Bombay High Court
Ramrao S/O Tulshiram Mansute And Anor vs Omprakash Tulshiram Mansute on 26 February, 2025
2025:BHC-NAG:2255
1 sa335.06.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO.335 OF 2006
1. Ramrao s/o Tulshiram Mansute
Aged about 58 years, Occ: Cultivator
2. Suresh Tulshiram Mansute,
Aged about 48 years, Occ: Cultivator,
Both R/o Baliram Chowk, Akot,
Tq. Akot, Dist. Akola. .....APPELLANTS
...V E R S U S...
Omprakash Tulshiram Mansute,
Aged about 50 years, Occ: Cultivator,
R/o Akot, Tq. Akot, Distt. Akola. ...RESPONDENTS
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Shri S.O. Ahmed, Advocate for appellants.
Shri Nitin Vyawahre, Advocate for respondent.
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CORAM:- M.W. CHANDWANI, J.
DATED :- 26.02.2025
ORAL JUDGMENT:
. This appeal challenges the judgment and decree of the
learned Additional District Judge, Akot passed in Regular Civil
Appeal No.177 of 2005, whereby the first appellate Court
overturned the decree of dismissal and allowed the appeal of the
respondent declaring him as the owner of the suit property on the
basis of will-deed dated 03.05.1996.
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2. By the order dated 18.08.2006, the following
substantial questions of law came to be framed :
"(A) That considering the various suspicious circumstances
on record as regards execution of the will dated 30.05.1996
(Exh.86) such as :
a) Age of the testator being 80 years,
b) Physical condition of the testator not being good,
c) Signatures of the testator were differing from each
other on Exh.86,
d) Exclusion of all other sons/relatives from the
bequest especially when the testator had executed a
will previously in the year 1993 and
f) Material discrepancies in the evidence of the
attesting witnesses as regards execution and
registration of the will, was the lower Appellate Court
correct in holding that the will at Exh.86 had been
duly proved by the plaintiff is the substantial question
of law that arises in the present Second Appeal.
(B) That in absence of any specific pleadings by the plaintiff
as regards execution of the will by the testator - Tulshiram
as well as regarding cancellation of the earlier will, could
the lower Appellate Court have relied upon the evidence of
the attesting witnesses so as to hold that a will (Exh.86) had
been duly proved is another substantial question of law that
arises in the present Second Appeal,
(C) That whether it could be said that the will (Exh.86) had
been proved as required by the provisions of Section 68 of
the Indian Evidence Act is another substantial question of
law that arises in the present Second Appeal."
3. Mr. Ahmed, learned counsel appearing on behalf of the
appellants vehemently submitted that the Will has been discarded by
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the trial Court on the ground that it is surrounded by suspicious
circumstances which have not been explained by propounder of the
Will i.e. the respondent. However, the first appellate Court without
giving any reason, has set aside the finding of the trial Court by
holding that the Will has been duly proved by the propounder by
examining one of the attesting witnesses.
4. Learned counsel appearing on behalf of the appellants
further submitted that the testator was 80 years old and there is
nothing on record suggest that his physical and mental condition
was good. No doctor has been examined to prove this fact and there
are various discrepancies in the evidence of the attesting witness. It
is also contended that there is no specific pleading with regard to
execution of the Will by deceased Tulshiram, the testator and the
Will has not been duly proved as per the provisions of Section 68 of
the Indian Evidence Act.
5. Mr. Ahmed took me to the deposition of the attesting
witnesses to show that there are two signatures on the will and there
are discrepancies in both the signatures which also creates a doubt
on the execution of the will by the testator. According to him, the
trial Court has also recorded the difference of the signatures of
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testator on the will-deed and partition-deed. According to him, it is
for the propounder of the Will to remove all suspicious
circumstances. To buttress his submission, he seeks to rely upon the
case of K. Laxmanan Vs. Thekkayil Padmini and others 1, wherein the
Supreme Court has held in para 20 which reads thus:
"20.Strong reliance was placed on this provision also by the
learned counsel appearing for the parties. A bare reading of
the aforesaid provision will make it crystal clear that so far
as a Deed of Will is concerned, the position in law is no
longer in doubt for the onus of proving the Will is on the
propounder. The propounder has to prove the legality of the
execution and genuineness of the said Will by proving
absence of suspicious circumstances surrounding the said
Will and also by proving the testamentary capacity and the
signature of the testator. Once the same is proved, it could
be said that the propounder has discharged the onus."
A reliance is also placed on the decision of the Supreme
Court in the case of H. Venkatachala Iyengar Vs. H.N.
Thimmajamma and others 2 wherein, the Supreme Court has held
that due and valid execution of the will has to be proved by the
proponder of the Will.
6. Conversely, Mr. Vyawhare, learned counsel appearing on
behalf of the respondent vehemently submitted that in second
appeal, facts cannot be re-appreciated unless it is shown that the
1 2009 (3) MhLJ 510 : 2009 (1) SCC 354
2 1959 AIR SC 43 : 1958 SCC Online SC 31
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finding recorded by the Courts below are perverse. According to
him, there is nothing on record to suggest that the facts appreciated
by the first appellate Court are against the settled principle of law.
According to him, the respondent examined one of the attesting
witnesses who happens to be a doctor who deposed about the
condition of the testator. More so, the will is a registered one and is
signed by the testator-Tulshiram in presence of the Sub-Registrar;
therefore, a presumption arises in favour of the respondent and it is
for the appellant to rebut the said presumption. According to him,
the difference in the signature has been very well dealt with by the
first appellate Court and the judgment of the first appellate Court is
well reasoned which does not require interference in second appeal.
To buttress his contention, he seeks to rely on the decision of
Balasubramanian and another Vs. M. Arockiasamy (dead) through
legal representatives 1 wherein, the Supreme Court has held in para
15, which reads thus:
"15. As against such conclusion, the first appellate court in
fact has placed heavy reliance solely on the kist would
indicate that the plaintiff was also in possession of the
property. When such divergent findings on fact available
before the High Court in an appeal under Section 100 of the
Civil Procedure Code though reappreciation of the evidence
was not permissible, except when it is perverse, but it was
certainly open for the High Court to take note of the case
1 (2021) 12 SCC 529
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pleaded, evidence tendered, as also the findings rendered
by the two courts which was at variance with each other
and one of the views taken by the courts below was
required to be approved."
7. Having heard the learned counsel for the appellants as
well as learned counsel for the respondent and having gone through
the judgment impugned and deposition of the witness apart from the
material documents i.e. the will, it transpires that respondent filed a
suit before the trial Court for declaring him as the owner of the suit
property on the basis of will-deed dated 30.05.1996. Needless to
mention that, the father of the appellants and the respondent
executed the Will in favour of the respondent wherein he
bequeathed his property which he got in partition between him and
the parties to the proceedings. The appellants came-up with the
defence of existence of another Will in favour of the son of appellant
no.2 prior to the impugned Will. The earlier Will dated 20.01.1993
executed by their father in favour of the son of appellant no.2 has
been mentioned in the subsequent Will dated 30.05.1996. Thus, the
Will dated 30.05.1996 is subsequent; rather, the last Will of the
testator. Be that as it may, the fact remains that appellant no.2
waived his right on the basis of the earlier Will which was in favour
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of his son. Even the son of appellant no.2 applied for intervention.
Later on, the said application came to be withdrawn.
8. Perusal of impugned judgment of the trial Court reveals
that the trial Court found some contradictions in the evidence of the
attesting witness and the respondent as well as difference in the two
signatures of the testator as well as signature on the Will and on the
partition of the testator and came to the conclusion that these are
suspicious circumstances which ought to have been removed by the
respondent. Since, he failed to remove the suspicious circumstances,
the suit of the respondent came to be dismissed.
9. It is to be noted here that attesting witness PW2-
Balabhau a medical practitioner himself and in his examination-in-
chief he has deposed that the medical condition of the testator was
good but he was suffering from Asthama. The version of his evidence
goes to show that the deceased signed twice in his presence. The
only fact remains that the blood pressure of the deceased was on the
higher side. When the attesting witness who himself was a medical
practitioner has been examined them, there is no need for the
respondent to file the medical fitness certificate of the deceased on
record. That apart, just because the deceased was suffering from
high blood pressure, it cannot be said that the testator was not
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mentally fit to execute the will-deed. So far as the difference in the
signature on the partition-deed and the will-deed is concerned, the
first appellate Court has very well dealt with this aspect and has held
that there is a significant difference of time in signing the partition-
deed and the will-deed and by passage of time the signature of a
person changes. Stretching on the fact of the signature being done in
presence of the attesting witness and the Sub-Registrar, the first
appellate Court has held that the signature cannot be disputed. No
doubt, it is for the propounder of the will to remove all suspicious
circumstances but considering the reasons given by the first
appellate Court with which I concur, I do not see any reason to
disturb the finding of facts recorded by the first appellate Court.
10. With regard to absence of pleading that the testator has
executed Will by signing on the Will is concerned, the respondent
was already pleaded that deceased Tulshiram has executed Will and
the attesting witness examined by the respondent has categorically
deposed about putting signature by Tulshiram in Will and therefore,
no substantial question of law framed at serial Nos.(B) and (C)
arises in this appeal. Consequently, the appeal fails and is dismissed.
Wagh (JUDGE)
