the complaint. Thus,
based on these allegations, the learned Judge examined the rival
contentions by referring to the provisions of Section 60 of the 1987
Act. The learned Judge observed that the appellant did not obtain
permission to dispose of Shivshankar's property. Hence, according
to the learned District Judge, in view of the provisions of Section 60
of the 1987 Act, it was the bounden duty of the appellant to furnish
inventory and annual accounts of Shivshankar's property. By
referring to the documentary and oral evidence led by the
respondent, the learned Judge concluded that the appellant had not
acted in the interest of Shivshankar. Hence, the learned District
Judge held that in view of sub-section (1) of Section 69 of the 1987
Act, the appellant was liable to be removed as guardian of
Shivshankar. With these observations and findings, the learned
District Judge set aside the guardianship order issued on 27 th March
1980, appointing the appellant as Shivshankar's guardian. By the
impugned order, the appellant is directed to furnish accounts of
Shivshankar's property.
901-FA-1272-2019.docx
Analysis and conclusions:
24. Notably, the respondent did not plead that Shivshankar was
alive. The oral evidence of Vilas Patil, that he saw Shivshankar and
informed about it to the respondent and his brother, is not supported
by any pleading. The pending criminal proceeding referred to and
relied upon by the respondent could not have been accepted by the
learned District Judge as a ground to believe that the death
certificate was a forged document. In the absence of any evidence
to indicate that the death certificate issued recording Shivshankar's
death was set aside by the court of competent jurisdiction, the
learned Judge erred in proceeding on the ground that the certificate
was forged. The death certificate is issued under the provisions of
the Registration of Births and Deaths Act 1969 and the Rules
framed thereunder. Admittedly, the certificate's validity is not
challenged before a competent forum having jurisdiction to set aside
or cancel the certificate. The respondent produced the death
certificate; however, failed to adduce any evidence by examining
the concerned registering authority who issued the certificate.
25. The learned District Judge erred in holding that the death
certificate is obtained by making a false application before the
901-FA-1272-2019.docx
Talathi, for which the appellant is prosecuted. The learned Judge
ignored that the death certificate was issued on 14 th January 2011.
Thereafter, on 20th January 2011, the appellant's affidavit confirming
Shivshankar's death was affirmed before the Executive Magistrate
and the application dated 20 th January 2011 was filed before the
Talathi to enter the name of the appellant and her daughters in the
revenue record as heirs of Shivshankar. Thus, the learned Judge
has misappreciated the facts and the evidence on record.
26. The learned Judge erroneously held that if, as per the
complaint filed on 22nd February 1999, Shivshankar was missing,
the appellant made a false statement on the affidavit that
Shivshankar died on 4th May 1990. According to the learned Judge,
if Shivshankar died on 4 th May 1990, there was no reason to file a
missing complaint on 22nd February 1999. Thus, the learned Judge
held that the appellant had made a false affidavit about
Shivshankar's death. In my opinion, the learned District Judge erred
in relying upon the copy of the complaint dated 22 nd February 1999,
purportedly filed by the appellant in the Akkalkot Police Station,
complaining that Shivshankar was missing. The learned Judge
ignored that there was no supporting pleading that such complaint
901-FA-1272-2019.docx
was filed. The appellant's witness in his evidence denied filing any
such complaint. Thus, it cannot be assumed that the complaint was
filed by the appellant.
27. The respondent did not lead any evidence to challenge the
information and material relied upon by the registering authority to
record Shivshankar's date of death. A perusal of the death
certificate produced on record indicates that it is issued under
Sections 12 and 17 of the Registration of Births and Deaths Act
1969, read with Rules 8 and 13 of the Maharashtra Registration of
Births and Deaths Rules 2000. Admittedly, the death certificate is
not challenged before the competent jurisdictional forum. The death
certificate issued under Section 17 is certified by the Registrar or
any other officer authorised by the State Government to give such
certificate as provided in Section 76 of the Evidence Act, and is
admissible in evidence for the purpose of proving the death to which
the entry relates. A perusal of the death certificate produced on
record indicates that it was issued on 14 January 2011. The
certificate records the date of Shivshankar's death as 4 May 1990.
The remarks column in the certificate refers to the order passed by
901-FA-1272-2019.docx
the Executive Magistrate. The learned District Judge ignored the
admissibility of the death certificate.
28. After the death certificate was issued, the appellant filed an
affidavit dated 20th January 2011 before the Executive Magistrate
stating that Shivshankar died on 4 th May 1990. The appellant and
her daughters also applied before the Talathi to enter their names
as heirs of Shivshankar. Accordingly, their names were entered as
heirs of Shivshankar. The appellant and her daughters executed a
sale deed dated 1st February 2012 for alienating Shivshankar's
undivided share inherited by them. Thus, the sale deed was not
executed as Shivshankar's guardian. Hence, permission from the
court was not necessary for disposing of Shivshankar's property.
Hence, executing the sale deed cannot be a ground for accepting
any misappropriation of Shivshankar's property. The order entering
the name of the appellant and her daughters in the revenue record
as heirs of Shivshankar and the sale deed executed by the
appellant and her daughters was never challenged.
29. There is no dispute that the earlier application for cancellation
of the guardianship order was filed by the respondent's brother, who
also filed the present application as the respondent's constituted
901-FA-1272-2019.docx
attorney and also deposed on his behalf. The oral evidence of Vilas
Patil that Shivshankar was seen is unbelievable. His evidence is not
supported by any pleading. This witness knew that Shivshankar was
a lunatic and was missing. Thus, it is unnatural that instead of
escorting Shivshankar to his home, he allowed Shivshankar to
board a bus alone and telephonically informed the respondent that
he saw Shivshankar. Vilas Patil has vaguely stated that he saw
Shivshankar in the Shravan month of 2012 in Siddheshwar temple
in Solapur. The respondent has neither pleaded nor deposed to
corroborate this oral evidence. Thus, the oral evidence relied upon
by the learned Judge for holding that Shivshankar was alive is not
valid and reliable.
30. The burden to prove as contemplated under Sections 107 and
108 of the Indian Evidence Act, is not correctly applied by the
learned District Judge. The application under Section 69 of the 1987
Act is filed by the respondent on the ground that the appellant
obtained a forged death certificate of Shivshankar and disposed of
his property without the court's permission. Thus, the burden was
upon the respondent to prove that the death certificate was forged
and that Shivshankar was alive. The respondent failed to plead and
901-FA-1272-2019.docx
prove that Shivshankar was alive. The respondent failed to prove
that the death certificate was forged. Thus, the burden
contemplated under Sections 107 and 108 of the Indian Evidence
Act would not apply to the appellant.
31. The learned Judge has erroneously presumed that the
appellant had made a false statement about Shivshankar's date of
death as 4th May 1990. The affidavit sworn by the appellant before
the learned Executive Magistrate, after issuance of the death
certificate is misinterpreted. The learned judge has not recorded any
valid reasons for disbelieving the death certificate. Thus, the
findings recorded by the learned Judge for holding that Shivshankar
was alive are without sufficient evidence on record. The findings
recorded by the learned Judge for disbelieving Shivshankar's death
are based on erroneous findings.
32. While deciding the application under Section 69 of the 1987
Act, the learned District Judge declared that Shivshankar was alive
despite the death certificate produced on record. There is no
alienation of Shivshankar's property. The appellant and her
daughters alienated the property they inherited through
Shivshankar. Thus, there was no need to obtain the court's
901-FA-1272-2019.docx
permission for the alienation. The reasons recorded by the learned
District Judge to cancel the guardianship order are without any
sufficient cause as contemplated under Section 69 of the 1987 Act.
Hence, the findings recorded by the learned Judge to cancel the
guardianship order are not sustainable in law.
33. It is pertinent to note that even in the appellant's application
filed under the Lunacy Act, Shivshankar's mother and brothers,
including the respondent's father, had raised objections based on
the status of the family estate. It was contended that the land, Gat
No. 650, was purchased by Shivshankar's father in the name of
Shivshankar, and it was not ancestral property. Since the
beginning, it has been the appellant's grievance that she and her
daughters are deprived of Shivshankar's rights to family property.
Thus, it is apparent that to defeat the appellant's right along with her
daughters to claim partition and separate possession in the
execution of the partition decree, Shivshankar's brothers and
brother's sons repeatedly raised false objections to challenge the
order appointing the appellant as guardian and manager of
Shivshankar and his estate.
901-FA-1272-2019.docx
34. Without any valid proof that Shivshankar was alive, there is no
sufficient cause shown to invoke Section 69 of the 1987 Act to
cancel the guardianship order. Hence, the reasons recorded in the
impugned judgment to cancel the guardianship order are not
sustainable in law. Therefore, the impugned judgment and order
deserve to be quashed and set aside, and the respondent's
application must be rejected.
35. For the reasons recorded above, the first appeal is allowed by
passing the following order :
(i) The impugned judgment and order dated
13th December 2017 passed by the learned District
Judge-6, Solapur, in Civil Miscellaneous Application No.
201 of 2013, is quashed and set aside.
(ii) Civil Miscellaneous Application No. 201 of 2013 is
rejected.
(iii) The appeal is allowed in the aforesaid terms with no
order as to costs.
[GAURI GODSE, J.]
