The Trial Court had not considered the circumstances like contentions made by Anjanabai in revenue proceeding.
Admittedly, the name of plaintiff No. 1 was entered in the revenue record on the basis of mutation, which was made in a proceeding started by Anjanabai. Statement of Anjanabai was recorded in that proceeding. That record is relevant and needs to be considered in view of provision of section 32 of Evidence Act.
Bombay High Court
Subhash vs Maroti on 11 June, 2014
Bench: T.V. Nalawade
1. The appeal is filed against judgment and decree of Regular Civil Appeal No. 27/2003, which was pending in the Court of Ad-hoc District Judge-5, Nanded. The appeal filed by present respondents/original plaintiffs against the judgment and decree of Regular Civil Suit No. 75/2001, which was pending in the Court of Civil Judge, Junior Division, Kinwat is allowed by the First Appellate Court and the suit is decreed in favour of plaintiffs. Both the sides are heard.
2. R.C.S. No. 75/2001 was filed in respect of land Gat Nos. 57, 58 and 59 situated at village Murli. Relief was claimed for declaration of a document of Will executed in favour of one Keshav Bhaware as null and void. Declaration was claimed that aforesaid three properties belong to plaintiffs and relief of possession of these properties was also claimed.
3. It is the case of plaintiffs that one Sambhaji Bhaware was owner of aforesaid lands. It is contended that Sambhaji had a son by name Thakaji and one daughter by name Vithabai. It is contended that the property, initially bearing Survey No. 30, SA No. 8/2008 came to the share of Thakaji and after his death, the property came to his daughter by name Anjanabai. It is contended that the property was standing in the name of Anjanabai till her death and she died issueless on 2.9.1998. It is the case of plaintiffs that plaintiff No. 1 is son of Vithabai, who was daughter of Sambhaji and plaintiff Nos. 2 and 3 are sons of plaintiff No. 1.
It is contended that after the death of Anjanabai, they became owners of the suit property in view of their relationship with Anjanabai.
4. It is the case of plaintiffs that after the death of husband, Anjanabai started living in village Murli and plaintiffs were maintaining her and they were cultivating the suit lands. It is contended that in the year 1985 Anjanabai made application to Tahsildar Kinwat and she requested to enter the name of plaintiff No. 1 on the basis of partition. It is contended that the name of plaintiff No. 1 was entered in the ownership column. It is contended that the defendants and father of defendant No. 1 Keshav had no concern whatsoever with the property, but, the father of defendant No. 1 had objected to the mutation made in favour of plaintiff No. 1. It is the case of plaintiffs that in the mutation proceeding, Anjanabai had given statement in favour of plaintiff No.1 and she had informed that she was living with SA No. 8/2008 plaintiff No. 1 and plaintiff No. 1 was maintaining her.
5. It is the case of plaintiffs that when plaintiff No. 1 was out of station for some time, behind his back, father of defendant No. 1 made a false application in the name of Anjanabai and requested to cancel the mutation made in favour of plaintiff No. 1 on the basis of application given by Anjanabai. It is the case of plaintiffs that on 7.3.1986 Anjanabai informed to the revenue authority that the application was false and she had not put her thumb impression on the application filed by father of defendant No. 1. It is contended that in view of these circumstances, the mutation was made by making an order and name of plaintiff No. 1 was entered in the revenue record as owner.
6. It is the case of plaintiffs that plaintiff No. 1 partitioned the property amongst himself and his two sons and entries were made in the revenue record accordingly. It is contended that in the year 1992, when plaintiff No. 1 was taking care of his wife at Yavatmal, defendant No. 1 separated Anjanabai from plaintiff No. 1 and he managed to file appeal against the order of mutation made in favour of plaintiff No. 1. It is contended that S.D.O. allowed the appeal and the mutation SA No. 8/2008 was cancelled. It is contended that the said decision was challenged in appellate authority, but the appeal was also rejected. It is contended that further appeal was also filed, but due to illness of wife, plaintiff No. 1 could not pursue the appeal and it was dismissed in default by Commissioner, Aurangabad.
7. It is the case of plaintiffs that after the death of Anjanabai, defendant No. 1 himself applied to authority to enter the name of Anjanabai in the revenue record on the basis of decision given by revenue authority. It is contended that the name was entered on 24.12.1998, when Anjanabai died on 2.9.1998. It is contended that the defendant No. 1 then applied for entering his name in the record on the basis of Will Deed purportedly executed by deceased Anjanabai.
8. It is the case of plaintiffs that in the year 1998 Anjanabai was suffering from illness, she was old lady and she was physically and mentally unfit. It is contended that false document of Will was prepared by defendant No. 1 and on the basis of such document, mutation is made by revenue authority in favour of defendant No. 1.
9. It is the case of plaintiffs that when the name of SA No. 8/2008 defendant No. 1 was entered in the revenue record, he filed Regular Civil Suit No. 70/2000 for relief of injunction in respect of Survey No. 59. It is contended that relief of temporary injunction was granted in his favour and on the basis of this injunction, he obtained possession of all the suit lands from plaintiffs. It is contended that defendant No. 1 did not appear to prosecute the matter further and the suit came to be dismissed for default. It is contended that during the pendency of the said suit, defendant No. 1 sold some portion of Gat Nos. 57, 58 and 59 to defendant Nos. 2 and 3.
10. It is the case of plaintiffs that plaintiff No. 1, being the only heir of Anjanabai, became owner of the suit properties and so, no title has passed to either defendant No. 1 or to other defendants.
11. Defendant No. 1 field written statement and contested the suit. It is the case of defendant No. 1 that plaintiff No. 1 had misused the circumstance that Anjanabai was living alone and then, by misusing circumstances that she was illiterate and she was old, plaintiff No.1 got his name entered in the revenue record of the suit lands. He has admitted that father of defendant No. 1 had taken objection to the mutation, but this SA No. 8/2008 objection was rejected by revenue authority. It is contended by defendant No. 1 that no statement was given by Anjanabai before Tahsildar, but by joining hands with the revenue authority, mutation was made and then Anjanabai was driven out of her properties. It is contended that afterwards Anjanabai applied for cancellation of the said mutation.
12. It is the case of defendant No. 1 that Anjanabai challenged the aforesaid mutation before the appellate authority and the appellate authority has cancelled the mutation which was made in favour of plaintiff No. 1.
13. It is the case of defendant No. 1 that Anjanabai was issueless and as father of defendant No. 1 was a close relative, he had taken care of Anjanabai. It is the case of defendant No. 1 that due to the help given by defendant No. 1's father and the defendant No. 1, after the decision of the civil suit, Anjanabai made Will in favour of defendant No. 1 in respect of suit property.
14. The defendant No. 1 has denied that till the year 2000, plaintiffs were in possession of the suit lands and they were cultivating the lands. However, they have contended that SA No. 8/2008after the mutation, which was made in favour of plaintiff No. 1, Anjanabai was driven out of suit property by plaintiff No. 1. It is contended that due to litigation, the land was not under cultivation since 1997. It is contended that when the land was entered in the revenue record in the name of defendant No. 1, he started cultivating the suit property. It is contended that as plaintiff No. 1 had obstructed the possession, suit was filed by defendant No. 1 and interim injunction was granted in his favour.
It is contended that as defendant No. 1 could not remain present for giving evidence, the suit filed by him came to be dismissed.
Defendant No. 1 has admitted that he has sold the aforesaid portions of suit property to defendant Nos. 2 and 3. Defendant No. 1 has denied that plaintiff No. 1 was related with Anjanabai in the way shown by him in the plaint.
15. Defendant Nos. 2 and 3 filed written statement and they took defence similar to that of defendant No. 1.
16. Issues were framed on the basis of aforesaid pleadings. Both the sides gave evidence. The Trial Court held that Will was made by Anjanabai in favour of defendant No. 1.
The Trial Court further held that plaintiffs failed to prove that the Will is null and void. The Trial Court held that defendant Nos. 2 SA No. 8/2008 and 3 are bonafide purchasers. By giving such findings, the suit was dismissed. The First Appellate Court has held that the Trial Court committed error in holding that the burden was on plaintiffs to prove suspicious circumstances of the Will. The First Appellate Court held that the appellants were in possession of the suit property till the relief of injunction was granted in suit filed by defendant No. 1. The First Appellate Court has held that the heir of Anjanabai, plaintiff No. 1, had become owner of the property after the death of Anjanabai. The First Appellate Court held that defendant Nos. 2 and 3 cannot be held as bonafide purchasers for valuable consideration and without notice. By giving such findings, the First Appellate Court has allowed the appeal.
17. By the order dated 27.2.1998 this Court formulated following substantial questions of law :-
(A) When the defendant Nos. 2 and 3 are
bonafide purchasers for valuable consideration,
whether the court below is justified in saying that their sale deeds are null and void when the plaintiff has not prayed for that relief ?
(B) When, the claim of plaintiff is beyond
SA No. 8/2008
limitation for the relief of declaration, whether such suit can be decreed ?
(C) The finding recorded by the court below in favour of plaintiff is without any evidence on record, disregarding the relevant and admissible evidence of defendant, and taking into consideration irrelevant and inadmissible evidence of plaintiff, by misconception of evidence and documents of plaintiff and ignoring the question of admissibility of the evidence of plaintiff, whether such finding is sustainable ?
18. The Trial Court had not considered the circumstances like contentions made by Anjanabai in revenue proceeding.
Admittedly, the name of plaintiff No. 1 was entered in the revenue record on the basis of mutation, which was made in a proceeding started by Anjanabai. Statement of Anjanabai was recorded in that proceeding. That record is relevant and needs to be considered in view of provision of section 32 of Evidence Act.
The statement is at Exh. 37 and in the statement, the relationship of both the sides with Anjanabai was given by Anjanabai. It was statement recorded by authority and so, due weight needs to be given to it. There is another document at SA No. 8/2008 Exh. 38, showing that when the proceeding was started, application was filed probably by father of defendant No. 1 to see that such mutation is not made and then Anjanabai had again informed to the authority that she was sticking to the stand and she wanted to see that the properties were entered in the name of plaintiff No. 1. This mutation was made in the year 1986 and the name of plaintiff No. 1 was entered in the revenue record. It can be said that even if, it is presumed that plaintiff No. 1 is son of Vithabai, son of sister-in-law of Anjanabai, by effecting partition, Anjanabai could not have given the property to plaintiff No. 1 as it was her absolute property. It can be said that due to this circumstance that Anjanabai had again approached revenue authority, had applied for cancellation of mutation and the mutation was cancelled. The document at Exh.
67 is a copy of application given for cancellation of mutation and in that also, it was informed that she had dispute with plaintiff No. 1 Maroti and she wanted to see that the land is not transferred in the name of plaintiff No. 1. There are copies of orders at Exhs. 59 and 69. The contents of written statement also show that plaintiff No. 1 had come in possession of the suit property after the mutation. It is not the case of defendant No. 1 that he or his father were cultivating the suit land during the lifetime of Anjanabai. A copy of order made by the appellate SA No. 8/2008authority shows that entries were made as per the order dated 24.12.1998. Till that time, the name of defendant No. 1 was there in the revenue record and the name of owner was entered as per the partition. These circumstances need to be kept in mind and the contents of the statement given by Anjanabai and application given by her are sufficient to prove on the preponderance of probability that plaintiff No. 1 was her relative and she was staying with him. On the other hand, defendant No. 1 has come with the case that Sambhaji had only one issue namely Thakaji, but he had no daughter by name Vithabai.
Defendant No. 1 wants to show that his father was cousin of Anjanabai. But, no such genealogy is given by defendant No. 1 and plaintiff No. 1 has come with the specific case about genealogy. Thus, the case about the relationship about plaintiff No. 1 with Anjanabai is more probable in nature. In view of aforesaid circumstances, the burden was heavy on defendant No. 1 to prove that Anjanabai had made Will in his favour. In section 63 of Indian Succession Act, the procedure for execution of Will is given, which is mandatory in nature. For the proof of execution of Will, it needs to be shown that mandatory procedure was followed. Section 63 of Indian Succession Act 1925 is as under :-
"63. Execution of unprivileged Wills.-- Every SA No. 8/2008 testator, not being a soldier employed in an expedition or engaged in actual warfare or an airman so employed or engaged or a mariner at sea, shall execute his Will according to the following rules:--
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
19. In the present case, the execution of Will itself is disputed by plaintiff No.1. In view of this circumstance, it was SA No. 8/2008 necessary for defendant No. 1 to prove that the Will was executed and it was also attested by the two witnesses as required by the aforesaid provision. Only after compliance of provision of section 63 of Indian section Act, the provision of section 59 of the said Act needs to be applied. The provision of section 59 is as under :-
"59. Person capable of making Wills.-- Every person of sound mind not being a minor may dispose of his property by Will.
Explanation 1.-- A married woman may dispose by Will of any property which she could alienate by her own act during her life.
Explanation 2.-- Persons who are deaf or dumb or blind are not thereby incapacitated for making a Will if they are able to know what they do by it.
Explanation 3.-- A person is ordinarily insane may make a Will during interval in which he is of sound mind.
Explanation 4.-- No person can make a Will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing."
20. The First Appellate Court has quoted and considered SA No. 8/2008 the suspicious circumstances surrounding the Will and due to those circumstances, it is held that defendant No. 1 has failed to prove the Will. For proving the Will, defendant No. 1 has examined himself and he has examined one Baba Khan, attesting witness. The evidence of these witnesses and the document of Will (Exh. 62) show that the document was created on 28.7.1998 and it was written on a stamp paper. The stamp paper shows that it was purchased by Datta Keshav Bhaware, brother of defendant No. 1, though it was for Anjanabai. The stamp paper was purchased from a stamp vendor, who was selling stamp papers in the office of Sub-Registrar, Kinwat. It was scribed by one Gatlewar. It appears that this document was taken before the Clerk from the office of Tahsildar and defendant No. 1 Subhash had given identification of the executent before the Clerk. The First Appellate Court has considered the position of such clerk and some observations are made about the conduct of defendant No. 1. No explanation is given by the defendant No. 1 as to why he did not take Anjanabai before Sub-
Registrar, if he was already present in the Sub-Registrar Office for registration of Will though legally registration is not necessary.
21. When Anjanabai was aged about 80 years and when SA No. 8/2008 she died within 35 days from 28.7.1998 it was necessary for defendant No. 1 to show that she was fit to make such Will. It was necessary in view of explanation (4) of section 59 of Succession Act. The evidence of attesting witness Baba Khan in cross examination shows that he frequently attended the Court.
His evidence is appreciated by the First Appellate Court and he is described as 'Court Bird'. No explanation is given as to how and when defendant No. 1 got the custody of the Will, if the Will was made by Anjanabai. The First Appellate Court has considered all the suspicious circumstances and they are as follows :-
(i) It is defendant No. 1, the sole beneficiary of the Will, who took the steps for preparation of the aforesaid document.
(ii) When it was possible to register the document, as from the document it can be said that Anjanabai was taken to other place for execution of Will, the document was not registered before the Sub-Registrar.
(iii) When it was not necessary, verification of senior Clerk of Tahil office was obtained on the Will.
(iv) Court Bird was used as attesting witness and no relative of Anjanabai was used as attesting witness.
(v) It is defendant No. 1 sole beneficiary, who signed even for identification before Senior Clerk of Tahsil SA No. 8/2008 Office and the stamp was produced by his brother.
(vi) No certificate of doctor was obtained to show that Anjanabai was fit to make will.
(vii) When Anjanabai was illiterate and of old age and probably sick also, the description of the lands and the dispute is mentioned in detail.
(viii) Even when properties were not entered in the name of Anjanabai, the document of Will was made.
22. The point of testamentary capacity of the testator and the point of presence or absence of suspicious circumstances are questions of facts. The test of proof in such a case needs to be satisfied as laid down in section 3 of Evidence Act. The First Appellate Court has held that the case of plaintiff No. 1 is more probable on this point and as the last Court on appreciation of fact, the First Appellate Court has rightly appreciated the evidence on these facts.
23. The learned counsel for respondents placed reliance on the case reported as AIR 2003 BOMBAY 457 (P.
Ramachandran nair Vs. Smt. Suparna Taman Das). In this case, this Court has discussed the effect of suspicious circumstances and the burden of propounder of Will to give SA No. 8/2008explanation about suspicious circumstances. The case reported as 1972 SUPREME COURT 2492 (Pushpavati and Ors. Vs. Chandraja Kadamba and Ors.) was also cited to show that in view of provision of section 63 of Indian Succession Act, the burden of proof of execution and attestation is on the propounder of the Will. This Court finds no reason to interfere in the finding given by the First Appellate Court on the point of burden of proof in respect of execution and attestation of Will and also for giving explanation by defendant No. 1 in respect of suspicious circumstances. The Trial Court had committed error in holding that the burden was on plaintiff No. 1 to prove the suspicious circumstances when the execution and attestation was not satisfactorily proved by defendant No. 1, propounder of the Will.
24. Defendant Nos. 2 and 3 have not entered the witness box to show that they are bonafide purchasers. They filed appeal with defendant No. 1 and they are from the same village. In view of these circumstances, it cannot be said that they are bonafide purchasers. If defendant No. 1 fails to prove the title, then the defendant Nos. 2 and 3 are bound to fail to prove their case of bonafide purchasers without notice and for valuable consideration. It appears that only parts of 3 lands are shown to SA No. 8/2008 be sold and it can be said that only to create complications, the sale deeds were prepared.
25. On the point of limitation, it can be said that the suit was filed on 3.12.2001 i.e. within three years from the date of sanction of mutation in favour of defendant No. 1 which is 15.7.2000. Even the mutation in favour of deceased Anjanabai was sanctioned on 24.12.1998. So the suit was filed within three years from the date of knowledge of the so called Will. The Will was first time mentioned in the mutation sanctioned in the year 2000. The suit was filed by defendant No. 1 in the year 2000 and it can be said that in the year 2000, plaintiff No. 1 got information that defendant No. 1 was using the disputed Will.
Thus, the First Appellate Court has not committed any error on this point also. This court finds no reason to interfere in the decision given by the First Appellate Court.
26. In the result, the appeal stands dismissed.
[ T.V. NALAWADE, J. ] ssc/
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