2011(2) ALL MR 812
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
R.M. SAVANT, J.
Smt. Shewantabai Wd/O. Vishwanathji Bhagat Vs. Arun S/O. Kisanji Bhagat & Anr.
Second Appeal No.450 of 2009
25th January, 2011
Petitioner Counsel: Shri. R. V. GAIKWAD
Respondent Counsel: Shri. G. G. MODAK,Shri. M. A. KADU
(A) Specific Relief Act (1963), S.6 - Succession Act (1925), Ss.59, 63 - Evidence Act (1872), S.68 - Suit for possession - Will executed by husband in favour of his nephew - Genuineness of Will questioned by wife - Plaintiff wife's evidence that scribe wrote Will as per instructions of her husband in her presence - Evidence of attesting witnesses and scribe proves execution of Will - Recitals indicate that husband was in healthy frame of mind while executing Will - No evidence of physical disability of husband - Recital that defendant to enter his name in revenue record was to get rid of responsibility as fast as possible - No coercion or undue influence in execution of Will by husband in favour of his nephew - Dismissal of suit of wife by First Appellate Court is liable to be upheld. 2005(5) ALL MR (S.C.) 166, AIR 1990 SC 396, 2007 ALL SCR (O.C.C.) 13 - Rel. on. AIR 1982 SC 133 - Ref. to. (Para 26)
(B) Specific Relief Act (1963), S.6 - Suit for possession - Husband gave away property to his nephew by executing Will - No evidence that plaintiff wife is dispossessed by nephew - Written statement says defendant is ready to look after plaintiff - Suit is liable to be dismissed - Judgment of First Appellate Court is liable to be upheld. (Para 31)
Smt. Indu Bala Bose Vs. Manindra Chandra Bose, AIR 1982 SC 133 [Para 18]
Daulat Ram Vs. Sodha, 2005(5) ALL MR 166 (S.C.)=2005(2) Mh.L.J. 170 [Para 18,26]
Kalyan Singh Vs. Smt. Chhoti, AIR 1990 SC 396 [Para 19,26]
H. Venkatachala Iyengar Vs. B. N. Thimmajamma, 2007 ALL SCR (O.C.C.) 13=AIR 1959 SC 443 [Para 20,24,26]
Babasaheb Yeshwant Anandrao Patil Vs. Smt. Manjulabai Balwant Gaikwad, 2001(2) ALL MR 574=2001(2) Mh.L.J. 945 [Para 21]
Jyoti w/o. Jagdish Singhai Vs. State of Maharashtra, 1979 Mh.L.J. 308 [Para 22,29]
JUDGMENT :- The above Second Appeal was placed for admission on 1st December, 2009 when this Court had issued direction that the Second Appeal would be disposed of at the stage of admission after the then ensuing Christmas Vacation. It is in terms of the said order that the above Second Appeal is being heard and finally disposed of.
2. The above Second Appeal challenges the judgment and decree dated 11th August, 2009 passed in Regular Civil Appeal No.181/2005 by which the judgment and decree passed by the Trial Court in Regular Civil Suit No.258/2002 allowing the said suit came to be set aside and the suit came to be dismissed.
(i) Whether the First Appellate Court could enforce the Will (Ex.48) in question which clearly stipulates that the same would come into force only after the death of husband and wife ?
(ii) Whether in the absence of any pleading and evidence indicating the reasons for depriving the wife of the suit property who was issueless, a strong suspicious circumstance arose against the genuineness and validity of the Will ?
4. However, in view of the fact that the issue relates to the genuineness and bonafides of a Will, the learned counsel for the appellant i.e. original plaintiff was also allowed to raise some other points, which would be referred to in the body of this judgment.
The respondent herein is the original plaintiff, who had filed Regular Civil Suit No.258/2002 for declaration, mandatory injunction and possession of land. The suit property bears field Survey no.79 and house bearing Grampanchayat no.73 at mouza Jaipur, Tahsil Seloo, District Wardha. The description of the field as well as boundaries of the house have been given in the plaint. The plaintiff is the wife of one Vishwanath Bhagat. The agricultural field as well as the house was of the ownership of said Vishwanath Bhagat, who died on 10.12.2001 at Jaipur Tahsil Seloo, District Wardha.
6. It was the case of the plaintiff Shevantabai that her husband was sick and bed-ridden and that the defendant no.2, who is a distant nephew took undue advantage of the condition of the said Vishwanath and in the guise of taking him to the Primary Health Centre for treatment on 30.10.2001 took him to the Sub-Registrar's office, Seloo and got executed the Will Deed in his favour from the said Vishwanath. It is further the case of the plaintiff that the defendant no.2 Arun took forcible possession of the suit field and the house and hence she was constrained to file the said suit for declaration, injunction and possession.
7. The defendant no.2 filed his written statement and it was his case that he was in the army and that the said Vishwanath was his uncle. It is further his case that after he retired from the army he was taking care of his uncle and the said uncle Vishwanath, out of love and affection, executed the Will in his favour dated 30.10.2001. It was his case that the plaintiff Shevantabai herself was present with her husband before the scribe when the said Will was written as well as before the Sub Registrar where the said Will Deed was registered. It was further his case that in terms of the said Will Deed, he is ready to maintain the plaintiff at his house. However, the plaintiff has chosen to take shelter of her brother. He denied the claim of the plaintiff that the said Will suffers from any of the vices mentioned in the plaint and, therefore, sought dismissal of the suit. The Trial Court, on the basis of the pleadings of the parties, framed four issues. From the point of view of the present controversy, Issue nos. 1 and 2 are relevant and are extracted herein below :
1] Whether plaintiff proves that defendant no.2 has illegally forcefully dispossessed her ?
2] Whether defendant no.2 proves that Will Deed 30.11.2001 is legal and free from all doubts ?
8. The Trial Court, by its judgment and order dated 28.11.2005 decreed the suit and issued declaration that the Will dated 31.10.2001 is void and directed the defendant no.2 Arun to deliver possession of the suit property to the plaintiff and also directed that the defendant shall bear expenses of proceedings for himself and the plaintiff.
9. A perusal of the judgment and order of the Trial Court does not make a happy reading. The Trial Court in view of the lis between the parties as regards the genuineness of the Will Deed was required to weigh the evidence adduced by the parties, by sifting the evidence and draw its own conclusions. However, as can be seen from the judgment and order of the Trial Court, the same is very cryptic and does not weigh or sift the evidence in any manner. The Trial Court, as the judgment and order discloses was merely swayed by the fact that the plaintiff, who is the wife of Vishwanath was disinherited, the Trial Court did not record any finding worth the name, to support its conclusion. The Trial Court merely went by the factum that the plaintiff was disinherited.
10. Being aggrieved by the judgment and order of the Trial Court dated 20.11.2005 the defendant no.2 Arun filed Regular Civil Appeal No.181/2005. Considering the manner in which the Trial Court had disposed of the suit, the Appellate Court thought it fit to consider and weigh the evidence adduced by the parties in the above suit. The Appellate Court framed two issues, which are relevant for deciding the Second Appeal and which are extracted herein below :
(1) Whether the plaintiff proves the Will Deed dated 30.11.2001 vide Exh.48, in favour of defendant no.2 is illegal, bogus, fraudulent and not binding on her ?
(2) Whether the defendant no.2 proves the genuineness of Will of Vishwanath dated 30.11.2001 vide Exhibit 48 and the same is free from all suspicion ?
25th January, 2011 :
11. The First Appellate Court went threadbare into the evidence on record. The First Appellate Court considered the evidence of each of the witnesses on the either side in respect of the case of the plaintiff that the Will Deed dated 30.10.2001 is illegal, bogus and fraudulent and not binding on the plaintiff. The First Appellate Court also considered the evidence in respect of the case of the defendant as regards the genuineness of the Will dated 30.11.2001. On such appreciation of the evidence, the First Appellate Court answered the said Issue no.1 against the plaintiff and Issue no.2 in favour of defendant no.2 Arun.
12. It is pertinent to note that the First Appellate Court considered the evidence of the plaintiff. The plaintiff had deposed that on the instructions of Vishwanath the scribe had written the Will in her presence and that the said Vishwanath had put his thumb impression on the Will and the attesting witnesses had accordingly put their signatures on the Will. She has further stated that the Will was executed by Vishwanath in favour of defendant no.2 as he had taken his care till his death. The Appellate Court considered the evidence of the attesting witnesses and came to the conclusion that the execution of the Will by the said Vishwanath was duly proved. As regards the genuineness of the Will, implicit in which is the fact as to whether the said Vishwanath was in a position to execute the Will. The Appellate Court considering the evidence on record which evidence included the evidence of one Dr. Sanjay (PW 5) the witness for the plaintiff, reached the conclusion that said Vishwanath could not be said to be debilitated in any manner from executing the Will.
13. Insofar as the aspect of undue influence is concerned, the First Appellate Court was of the view that except the bare words of the brother of the plaintiff one Ishwar as also the words of the plaintiff, no independent material was brought on record so as to draw an inference that the said Will was executed by said Vishwanath on account of undue influence. The First Appellate Court, therefore, recorded a finding that merely because the plaintiff was disinherited the Will could not be said to be suspicious. The First Appellate Court was of the view that the law does not prohibit the testator to execute the Will in favour of a person, who is not a member of the family. The First Appellate Court on all the aforesaid aspects recorded findings on the basis of the evidence both oral and documentary, which was on record. The First Appellate Court, therefore, set aside the decree and dismissed the suit filed by the plaintiff.
15. The said Will opens with the words that "testator has become old and is not sure as to what will happen tomorrow". It further goes on to state that the said Will is being executed today as the testator is in proper frame of mind and is in a proper health. It further goes on to state that nephew of the testator Shri. Arun Bhagat, who is an ex-serviceman, after his retirement is looking after the testator and his wife and he is looking after them in a proper manner. It also states that he is cultivating the agricultural land in question and since he is the only person on whom the testator and his wife can rely upon the testator and wife have decided that he would be their heir and that till the end would not leave them. Thereafter description of the agricultural land as well as the house property is mentioned and that below the description of the property, the testator has stated that the above property has been given by Will in favour of the said nephew and the same has been done as per his wish and with the concurrence of his wife. Thereafter it is stated in the said Will that after the death of the testator, the said Arun may get the agricultural field and the house property recorded in his name and may utilise the same for his benefit. It is undisputed that the said Will was registered before the Sub-Registrar, Seloo on 30.10.2001.
17. On behalf of the appellant, it is contended by the learned counsel Shri. Gaikwad that in terms of the said Will, it is to take effect after the death of both testator and the plaintiff. The learned counsel relied upon the statement of the testator in the Will to the effect that said Arun would become their heir after his death and his wife's death. The learned counsel would further contend that later part of the Will namely that said Arun was entitled to get the said revenue entries changed in his name was a stereotype recital in the Will, which according to him, finds the place in many of the Wills that are executed.
The learned counsel relying upon Section 82 of the Indian Succession Act would contend that the clauses in the Will would have to be given their proper meaning in the context of the other clauses in the Will, and all its parts would further have to be construed with reference to each other. According to the learned counsel if so construed, the latter part of the Will whereby the testator wants Arun to get the property mutated in his name cannot be given effect to, till the death of the plaintiff.
18. The learned counsel would contend that the burden of proving the genuineness is on the propounder of the Will, which in the instant case, according to him, the defendant no.2 has not discharged. The learned counsel relied upon para 7 of the judgment of the Apex Court reported in AIR 1982 SC 133 (Smt. Indu Bala Bose and others Vs. Manindra Chandra Bose and another), which is reproduced hereunder :
"7. This Court has held that the mode of proving a will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a Will by S.63 of the Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the Will to show that the testator's mind was not free. In such a case the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations. (See AIR 1964 SC 529, 1959 Suppl (1) SCR 426; (AIR 1959 SC 443) & (1962)3 SCR 195; (AIR 1962 SC 567)."
The learned counsel further relied upon the judgment of the Apex Court reported in 2005(2) Mh.L.J. 170 : [2005(5) ALL MR 166 (S.C.)] (Daulat Ram and others Vs. Sodha and others). Para 10 which is material is reproduced hereunder :
"10. Will being a document has to be proved by primary evidence except where the Court permits a document to be proved by leading secondary evidence. Since it is required to be attested, as provided in section 68 of the Indian Evidence Act, 1872, it cannot be used as evidence until one of the attesting witnesses at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence. In addition, it has to satisfy the requirements of section 63 of the Indian Succession Act, 1925. In order to assess as to whether the Will has been validly executed and is a genuine document, the propounder has to show that the Will was signed by the testator and that he had put his signatures to the testament of his own free Will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence of two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But where there are suspicious circumstances, the onus is on the propounder to remove the suspicion by leading appropriate evidence. The burden to prove that the Will was forged or that it was obtained under undue influence or coercion or by playing a fraud is on the person who alleges it to be so."
19. Learned counsel further submitted that since the wife of Vishwanath in the instant case was disinherited, the said fact itself is a ground for suspicion and relied upon the judgment of the Apex Court reported in AIR 1990 SC 396 (Kalyan Singh Vs. Smt. Chhoti and others). Paragraph 22 of the said judgment is material according to learned counsel, the same is, therefore, reproduced here in under :
"The Privy Council in Mt. Biro Vs. Atma Ram, AIR 1937 PC 101 had an occasion to consider an analogous case where the wife was practically disinherited and there was unexplained delay in producing the Will in public. There the alleged Will by a testator gave only a life estate to his daughter who was the only child and who was to get some property at her marriage. The bulk of the estate was vested in the widow of the testator and three other women, namely his mother, his step-mother and his paternal aunt. These women though entitled under the Hindu Law only to maintenance were made joint owners equally with the widow of the testator. None of the devisees could get the estate partitioned or alienate it for necessity. It was however, provided that the lady, who survived the other three devisees, would become the absolute owner of the estate. The widow of the testator would not get her husband's estate, if she predeceased any of her co-devisees. The Will was not produced until 22 years after its execution though there were occasions to produce it, had it been in existence. Considering these circumstances, the Privy Council observed (at p.104) :
"It is most unlikely that a person having a wife and a minor unmarried daughter, who should be the objects of his affection, would make a Will which would practically disinherit them.
That the testament is unnatural and runs counter to the ordinary sentiments of persons, having a status in society similar to that of Harbans Lal, cannot be seriously disputed. But it is strange that it was not produced until 1922, after the commencement of the present litigation. During this long period of 22 years, which intervened, there were occasions when the widow or her advisers could have produced the document, if it had been in existence; but they did not do so..."
The Will in the present case, constituting the plaintiff as a sole legatee with no right whatever to the testator's wife seems to be unnatural. It casts a serious doubt on genuineness of the Will. The Will has not been produced for very many years before the court or public authorities even though there were occasions to produce it for asserting plaintiff's title to the property. The plaintiff was required to remove these suspicious circumstances by placing satisfactory material on record. He has failed to discharge his duty. We, therefore, concur with the conclusion of the High Court and reject the Will as not genuine." (emphasis supplied)
20. The learned counsel also submitted that the Will has to be proved in accordance with certain tests, which have been laid down by the Apex Court and such tests, according to him, are enunciated in the judgment of the Apex Court reported in AIR 1959 SC 443 : [2007 ALL SCR (O.C.C.) 13] (H. Venkatachala Iyengar Vs. B. N. Thimmajamma and others). Paragraph Nos.18, 19, 20, 21 and 22 of the said report are material and are reproduced herein under :
"18 : "What is the true legal position in the matter of proof of Wills ? It is well known that the proof of Wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68, Evidence Act are relevant for this purpose. Under S.67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Ss.45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, Ss.59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by Will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign and affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will. This section also requires that the Will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the Will set up by the propounder is proved to be the last Will of the testator has to be decided in the light of these provisions. Has the testator signed the Will ? Did he understand the nature and effect of the dispositions in the Will? Did he put his signature to the Will knowing what it contained ? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by S.63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
19 : However, there is one important feature which distinguishes Wills from other documents. Unlike other documents the Will speaks from the death of the testator, and so when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his Will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and testament of the departed testator. Even so, in dealing with the proof of Wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free Will. Ordinarily when the evidence adduced in support of the Will is dis-interested, satisfactory and sufficient to prove the sound and 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. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
20 : There may, however, be cases in which the execution of the Will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the Will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the Will may otherwise indicate that the said dispositions may not be the result of the testator's free Will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last Will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the Will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free Will in executing the Will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.
21 : Apart from the suspicious circumstances to which we have just referred in some cases the Wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the Wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the Will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the Will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with Wills that present such suspicious circumstances that decisions of English Courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical Courts in England when they exercised jurisdiction with reference to Wills; but any objection to the house of the word 'conscience' in this context would in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the Court is the last Will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.
22 : It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on Wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may however, be stated generally that a propounder of the Will has to prove the due and valid execution of the Will and that if there are any suspicious circumstances surrounding the execution of the Will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes Vs. Hinkson, 50 Cal.W.N. 895 : (A.I.R. 1946 PC 156) where a Will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredibility. He is never required to close his mind to the truth. It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect."
21. The learned counsel further submitted that the Will in terms of Section 61 of the Indian Succession Act if obtained by fraud, coercion or importunity is void. The learned counsel submitted that in the instant case defendant no.2 was persistently nagging the testator Vishwanath to execute the Will in question and, therefore, the execution of the Will suffers from importunity. The learned counsel submitted that in view of the fact that probate has not been obtained by defendant no.2, he could not succeed to the property in question and, therefore, the entries made in favour of defendant no.2 Arun in the revenue record in respect of the agricultural field as well as house property was of no avail.
For the said purpose, the learned counsel relied upon the judgment of a learned Single Judge of this Court reported in 2001(2) Mh.L.J. 945 : [2001(2) ALL MR 574] (Babasaheb Yeshwant Anandrao Patil Vs. Smt. Manjulabai Balwant Gaikwad). The said case concerns the legatee of a second wife who was seeking to contest the proceedings initiated by the first wife of the deceased to obtain letters of administration which proceedings were pending before the learned Civil Judge, Senior Division, Kolhapur. In the said context it has been held that the said legatee of the second wife could participate in the proceedings only after she obtains the letters of administration, which would be indicative of the interest she has in the estate of the testator.
The learned counsel lastly contended that the First Appellate Court has erred in setting aside the decree passed by the Trial Court.
22. Per contra, it is submitted by Shri. Modak that the judgment of the Trial Court being cryptic in nature without weighing the evidence on record the First Appellate Court in the Appeal filed by defendant no.2 was required to weigh the evidence and on such appreciation of the evidence, the First Appellate Court has recorded the findings as regards the execution of the Will, as also that the Will does not suffer from any of the vices that have been alleged by the plaintiff. The learned counsel relying upon the Will Deed submitted that recitals in the said Will Deed are indicative of the fact that the testator was in a proper frame of mind at the time of execution of the said Will as the recitals therein are such recitals which a person with a free Will and mind would incorporate in a Will. The learned counsel for the respondent Shri. Modak submitted that the evidence on record adduced by the defendant no.2 i.e. propounder is such that there is no cause for casting any suspicion on the Will. Insofar as the issue of probate is concerned, learned counsel Shri. Modak drew my attention to the judgment of a learned Single Judge of this Court reported in 1979 Mh.L.J. 308 (Jyoti w/o. Jagdish Singhai Vs. State of Maharashtra). The said judgment concerns the Vidarbha region and it is held in the said judgment that the probate of a Will is to be obtained in respect of the properties which are situated within the limits of the original jurisdiction of the Charter High Courts namely Bombay, Kolkata and Madras. Paragraphs 3 and 4 of the said judgment are relevant and reproduced hereunder :
"3. There is no dispute that Padmabai, the executant of the Will, was a Hindu. Now sub-section (1) of section 213 of the Act provides that no right as executor or legatee can be established in any Court of justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which right is claimed or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed. It would thus appear that if an executor or legatee claims anything under a Will, he has to obtain a probate or letter of administration, if he wants to establish his right in any Court of Justice. However, this general provision contained in sub-section (1) of section 213 is subject to certain exceptions which are laid down in sub-section (2) of that section. Sub-section (2) provides that section 213 shall not apply in case of Wills made by Mohammadans but it shall apply only in case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in clauses (a) and (b) of section 57. For the purpose of this revision application it is not necessary to consider clause (ii) of sub-section (2) of section 213. It would, therefore, be clear that section 213 or for the matter of that sub-section (1) of section 213 will apply in the case of a Will executed by a Hindu only if such a Will is governed by the provisions of clauses (a) and (b) of section 57 of the Act. We have, therefore, to see if the Will in question in this case is of any of the classes specified in clauses (a) and (b) of section 57 of the Act.
Section 57 is in the following terms :
"57. The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply -
(a) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and
(b) to all such Wills and codicils made outside those territories and limits so far relates to immoveable property situate within those territories or limits; and
(c) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b) :
Provided that marriage shall not revoke any such Will or codicil."
Now clause (a) applies to the Wills executed by Hindus amongst others on or after the first day of September, 1870 within the territories mentioned therein. It would appear that clause (a) would apply to Wills relating to moveable as well as immoveable properties situated within the territories mentioned in the clause, provided the Will is executed by a Hindu, Buddhist, Sikh or Jaina after the first day of September, 1870. Clause (b) governs Wills executed by a Hindu, Buddhist, Sikh or Jaina on or after first day of September, 1870 outside the territories mentioned in clause (a) only if such a Will relates to immoveable property situated within those territories. In other words, if a Hindu, Buddhist, Sikh or Jaina executes a Will after the first day of September, 1870 at a place outside the territories mentioned in clause (a) but in respect of immoveable property situated within those territories, then such Wills would be governed by clause (b). However, if a Hindu, Buddhist, Sikh or Jaina makes a Will after the first day of September, 1870 outside those territories in respect of properties moveable or immoveable situated outside those territories, then obviously such a Will would not be governed by clause (b). Such a Will, it appears, would be governed by clause (c), if it is executed on or after the first day of January, 1927. This is sum and substance appears to be the scheme of section 57 of the Act and particularly clauses (a) and (b) thereof."
"4. Now there does not appear to be any dispute that the Will has been executed at Akola which certainly and obviously is outside the territories and limits specified in clause (a) of section 57. Again as already stated above, the Will has been executed on 11th April, 1974, i.e. on or after the first day of January, 1927. On these facts, therefore, there is no difficulty in holding that the present Will is not at all governed by the provisions of either clause (a) or clause (b) of section 57 but would fall under the provisions of clause (c) of section 57. If that is so, this is a Will which is not covered by clause (i) of sub-section (2) of section 213 of the Act and hence it Will be outside the purview of sub-section (1) of section 213. Consequently it would not be necessary for the applicant to obtain a probate of the Will in order to establish her right under it as a legatee. In this connection reference may be had to the decisions in Mst. Janki Bai Vs. Durga Prasad, Shrimati Pevibai Vs. Motulal, Sohan Singh Vs. Bhag Singh, Ahemad Vs. Ghisia and Ruprao Vs. Ramrao."
The learned counsel would contend that considering the findings recorded by the Appellate Court on a exhaustive consideration of the evidence on record, the decree passed by the Appellate Court needs no interference at the hands of this Court in the above Second Appeal.
24. As can be seen from the judgment of the Apex Court in H. Venkatachala Iyengar's case [2007 ALL SCR (O.C.C.) 13] (supra) the Apex Court has laid down the tests that a propounder of a Will would have to satisfy to prove the genuineness of the Will. It is on the touchstone of the said tests which have been laid down by the Apex Court that the issue would have to be considered. The genuineness of the Will touches both the questions of law which have been framed in the instant Second Appeal.
25. In the said context it is relevant to note that the plaintiff had examined as many as five witnesses and the defendant had examined four witnesses which includes the attesting witnesses and the scribe. The Appellate Court as can be seen rightly framed issue nos.1 and 2 on the basis of the pleadings of the parties.
26. Insofar as the Issue no.1 was concerned, the First Appellate Court on consideration of the evidence adduced by the plaintiff on record came to the conclusion that the Will could not be said to have been executed on account of coercion or undue influence as was the allegation made by the plaintiff. The First Appellate Court, as can be seen from the findings recorded considered the recitals in the said Will Deed and considered the evidence which was adduced on behalf of the plaintiff, which according to it was lacking, to substantiate the allegation of coercion or undue influence in the execution of the Will. Insofar as the genuineness of the Will is concerned, the First Appellate Court on the basis of the evidence of the plaintiff herself where the plaintiff in terms has said that the scribe had written the Will on the basis of instructions of her husband Vishwanath and that she was sitting by his side. The First Appellate Court has further held on the basis of the evidence on record that Vishwanath had put his thumb impression on the said Will Deed. As also considering the evidence of the other witnesses namely two attesting witnesses to the Will and the scribe came to the conclusion that the execution of the Will could not be doubted. For the sake of repetition, it is required to be stated that the plaintiff has herself stated that the instructions for drafting the Will were given by the said Vishwanath to the scribe and that she was sitting by his side. The plaintiff's own evidence spells out her consent to the contents of the Will. There was absolutely no material on record as rightly observed by the First Appellate Court to show that the said Vishwanath was suffering from any physical disability to execute the Will. There is absolutely no iota of evidence to show that the Will was executed by the said Vishwanath on account of persistent nagging of the said Arun or that the said Will was executed by him on account of the said Vishwanath being at the mercy of the said Arun as he was looking after him and his wife. In fact, the recitals of the said Will speak otherwise and can be said to indicate the proper and healthy frame of mind in which the said Vishwanath was at the time of the execution of the Will. The recitals in the said Will are recitals which a person of the age of Vishwanath would normally incorporate in his Will. The defining aspect of the said Will is that Vishwanath has accepted the fact that Arun was looking after them and that there was no other person, who was taking care of them. The testator Vishwanath, therefore, had expressed his desire that said Arun would be the heir of the testator and his wife after their death. The recital in the Will that Arun would be entitled to get his name incorporated in the revenue record after the death of testator also is normal in view of the fact that person of that age may want to rid himself of the responsibility as fast as possible so that his property is looked after his death. It is required to be borne in mind that the plaintiff was also around 65 years of age at the time when the said Will was executed and, therefore, there was all the more reason for the said Vishwanath to incorporate the recital that the said Arun would get the property mutated in his name after his death. In my view, considering the evidence adduced on behalf of the propounder of the Will, Arun and also taking into consideration the recitals in the Will, the tests laid down by the Apex Court in the judgments in the case of H. Venkatachala Iyengar Vs. B. N. Thimmajamma and others [2007 ALL SCR (O.C.C.) 13]; Daulat Ram and others Vs. Sodha and others [2005(5) ALL MR 166 (S.C.)] and Kalyan Singh Vs. Smt. Chhoti and others (supra) can be said to have been satisfied.
27. Insofar as the submission of learned counsel for the appellant that the words in the Will have to be given their proper meaning in the context of the other parts of the Will and therefore if so construed the clause whereby the testator wants Arun to get the property mutated in his name cannot be given effect to. In my view, the said submission cannot be countenanced the said part of the Will is clear and unambiguous, that apart, it is required to be borne in mind that ultimately, the desire of the testator has to be given its full effect and meaning and, therefore, that part of the Will would in fact would also have to be given its full meaning and therefore the said Arun would be entitled to get his name mutated in the revenue record.
28. Insofar as submission of the learned counsel for the appellant that since the Will suffers from importunity apart from suffering from coercion and undue influence, the same is void. In my view, there is no merit in the said submission. The First Appellate Court on the basis of the evidence on record has reached to the conclusion that the defendant no.2 who is the propounder of the Will has proved its genuineness by leading cogent evidence.
29. The submission of the learned counsel that in the absence of probate of the Will being obtained by defendant no.2 Arun, he could not have succeeded to the property in question cannot be countenanced in view of the authoritative pronouncement of a learned Single Judge of this Court in Jyoti's case (supra) which case related to the Vidarbha region itself and would therefore apply in the facts of the present case.
30. As can be seen from the record of the proceedings, the Trial Court has decreed the suit without weighing the evidence on record by merely relying upon the fact that the wife was disinherited. The Appellate Court on appreciation of the evidence on record has held against the plaintiff on the two issues reproduced herein above.
31. Insofar as the aspect of dispossession of plaintiff is concerned, the First Appellate Court has recorded a finding that the evidence on record does not indicate that the plaintiff has been so dispossessed. In fact, in the written statement of the defendant no.2 he has clearly stated that he is ready to look after the plaintiff. The Appellate Court after appreciating the evidence on record has come to the conclusion that the suit has been filed by the plaintiff at the instigation of her brother and that the plaint was also drafted on his instructions. The First Appellate Court, therefore, was of the view that the architect of the suit as filed, was the brother of the plaintiff.
32. It appears that during the pendency of the above Second Appeal, a learned Single Judge of this Court had directed the parties to explore the possibility of settling the matter in view of the relations between the parties. Pursuant to the said direction, the learned counsel for defendant no.2 had offered that the defendant no.2 is ready and willing to allow the plaintiff to stay in the house and that he would look after her or in the alternative he is ready and willing to pay her Rs.3,000/- per month, out of the income which he is deriving out of the agricultural property. Both the offers seem to have been turned down by the plaintiff. This Court in the course of the hearing, had also inquired from the learned counsel for the appellant/plaintiff whether she is desirous of going back to the house and for being looked after by the said Arun or in the alternative ready to accept the offer made by the learned counsel for the defendant no.2 of payment of an amount on a monthly basis. The learned counsel for the appellant/plaintiff on instructions of his client has communicated the disinclination of the plaintiff to accept the same. The aforesaid fact, therefore, gives rise to a suspicion that some one else other than the plaintiff is pulling the strings from behind the curtain. The finding of the First Appellate Court, therefore, on that respect can be said to be justified.
33. Be that as it may, since the Will being a solemn document and being the last Will and testament of the testator, if the plaintiff so desires, she can go back to the house of Arun and reside with him, as Arun is under an obligation to take her care till she is alive.
34. In view of what has been stated herein above, the questions of law stand answered accordingly. In my view, there is no merit in the Second Appeal, which is accordingly dismissed. The parties to bear their own costs.