1) This appeal is filed against the judgment and decree of Regular Civil Appeal No.151 of 1999 which was pending in the Court of the Additional District Judge Ahmednagar. The decision given by the trial Court in Regular Civil Suit No.44 of 1993 in favour of present appellant is set aside by the First Appellate Court and her suit is dismissed. Both sides are heard.
2) The appellant had filed suit for relief of declaration and injunction. It is her case that she is widow of one Ramchandra who died on 20-9-1991. It is her case that in the year 1966 in family partition with defendant Nos.1 and 2 (respondent Nos.1 and 2) Ramchandra got land Gut Nos.237, 220, 219 and 160 from village Jamb and it was ancestral, joint family property of Ramchandra and defendant Nos.1 and 2.
3) It is her case that she had married with Ramchandra about 48 to 50 years prior to the date of suit. She has no issue from Ramchandra but according to her, she was cohabiting with Ramchandra till his last breath.
4) It is the case of the plaintiff that, after death of Ramchandra, she came in possession of the suit property and she started cultivating the lands. It is her case that in the last days, Ramchandra was suffering from paralysis. It is her case that Ramchandra was simpleton person. It is her case that by misusing this circumstance, defendant Nos.1 and 2 deceived Ramchandra and they obtained thumb impression of Ramchandra on Will deed dated 16-7-1991. It is her case that as Ramchandra was sick, he was not in sound disposing state of mind. It is her case that said Will is null and void and is not binding on her. It is her case that on the basis of the document of Will the defendants are obstructing her possession over the suit property. In the suit, she had prayed for relief of declaration in respect of tile over the suit property, she had prayed for declaration that the Will is null and void, and she had prayed for relief of injunction to protect her so called possession over the suit property.
5) The defendant Nos.1 and 2 contested the suit. They contended that divorce had taken place between plaintiff and Ramchandra in the year 1976 and since then the plaintiff was living separate from Ramchandra. It is their case that, the plaintiff was living in Ahmednagar and not in the village where the lands are situated. It is their case that after taking divorce from Ramchandra, the plaintiff had married with one person by name Kisan Tapkire and so otherwise also she was not entitled to receive property of Ramchandra.
6) It is the case of the defendants that they maintained Ramchandra during his last days and they also spent for maintenance and medical treatment of Ramchandra. They contended that Ramchandra had given his share to them by making application to revenue authorities and accordingly their names came to be entered in the revenue record. It is their case that as the property was ancestral, Hindu joint family property, on the basis of application given by Ramchandra their names came to be entered in the revenue record in 1986 and since then they have been cultivating the suit lands as owners.
7) It is the case of the defendants that no partition had taken place between them and Ramchandra as contended by the plaintiff. It is their case that only by way of family arrangement the suit land was recorded in the name of Ramchandra for few years. It is their contention that one suit bearing RCS No.587/1991 was filed in respect of the suit property in which they and Ramchandra were party. It is contended that Ramchandra then executed Will deed in their favour voluntarily on 16-7-1991 and so they have become absolute owner of the suit property.
8) The other defendants also contested the suit. They supported defendant Nos.1 and 2.
9) In the trial Court, both the sides gave evidence both oral and documentary. The trial Court held that the defendants failed to prove that there was divorce between Ramchandra and the plaintiff. The trial Court held that defendant Nos.1 and 2 were in possession but they were in possession on behalf of the plaintiff. The trial Court held that Ramchandra was not in sound disposing state of mind.
10) The First Appellate Court decided the matter in favour of defendant Nos.1 and 2 by holding that under the Will the suit property was given to them by deceased Ramchandra.
11) The plaintiff has admitted execution of Will. She has given evidence that mental faculty of Ramchandra was not working properly and he was suffering from paralysis. She has given evidence that Ramchandra was deceived by defendant Nos.1 and 2, the nephews of Ramchandra, and by deceiving, thumb impression of Ramchandra was obtained on the Will. To prove her case, she has relied on the evidence of doctors like Dr. Khedkar, Dr. Puranik and Dr. Holkar.
12) Dr Puranik is practicing in Ayurveda hospital. He has given evidence that Ramchandra was indoor patient in his hospital from 9-7-1991 to 22-7-1991 and Rambhau, defendant No.1, had signed the case papers when Ramchandra was admitted in the hospital. Dr. Holkar is also working in Ayurveda hospital and he has given evidence that one patient suffering from left side paralysis was admitted in the hospital and the patient was not able to speak and walk. He has given evidence that mental condition of the patient was also not good. Their evidence is with regard the period from 9-7-1991 to 22-7-1991.
13) On the other hand, defendant Nos.1 and 2 have examined one attesting witness on the Will and one witness from the Sub Registrar office and they have relied on the contents of the document of Will dated 16-7-1991 (Exhibit 129). This Will was registered on 24-7-1991. The defendant No.1 has also given evidence.
14) The trial Court believed the evidence of the doctors and held that mental condition of Ramchandra was not fit. The trial Court has considered circumstances like discharge of Ramchandra from the aforesaid hospital on 22-7-1991 and the registration of the document on 24-7-1991. Ramchandra died on 20-9-1991 and this period is considered as short period by the trial Court.
15) The First Appellate Court has held that the evidence given by the plaintiff and also by the doctors examined by her is not believable. Many reasons are given for the same by the First Appellate Court. The first reason is absence of record to the effect that Ramchandra was medically examined during admission period to ascertain his mental condition. The First Appellate Court has considered discrepancies in the name of the deceased and the name mentioned in the hospital in the record. The First Appellate Court has considered the circumstance like there was divorce document and it was registered many years prior to the date of Will. The First Appellate Court has considered the evidence given by one defendant, one attesting witness on Will and also the circumstance that the Will was registered. The First Appellate Court has held that no suspicion is created about mental condition of Ramchandra on the date of execution of Will. The First Appellate Court has considered one more circumstance like giving of application by Ramchandra to the revenue authorities much prior to execution of Will in favour of defendant Nos.1 and 2. On the basis of these circumstances, the First Appellate Court has ascertained the intention of the deceased. So far as the point of possession is concerned, the First Appellate Court has held that the revenue record has presumptive value and at least for ascertaining the possession, record needs to be considered in favour of defendant Nos.1 and 2.
16) Ground Nos. I, II, IV and V from the appeal memo were framed by the learned counsel for the appellant as substantial questions of law. These grounds are with regard to appreciation of evidence done by the First Appellate Court, the legality and propriety of the aforesaid presumption raised by the First Appellate Court and also the propriety of the First Appellate Court in giving permission to the appellants/defendants to produce some revenue record at appellate stage.
17) Parties are Hindu. So called registered divorce is there but in view of position of Hindi Law, the marriage between plaintiff and Ramchandra could not have been dissolved by such document. Thus, the dispute needs to be decided mainly on the basis of will deed. Attempt is made to show that the plaintiff had married second time. No evidence is given to substantiate this defence.
18) It is already observed that the plaintiff has admitted the execution of Will. The will is challenged by the plaintiff by making following two allegations - (i) that deceased Ramchandra was ill, he was not in sound disposing state of mind; and, (ii) the deceased was simpleton person, he was deceived by defendant Nos.1 and 2 and as he was sick also, his thumb impression was obtained on the Will document probably by deceiving him.
19) The appeal is considered for admission purpose and so it is necessary for this Court to see whether the law is well settled on the points raised and as to whether some arguable case is made out on the points raised in the appeal memo. The relevant provisions with regard to Will and its execution are Sections 59, 61 and 63 of the Indian Succession Act, 1925.
20) Section 63 lays down the procedure for execution of will. As the procedure laid down in this section is mandatory it also applies for the mode of proof of execution. Section 63 runs as under:-
œ63. Execution of unprivileged Wills.”Every 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 or has been some other person sign 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.?
The provision of Section 63 of the Succession Act shows that for due execution of Will, at least two witnesses need to sign on Will.
21) In view of the pleadings of the plaintiff, it needs to be held that œexecution? of the Will is admitted. In view of provision of section 63 of the Succession Act, for proving due execution of the Will it was necessary to prove that it was attested by two witnesses though under section 68 of the Evidence Act, examination of one attesting witness is sufficient for proof of execution. In the present case one attesting witness is examined. Accordingly, both the Courts have held that there was due and proper execution. The question of execution of Will and also attestation of Will by two witnesses is a question of fact. As the Courts below have given clear finding on this questions, ordinarily such finding cannot be interfered with in second appeal.
22) The question relating to testamentary capacity of the testator and his free agency are required to be decided only after compliance of the provisions of Section 63 of the Succession Act. The provision of section 59 of the Succession Act deals with his point. Relevant portion of this section is as under :-
œ59. 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 who 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.
23) Explanation 4 of section 59 is relating to mental condition due to which the testator does not know what he is ding. If the testator was ill, as per the case of the plaintiff, it is necessary to ascertain whether the testator had visualized and understood the consequences of his disposition. This needs to be ascertain from the surrounding circumstances. In case of illness, want of competent understanding needs to be proved and not unsatisfactory condition of testators body. This is because a sick and dying person often makes Will and not the healthy and young persons. In the case reported as A.I.R. (34) 1947 Privy Council, 169 (Suryanarayanamurthi v. Suramma) at para 15 it is laid down by the Privy Council that the circumstance that testators health had rendered him incapable to manage his affairs personally, does not amount to suspicious circumstance. Thus, what is necessary to consider is the mental condition and not the body condition of the testator.
24) By proving the fact that the document of mutual divorce was created by Ramchandra and plaintiff in the year 1976 and it was registered also, a circumstance is established by the defendants that the plaintiff was not cohabiting with the deceased. A copy of ration card is produced by the plaintiff to show that she was still using name of Ramchandra as her husband. This ration card cannot help the plaintiff in any way as no ration card is produced to show that the ration card was of Ramchandra and the plaintiff was shown as a member of the family of Ramchandra. The circumstance that divorce was obtained from the plaintiff by Ramchandra is mentioned in the Will also. The testator has given property to his nephews (defendant Nos.1 and 2). This circumstance shows that it is not unnatural disposition of property. Thus in the present case it cannot be said that disposition of the property in favour of defendant Nos.1 and 2 is a suspicious circumstance. The point of testamentary capacity and also the point of presence or absence of suspicious circumstance are questions of fact. The test of proof in such a case is satisfied by the standard of ordinary prudent man as laid down in section 3 of the Evidence Act. On the basis of the aforesaid facts and circumstances it can be said that the case of the defendants is more probable than the case of the plaintiff on both the points.
25) The document of Will at Exhibit 129 shows that the testator put his thumb impression before the Sub Registrar when the document came to be registered. There is endorsement of the Sub Registrar to the effect that the testator admitted that he was executing the Will. Under sections 59 and 60 of the Registration Act, 1908 such endorsement is admissible in evidence as admission of the person who executes the document. Thus the registration itself also raises presumption about the makers testamentary capacity. In view of this circumstance it can be said that the testator has fulfilled the legal requirements in relation to section 59 of the Succession Act. Thus, the burden was heavy on the plaintiff in this case to prove her ground.
26) The other allegation is of deceipt, fraud. Relevant provision of Section 61 of the Succession Act in this regard is as under :
œ61. Will obtained by fraud, coercion or importunity.-- A Will or any part of a Will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void.
Illustrations
(i) A, falsely and knowingly represents to the testator, that the testators only child is dead or that he has done some undutiful act and thereby induces the testator to make a will in his, As favour; such Will has been obtained by fraud, and is invalid.
(ii) A, by fraud and deception, prevails upon the testator to bequeath a legacy to him. The bequest is void.
(iii) A, being a prisoner by lawful authority, make his Will. The will is not invalid by reason of the imprisonment.
(iv) A, threatens to shoot B, or to burn his house or to cause him to be arrested on a criminal charge, unless he makes a bequest in favour of C. B, in consequence, makes a bequest in favour of C. The bequest is void, the making of it having been caused by coercion.
(v) A, being of sufficient intellect, if undisturbed by the influence of others, to make a Will yet being so much under the control of B that he is not a free agent, makes a Will dictated by B. It appears that he would not have executed the Will but for fear of B. The Will is invalid.
(vi) A, being in, so feeble a state of health as to be unable to resist importunity, is pressed by B to make a Will of a certain purport and does so merely to purchase peace and in submission to B. Te Will is invalid.
(vii) A, being in such a state of health as to be capable of exercising his own judgment and volition, B uses urgent intercession and persuasion with him to induce him to make a Will of a certain purport. A, in consequence of the intercession and persuasion, but in the free exercise of his judgment and volition makes his Will in the manner recommended by B. The Will is not rendered invalid by the intercession and persuasion of B.
(viii) A, with a view to obtaining a legacy from B, pays him attention and flatters him and thereby produces in him a capricious partiality to A. B, in consequence of such attention and flattery, makes his Will, by which he leaves a legacy to A. The bequest is not rendered invalid by the attention and flattery of A.?
27) In view of Section 102 (Illustration b) of the Evidence Act burden was on the plaintiff to prove the fraud as alleged by her. It can be said that the contentions which fall under section 61 of the Succession Act need to be considered with the contention of the plaintiff which falls under section 59, explanation (iv). In both cases the point of state of mind of the testator is involved.
28) The evidence of the parties needs to be appreciated in view of the aforesaid position of law. In the present case there is evidence of defendant No.1 Rambhau, there is evidence of one attesting witness, there is evidence of circumstance like taking mutual divorce and its registration by Ramchandra, there is evidence on the circumstance like registration of Will and making endorsement about admission of the nature of document by Ramchandra before the Sub Registrar and there is also evidence of circumstance like making application by Ramchandra to revenue authorities much prior to the date of Will deed requesting the revenue authorities to enter names of defendant Nos.1 and 2 in ownership column of revenue record. The evidence given by defendants Nos.1 and 2 is to the effect that the testator was living separate from the plaintiff. The aforesaid evidence and circumstances are sufficient to prove that the testator was in sound disposing condition he wanted to give his property to his nephews, defendant Nos.1 and 2, and not to the plaintiff.
29) The evidence of the plaintiff and her brother is to the effect that for about six months Ramchandra was suffering from paralysis and he was not mentally and physically fit. From the aforesaid circumstances it can be said that she had no personal knowledge regarding mental condition of Ramchandra. Certificate at Exhibit 79 given by the Doctor has no basis of medical examination to ascertain mental condition. The evidence shows that Ramchandra was examined by Dr. Khedkar and then he was treated in Ayurveda hospital. He survived till 20-9-1991 after execution of the Will and so opinion of doctor on the basis of record of July cannot be given much importance.
30) There are more circumstances creating doubt about the evidence given by Dr. Holkar and Dr. Puranik. The admissions given by them during cross examination show that they did not personally examine Ramchandra. Thus, even if the discrepancy in the name mentioned in the record created by the hospital and the name of husband of the plaintiff is ignored, there is no convincing evidence to show that mental faculty of Ramchandra was not working when he executed the Will. Even if it is held that Ramchandra was suffering from paralysis that will not change the fate of the case in view of the observations already made. The circumstance that Ramchandra had already applied to revenue authorities prior to the date of the Will needs to be given due weight to ascertain the intention of Ramchandra. Names of defendant Nos.1 and 2 were entered in the crop cultivation column also. Both the Courts have held that the defendants were in possession of the property. Thus, there is no material with the plaintiff to make out arguable case in the second appeal. On the point like permission given by the First Appellate Court to produce some revenue record which is discussed there is no case with the plaintiff/appellant as there is such power with the appellate Court. This court has no hesitation to hold that no substantial question of law is made out for admission of the appeal.
31) In the result, the appeal stands dismissed. Civil Application No.4345 of 2006 stands rejected. Interim relief, if any, stands vacated.