Judgment:
B.P. Dharmadhikari, J.
1. By this second appeal, the original plaintiffs are challenging the reversing judgment delivered by Lower Appellate Court. The present appellants are in fact legal heirs of original plaintiff and their grand mother Smt. Rukhmabai instituted Regular Civil Suit bearing No. 140/1978. It is not in dispute that Rukhmabai died some time in the year 1986 and thereafter the names of present appellants (grandsons) are brought on record as her legal heirs because of Will exhibit 44 allegedly executed by her in their favour. The Suit filed was against widow of her deceased son Balkrishna & for recovery of possession of 4 hectares and 60 R portion of field Survey No. 60/2 of village Shelu, Tq. Wani, District Yavatmal. The description of suit property as also relationship is not in dispute between parties. Rukhmabai was widow and was having two sons namely Bhaurao and Balkrishna. It is admitted position that in 1951 there was partition of agricultural land between Rukhmabai, Balkrishna and Bhaurao. Plaintiff alleged that field Survey No. 60/2 was given to Rukhmabai for maintenance & she gave possession to her two sons namely deceased Balkrishna and Bhaurao. She divided field survey No. 60/2 into two equal portion, each admeasuring 4.60 hectares and placed it in custody of respective sons. Balkrishna expired on 9/3/1978 and property of Balkrishna including portion of field Survey No. 60/2 was being managed and looked after by his widow i.e. original defendant. Rukhmabai by legal notice 17/4/1978 called upon defendant not to cultivate said filed and as defendant did not reply, she filed a suit.
2. The suit was opposed by Indirabai by pointing out that the field survey No. 60/2 was not given to Rukhmabai at all and it was divided between two brothers equally and Rukhmabai had no right in it. She further contended that Rukhmabai relinquished her ownership over the portion of field Survey No. 60/2 given to Balkrishna. During the pendency of suit in 1986, Rukhmabai expired and after her expiry, the suit was amended by her legal heirs i.e. sons of her other son by name Bhaurao. They contended that Rukhmabai had left behind a Will executed by her 27/11/1978 vide exhibit 44 and as per the said Will, they have become the owners and therefore, are entitled to possession of entire field survey No. 60/2. In consequential amendment defendant Indirabai denied execution of any Will by Rukhmabai and contended that Will was fraud being played by the appellants. She further contended that her husband Balkrishna had executed Will and accordingly portion of field Survey No. 60/2 in her possession was given by Balkrishna to his legal heirs.
3. The trial Court framed 10 issued and 3 additional issued and it found that there was a partition in which field Survey No. 60/2 was given to Rukhmabai and her two sons were in possession thereof on her behalf. It further found that defendant was continuing in cultivation of portion of field Survey No. 60/2 admeasuring 4.60 hectares without her permission and therefore, plaintiffs were entitled to possession. It also found that the defendant could not establish any relinquishment by Rukhmabai and also could not establish Will dated 13/2/1978 executed by deceased Balkrishna bequeathing suit field to his wife(defendant). In view of these findings, the trial Court decreed the suit and directed defendant to hand over the possession to plaintiffs but it rejected enquiry into mesne profits.
4. Indirabai, then filed Regular Appeal bearing No. 29/1988 before the 2nd Additional Sessions Judge, Yavatmal who framed six points for determination and found that it was not proved that Rukhmabai was owner of field Survey No. 60/2 and it also found that the said field survey No. 60/2 was equally divided between two sons, who were taking crops from it. It found that Rukhmabai was not shown to be the owner thereof till her death and her Will Exhibit 44 was also not proved in accordance with law. It further found that the plaintiffs were not entitled to relief for possession. It therefore on 9/6/1992 allowed the said appeal and dismissed Regular Civil Suit bearing No. 140/1978.
5. Thereafter, this Court has admitted present second appeal on 15/3/1993 on ground Nos. 1 and 2 in memo of appeal. The matter was heard for sometime on 15/4/2008 and upon request then recorded an additional substantial question of law was framed by me, in relation to the correctness of finding on the Will exhibit 44 by lower Appellate Court, as per ground No. 5 in memo of appeal. Thus, following three questions falling for adjudication in this second appeal.
(i) That with the admitted position that S. No. 60/2 was allotted to Rukhmabai at the partition effected between Rukhmabai and her two sons Balkrishna and Bhaurao and the plea of relinquishment having properly been negatived and with the finding of the Tenancy Court that Balkrishna was not a tenant, the Plaintiff could not legally be denied the decree as claimed.
(ii) That the property in suit having admittedly vested in Rukhmabai and she not having divested herself of the property under any recoganised mode, it was evident that the claim for possession as made was duly made out and established necessitating the grant of decree as claimed.
(iii) That the Will Ex.44 dated 27th November, 1978 was duly established creating title in the legatees thereunder and the finding of the learned Additional District Judge in respect of the said Will is unsustainable in law warranting the same to be set aside.
6. I have heard Advocate J. J. Chandurkar for appellants and Advocate D. V. Chavan with Advocate Ninad Ingle for respondent.
7. Advocate Shri Chandurkar has contended that the lower Appellate Court has erroneously held that Rukhmabai was not owner of field Survey No. 60/2. He invites attention to admission given in written statement by defendant in this respect and contended that significance of such admission is ignored by Lower Appellate Court. He has placed reliance upon the judgment of Hon'ble Apex Court reported in : [1974]2SCR544 Nagindas Ramdas v. Dalpatram Iccharam alias Brijram and Ors. He further states that the story of defendant that Rukhmabai relinquished her ownership over the field survey No. 60/2 has not been proved at all and he points out that the lower Appellate Court has not correctly appreciated legal position in this respect. He further states that when the partition took place between two sons of Rukhmabai, she being a widow mother, as per Article 316 of Hindu Law by Mullah, she was entitled to share equal to that of her sons and if the said share was not given, entire partition would stand vitiated.
8. In relation to Will Exh. 44 he states that it was already pleaded that at the relevant time, Rukhmabai had gone to brother's home at Adilabad, where she met with minor accident and her leg fractured and because of that fracture, she signed the plaint at Adilabad and she also executed Will exh. 44 at Adilabad. He states that Will was duly registered before the competent authority and the said registration has been proved. He further contends that scribe and attesting witness Advocate Deshmukh from Adilabad has been examined to prove the said Will and the Courts below have actually found that the Will has been proved on record. He contends that the lower Appellate Court has erroneously concluded that there are suspicious circumstances shrouding its execution. He contends that entire discussion in this respect, as undertaken by lower appellate Court, is misconceived and unsustainable. He contends that pleadings in this respect disclose that though the defendant had raised plea of coercion and fraud played by Bhaurao upon Rukhmabai in relation to execution of Will exh. 44, the defendant-Indirabai has not uttered a word about such coercion or any such fraud in her evidence. He states that it has not been proved on record that Bhaurao, at the relevant time, had been to Adilabad to influence his mother and to procure Will exh.44. He points out that the judgment of Hon'ble Apex Court reported in : AIR2005SC52 ( Meenakshiammal(dead)through LRs and Ors. v. Chandrasekaran and Anr. to substantiate his contentions. In order to show that even after field Survey No. 60/2 was placed in possession of her two sons by Rukhmabai, she continued to be owner thereof, he placed reliance upon the revenue record vide exh. 51. He contends that all questions as formulated above, therefore, need to be answered in favour of the appellants/original plaintiffs and the judgment and decree of trial Court needs to be restored.
9. Advocate Chavan with Advocate Ingle on the other hand states that the burden to show that Will executed is legal and valid document was upon the plaintiffs. He relied upon the judgment of this Court reported in 1967 Mh L J 341 (Rangu Vithoba and Ors. v. Rambha Dina and another) to point out requirement of a valid plea about Will in such circumstances. He contends that as the plaint does not contain basic pleas in relation to Will exh. 44, the evidence adduced without any such plea, could not be looked into. He contends that Will, therefore, has been rightly ignored by lower Appellate Court. He further relied upon the judgment of Orissa High Court reported at : AIR1978Ori145 (T. Venkat Sitaram Rao and Anr. v. T. Kamakshiamma and Ors. ) and the provisions of Section 63(c) of Succession Act to point out significance of attestation. He states that in the present fact attestation of Will exh. 44 by attesting witnesses has not been established and, therefore, Will could not be read into evidence. He invites attention to the evidence of Advocate Deshmukh in this respect and contends that Advocate Deshmukh does not say that Rukhmabai put her thumb impression in his presence or in presence of other attesting witnesses. Also he does not say that he and other attesting witnesses signed the Will in presence of Rukhmabai. To support his contention, he has placed reliance upon the judgment of Hon'ble Apex Court reported in : [1977]1SCR578 Beni Chand(since dead) now by LRs. v. Smt. Kamla Kunwar and Ors. He further states that Rukhmabai was illiterate and she only understood Marathi and in Adilabad Will has been drafted in English. There is nothing on record to show that the contents thereof were explained to her. He points out that Will Exh.44 nowhere states that the contents therein were read over and explained to Rukhmabai and she accepted the same to be correct. He further states that evidence of Adilabad advocate about explaining the contents of Will in Marathi to Rukhmabai is clearly by way of after thought. He points out that Advocate Deshmukh was friend of brother of Rukhmabai. According to him, Bhaurao and brother of Rukhmabai and also the said Advocate Deshmukh colluded together and brought into existence Will exh.44. He relied upon the judgment of Hon'ble Apex Court reported at : AIR1959SC443 ( H. Venkatachala Iyengar.v. Thimmajamma and Ors. ) in support of his contention. He invited attention to the doubtful circumstances high-lightened by lower Appellate Court and states that said question really arises in the facts of present matter and as those circumstances have not been explained, the propounder Bhaurao could not have used Will at all and the lower Appellate Court has rightly discarded the said Will exh.44.
10. In support of contention of respondent that Rukhmabai had relinquished her share in the property, he relied upon the evidence appreciated in para 11 by the lower Appellate Court. According to him, as Rukhmabai was not owner of portion of field Survey No. 60/2 in occupation of deceased Balkrishna and there after present respondent, she was incompetent to execute any Will in relation thereto. To drive home the meaning of attestation and the effect of provisions of Section 63(c), the support is being sought from the judgment of Hon'ble Apex Court reported in : (2007)9SCC728 ( Benga Behera and Anr. v. Braja Kishore Nanda and Ors. ) and : [2002]SUPP5SCR175 (Janki Narayan Bhoir v. Narayan Namdeo Kadam).
11. In his brief reply, Advocate Chandurkar has pointed out that beneficiaries of Will Exh. 44 were sons of Bhaurao and neither Bhaurao nor his sons were present at Adilabad, when Will was executed. He, therefore, states that no specific assertion in relation to the fact or circumstances in which Will came to be executed, could have been made by these persons in amended plaint, in absence of personal knowledge. He argues that as the Will was being pointed out as a source of title in plaint, it implies that the plaintiffs wanted to prove that the Will was legal and valid document executed in accordance with law and it was also her last Will. He further states that no objection was raised in this respect. The Will exh. 44 was executed before the Sub-Registrar. He, therefore, contends that the objections raised by respondent are without any merits and the judgment and decree delivered by lower Appellate Court needs to be set aside and second Appeal deserves to be allowed.
12. Insofar as the partition between two brothers i.e. Bhaurao and Balkrishna in 1951 is concerned, the trial Court has found that in fact, there was a partition and in it deceased plaintiff-Rukhmabai received field Survey No. 60/2 and other two fields in her share. It further found that defendant-Indirabai also admitted the said fact in her written statement i.e. para 10 of her written statement. It further found that though there was no express evidence by plaintiff about any such partition or giving field Survey No. 60/2 to Rukhmabai, in view of admission by Indirabai, the fact stood proved. The lower Appellate Court in Para 11 of its judgment has considered the evidence on record and in view of that evidence, has raised the doubt whether the field Survey No. 60/2 was really allotted to Rukhmabai under the partition towards maintenance. It found that if admission was accepted then, the possession of Balkrishna continuously after 1951 could not have been explained. It perused 7/12 extract and found that name of Balkrishna has been recorded there as a person cultivating the portion of field Survey No. 60/2. On the basis of this evidence, it has been found that Rukhmabai was not at all owner of the suit field. Earlier consideration of Lower Appellate Court shows that partition between two brothers in 1951 was accepted. It also records that in the said partition Rukhmabai got field survey No. 60/2 and other fields. From the pleading of the parties, it concluded that entire field survey No. 60/2 and other two fields were exclusively allotted to the plaintiff for her maintenance and therefore, Rukhmabai was owner of field Survey No. 60/2 sometime in the year 1951. However, thereafter it observes that Rukhmabai had divided field Survey No. 60/2 in two equal portions and eastern half portion admeasuring 4.60 hectares (suit property) came into possession of Balkrishna and remaining western half portion admeasuring 4.60 hectares came into possession of Bhaurao. It further found that whether the said equal division was as per the Will of Rukhmabai or it was partitioned in between Bhaurao and Balkrishna has not specifically come on record. It found that after such division Bhaurao and Balkrishna started cultivating their respective portions. It further found that though Indirabai(defendant) stated that Rukhmabai had relinquished her share, there was no evidence of any such relinquishment. It is therefore, obvious that the lower Appellate Court has found that it is Rukhmabai, who divided field survey No. 60/2 equally between her two sons. Therefore, she seems to be owner of the property. The conclusion that she ceased to be owner is contrary to the case of both parties as the parties have accepted that the field was given to her for her maintenance. The defendant has tried to contend that she relinquished her share. The relinquishment has not been established and both the Court have concurrently held against the defendant in relation thereto. When Rukhmabai had given entire field by dividing it equally for possession of two sons, it is obvious that names of two sons would appear as persons in cultivation in 7/12 extract. The document at exh. 51 clearly shows the names of Rukhmabai as owner of said field Survey No. 60/2 and it mentions names of Bhaurao and Balkrishna as persons in possession. Exh. 51has got one important remark and it states that for loan of Rs. 1274.89Rukhmabai had mortgaged her land i.e. survey No. 60/2 with the State Government on 30/3/1972 and loan was to be repaid in 15 equal installments. This remark on exh.51 which is almost 21 years after division of field survey No. 60/2 by Rukhmabai and its handing over to two sons clearly shows that Rukhmabai continued as owner even though she divided the said field into two portions and handed it over to two sons. The revenue record therefore, does not show that Bhaurao and Balkrishna were given their respective portions of field Survey No. 60/2 in ownership rights. It appears that the said field was given to Rukhmabai towards her maintenance and she entrusted the responsibility of its cultivation equally to her sons, the findings of lower Appellate Court that Rukhmabai was not the owner of suit field, therefore, can not be sustained. It is obvious that if Rukhmabai had given up her ownership in 1951 itself, there was no need for defendant to plead any relinquishment by Rukhmabai. Also, she could not have taken any loan on it.
13. After death of Balkrishna on 9/3/1978, Rukhmabai has forwarded legal notice at exh. 53 on 17/4/1978 to present defendant & acknowledgment of respondent is at Exh. 54 and vide exh.52 defendant/respondent has on 23/5/1978 sent a communication but has not replied to this notice. In it, she has only stated that as her husband had recently expired, she did not accept the notice forwarded to her earlier and notice should again be forwarded. Accordingly, notice has been forwarded and she does not reply to it. All these events, therefore, conclusively show that filed survey No. 60/2 was received by widow-Rukhmabai as her own property in lieu of maintenance in partition between her sons. It is also obvious that because of Section 14(1) of Hindu Succession Act 1956, as the said field survey given to her in lieu of maintenance, if it was only life estate, it stood enlarged into absolute ownership and as such, Rukhmabai was the complete owner and competent to execute Will exh.44. It is to be noted that none of the parties have contended that Rukhmabai was only having life estate in field survey No. 60/2 in present facts.
14. Coming to Exh. 44 i.e. the Will, the lower Appellate Court has found some circumstances to be suspicious or doubtful; and therefore, discarded the Will at exh.44. The other reason given by it is that Rukhmabai was not the owner of field survey No. 60/2 & she was not in possession thereof. This reason is already found to be incorrect by me. The other reasons given by it are, in plaint nowhere mentions that Will was attested by two persons, it nowhere mentioned that Will is last Will and she was in sound disposing state of mind or contents of Will were explained to her in Marathi and she placed her thumb impression upon it after understanding the same. The lower Appellate Court found that Will was executed in Andhra Pradesh, where English or Telgu was in used and Rukhmabai was not knowing both these languages. It further found that these factors were also not mentioned in the Will itself and Will was not disclosed by Rukhmabai till her death on 17/7/1986. It found that Will was, therefore, suppressed for almost nine years after its execution. It found that no reasons necessitating execution of Will were also disclosed and plaint simply mentioned very causally that she had gone to Adilabad to her brother's house where her leg got fractured and therefore, she was not able to stand on her leg. It found that Civil Suit No. 140/1978 which was already instituted by her has not been mentioned in the Will at all. It further found that all these circumstances created doubt about execution of Will by Rukhmabai. It also recorded that witness Bhaurao did not utter a word about will deed in his examination in chief. It pointed out that Bhaurao in his cross examination accepted that his mother was not having any right to file suit and on that basis it concluded that Rukhmabai was instigated by son to file the suit for possession. From this it discovered the evil intention of Bhaurao, who cultivated rest of the suit property. These are the reasons given by lower Appellate Court in para 13 for doubting exh. 44. In 1967 Mh L J 341(Rangu Vithoba and Ors. v. Rambha Dina and another), on which Advocate Chavan has placed reliance, it is apparent that the Will executed 30 years before the death of testator was made the base for institution of suit for possession. It was registered Will and its execution and validity was assailed by the defendants, who were the other heirs of the testator. The plaintiff did not examine herself or scribe of Will or attesting witnesses. The trial Court held that the plaintiff failed to prove Will and Trial Court also refused to raise presumption about its valid execution because of Section 90 of Evidence Act. It further decreed the claim to the extent of his 1/3rd share as the heir of deceased. In Appeal, the District Court held that the burden of proof was wrongly placed on the plaintiff as the Will being a document executed more than 30 years before, a presumption should have been drawn about its validity because of Section 90 of Evidence Act as testator did not take any steps to revoke the Will and as it was executed with apprehension of death and as it was registered document. In Second Appeal before this Court contention of appellant-defendant was that lower Appellate Court was not justified in interfering with the discretion of the trial Court in refusing to raise presumption under Section 90 of the Evidence Act. Thus, the observations in para 19 on which, the respondent wish to rely are required to be understood in this background. This Court has observed that there was no pleadings of plaintiff that Will in question was duly attested or was the last Will of the testator. It further found that propounder or plaintiff must plead that document was properly executed and duly attested and was the last Will of the testator and this was not being disputed by the other side. The contention of other side that when plaintiffs have approached the Court with such a case, it itself means that the Will was attested and it was the last Will of testator, was not accepted by the Court because it found that other side before he was laying stress on the fact that the defendants had not denied these facts. This Court has found that as there was no such pleading by plaintiff, there was no question of any denial by defendant. It found that as the plaintiff did not plead above facts there was no question of drawing any presumption under Section 90. In concluding part, para 19, this Court has found thus, the essential basis for a suit based on a Will that it was last Will of the testator was neither pleaded nor proved and, therefore, the plaintiff's suit based on the Will was bound to fail on that ground, even if she was entitled to succeed on the other grounds.
15. The suit in the present case was filed before the execution of Will by Rukhmabai. She has signed the plaint at Adilabad on 1/8/1978 and Will has been executed by her at Adilabad on 27/11/1978. She expired on 17/7/1986 and thereafter her plaint has been amended on 31/7/1987. Though date 17/7/1987 shown as date of death in this amendment, in evidence her son-Bhaurao has stated that she expired on 17/7/1986 and the lower Appellate Court has also mentioned that she expired on 17/7/1986. Not much turns about exact year of death in the present facts. In unamended plaint filed by Rukhmabai, she herself stated that her son Balkrishna expired on 9/3/1978 and thereafter she served registered notice dated 17/4/1978. She also pointed out reply dated 23/5/1978 sent by defendant-Indirabai and fact of again forwarding said notice to Indirabai on 8/6/1978. In para 4 she has stated that she had gone to Adilabad in Andhra Pradesh to her brother's house, where she had a fall because of her old age and her leg got fractured and therefore, she was unable to stand or move and because of this reason, she could not file suit earlier. The perusal of verification at the end of plaint shows that she had signed the same at Adilabad in Andhra Pradesh on 1/8/1978. In written statement filed by Indirabai vide exh. 10, the fact that plaintiff Rukhmabai was at Adilabad at her brother's house, where her leg was fractured, has not been denied. Perusal of evidence which has come on record does not establish that when the Will was executed by Rukhmabai at Adilabad, Bhaurao was at Adilabad. Similarly though there was a plea that Will of Rukhmabai was inoperative and illegal as she was not in sound disposing state of mind and it was obtained by coercion, Indirabai has not led any evidence about the mental condition of Rukhmabai or any coercion or fraud played by Bhaurao upon her. The record shows that when Rukhmabai was at Wani, i.e. at her residence and when her leg was not having any injury, she forwarded legal notice exh. 53 on 17/4/1978 and asked her daughter-in-law- Indirabai not to cultivate field Survey No. 60/2. Reply exh. 52 forwarded on 23/5/1978 is also addressed by Indirabai to Rukhmabai on her residential address at Wani. Thus, the decision which was already taken by Rukhmabai vide notice exh.53 was implemented by her by filing the suit. The entire application of mind by lower Appellate Court in Para 13 needs to be considered in this background.
16. The lower Appellate Court has recorded a portion from cross examination of Bhaurao which reads as follows:
My mother has not any right to institute the suit. This portion when read from the original i.e. from Marathi also as its English translation, was not very clear. It appeared that it was to be read along with earlier sentence, it was qualified by words 'it is not true to say'. In any case, when it is found that Rukhmabai was the owner of field survey No. 60/2, even if Bhaurao says his mother was not having any right to file any suit, it would not carry any relevance. Not only this Bhaurao was relying upon the Will exh.44 executed by Rukhmabai alone in relation to field survey No. 60/2 in favour of his sons and it is therefore, apparent that there is some error on part of learned trial Court while recording evidence. However, by relying upon the portion mentioned above, the lower appellate Court has concluded that Rukhmabai was instigated by her sons to file suit and therefore, she filed suit for possession. This appears to be contrary to what flows from exh. 53 and because of this logic, lower Appellate Court has also found that Bhaurao was having ill-eye on the suit property. Again when such consideration of this aspect by lower Appellate Court is found to be incorrect, this conclusion can not be supported.
17. At this stage it would be convenient to consider the fact that neither Bhaurao nor sons of Bhaurao were at Adilabad when Will was executed. In such circumstances, they could not have of their own knowledge pleaded that the Will was attested in accordance with law and it was executed as per law. They approached the Court with registered Will. It is obvious that if it was not legally executed, the claim could not have been granted. The contentions that it was therefore, necessary for appellants to plead that Rukhmabai was in sound disposing state of mind while executing Will and it was her last Will are not relevant here. The consideration by this Court in its judgment reported 1967 Mh L J 341(supra) is in the background of the fact that their Will was more than 30 years old and suit for possession basing claim upon it, was filed more than 30 years thereafter. The beneficiary did not enter the witness box, scribe was not examined and the attesting witnesses were also not examined. The trial Court had only drawn presumption by invoking Section 90 of the Evidence Act. The lower Appellate Court did not accept such an exercise. Thus, I find that judgment reported at 1967 Mh L J 341 does not mean that in every case such a plea must essentially appear in plaint while pointing out the Will in favour of plaintiff. In the present facts as already mentioned above, the sound disposing state of mind of Rukhmabai at the relevant time has also been pleaded and Will executed by her was also pleaded. Whether it was validly attested or whether it was validly signed or executed by Rukhmabai was not within the personal knowledge of present plaintiffs and as such, they have pleaded and pointed out only will. They have then attempted to prove the necessary essential facts to make that document the last Will of deceased by leading evidence before the trial Court.
18. This brings me to consideration of evidence of Shri Deshmukh, scribe of the Will as also attesting witness. Before going to his evidence, it would be worthwhile to point out various judgments relied upon by the parties.
19. Advocate Chavan has placed relied upon the judgment of Hon'ble Apex Court reported at : [1955]1ITR1035(SC) Naresh Charan Das Gupta v. Paresh Charan Das Gupta and another. There both the attesting witnesses stated in examination in chief that testator signed the Will in their presence and they attested his signature. They did not add that they signed the Will in presence of testator. The contention before the Hon'ble Apex Court was that in absence of such assertion it was to be held that there was no due attestation. The Courts below had held against the appellant before the Apex Court in this respect. The Hon'ble Apex Court has found that it cannot be laid down as a matter of law that because the witnesses did not state in examination-in-chief that they signed the Will in the presence of the testator, there was no due attestation. The Hon'ble Apex Court found that it would depend upon on the circumstances elicited in evidence whether the attesting witnesses signed in presence of the testator and it was a pure question of fact depending upon appreciation of the evidence. The Hon'ble Apex Court noted that High Court found that execution and attestation took place in one sitting at the residence of P. W. 1 where testator, witnesses had assembled by appointment and therefore, all of them must have remained present until the matter was concluded. The witness was not himself examined on the question of attestation.
20. In : (2007)9SCC728 Benga Behera and Anr. v. Braja Kishore Nanda and Ors. , relied upon by Advocate Chavan, the Hon'ble Apex Court found that PW 9 had put his signature before testatrix had put thumb impression on the Will. He did not answer the requirement of attesting witnesses. It also found that he was not aware of any other person attesting the Will. It, therefore, held that 23 his evidence was insufficient to prove execution in writing. It is, therefore, obvious that as this person has placed his signature before hand and he was not aware about other persons attesting the Will, the view has been taken by the Hon'ble Apex Court.
21. Advocate Chavan has also placed reliance upon the judgment of Hon'ble Apex Court Janki Narayan Bhoir v. Narayan Namdeo Kadam : [2002]SUPP5SCR175 wherein Hon'ble Apex Court found that when only one attesting witness was examined and when he did not prove attestation of Will by the other attesting witness, Will was not properly proved. The other attesting witnesses was available, but was not examined.
22. : [1977]1SCR578 Beni Chand (since dead) by LR Smt. Kamla Kunwar and Ors. , the evidence on record revealed that he and other two witnesses saw testatrix Jaggo Bai put thumb mark on the Will by way of execution and that they all signed the Will in token of attestation in her presence after she had affixed her thumb mark. In para 10, Hon'ble Apex Court found that this evidence was sufficient to hold that execution of Will by deceased Jaggo Bai was satisfactorily proved.
23. : AIR1978Ori145 T. Venkat Sitaram Rao and Anr. v. T. Kamakshiamma and Ors. , is the other judgment pressed into service by Advocate Chavan, to state that the proof of attestation of the document by only one witness would not satisfy the statutory requirement of attestation of a Will, and propounder has to prove satisfactorily the requirement of Section 63(c) of the Succession Act. From the facts there, it appears that Will was not a registered document and attesting witnesses examined, did not state that he signed the document in presence of executant after seeing the execution of the document or after receiving personal acknowledgment from the executant about the same. In para 11, the Hon'ble Orisa High Court has concluded that it was not proved that the said will was attested by two witnesses and hence it can not be used as a Will.
24. : AIR1959SC443 H. Venkatachala Iyengar. v. Thimmajamma and Ors. has also been pointed out for the same purpose. However, consideration therein does not reveal any different proposition in law and about requirement of proof. Therefore, it is not necessary for this Court to consider this judgment in detail. Hon'ble Apex Court has held that onus of proof is on the propounder and the Court has to find out whether propounder has satisfactorily shown by the evidence that Will was signed by testator when testator at the relevant time was in sound disposing state of mind, that he understood the nature and effect of disposition and put his signature to the document of his own free will. The Hon'ble Apex Court has found that when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove sound disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. The Hon'ble Apex Court further found that there may be cases in which execution of Will may be surrounded by suspicious circumstances and presence of such suspicious circumstances require propounder to lead evidence to completely remove the same before the document is accepted as will of testator.
25. In : AIR2005SC52 Meenakshimmal(dead)through LRs and Ors. v. Chandrasekaran and another, the Hon'ble Apex Court has held that when plea of undue influence, forgery and coercion has been taken by any person against the Will, onus is upon such person to prove it and mere presence of motive and opportunity to the propounder for the same are not sufficient to infer it. There the Hon'ble Apex Court held that objectors did not discharge this onus.
26. Thus, consideration of rulings as above clearly shows that propounder has to establish sign of testator, his sound disposing state of mind, his understanding about nature and effect of disposition, putting of signature out of his own free will and attestation. The suspicious circumstances cannot be enumerated precisely or exhaustively and it would depend upon the facts of each case. If objector to the will proves such circumstances then propounder has to lead evidence & explain the same. Mere presence of motive and opportunity for playing fraud or exercising undue influence are not sufficient to draw any inference in this respect.
27. Though Bhaurao himself has not stated anything about the Will, in cross examination all questions were put to him about Will exh. 44 and he stated that it was not correct to say he got the Will written with the help of Advocate Deshmukh of Adilabad against the wish of his mother. Defendant-Indirabai in her examination-in-chief has not said anything about fraud or influence upon Rukhmabai by Bhaurao. Other witness examined by defendant is one Subhash, a cultivator and he was on other Will i.e. executed by deceased Balkrishna & not on Will of Rukhmabai. Thus, on behalf of defendant, there is absolutely no evidence about the Will executed by Rukhmabai. Only evidence therefore, available is that of Advocate Subhash Deshmukh. He has stated that he was practicing as Advocate since 19 years and he knew Rukhmabai as she was sister of his friend Waman. He has stated that he used to visit residence of Waman. In November 1978, Rukhmabai had visited the house of Waman and he met with her there. He has stated that she came there for seeing Wamanrao and her leg was fractured. Rukhmabai then expressed before him her desire to execute Will of her property in favour of her grandsons and accordingly, he did her work. Rukhmabai had shown him all documents of her property and as per her say, he drafted the Will in English language. He also stated that as Rukhmabai was not knowing English, he explained to her contents in Marathi. He further stated that she requested to get the Will deed registered and she placed her thumb impression on Will Deed in presence of Sub Registrar, Adilabad. He has stated that after Rukhmabai, Puri Ganpatrao and Ashareddy and he himself signed on the Will Deed as attesting witnesses. He has stated that they all signed over the Will Deed before the Sub Registrar and plaintiff Rukhmabai was with them at the office of Sub Registrar. He identified the said Will exh. 44 and also his signature. He stated that contents thereof are true and he identified Rukhmabai before the Sub Registrar. Thus from this evidence, it is apparent that he explained the contents of Will written in English to Rukhmabai in Marathi and upon her desire to have it registered, he got it registered also. He has stated that all of them were present before the Sub Registrar at same time and Rukhmabai made her thumb impression on Will in the Office of Sub Registrar and thereafter all of them signed on Will as attesting witnesses. This part of his evidence, therefore, clearly shows that he has stated that he saw Rukhmabai put her thumb impression on Will and then all of them have placed their signatures on it, in presence of Rukhmabai. Insofar as this putting of thumb impression by Rukhmabai or putting of sign by three persons on the Will is concerned, he has not been subjected to any cross examination, the cross examination is only in relation to language in which the Will was written and whether it was explained to Rukhmabai or not. It is therefore, obvious that the requirement of Section 63 (c) as pointed out & apparent from various judgments, stand satisfied in the present matter. Contention of Advocate Chavan that this evidence of Advocate Deshmukh is not sufficient to uphold such compliance is therefore without any merit.
28. This witness Shri Deshmukh, Advocate, has stated that all details & information was given to him by Rukhmabai in Marathi and he denied that Rukhmabai wanted him to write Will in Marathi language. He further stated that he did not remember the name of typist, who typed the Will Deed. The name of typist was not mentioned in the Will Deed. He stated that he had given rough draft of Will to Rukhmabai and he had made correction on the body of the Will before filing Will Deed before Sub Registrar. It has been registered after corrections. He stated that in the Sub Registrar's Office of Adilabad documents, which are written in Telgu and English are only registered. He further accepted that he has not written in the body of Will anywhere that he prepared draft Will Deed or that he explained the contents of Will in Marathi to Rukhmabai. He stated that Sub-Registrar was not knowing Marathi properly. The Sub Registrar did not explain contents of Will to Rukhmabai in Marathi. In cross, he stated that Sub Registrar directed him to explain the contents of Will to Rukhmabai in Marathi. From this evidence as also the evidence in chief mentioned, it is apparent that contents of Will were explained by this person to Rukhmabai. It is true that he does not say that Rukhmabai accepted those contents to be correct or true. But that by itself is of no help to present respondents because the thumb impression of Rukhmabai upon exh.44 has not been denied by them at all. It is, therefore, obvious that after contents were explained to her by Advocate Deshmukh as directed by Sub Registrar, Rukhmabai placed her thumb impression on the Will. This shows that she accepted the contents of the Will and therefore, placed her thumb impression on it. Corrections which Mr. Deshmukh has made in the Will are in hand writing and it only mentions the area expressed in acres converted into hectare in handwriting. The other corrections are only formal & does not in any way create any doubt about the desire or intention expressed by Rukhmabai in the said document. This witness has also stated in cross examination that Bhaurao was not present when Rukhmabai gave him details about the Will Deed and he was also not present at the time of registration of the Will Deed. He further stated that Rukhmabai never told him that there were disputes of civil nature regarding the property mentioned in the Will Deed. He denied that he wrote the Will at the instance of Bhaurao and Rukhmabai did not advise him for writing it. He denied that it was a false document. He further accepted that he attended the Court on advise of Wamanrao, who happened to be relative of Rukhmabai and Bhaurao.
29. The finding of lower Appellate Court that Rukhmabai posed herself to be owner of the suit property is already found to be incorrect. The plaint expressly pleaded that Rukhmabai was in sound disposing state of mind and though this was denied by defendant, any evidence about her unsound mind or state of mind was not brought on record by defendant. Though the defendant contended that the Will was obtained by fraud or coercion, defendant did not even in examination-in-chief deposed anything about the same. About personal interest of Advocate Deshmukh in the matter, nothing has been brought on record so as to discredit him. The document written in English was presented before the Sub Registrar and the person, who executed it (testatrix) has placed her thumb impression before the Sub Registrar upon it. It is obvious that Sub Registrar himself has ascertained about explaining all contents to Rukhmabai. When plaintiffs pleaded that Will was executed by Rukhmabai, it is obvious that they also pleaded that Rukhmabai signed the same after understanding the contents thereof. The circumstances found by the lower appellate Court about reading it over or explaining in Marathi language or about its understanding by Rukhmabai, therefore, have no existence and cannot be treated as suspicious circumstances. Not mentioning that the Will was explained to Rukhmabai cannot be viewed as fatal to the desire expressed by Rukhmabai. Not giving reference of Civil Suit in the said Will has also no importance. The lower Appellate Court has found that she had not disclosed suit in document and no proper explanation in that regard was coming on record. However, mentioning of civil suit in Will was neither necessary nor relevant. If Rukhmabai avoided to mention it, no objection can be taken to it. If Bhaurao had evil design, he would have definitely got it mentioned in ex.44. Execution of Will in Adilabad by Rukhmabai also cannot be termed as suspicious circumstances by itself. It appears that she had not disclosed the fact of Will to anybody else and it has come on record only after her death. From the contents in the Will, it appears that deceased Balkrishna had only daughters and she did not wish to give anything to daughters and therefore, she had given legal notice even before the execution of Will and before going to Adilabad for recovery of property from the defendant. In these circumstances, when the suit was already filed and was going on, if she thought it fit not to disclose the Will, that cannot be treated as suspicious circumstance. Though here deceased had valid reason to execute a Will, in law no special reason sufficient to prompt one to execute the Will is required to be proved. I, therefore, find that all the circumstances enumerated by lower Appellate Court as suspicious circumstances either individually or taken together do not satisfy character as 'suspicious circumstances'. I have already found that it was not necessary for plaintiff to plead in plaint that Will was attested in accordance with law. I, therefore, find entire application of mind in para 13 of its judgment by the Lower Appellate Court to be perverse & unsustainable.
30. In view of discussion as above, it is apparent that Rukhmabai executed the Will exh. 44, it was a legal and valid Will and also her last Will. The trial Court was therefore, justified in acting upon the said Will at exh. 44 and in decreeing the suit and the lower Appellate Court has erred by viewing the said Will as shrouded by suspicious circumstances. The lower Appellate Court has also committed an error by holding that Rukhmabai was not the owner of field Survey No. 60/2 i.e. suit property. As such, original Plaintiff Rukhmabai (deceased) & her legal representatives as per exh. 44 are entitled to decree for restoration of possession. In these circumstances, all substantial questions formulated above need to be answer in favour of present appellants and against present respondent.
31. Second Appeal is, therefore, allowed. Accordingly judgment dated 9/6/1992 delivered by 2nd Additional District Judge, Yavatmal in Regular Civil Appeal No. 29/1988 is hereby quashed and set aside. The judgment and decree dated 30/1/1988 delivered by Civil Judge(Jr.Dn.) Wani, in Regular Civil Suit No. 140/1978 is hereby restored. However, in the circumstances of the case, there shall be no order as to costs.
32. At this stage, Advocate Ingle seeks stay of this Judgment for a period of eight weeks. Request is being opposed by Adv. Chandurkar. Considering the fact that the position till today was in favour of present respondent, I am inclined to stay the operation and effect of this judgment till 25th June, 2008. The stay shall cease to operate automatically on 26th June 2008.